HomeMy WebLinkAboutresolution.council.011-14 RESOLUTION #I I
(Series of 2014)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A LEASE BETWEEN THE CITY OF ASPEN AND
RED MOUNTAIN GRILL RESTAURANT LLC, AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID LEASE ON BEHALF OF THE CITY OF
ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a lease for the
Aspen golf club restaurant, between the City of Aspen and Red Mountain Grill
Restaurant LLC, a true and accurate copy of which is attached hereto as Exhibit I.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that lease for
the Aspen golf club restaurant, between the City of Aspen and Red Mountain Grill
Restaurant LLC, a copy of which is annexed hereto and incorporated herein, and
does hereby authorize the 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 24' day of February 2014.
r
Steven Skadron, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held February 24, 2014.
Kat`ryn S. Koch, City Clerk
Golf Club Restaurant Lease
Page 1
LEASE AGREEMENT
ASPEN GOLF CLUB RESTAURANT LEASE
2014-2019
THIS LEASE AGREEMENT is made and entered into this� day of y7z\cx� ,
2014 by and between The City of Aspen, 130 South Galena Street, Aspen, Colorado 81 @11
("Landlord") and Red Mountain Grill Restaurant LLC, 1000 Truscott place, Aspen, Colorado
81611 ("Tenant").
WITNESSETH:
WHEREAS, Landlord is the lessee of the real property and all of the improvements
thereon, known as Aspen Golf Shop and Restaurant Facility, located in Pitkin County, Colorado;
and,
WHEREAS, Landlord desires to rent the Leased Premises, consisting of approximately
2,043 square feet (restaurant/bar area 1,190 square feet, kitchen/prep/storage 853 square feet,)
and shared common areas of approximately 980 square feet (men's room 132 square feet,
women's room 165 square feet, mechanical area 200 square feet and lounge foyer 483 square
feet) as delineated on Exhibit A attached hereto and incorporated herein and referred to herein as
the "Leased Premises", in accordance with the terms and conditions contained in this Lease
Agreement; and,
WHEREAS, Landlord represents to Tenant that the zoning applicable to the Leased
Premises permits the intended uses of the property as set forth herein; and,
WHEREAS, Tenant desires to lease from Landlord the Leased Premises in accordance
with the terms and conditions contained in this Lease Agreement.
NOW, THEREFORE, for and in consideration of the payments to be made hereunder,
and in further consideration of the terms, conditions, covenants and mutual promises contained
herein, the parties hereto agree as follows:
1. Lease of Premises. Landlord does hereby rent to Tenant the following described
premises, subject to the covenants and conditions hereinafter contained, to wit:
(a) That portion of Aspen Golf Shop and Restaurant Facility, Pitkin
County, Colorado, delineated and outlined in red on Exhibit A attached
hereto and incorporated herein; and
(b) City owns 1 food and beverage cart that will be used by the
restaurant. Maintenance of the food and beverage carts will be
performed by the restaurant operator. It is agreed that the cart is in
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working condition. Space to store beverage cart shall be made available
by Landlord in the newly constructed cart barn located on the Municipal
Golf Course. (A second space shall also be made available in a location
to be decided by Landlord based on space availability.)
(c) The use of the Municipal Golf Course for the sole purpose of
operating a food and beverage cart service as outlined in Section 5,
below.
for the term, at the rents, and upon the conditions and covenants hereinafter set forth. Except as
outlined in Section 2, below, taking possession of the Leased Premises by Tenant shall constitute
acknowledgment that such premises are in working condition and Landlord shall not be required
to make any alterations thereto, unless agreed to in advance and in writing by the City of Aspen
and Landlord.
2. Equipment, Fixtures and Finishes Provided by Landlord and Tenant.
Landlord has provided kitchen equipment, indoor furniture, outdoor furniture, one
beverage cart, POS system, and other related equipment for the restaurant operation outlined in
Exhibit B. All items of equipment and fixtures set forth at Exhibit B shall be maintained in
good working order by Tenant, at Tenant's own cost and expense, and shall be returned to the
Landlord upon termination of this Lease Agreement in the same condition as when accepted by
Tenant, ordinary wear and tear excepted. If the equipment or fixture is determined to be fully
depreciated, Tenant shall neither be required to purchase a new piece of equipment or fixture nor
shall Landlord be obligated to replace the fully depreciated equipment. Tenant shall operate the
equipment and fixtures in accordance with any operational manuals supplied by the equipment or
fixture manufacturer.
3. Term. Unless sooner terminated, as provided herein, the term of this Lease
Agreement shall be for a period of five (5) years. The lease term shall commence at 12:00 noon
on April 20, 2014, and shall expire at 12:00 noon on October 30th, 2018. A Lease Year shall be
the period of 12:00 noon on April 20 of one calendar year (or the initial lease period in 2014)
through 12:00 noon on October 30 of the following calendar year. Tenant's occupancy of the
Leased Premises during this term shall be limited by paragraph 4, below. If Tenant is not in
substantial default of the terms of this Agreement Tenant shall have the right to renew this
Agreement for an additional period of five years. Substantial default for purposes of this section
shall mean and include all instances of a purported default identified by Landlord in writing to
Tenant and which has not been cured within a reasonable period of time by Tenant. Renewal
discussions to determine the rental rates in accordance with Section 11(b), below, shall
commence no later than July 30, 2018 and conclude no later than September 30, 2018.
4. Occupancy of the Leased Premises. Tenant shall be entitled to occupy the Leased
Premises throughout the term of the lease; provided, however, that Tenant uses the premises as
set forth in Paragraph 5 below, and all other terms and conditions of this Lease Agreement.
Golf Club Restaurant Lease
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Tenant and Tenant's employees at the Leased Premises shall be entitled to golf course and tennis
court privileges and cart usage for free, whenever such play is available. The parties agree to
meet on the Leased Premises within one week of either parry requesting such a meeting to
discuss Tenant's performance and any other issues relating to the terms and conditions of this
Lease Agreement.
5. Permitted Uses and Required Performance Standards. The parties hereto
recognize and acknowledge that the construction of the Aspen Golf Shop and Restaurant Facility,
including the Leased Premises, by Landlord was done, in part, to create a restaurant facility that
caters to the customers and users of the Aspen Municipal Golf Course, tennis facilities, winter
nordic skiing trails, and other related recreational facilities at the Municipal Golf Course. Tenant
recognizes that a major and important consideration inducing Landlord to rent the Leased
Premises to Tenant is the operation of a high quality restaurant and concession business offering
food and liquor services to the customers and users of the recreational facilities at the Aspen
Municipal Golf Course. Accordingly, Tenant agrees to the following minimum standards of
operation and uses of the Leased Premises:
(a) Summer golf season — Restaurant Services. Tenant shall operate the
restaurant facility seven days a week between May 1 and October 151' of each calendar
year. The hours of operation of the restaurant facility shall be, at a minimum, between the
hours of 8:00 am and 6 pm. Notwithstanding the previous sentence, Tenant shall provide
coffee service no later than fifteen (15) minutes prior to the first tee time of each day.
Coffee service shall include regular and de-caffeinated coffees, hot water for tea and
cocoa. Before each summer season, the parties shall meet and agree upon a menu of
foods that shall constitute a minimum level of food service offered by Tenant to its
customers. Liquor service shall include, at a minimum, at least five brands of beer, three
types of wine, and a full service bar of hard liquor. A copy of the 2014 proposed menu is
appended hereto as Exhibit D. In addition, before each summer season, the parties shall
agree to the contents of a customer survey instrument to be used by the City to determine
customer satisfaction of the restaurant facilities. Tenant agrees to take all steps reasonably
necessary to achieve a minimum level of service wherein a minimum of 90% of all
customers surveyed indicate a satisfaction level of "Good" or better on a scale that
includes "Excellent, Good, Poor or Unacceptable" as alternative responses. If level is
below 90% leaseholder shall have the opportunity to improve the level of satisfaction
through the next survey period. The survey instrument for the 2014 summer season is
appended hereto as Exhibit F. Customers shall be permitted to pay for food service either
in cash or credit card. All prices charged at the restaurant and vending machines shall be
approved by Landlord which approval shall not be unreasonably withheld. Tenant
acknowledges that speed of play at a golf course operation is important to Landlord and
accordingly, shall endeavor to provide quick food service to golfing customers going
from the ninth green to the tenth tee and golfers purchasing goods from the golf cart.
During the hours of operation for golfing customers and while on duty, employees of the
golf and tennis departments of the Landlord shall receive a 15% discount on all food (but
not alcohol) service.
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(b) Summer golf season—Beverage Cart Services. Tenant shall operate a food
and beverage (including liquor service with a minimum of two brands of beer and hard
liquor service) cart service for patrons playing golf. This service shall, at a minimum, be
available seven days per week between May 15 and September 15 of each calendar year
from the hours of 10:00 am to 4:00 pm, inclement weather excepted. The service shall be
provided by at least one beverage cart to be provided by Tenant. Tenant may use a second
cart in Tenants sole discretion. All prices charged from the food and beverage cart(s) shall
be approved by Landlord which approval shall not be unreasonably be withheld. Landlord
shall ensure that service personnel operating the beverage cart show courtesy and
professionalism to the golfing customers and shall wear proper attire at all times.
(c) Vending machines. Tenant shall have the exclusive right to place vending
machines within the Aspen Municipal Golf Course property. Landlord shall approve the
number, type, products sold, and location of each vending machine beforehand.
(d) Winter Season Service — Prior to each winter season, but no later than
October 30, Tenant and Landlord shall meet to discuss and agree upon the winter food
service for the restaurant. Winter food service shall include at a minimum lunch service 5
days per week. Any additional winter food service shall be at the sole discretion of
Tenant.
(e) Special events — Tenant shall have the exclusive right to all food service
on the Aspen Municipal Golf Course. Any groups or outings desiring food service shall
negotiate with Tenant for such service. Tenant shall be encouraged by Landlord to work
with large groups in pricing for such events. Landlord shall encourage such groups to use
the Municipal Golf Course for such special events. Notwithstanding any language to the
contrary in this Agreement, the Aspen Jr. Golf group shall have the right to schedule one
special outing each year in which a picnic is authorized to take place on the Aspen Jr.
Golf driving range and practice area of the Municipal Course. Tenant shall not schedule
or serve any special event that is not authorized in advance and in writing by Landlord.
Tenant shall agree to cooperate with Landlord to allow Landlord to schedule certain
special events on the Aspen Municipal Golf Course. Upon notice from Landlord that such
an event is to be scheduled, Tenant agrees to cooperate in providing food service for the
event at a reduced cost (no less than 15%) and subject to negotiation between Landlord
and Tenant.
Notwithstanding any language to the contrary contained herein, Landlord shall have the right to
use the area commonly referred to as the "front foyer" for use by the public or private functions
approved by Landlord.
6. Prohibited Uses. Tenant will not use, occupy, or permit the Leased Premises
or any part thereof to be used or occupied for any unlawful or illegal business, use, or purposes
deemed by Landlord to be disreputable, or hazardous, nor in such manner as to constitute a
Golf Club Restaurant Lease
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deemed by Landlord to be disreputable, or hazardous, nor in such manner as to constitute a
nuisance of any kind, nor for any purpose or in any way in violation of any present or future laws,
rules, requirements, orders, directions, ordinances or regulations of the United States of America,
State of Colorado, County Pitkin, City of Aspen, or other municipal, governmental, or lawful
authority whatsoever. Tenant shall not do or permit anything to be done in or about the Leased
Premises or bring or keep anything therein which will in any way increase the rate of fire
insurance upon the Building wherein the Premises 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
7. Service to Patrons/No Discrimination. The service provided to patrons by Tenant shall
be rendered courteously and efficiently. Landlord reserves the right to prohibit the sale of any
item that it deems reasonably objectionable, and shall have the right to order the improvement of
the quality of either the merchandise or the services rendered. Landlord's right to prohibit the
sale of any item shall not be exercised unreasonably. Tenant shall not discriminate against any
employee or applicant for employment because of race, religion, color, creed, ancestry, sex, age,
sexual orientation or national origin. Tenant and Tenant's employees shall not discriminate
against any person because of race, religion, color, creed, ancestry, sex, age, sexual orientation or
national origin by refusing to furnish such person any service or privilege offered to or enjoyed
by the general public. Neither Tenant nor Tenant's employees shall publicize the services
provided hereunder in any manner that would directly or inferentially reflect on the acceptability
of the patrons of any person because of race, religion, color, creed, ancestry, sex, age, sexual
orientation or national origin.
8. Employee Uniform. Shall consist of a minimum, golf type shirts and or Red
Mountain Grill logo's or City of Aspen logos
9. Entertainment. Live entertainment and the use or playing of televisions, stereo
systems and games shall be approved by Landlord before implementation. Landlord's approval
shall not be unreasonably withheld.
10. Parking. Tenant's patrons and employees shall be able to use the public parking
lot available for patrons of the Aspen Golf Course. At no time, however, shall Tenant's rights
under this Lease extend to parking areas designated for use by the residential tenants of Truscott
Place.
11. Rent. Tenant agrees to pay Landlord a fixed minimum annual rental for each
Lease Year during the term of this Lease Agreement, which initial rent shall be $20000 (twenty
y",
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thousand) per year. This minimum rental is payable in equal monthly installments due on the
first day of each calendar month during the term hereof without prior demand.
(a) In addition to the payment of the fixed minimum annual rental as
hereinabove provided, Tenant shall pay to Landlord during each Lease Year during the
term hereof, as percentage rental, a sum equal to eight percent (8%) of all gross sales over
three hundred thousand dollars ($300,000.00), but less than six hundred thousand dollars
($600,000.00) made in, on or from the Leased Premises, less the amount of fixed
minimum annual rental paid under the first paragraph of this Section, above, without
prior demand therefore and without any set-off or deduction whatsoever.
i) In each Lease Year, Tenant shall begin to pay the percentage rent when
the specified percent of cumulative gross sales is more than the combined amount
of cumulative monthly fixed minimum rent for that Lease Year. Tenant shall pay
his first installment of percentage rent on or before the twentieth (20th) day of the
calendar month immediately after the one in which the percentage rent became
effective, and thereafter it shall pay the required percent of each month's sales by
the twentieth (20th) day of the following month. Tenant shall also submit to
Landlord an itemized statement of gross sales (as defined below) and sales tax
report for the preceding month on or before the twentieth (20th) day of each
calendar month during the term of this Lease and any renewal, extensions, or
holding over hereunder.
ii) In addition, within thirty (30) days after the end of each Lease
Year, Tenant shall deliver to Landlord a written statement signed by a certified
public accountant or by some other person acceptable to Landlord, setting forth
the amount of Tenant's gross sales for the preceding Lease Year. The accountant
or other person shall certify that the gross sales have been computed in accordance
with the definition given below, and the statement shall be sufficiently detailed to
show it was in fact prepared in accordance with such definition. If the percentage
rent for the Lease Year is more than the total thereof actually paid by Tenant,
Tenant shall pay the balance due to Landlord within thirty (30) days of delivery of
the annual statement.
iii) The term "gross sales" as used in this Lease Agreement shall mean
the full amount of the actual sales price of all merchandise or services sold for
cash or credit in or from the Leased Premises by the Tenant. The figure for gross
sales will include deposits not refunded to customers, orders of any kind received
or filled at the Leased Premises, receipts from vending machines located upon the
Leased Premises, and any other receipts which the Tenant ordinarily would credit
to his business. Each credit or installment sale will be treated as a sale for the full
price in the month it is made, and there will be no deductions for uncollected
accounts or bad debts. The following items, if applicable, shall be deducted from
gross sales:
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1) refunds or customer discounts included in gross
sales;
2) returns to shippers and manufacturers;
3) sales of trade fixtures or operating equipment;
4) sums received in settlement of claims of loss or
damage of merchandise;
5) retail sales tax recorded at the time of each sale and
expressly charged to the customer;
6) postage charged to customers; and
7) co-operative advertising revenues provided by
suppliers.
8) All property and sales taxes paid by Tenant.
iv) In operating on the Leased Premises, the Tenant agrees to issue a
serially-numbered duplicate sales slip, invoice, non-resettable cash register
receipt, or other record approved by Landlord, with each sale of any kind, except
sales form beverage carts and vending machines. All daily gross receipts
attributable to sales from beverage carts shall be recorded on a daily basis through
the cash register. All gross sales attributed to vending machines shall be recorded
monthly and made available to Landlord. 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.
v) At any reasonable time, and following at least forty-eight (48)
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 (I%) 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
(I%) 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.
Ir
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(b) In the event that Tenant and Landlord determine to extend the term of this
lease beyond the initial five year term, Landlord and Tenant agree that the minimum
annual rental amount for each Lease Year following the initial five year term shall be
increased by a minimum using the Consumer Price Index (CPI) adjustment as set forth in
Exhibit D, and no more than 125% of the first Lease Year minimum rental rate, provided
that the CPI increase is less than a 125% increase. The parties shall negotiate in good
faith the actual minimum rental rate within these two amounts.
12. Accounting. In addition to the accounting to be provided to Landlord pursuant to
paragraph 11, above, Tenant shall provide Landlord: a) with copies of the quarterly sales and
withholding tax statements it provides to the appropriate authorities, with a notation thereon by
Tenant's accountants reflecting the portion of the income reflected on those returns that is derived
from the gross sales; and, b) statements prepared by Tenant's accountants reflecting the gross
sales and sales taxes paid by Tenant for each Occupancy Period.
13. Late 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 a
late charge of ten percent (10%) on such overdue amount. The parties hereby agree that such a
late charge will represent a fair and reasonable settlement of the cost that Landlord would incur
by reason of the late payment by Tenant. Acceptance of such late 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 ten percent (10%) per annum from and after the due date until paid.
14. Personal and Real Property Taxes. Tenant shall pay, as additional rent hereunder,
all personal property taxes assessed against the personal property used by Tenant and located on
the Leased Premises. Likewise, Tenant shall be responsible for any and all sales, use,
withholding and other taxes assessed against the Leased Premises for Tenant's business operation
therein. Landlord shall pay any real estate taxes assessed upon the Leased Premises, except for
leasehold property interest taxes referenced above.
15. Fire and Casualty Insurance. The Tenant, at its own cost and expense, shall
provide and keep in full force for the benefit of the Tenant and the City and the Landlord (as
named or additional insureds) during the term hereof or any extension or renewal period,
insurance to insure the Leased Premises against fire, normal extended coverage perils, vandalism,
malicious mischief, and liability. Such insurance shall provide protection to the extent of at least
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one hundred percent (100%) of the insurable replacement cost of the building containing the
Leased Premises. In connection herewith, it is acknowledged that Landlord, for ease of
administration, is carrying such insurance upon the entire Aspen Golf Shop and Restaurant
Facility. Accordingly, Tenant shall pay to Landlord Tenant's prorated share of the insurance
premium Landlord pays to insure the Leased Premises. Tenant's prorated share shall be equal to
a sum calculated by dividing 2,243 by the total number of square feet of the Aspen Golf Shop
and Restaurant Facility on the Municipal Golf Course and multiplying the resulting dividend by
the annual premium paid by Landlord for such insurance. This premium shall be paid to
Landlord within ten (10) days of Tenant's receipt of notice of the amount due from Landlord.
Throughout the term of this Lease, the Tenant shall carry and maintain in effect casualty
insurance covering its trade fixtures, equipment, furnishings, leasehold improvements and plate
glass, which insurance shall protect against fire, normal extended coverage perils, vandalism,
malicious mischief, and sprinkler malfunction. Such insurance shall provide coverage to the
extent of at least one hundred percent-(100%) of the insurable-replacement cost of the insured
property. Both the Landlord and the Tenant waive any right of subrogation that their respective
insurers may acquire against either of them. Both of these waivers shall automatically terminate
at such time as either party's insurer requires that an additional premium be paid as a
consequence of this waiver provision.
16. 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. If
for any reason as a result of Tenant's activities, use, or business, it shall be impossible to obtain
fire and other hazard insurance on the buildings and improvements on the Leased Premises, in an
amount and with insurance companies acceptable to the Landlord, the Landlord may terminate
this Lease and the term hereof, upon giving to Tenant fifteen (15) days notice in writing of the
Landlord's intention to do so and upon the expiration of the time provided in said notice, this
Lease and the term hereof shall terminate. If by reason of the use of the Leased Premises by the
Tenant or by character or manner in which the Tenant's business is carried on, Landlord's
insurance rates for fire and other hazards shall be increased, the Tenant shall pay, as additional
rent, the amounts by which the premiums for such insurance are increased. The Tenant waives
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Page 10
all rights of recovery against the Landlord or Landlord's agents, employees or other
representatives, for any loss, damages or injury of any nature whatsoever to property or persons
for which the Tenant is insured. Each party shall give the other party prompt notice of any claim
coming to the knowledge of any party that in any way directly or indirectly affects either party,
and both parties shall have the right to participate in the defense of such claim to the extent of its
interest.
17. Notice of Cancellation of Insurance Coverage. The above insurance policies shall
contain clauses substantially similar to the following:
(a) Notwithstanding any other provision in this policy, the insurance
afforded hereunder to the Landlord shall be primary as to any other insurance or
reinsurance covering the Landlord and such other insurance or reinsurance shall
not be required to contribute to any liability until the appropriate limit of liability
afforded hereunder is exhausted.
(b) This policy may not be canceled or changed until forty-five (45) days
after receipt by Landlord of a written notice of such cancellation or change in
coverage, as endorsed by receipt of a certified letter, unless such cancellation is a
result of nonpayment of premium due, in which case, this policy may not be
canceled until ten (10) days after receipt by Landlord of a written notice of such
cancellation, as endorsed by receipt of a certified letter.
18. Utilities and Maintenance. Tenant shall pay its prorated share (20%) of all
charges for gas, electricity, water, and sewer service; 50% for trash removal, and telephone
service. Cleaning expenses of shared restrooms on the main level shall be the shared
responsibility of Pro Shop tenant and the Tenant until such time as the locker rooms are finished
in the basement of the building at which time the cleaning expenses for the restrooms shall
become the sole responsibility of the Tenant. Tenant shall be responsible for the unisex
bathroom located off of the deck area accessed from the exterior of the building. Tenant's share
of any such charges for utilities or maintenance services used by Tenant but paid by Landlord,
either because the utilities are not separately metered or because Landlord contracts for the
service for the entire improvements shall be as stated above during the months that Tenant is in
possession of the Leased Premises. Upon receipt of a statement from Landlord for Tenant's share
of such utility or maintenance service charges, Tenant shall pay the same to Landlord within ten
(10) days. If any charges are not paid when due, Landlord may pay the same, and any amount so
paid by Landlord shall thereupon become due to Landlord from Tenant as additional rent. For
those utility charges that are not separately metered and for which the parties have agreed upon a
pro-rated share, the parties agree to determine a fair share and allocate that share between the
parties.
19. Alterations. The improvements to be made by Tenant are listed on Exhibit C
appended hereto. No alterations, additions, or improvements shall be made, and no fixtures shall
be installed in or attached to the Leased Premises that are not listed on Exhibit C, without the
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Page 11
written consent of the Landlord. Unless otherwise provided herein, all such alterations, additions
or improvements (including those listed on Exhibit Q when made, installed in or attached to the
said Leased Premises, shall belong to and become the property of the Landlord and shall be
surrendered with the Leased Premises as part thereof upon the expiration or sooner termination
of this Lease, without hindrance, molestation, or injury. Notwithstanding that they may have
become an integral part of the Leased Premises, Landlord may 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 within ten (10) days thereafter, 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. 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.
20. Repairs. The Tenant has examined the Leased Premises and has entered into this
Lease without any representation on the part of the Landlord as to the condition thereof, other
than as stated in this Lease Agreement. Tenant shall take good care of the Leased Premises and
shall, at the Tenant's own cost and expense, make all repairs, including painting and decorating,
and shall maintain the Leased Premises in good condition and state of repair, and at the end or
other expiration of the term hereof, shall deliver up the Leased Premises in good order and
condition, wear and 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,
Golf Club Restaurant Lease
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assignees or successors, the Tenant shall repair the said damage or replace or restore any
destroyed parts of the Leased Premises, as speedily as possible, at the Tenant's own cost and
expense.
21. Damage to Premises. If the Leased Premises shall be so damaged by fire or other
casualty (which is not caused by the fault or negligence of the Tenant or imputable to the Tenant)
as to render said Leased Premises untenantable, the Tenant thereupon shall surrender the Leased
Premises to the Landlord. The Tenant shall pay rent, duly apportioned, up to the time of such
termination of this Lease. Notwithstanding the foregoing, in lieu of any termination of the Lease,
Landlord may elect, at its sole option, within thirty (30) days after the event of such damage, to
continue the Lease without 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 casualty 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.
22. 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, these provisions shall apply to any transfer, sale or other disposition,
whether voluntary or involuntary, of any stock in Tenant or to any merger, consolidation or
dissolution or any other transaction, the effect of which would be in any way to avoid or
circumvent such prohibitions. Any assignment or subletting contrary to the provisions of this
Paragraph shall be void and shall, at the option of the Landlord, constitute a default under the
terms of this Lease.
23. Maintenance and Repairs. Tenant shall during the term of this Lease keep in
condition and repair equal to that which existed at the commencement of this lease the Leased
Premises and every part thereof, including without limiting the generality of the foregoing, all
plumbing fixtures, within the Leased Premises, refrigeration, electrical fixtures and lighting
fixtures, additional fixtures, interior walls, wall coverings and paint, ceilings, floors and floor
coverings, windows, doors, plate glass, awnings, and entrances. Landlord shall have
responsibility for the repair and maintenance of the building structure, roof, foundation and
structural integrity of any additional stories above the Leased Premises, and shall, at its expense
provide major repairs and required replacement to mechanical systems situated within the Leased
Premises that were originally provided by the Landlord. Major repairs and replacements are
agreed to be those which cost more than $500.00 for each single item, and are of what the
Landlord provided initially when construction was completed on the new facility, (other
additions that need repair which were completed by lease holder will be undertaken by the lease
Golf Club Restaurant Lease
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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. Absent such agreement, Landlord
shall have no obligation to execute such repair or replacement, but in the event Landlord
determines to effectuate such repair or replacement, Landlord shall have the sole discretion to
determine the type, extent and quality of repair or replacement that shall be undertaken.
24. 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, except of a design
and structure and in or at such places as may be indicated and consented to by the Landlord in
writing. In case the Landlord or the Landlord's agents, employees or representatives shall deem it
necessary to remove any such signs in order to paint or make any repairs, alterations or
improvements in or upon the Leased Premises, they shall be replaced at the Landlord's expense
when the said repairs, alterations or improvements shall have been completed. Any signs
permitted by the Landlord shall at all times conform with all municipal ordinances or other laws
and regulations applicable thereto. Exhibit G appended hereto is a list of signs and locations
showing the general location of all signage permitted to be located by Tenant.
25. Compliance with Law. Tenant shall obtain and pay for all permits or licenses that
may be required for the operation of the Leased Premises in accordance herewith. A copy of
such permits or licenses shall be submitted to Landlord for verification of this requirement prior
to occupancy. The Tenant shall promptly comply with all laws, ordinances, rules, regulations,
requirements, and directives of the federal, state, and municipal governments or public
authorities and of all their departments, bureaus and subdivisions, applicable to and affecting the
said Leased Premises, their use and occupancy, and shall promptly comply with all orders,
regulations, requirements and directives of the Board of Fire Underwriters or similar authority
and of any insurance companies which have issued or are about to issue policies of insurance
covering the said Leased Premises and its contents, for the prevention of fire or other casualty,
damage or injury, all at Tenant's own cost and expense. Tenant shall obtain and maintain during
the life of this Lease, worker's compensation insurance and employer's liability insurance for
Tenant's employees in strict compliance with state laws. Certificates evidencing such insurance
or approved self-insurance shall be submitted to Landlord prior to occupancy.
Tenant shall not use the Leased Premises for any purposes deemed unlawful, disreputable, or
extra hazardous.
26. Quiet Enjoyment. So long as the Tenant is not in default hereunder during the
term hereof or any renewal or extension hereof, the Landlord covenants that the Tenant shall
peacefully and quietly occupy and enjoy the Leased Premises subject to the terms hereof. The
Landlord warrants that it has full power and authority to execute this Lease, be bound by, and
perform all its obligations hereunder. Notwithstanding anything to the contrary contained herein,
Tenant acknowledges that Landlord's right to occupy and lease the Leased Premises to Tenant is
based upon Landlord's rights under the Master Lease. In the event Landlord loses the right to
occupy and lease the Leased Premises because of a default by Landlord or the Owner of the
building in accordance with the provisions of the Master Lease, Landlord shall have no
Golf Club Restaurant Lease
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obligation hereunder to Tenant and this Lease shall be of no further force or effect, subject to the
City of Aspen's rights pursuant to the Master Lease.
27. Condemnation. If the land and the Leased Premises leased herein, or of which the
Leased Premises are a part, or any portion hereof, shall be taken under eminent domain or
condemnation proceedings, or if suit or other action shall be instituted for the taking or
condemnation thereof, or if in lieu of any formal condemnation proceedings or actions, if any, the
Landlord shall grant an option to purchase and/or shall sell and convey the said Leased Premises,
or any portion thereof, to the governmental or other public authority, agency, body or public
utility seeking to take said land and Leased Premises or any portion thereof, then this Lease, at
the option of Landlord, shall terminate and the term hereof shall end as of such date as the
Landlord shall fix by notice in writing; and the Tenant shall have no claim or right to claim or be
entitled to any portion of any amount which may be awarded as damages or paid as the result of
such condemnation proceedings or paid as the purchase price for such option, sale or conveyance
in lieu of formal condemnation proceedings; and all rights of the Tenant to damages, if any, are
hereby assigned to the Landlord. The Tenant agrees to execute and deliver any instruments, at
the expense of the Landlord, as may be deemed necessary or required to expedite any
condemnation proceedings or to effectuate a proper transfer of title to such governmental or other
public authority, agency, body, or public utility seeking to take or acquire the said lands and
Leased Premises or any portion thereof. The Tenant covenants and agrees to vacate said Leased
Premises, remove all the Tenant's personal property there from and deliver up peaceable
possession thereof to the Landlord or to such other party designated by the Landlord in the
aforementioned notice. Failure by the Tenant to comply with any provisions in this clause shall
subject the Tenant to such costs, expenses, damages and losses as the Landlord may incur by
reason of the Tenant's breach hereof.
28. Landlord's Lien. Tenant hereby grants to Landlord a security interest in any and
all of Tenant's furniture, fixtures, equipment and inventory whenever acquired, their proceeds
and the proceeds of any and all insurance policies carried thereon as and for additional security
for the faithful performance by Tenant of all of its obligations hereunder. Tenant agrees to
execute and deliver to Landlord, upon request, such additional documents as Landlord may
require to establish and perfect such security interest including, without limitation, a financing
statement in form satisfactory to Landlord, which is to be executed and delivered by Tenant to
Landlord. The exercise by Landlord of any rights in and to such furniture, fixtures, equipment
and inventory upon default hereunder shall be governed by Article 9 of the Colorado Uniform
Commercial Code, as in effect at the time of such default, but such exercise shall not preclude
Landlord from exercising any or all other rights and remedies hereunder or as provided by law.
29. Inspection and Repair. The Tenant agrees that the Landlord and the Landlord's
agents, employees or other representatives, shall have the right to enter into and upon the Leased
Premises or any part thereof, at all reasonable hours and upon reasonable notice, for the purpose
of examining the same or making such repairs or alterations therein as may be necessary for the
safety and preservation thereof. Nothing in this section is intended to restrict access to the
premises by an authorized City of Aspen inspector conducted pursuant to law, including, but not
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limited to Environmental Health employees conducting routine health inspections. This clause
shall not be deemed to be a covenant by the Landlord nor be construed to create an obligation on
the part of the Landlord to make such inspection or repairs. Tenant expressly waives and
releases any claim, demand, or cause of action it might have by reason of any inconvenience,
annoyance to Tenant, its guests, licensees or invitees arising from any maintenance, alteration or
repair to any portion of the Leased Premises, the building in which it is located or the property
upon which it is situate. Tenant grants to Landlord the right to temporarily discontinue utilities
or any of them at any such time or times as may be necessary by reason of any such maintenance
work, alteration or repair.
30. Landlord Remodel of Premises. In the event Landlord desires to remodel any
portion of the Leased Premises during the term of this lease agreement, it may do so, provided it
is solely at Landlord's expense and, provided further, that any remodel work commenced by
Landlord shall not interfere with or disrupt Tenant's business within the Leased Premises.
31. Default. If there should occur any default on the part of the Tenant in the
performance of any conditions or covenants herein contained or if, during the term hereof, the
Leased Premises or any part thereof shall be or become abandoned or deserted, vacated or vacant,
or should the Tenant be evicted by summary proceedings or otherwise, the Landlord, in addition
to any other remedies herein contained or as may be permitted by law, may either by force or
otherwise, without being liable for prosecution therefore or for damages, re-enter the said Leased
Premises and again possess the same with or without terminating this Lease; and as agent for the
Tenant or otherwise, re-let the Leased Premises and receive the rents therefore and apply the
same, first to the payment of such expenses and costs, as the Landlord may have been put in re-
entering and repossessing the same and in making such repairs and alterations, as may be
necessary; and second to the payment of the rents due hereunder. Whether or not the Landlord
shall terminate this Lease, the Tenant shall remain liable for such rents as may be in 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
Golf Club Restaurant Lease
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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. The Landlord shall have a lien paramount to all others on every right and interest of the
Tenant in and to this Lease, and on any furnishings, equipment, fixtures, or other personal
property of any kind belonging to the Tenant, or the equity of the Tenant therein, on the leased
property. Such lien is granted for the purpose of securing the payment of rents, taxes,
assessments, insurance 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.
32. Attorneys' Fees. In the event of any litigation or other action or proceeding
between the parties hereto arising out of the performance or non-performance of this Lease, or
enforcement of any rights or remedies hereunder, including any indemnities herein contained, the
prevailing party shall be entitled in such litigation, action or proceeding to also recover as part of
any judgment, award or other relief, its reasonable attorneys' fees and costs incurred.
33. Delays. Whenever a period of time is provided in this Lease for either Landlord
or Tenant to do or perform any act or thing, neither Landlord nor Tenant shall be liable or
responsible for performing any obligation hereunder as a result of any unavoidable delay due to
strikes, lockouts, casualties, acts of God, or other governmental regulations or control or other
causes beyond such party's reasonable control, and the time for performance specified herein
shall be extended for a period of time corresponding to such delay.
34. Mortgage Priority. This Lease shall not be a lien against the Leased Premises with
respect to any mortgages or trust deeds now or hereafter placed upon the Leased Premises or the
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.
Golf Club Restaurant Lease
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35. Holding Over. This Lease shall expire of its own accord without notice at the end
of the term or earlier, as herein specified. If, after the expiration of this Lease, Tenant remains in
possession of the Leased Premises with the Landlord's consent, such holding over shall be a
tenancy-at-will at a rental equal to 125% of the last monthly rental provided in this Lease, and
otherwise subject to all the obligations and conditions of this Lease.
36. Cumulative Remedies. The 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.
37. Cleanliness; Waste and Nuisance. Tenant shall keep the Leased Premises at all
times in a neat, clean and sanitary condition, shall neither commit nor permit any waste or
nuisance thereon, and shall keep the walks adjacent thereto free from waste and debris, which
shall not be the responsibility of the Landlord to remove. Tenant shall store all trash in the
containers provided for that purpose.
38. Brokers. Each party represents to the other that it has had no dealings with any
real estate broker or agent in connection with the negotiation of this Lease.
39. Waiver. No waiver by Landlord or Tenant of any provision of this Lease shall be
effective unless in writing nor shall such waiver be deemed a waiver of any other provision
hereof, nor of any subsequent breach by Tenant of the same or of any other provision.
40. 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,
and other personal property placed in the Leased Premises by Tenant and Tenant shall promptly
repair any damage to the Leased Premises caused by such removal.
41. Governing Law. This Lease shall be construed and enforced in accordance with
the laws of the State of Colorado. In the event of any litigation arising out of this Lease,
jurisdiction and venue shall rest with any court of competent jurisdiction in Pitkin County.
42. Time of Essence. Time is of the essence with respect to the performance of every
provision of this Lease in which the time of performance is a factor.
Golf Club Restaurant Lease
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43. 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.
44. Notices. All notices required under the terms of this Lease shall be given in
person or by mailing such notices by certified or registered mail, return receipt requested, to the
address of the party as shown at the beginning of this Lease, or to such other address as may be
designated in writing, which notice of change of address shall be given in the same manner. If
not sooner received, any notice given by mail shall conclusively be deemed received three (3)
days after the date of certification or registration.
45. Entire Lease. This Lease contains the entire contract between the parties and there
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. To the extent possible,
this Lease shall be construed vis-a-vis the Landlord and Tenant without reference to the Master
Lease. However, in the event the rights of Landlord and Tenant hereunder are directly affected
by and in conflict with provisions of the Master Lease, such that to adhere to the terms of this
Lease would result in a default by Landlord under the Master Lease, the Master Lease provision
shall control.
46. References. In all references herein to any parties, persons, entities or
corporations, the use of any 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.
47. Tenant is an Independent Contractor. This Lease is not a contract of
employment. No relationship of employer and employee, joint venture or partnership, exists
between Landlord and Tenant or between the Landlord and any employee or agent of the
Landlord. Tenant shall at all times be deemed to be an independent contractor. Tenant is not
authorized to bind Landlord to any agreements or obligations. The term Landlord when used in
this Lease shall mean and include the Executive Director of the Landlord and any other agent or
employee of the Landlord designated by the Director with the responsibility of enforcing any of
the terms of this Lease.
48. Binding Effect.ffect. All the terms, covenants, and conditions herein contained shall be
for and shall inure to the benefit of and shall bind the respective parties hereto, and their heirs,
executors, administrators, personal or legal representatives, successors and assigns respectively.
49. Guaran . In the event Tenant hereunder is a corporation, this Lease and the
performance of all the payments, obligations, conditions and covenants contained herein shall be
personally guaranteed by the shareholders of Tenant by execution of a guaranty of lease in a form
substantially conforming to Exhibit H.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and
year above first written.
TENANT:
Red Mountain Grill Restaurant LLC
J am
1
Richard Burbidge
LANDLORD:
THE CITY OF ASPEN
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
Z Jim True Steve Barwick
Attorney to the City of Aspen City Manager
Golf Department
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List of Exhibits Appended to Lease Agreement
A - Description of Leased Premises
B —Inventory of Equipment and Fixtures to be Provided by Landlord.
C—List of Improvements and Fixtures to be Made or Provided by Tenant.
D—Calculation of Cost of Living Increases.
E— Sample Menu for Summer Season
F— Sample Survey Instrument for Customer Satisfaction
G— Signage
H—Personal Guarantee
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EXHIBIT D
COST OF LIVING INCREASE CALCULATION
a) "Price Index" shall mean the Consumer Price Index - All Urban
Consumers (CPI-U) - U.S. City Average - All Items, or a successor or substitute index published
or authorized by the United States Department of Labor, Bureau of Labor Statistics.
b) The following formula shall be used for determining the adjustment, if
any, in the fixed minimum annual rent:
"Price Index" for the first month
Current Index Number = of next Lease Year
Base Index Number "Price Index for first month of
of preceding Lease Year
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 c) 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 I 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.
f) The Landlord shall, within a reasonable time after obtaining the
appropriate data necessary for computing such increases, give the Tenant notice of any increase
so determined, and the Landlord's computation thereof shall be conclusive and binding but shall
not preclude any adjustment of the index figures upon which the computation was based and
Tenant shall, within sixty (60) days after receiving such notice, notify Landlord of any claimed
error therein; provided, however, nothing herein shall be construed to extend the time when
rents, as determined by Landlord, are due and payable by Tenant.
g) Minimum annual rent for each adjustment year, together with increases
calculated in accordance with Paragraphs b) through 0 of this Section 11, shall be due and
payable to Landlord in equal monthly installments due on the first day of each calendar month of
Golf Club Restaurant Lease
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each adjustment year (retroactive payments then due being payable within thirty (30) days after
giving notice thereof by Landlord to Tenant).
h) If publication of the pertinent Consumer Price Index shall be discontinued,
the parties hereto shall thereafter accept comparable statistics on the cost of living for the average
of all U.S. cities, all items, as the same shall be computed and published by an agency of the
United States or by a responsible financial periodical of recognized authority then to be selected
by the parties hereto. In the event of(1) use of comparable statistics in place of the Consumer
Price Index as above mentioned, or (2) publication of the Index figures at other than bi-monthly
intervals, there shall be made in the method of computation above provided revisions as the
circumstances may require to carry out the intent of this Article.
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Exhibit H
GUARANTY OF LEASE
FOR VALUE RECEIVED, and in consideration for, and as an inducement to the
aforesaid Landlord to make the foregoing Lease with , as Tenant,
the undersigned unconditionally guarantees the full performance
and observance of all the covenants, conditions, and agreements therein provided to be
performed and observed by Tenant, and expressly agrees that the validity of this agreement and
the obligations of the guarantors hereunder shall in no wise be terminated, affected or impaired
by reason of the assertion by Landlord against Tenant of any of the rights or remedies reserved to
Landlord pursuant to the provisions of the within Lease or by the relief of Tenant from any of
Tenant's obligations under the Lease by operation of law or otherwise (including, but without
limitation, the rejection of the Lease in connection with proceedings under the bankruptcy laws
now or hereafter enacted); the undersigned hereby waiving all suretyship defenses.
The undersigned further covenants and agrees that this guaranty shall remain and
continue in full force and effect as to any renewal, modification, or extension of this Lease,
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 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.
Golf Club Restaurant Lease
Page 24
IN WITNESS WHEREOF, the undersigned guarantor has caused this guaranty to be
executed effective as of the day of , 2014.
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EXHIBIT"B" INVENTORY
3 TVS
3 TV Mounts
8 Glass Shelves
8 stools,3 small stools
6 Blinds
2 BEC Register Systems
Bar Top and Railing
10 Speakers 4 domes and 4 upright light fixtures
4' prep table
Wall Coverings
21 Mahogany Tables
29 Chairs
13 Metal Tables
34 Metal Chairs
3 Floor Mats
2 Loading Dock Racks
1 Food Rack
3 Storage Room Shelves
60 Plates
Silverware
1 Beverage Cart
EXHIBIT C
No significant alterations,additions,or improvements have been made to the building.
Red Mountain Grill turn Menu
Breakfast Menu
Served from 8:00-1030 AM breakfast menu from May-August 31st
Breakfast Sandwich
Eggs Scrambled on 7grain wheat toast
with bacon, sausage patties or Chorizo sausage&cheese$6.5
"B.E.C."
A little something to start the round off or a pick me up between#9 and#10
Fried egg,pepperjack, bacon or sausage patties on a English muffin$5
Chorizo Wrap
Chorizo sausage with sauteed peppers, salsa, breakfast potatoes. scrambled eggs,
cheese&wrapped in a herb tortilla$8
Hot Cakes
Buttermilk pancakes with butter and syrup. Plain jane or Chocolate chip$6
Combo with scrambled eggs, and bacon or sausage patties$10
AL A CARTE
Bacon$3 Sausage Patties$3 Toast$1.5 Hash browns$3.5 Scrambled eggs$5
Something From the bar
Bloody mary$7 Grey goose Bloody$9
Tequila sunrise$7 Screwdriver$7 Irish Coffee$6
Beverages
Orange Juice$3 Coffee$2 Tomato Juice$2.5
Fountain$2.50
Pepsi, diet pepsi, Mt. DewDr.pepper, Iced Tea, Lemonade$2.5
Bottle$2.50
Pepsi, Diet Pepsi, Sierra mist, Dr.pepper, Diet Dr.pepper, Mt Dew, Diet Mt Dew
Blue, Red,yellow, orange Gatorade,Arnold palmer Can
Snacks
Assorted candy bars$1.75
Lays brand chips:regular, BBQ,Fritos Doritos$2
Cliff bars$2.50
Peanut butter crackers$1.50 Fruit$1.50
Assorted Ice cream bars $2.5-$3
Grill Menu
j lb certified Angus Burger-cooked to your desire$12
choice of cheese:American,swiss,pepperiack,cheddar add Bacon$2
Veggie Chickpea burger- olive topenade, mayo, wheat rosette bun$12
Barbecue Chicken bacon and Swiss- Jerk seasoned, Broiche Bun$12
Turkey B.L.T.-7 Grain wheat, apple wood bacon$12
Blackened Ahi Club- Wasabi mayo,wheat rosette bun$14
Flash fried shrimp Poy Boy- herb crusted tiliapa, bayou aioli$13
The above sandwiches served with French fries, chips or coleslaw
Substitute the above choices with Ceasar salad or sweet potato fries$1.50
Al a Carte
(a combo side of fries or coleslaw may be added to al a carte items for$2.75.
Sweet potato fries or Caesar salad sides are an additional$4.25)
Grilled Cheese with bacon and Tomato$6.95 plain$'4.75
Grilled Bra twurst$5.5
j 1b all beef Hot Dog$4.95
Chicken Tenders and fries$9.95
Wraps/ Pita
Honey Curry Chicken pita-$8.25
Mango chicken basil pita-$8.25
Chicken Caesar wrap- $7.65
Turkey B.13.wrap-$7.65
Smoked turkey sandwich$6.50 Tuna salad sandwich$6.95
Choose from lettuce,tomato, onions mustard, spicy mustard,
White. Rye,Artesian Roll,or 7 Grain wheat
Cheese$.50 (Swiss,American, cheddar)Avocado$1.50
Can Beers 12 Oz$3.5
Bud, Bud light, Coors light, miller light, miller genuine draft
Can Beers$4
Tecate, Modello, Fat tire. Heinekin
Can Beers$5
Stells Artois
Aspen golf course Signature liquors (pint size)
John daly,Bloody mary, dark and stormy, screwdriver($7)
white Russian, Captain and coke, 007, tanguary tonic, ($8)
Taxes not included.Gratuity of 18%added to orders over twenty-five dollars
EXHIBIT"F"
Customer Survey Form
(Circle Appropriate Response)
1. 1 found the restaurant staff to be friendly and accommodating
Excellent Good Fair Poor
2. 1 found the menu selections to be in line with a Golf,Tennis, Nordic setting.
Excellent Good Fair Poor
3. The quality of the food and preparation were:
Excellent Good Fair Poor
4. The cleanliness of the restaurant was:
Excellent Good Fair Poor
5. The food was prepared in a timely fashion:
Excellent Good Fair Poor
EXHIBIT"G"SIGNAGE
Hwy 82 Sign
Truscott Drive"T"
Below Awning on Restaurant Side of Building 6 Foot Sign
Menu Board on 8th Tee
Menu Board at Tennis Facility