HomeMy WebLinkAboutresolution.council.120-22RESOLUTION # 120
(Series of 2022)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A LEASE AGREEMENT BETWEEN THE CITY
OF ASPEN AND ASPEN MOUNTAIN TOTS AND AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID LEASE AGREEMENT ON BEHALF OF THE
CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a Lease
Agreement for lease of space at the Yellow Brick between the City of Aspen and
Aspen Mountain Tots, a true and accurate copy of which is attached hereto as
Exhibit "A".
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
Agreement between the City of Aspen and Aspen Mountain Tots, a copy of which
is annexed hereto and incorporated herein and does hereby authorize the City
Manager to execute said Lease Agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 181h day of October 2022.
71)7W
Torre, Mayor
I, Nicole Henning, 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, October 18, 2022.
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0
Nicole Henning, Cityl Clerk
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Attachment 1
YELLOW BRICK LEASE AGREEMENT
BETWEEN THE CITY OF ASPEN
AND
Aspen Mountain Tots
This LEASE AGREEMENT, made and entered into this 1st day of September, 2023 the City of Aspen
(hereinafter referred to as "Landlord"), whose address is 427 Rio Grande Place., Aspen, Colorado, 81611
and Aspen Mountain Tots (hereinafter referred to as "Tenant") whose address is 215 N. Garmisch, Aspen,
Co.
WITNESSETH:
Section 1. Leased Premises.
In consideration of the mutual covenants and agreements set forth herein Landlord does hereby lease to
Tenant and Tenant does hereby rent from Landlord the following described Leased Premises ("Leased
Premises") within the City owned building located at 215 N. Garmisch Street, Aspen, CO ("Building").
Monthly rent and pro -rated shares of utilities will be billed monthly to the tenant.
Square
Rent for
Rent shall increase by
Annual
Monthly
Monthly
Footage
2023-2024
3% each year.
rounded
amount
rounded
2024-202 Rent/sq. ft.
amount
2023-2024
amount
2025-2026 Rent/sq. ft.
2023-2024
2023-2024
Classroom 1
823
$ 11.34
2024-2025 $11.68
$ 9,333.00
$ 777.75
$ 778.00
2025-2026 ... $12.03
Office 4 (D)
140
$ 11.34
2024-2025 $11.68
$ 1,588.00
$ 132.30
$ 132.00
2025-2026 ... $12.03
Storage
$ 80.62
2024-2025 $83.04
$ 968.00
$ 80.62
$ 81.00
2025-2026 ... $85.53
972
$ 11, 890.00
$ 990.66
$ 991.00
The areas of the Building referred to herein as Common Areas include: central hallways, kitchens, east
bathrooms, lower level bathroom, gymnasium, kitchen, and laundry room. Common area does not
include: classroom space, office space, storage space and bathrooms used entirely by childcare programs
and included in your rented premises. Common Areas are provided at no charge for the use by the
building tenants; it is the tenants responsibility to maintain any improvements to the common areas.
Examples include but are not limited to sand and play equipment, or appliances. Tenants are not charged
for the use of the common space but must work in partnership with other tenants regarding the use of the
common space. The Landlord expressly reserves the right to withhold its consent to any change of use or
purpose in its unrestricted discretion.
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Section 2. Term.
The Term of this Lease shall commence at 12:00 AM - midnight on Sept 1, 2023 and shall expire at
11:59 PM - on August 31, 2026.
Section 3. Rent.
Tenant shall pay Landlord at the address of the Landlord or at such other place as Landlord may from time
to time designate in writing to Tenant, without any prior demand therefore and without any deduction or
setoff whatsoever, an annual rental for the Leased Premises in monthly installments in accordance with
the following schedule:
Monthly rent will be: $991.00*
Annual Rent will be: $11,892.00*
* Monthly rent and annual rent shall increase by 3% effective September 1 of each year
that this lease remains in effect.
This annual Rent shall be payable in monthly installments due on the first day of each calendar month
during the term hereof without prior demand. Rent shall be delivered or mailed to The City of Aspen/Kids
First at 215 N. Garmisch, Suite #1, Aspen, CO 81611
Section 4. General Conditions.
The parties hereto agree that the General Conditions to the Yellow Brick Lease Agreement appended
hereto as Exhibit A is incorporated herein as if fully set forth here and shall constitute essential terms and
conditions of this Lease Agreement.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this Lease Agreement on the day
and year first above written.
LANDLORD: CITY OF ASPEN
TENANT:
0ocu9ltrned by:
13y pant G Title: city Manager
By_ Title: owner/Di rector
--yareeear ...
Owiier/Direclur
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EXHIBIT A
GENERAL CONDITIONS TO
YELLOW BRICK LEASE AGREEMENT
The following General Conditions constitute essential terms and conditions to Lease Agreements
governing the rental of space within the City owned Yellow Brick managed by Kids First. Kids First is a
childcare resource center that promotes quality, affordable childcare choices in the City of Aspen. It
manages the Yellow Brick Center for the City of Aspen and as such, is the Landlord's designated
representative in all matters related to the lease Agreement.
ARTICLE I
Security Deposit
Tenant shall, on or before, the commencement of the Term of the Lease Agreement, deposit with
Landlord as security for the performance of all terms, covenants, and conditions of this Lease, the sum of
$239.95 collected in 2006. This deposit shall be retained by Landlord until the expiration of the Lease,
and any renewals or extensions thereof, at which time the deposit shall either be returned to Tenant or
retained by Landlord in accordance with the provisions of CRS 38-12-101, et seq. In no way is it
understood or to be construed that this security deposit is to be considered as the final rental payment due
under this Lease.
ARTICLE II
Penalties for Late Payment of Rent
1. If the Tenant fails to pay monthly installments of:
a. the Rent per Section 3 of the Lease Agreement; or
b. the utilities assessment per Section 5 of these General Conditions; or
c. the insurance assessment per Section 6; of these General Conditions;
d. or the Common Area maintenance assessment per Section 7 of these General Conditions;
e. or the tax assessment per Section 8 of these General Conditions;
by the tenth (loth) day of the month in which it is due, Tenant shall be responsible for a penalty of an
additional five percent (50/6) of the monthly Rent.
2. The Landlord need not give any notice to be entitled to this payment, and such additional rentals or
penalties shall in no way be construed to limit the Landlord's remedies in the event of such default,
which remedies shall in all cases hereunder be deemed to be cumulative.
3. In the event all or part of the Rent as described in Section 1 of this Lease Agreement is delinquent
beyond the 30th day of the month in which it is due, the delinquent amount shall bear interest at the
rate of one and one-half percent (1.5%) per month.
ARTICLE III
Utilities.
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1. Tenant shall pay to the appropriate utility service provider for all utilities, including but not limited to,
trash removal, telephone, water, internet, cable, gas and electricity, separately supplied or separately
metered to the Leased Premises.
2. Tenant shall pay to Landlord its pro rata shares of the Common Area utility costs for the Building. The
Common Area utility costs shall include gas (heat), electric, water and sewer costs, security measures,
and trash removal. The Common Area utility costs shall be payable monthly within ten (10) days of
receipt of an invoice from the Landlord.
Landlord shall not be liable in damages or otherwise for any interruption or failure of any utility
serving the Leased Premises when such interruption or failure is not due to the negligence of
Landlord.
4. Tenant further agrees that Tenant will not install any equipment which will exceed or overload the
capacity of any utility facility, and that if any equipment installed by Tenant shall require additional
utility facilities; the same shall be installed and maintained at Tenant's expense in accordance with the
plans and specifications which have received prior written approval by Landlord.
ARTICLE IV
Insurance
Tenant, at its own expense, shall maintain in full force during the Term of the Lease Agreement
policies of comprehensive insurance, including property damage, written by one or more responsible
insurance companies licensed to do business in Colorado which will insure Tenant, Landlord and the
City of Aspen against liability for injury to persons and/or property, and death of any person or
persons occurring in or about the Premises. Each policy shall be approved as to form and insurance
company by Landlord. The liability under such insurance shall not be less than $1,000,000 for any one
person injured or killed, and not less the $1,000,000 for any one accident, and not less than $100,000
property damage. If in the considered opinion of Landlord's insurance advisor, the amount of such
coverage is not adequate, Tenant agrees to increase that coverage to such reasonable amounts that
Landlord's advisors shall deem adequate. The policies shall name as insured parties, Tenant, Landlord,
the City of Aspen and any persons, firms or corporations designated by Landlord, and shall contain a
clause that the insurer will not cancel or change the insurance without first giving the Landlord thirty
(30) days' prior written notice. A copy of the policy or a certificate of insurance shall be delivered to
the Landlord. If Tenant fails to comply with this paragraph, Landlord shall have the right to obtain the
said insurance and pay the premiums therefore, and in such event the entire amount of such premium
shall be immediately paid by Tenant to Landlord.
2. The Tenant agrees that it will at all times during the lease term maintain in full force and effect on all
its furniture, fixtures and equipment in the Leased Premises a policy or policies of fire insurance with
the standard extended coverage endorsement attached to the extent of at least eighty percent (80%) of
their insurable value, the proceeds of which will, so long as this Lease is in effect, be used for the
repair or replacement of fixtures and equipment so insured. It is understood that the Landlord shall
have no interest in the insurance upon Tenant's equipment and fixtures and will sign all documents
necessary or proper in connection with the settlement of any claim or loss by Tenant.
3. Landlord shall pay the cost of fire, casualty, liability, and extended coverage insurance covering the
Leased Premises against loss or damage by fire and by other risks now or hereafter embraced by
"extended coverage," so called, in amount of the full insurable value of the Leased Premises (both the
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exclusive and nonexclusive premises.)
ARTICLE V
Taxes
Tenant shall pay before delinquency any and all tax assessments, property taxes levied on its leasehold
interest, license fees, and public charges levied or assessed or imposed which become payable during the
term hereof upon Tenant's furniture, fixtures, appliances and personal property, installed or located in the
Leased Premises.
ARTICLE VI
Permitted Uses.
1. Tenant shall use the Leased Premises for childcare and for no other purpose without Landlord's
written consent. Childcare shall be defined as care for a child aged birth to 5 years, and not having
entered Kindergarten. Priority for classroom space shall be determined by the Kids First Advisory
Board and approved by Aspen City Council. Leases will be approved for specific ages, scheduling,
and numbers of children to be served in each room. Classroom space will be available based on the
following performance standards and criterion:
The Leased Premises shall be used for in -session childcare a minimum of four days (4) per week
Monday through Friday, a minimum of eight (8) hours per day, including the hours of 9:00 am to 4:00
pm of each day, and a minimum of 200 days of operation per year.
a. Effective use of the space - Effective use of the space will be based on a monthly average number
rather than a percentage, with the following applicable minimums:
1) Preschool classrooms: minimum of 12 children
2) Toddler classroom: minimum of 9 children that includes all children over age 2
3) Toddler classrooms: minimum of 6 children that includes children under age 2
4) Infant classrooms: minimum of 6 children.
If a classroom is not filled pursuant to these requirements for a period of 60 days, the Tenant will be
required to submit a plan to bring the room back into compliance with this Lease Agreement capacity
requirement. Notwithstanding the foregoing, Tenant must use reasonable efforts to attempt to always
maintain this capacity requirement. Kids First Advisory Board will determine, in its sole discretion,
whether the plan is acceptable and whether Tenant used reasonable efforts to attempt to maintain the
required capacity. The Leased Premises may be made available to another childcare provider at the sole
discretion of Kids First Advisory Board at any time after the 60-day period of non-compliance, if a plan is
not acceptable to the Board. In such a case, the failure to maintain the minimums shall constitute an event
of default under Article XVI of the Lease Agreement and the Lease Agreement shall be terminated, and
the Tenant required to vacate the premises.
➢ Colorado Childcare Assistance Program (CCCAP) Obligation- Childcare tenants in the Yellow
Brick Building are required to maintain a current fiscal agreement (with Pitkin, Eagle, and
Garfield Counties) to serve CCCAP funded children. It is the program's responsibility to keep
the current fiscal agreement on file on the premises.
If a space is available, a CCCAP funded child cannot be denied enrollment. A CCCAP funded
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child may be on a waitlist for an available space and would not receive higher priority than
other children already on the wait list. Kids First childcare financial aid will reimburse the
childcare program for any difference in payment between what CCCAP pays vs. what the
program charges, if there is a difference in the per day rate
➢ Communijy Accessibility - Priority will also be given to childcare providers offering the
hours and year-round scheduling most in demand. Priority will be given to current tenants
of the Yellow Brick Building as long as performance standards are met.
➢ Prompt pavment of rent.
➢ Maintenance safety and cleanliness of rooms as determined by the fire department and the
health department inspections.
➢ Responses and communication with the landlord - notices from landlord responded to in a
timely manner, and written notice given for any change to the leased space.
2. Landlord expressly reserves the right to withhold its consent to any change of use or purpose in its
unrestricted discretion.
ARTICLE VII
Prohibited Uses.
1. The Leased Premises may not be used to provide childcare for children that are over 5 years of age or
have attended Kindergarten without the express written permission of the Landlord.
2. 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 the Landlord to be disreputable, or
hazardous, not 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 of 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 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 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 regulation affecting the 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 Premises without Landlord's consent.
ARTICLE IIX
Nuisance and Cleanliness
1. Tenant covenants that it will exercise the highest duty of care to maintain the Leased Premises in a
clean condition and to provide for sufficient trash and garbage service.
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2. Tenant shall not permit any noxious or offensive odors to exist in or around the Leased Premises. A
breach of this obligation by the Tenant shall constitute a material breach of this Lease.
3. Tenant shall not perform any act or carry on any practices which may injure the Building of which the
Leased Premises form a part or be a nuisance or menace to other Tenants in said Building. A breach of
any of the terms or conditions contained in this Article X shall constitute a material breach of this
Lease.
4. Tenant shall be responsible for any interior maintenance and improvements to Tenant's space. Any
permanent improvements or remodels to Tenant's space to include, but not necessarily limited to,
paint, carpet or flooring, lighting or interior structural changes shall be the responsibility of Tenant.
All such improvements or remodels shall require the prior written approval of Landlord.
5. Landlord may, in its sole discretion, require Tenant to return the Tenant's space to its original
condition at the time of default or abandonment of the lease.
ARTICLE IX
Repairs, Alterations, and Improvements
1. Landlord shall keep in good order, condition, and repair, the exterior foundation, exterior walls (except
the interior faces thereof), down spouts, gutters and roof, electrical systems, the plumbing and sewage
system outside the Building. Landlord's responsibility under this section shall not apply to any
damage, caused by any act of negligence of Tenant, its agents, employees, invitees, lessees or
contractors.
2. Tenant shall at all times keep the Leased Premises and all partitions, doors, door jams, door closures,
door hardware fixtures, equipment and appurtenances thereof (including electrical lighting, heating,
plumbing and plumbing fixtures and any air conditioning system, including accessories under the
control of Tenant) in good order, condition, and repair, including replacements (including reasonable
periodic painting as determined by Landlord), damage by unavoidable casualty excepted, except for
structural portions, by reason of Tenant's negligent acts or omission to act. Landlord may add the cost
of such repairs in the next installment of rent which shall thereafter become due.
3. Tenant shall not have the right to make any alterations, improvements, and/or additions to the Leased
Premises without first obtaining Landlord's written consent.
4. Tenants are responsible for their interior upkeep and improvements or remodels which may include
paint, carpet or flooring, lighting or interior structural changes.
5. The Landlord may require (upon its discretion) that the Tenant return the Leased Premises to the
original condition prior to alteration at the time of forfeiture of lease.
6. All areas of the Building that are not defined as common areas, including restrooms, shall be
maintained and cleaned by Tenant.
ARTICLE X
Landlord Not Liable for Damages
Landlord shall not be liable to Tenant or to any other person whatsoever for any damage occasioned by
falling plaster, electricity, plumbing, gas, water, steam, sprinkler or other pipe and sewage system or by
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the bursting, running or leaking of any tank, washstand, closet or waste to other pipes in or about the
Leased Premises, or the Building or which they are a part, nor for any damage occasioned by water being
upon or coming through the roof, or vent, or otherwise for any damage arising from any acts or neglect of
co -tenants or other occupants of the Building or of adjacent property, or the public, nor shall Landlord be
liable in damages or otherwise for any failure to furnish, or interruption of service of any water, gas
electricity, heated water, steam and/or chilled water, caused by fire, accident, riot, strike, labor disputes,
acts of God, or the making of any repairs or improvements or other causes beyond the control of Landlord.
ARTICLE XI
Indemnification of Landlord
Tenant shall indemnify Landlord and the City of Aspen and save it harmless from and against any and all
claims, actions or damages or liability or expense in the loss of life, personal injury, and/or damage to
property arising from or out of any occurrence in, upon, or at the Leased Premises, or the occupancy or
use by Tenant of the Leased Premises or any part thereof, or occasioned wholly or in part by any act or
omission of Tenant, its agents, contractors, servants, lessees or concessionaires. In case Landlord, shall
without fault on its part be made a party to any litigation commenced by or against Tenant, then Tenant
shall fully protect and hold the Landlord and the City of Aspen harmless and pay all costs, expenses, and
reasonable attorney's fees incurred or paid by Landlord or the City of Aspen in connection with such
litigation. Tenant shall also pay all costs, expenses, and reasonable attorney's fees that may be incurred or
paid by Landlord or the City of Aspen in enforcing the covenants and agreements in this Lease, so long as
Landlord prevails in such litigation.
ARTICLE XII
Assi ment and 5ublettin
Tenant shall not assign this Lease nor any interest herein, or mortgage or hypothecate this Lease or any
interest herein or permit the use of the Leased Premises by any person or persons other than Tenant, or
sublet the Premises in whole or in part without Landlord's prior written consent. Landlord's consent shall
be entirely discretionary.
ARTICLE XIII
Access to Premises
1. Landlord and its authorized representatives shall have the right to enter upon the Leased Premises at
all reasonable hours (and in emergencies, at all times) to inspect the same, to make repairs, additions
or alterations to the Premises and for any lawful purpose. Landlord agrees to provide Tenant with
reasonable notice whenever it deems necessary to enter upon the Premises.
2. For a period commencing ninety (90) days prior to the end of the lease term, Landlord may have
reasonable access to the Leased Premises for the purpose of exhibiting the same to prospective tenants
and to post any usual "For Lease" signs upon the Leased Premises.
ARTICLE XIV
Damage or Destruction
1. In case the Leased Premises shall be partially or totally destroyed by fire or other casualty insurable
under the full standard extended risk insurance as to become partially or totally untenantable, the same
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shall be repaired as speedily as possible at the expense of Landlord, unless Landlord shall elect not to
rebuild as hereinafter provided, and (should that be a substantial interference with Tenant's business) a
just and proportionate part of the fixed rent shall be abated until so repaired.
2. If more than fifty percent (50%) of the Building in which the Leased Premises are located shall be
destroyed or so damaged by fire, or other casualty insurable under full standard extended risk
insurance, as to become wholly untenantable, or if the Building in which the Leased Premises are
located is destroyed to the extent of not less than thirty three and one- third percent (33 1/3%) of the
replacement cost thereof, or in the event of the Leased Premises shall be partially or totally destroyed
by a cause or casualty other than those covered by fire and extended coverage risk insurance, or, for
such casualty the Landlord shall decide not to rebuild the Building, then in any such event, Landlord
may, if it so elects, rebuild or put said Building in good condition and fit for occupancy within a
reasonable time after such destruction or damage, or may give notice in writing terminating this Lease
as of a date not later than sixty (60) days after any such damage or destruction, notwithstanding that
the Leased Premises may have sustained little or no damage. Any such termination shall be effective
ten (10) days following notification to Tenant by Landlord of Landlord's election to terminate. If
Landlord elects to repair or rebuild said Building, it shall, within sixty (60) days after such damage,
give Tenant notice of its intention to repair and then proceed with reasonable speed to make such
repairs. Unless Landlord elects to terminate this Lease, this Lease shall remain in full force and effect
and the parties waive the provisions of any law to the contrary.
ARTICLE XV
Eminent Domain
1. If title to all of the Leased Premises or so much thereof be taken by any public or quasi -public use
under any statute or by right of eminent domain, or by private purchase in lieu thereof, so that a
reasonable amount of reconstruction of the Leased Premises will not result in the Leased Premises
being a practical improvement and reasonably suitable for Tenant's continued occupancy of the uses
and purposes for which the Leased Premises are leased, this Lease shall terminate as of the date that
possession of said Leased Premises, or part thereof, be taken.
2. If any part of the Leased Premises shall be so taken, and the remaining part thereof (after
reconstruction of the then existing building in which the Leased Premises are located) is reasonably
suitable for Tenant's continued occupancy for the purposes and uses for which the Leased Premises
are leased, this Lease shall, as to the part so taken, terminate as of the date that possession of such part
of the exclusive Leased Premises be so taken and the fixed rent shall be reduced in the same
proportion that the floor area of the portion of the exclusive Leased Premises so taken (less any
additions thereto by reason of any reconstruction) bears to the original floor area of the exclusive
premises, and Landlord shall, at its own cost and expense, make all necessary repairs or alterations to
the Building in which the Leased Premises are located so as to constitute the portion of the Building
not taken a complete architectural unit and the remaining exclusive Leased Premises a complete
merchandising unit, but such work shall not exceed the scope of the work to be done in originally
constructing said building. There shall be no abatement of rent during such restoration except to the
extent otherwise provided in this paragraph.
3. All compensation awarded or paid upon such a total or partial taking of the fee of the Leased Premises
shall belong to and be the property of the Landlord, whether such compensation be awarded or paid as
compensation for diminution in value of the leasehold or to the fee; provided, however, that Landlord
shall not be entitled to any award made to Tenant for loss of business, depreciation to, and cost of
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removal of stock and fixtures.
4. Each party agrees to execute and deliver to the other all instruments that may be required to effectuate
the provisions thereof.
ARTICLE XVI
Default
1. The occurrence of any of the following shall constitute an event of default:
a. Delinquency by the Tenant in payment of any rent under this Lease for a period of ten (10)
days from the date such rent became due and payable.
b. Delinquency by the Tenant in the performance of or compliance with any of the other
obligations of Tenant contained in this Lease, for a period of twenty (20) days after written
notice thereof from Landlord to Tenant.
c. Filing by or against the Tenant in any court pursuant to any statute either of the United States
or of any state, of a petition or bankruptcy or insolvency, or for reorganization, or for the
appointment of a receiver or trustee, of all or a portion of the Tenant's property, if within
ninety (90) days after the commencement of any such proceedings involving the Tenant such
petition shall not have been dismissed.
2. In the event of default in non-payment of rent as defined in Paragraph 1 a) above, this Lease shall
automatically terminate on the date specified in the Landlord's three (3) day notice for payment or rent
or surrender of possession of the Premises under Section 13-40-104(d) (1973 CRS), if Tenant fails to
pay such rent as demanded in said notice.
3. Upon the expiration of this Lease pursuant to the preceding subparagraph, the Tenant shall peacefully
surrender the Leased Premises to the Landlord, and the Landlord upon or at any time after any such
expiration, may, without further notice, reenter the Leased Premises and repossess it by force,
summary proceedings, ejectment or otherwise, and must dispossess the Tenant and remove the Tenant
and all other persons and property from the Leased Premises, and may have, hold and enjoy the
Leased Premises and the right to receive all rental income therefrom.
4. At any time after such expiration, the Landlord may relet the Leased 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 the Landlord, in the Landlord's absolute discretion, may determine, and may collect and receive the
rents therefor. The Landlord shall in no way be responsible or liable for any failure to collect any rent
due upon such reletting.
5. No such termination of this Lease shall relieve the Tenant's liability and obligations under this Lease,
and such liability and obligations shall service any such termination. in the event of any such
termination, the Tenant shall pay to the Landlord the rent required to be paid by the Tenant up to the
time of such Termination, and thereafter the Tenant, until the end of what would have been the term of
this Lease in the absence of such termination, shall be liable to the Landlord for, and shall pay to the
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Landlord as and for liquidated and agreed damages for the Tenant's default the following:
a) The equivalent of the amount of the rent which would be payable under this Lease by the
Tenant if the Lease were still in effect, less
b) The net proceeds of any reletting effected pursuant to the provisions of the preceding
paragraph, after deducting all of the Landlord's expenses in connection with such reletting,
including, without limitation, all reasonable repossession costs brokerage commission, legal
expenses, attorneys' fees, costs and expenses of preparation for such reletting.
ARTICLE XVII
Abandonment
1. Tenant shall not vacate or abandon the Leased Premises at any time during the term of this Lease.
Abandonment shall be deemed to have occurred if Tenant is absent from the Leased Premises for
more than twenty (20) days without having paid a monthly installment of the combined rent per
Article III. If Tenant should violate this prohibition or be dispossessed of the Leased Premises
involuntarily, by operation of law or otherwise, any personal property belonging to Tenant left on the
Leased Premises shall be deemed to be abandoned, at the Landlord's option, or Landlord may store
such property in Tenant's name and at Tenant's expense without notice to Tenant.
2. Upon abandonment of the Leased Premises, the Landlord at its election may reenter and relet the
Leased Premises to the benefit of the Tenant without effecting a termination of the Lease and apply
any rent received as a result of that reletting the amounts due Landlord from Tenant under the Lease.
In the alternative, the Landlord upon abandonment of the Leased Premises may treat the Lease as
being terminated.
3. The rights and remedies of the Landlord under this Article XIX are in addition to and not exclusive of
any other right or remedy of Landlord herein given, or which may be permitted by law.
ARTICLE MIX
Covenant of Quiet En'o meet
So long as the Tenant is not in default hereunder during the base term hereof and any renewal or extension
hereof, the Landlord covenants that the Tenant shall peaceably and quietly occupy and enjoy the Leased
Premises subject to the terms hereof. The Landlord warrants and agrees to defend the title to the Leased
Premises, and further warrants that it has full authority to execute this Lease.
ARTICLE XIX
Accord and Satisfaction
No payment by Tenant or receipt by Landlord of a lesser amount than the rent herein provided shall be
deemed to be other than on account of the earliest rent due and payable hereunder, not shall the
endorsement or statement accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept any such check or payment without a prejudice to the Landlord
trying to recover the balance of such rent or pursue any other remedy provided in this Lease.
ARTICLE XX
Subordination
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Tenant agrees that this Lease Agreement shall be subordinate to any mortgage or deeds of trust that are
now or hereafter may be placed upon said Leased Premises and to any and all advances made or to be
made thereunder and to the interest thereon and all renewals, replacements and extensions thereof,
provided the mortgagee or beneficiary named in said mortgages or deeds of trust shall agree to recognize
the Lease of Tenant in the event of foreclosure if Tenant is not in default and shall attorn to such
mortgagee.
ARTICLE XXI
EstopBel Certificates
Tenant agrees at any time and from time to time, upon no less than ten (10) days' prior request by the
Landlord, to execute, acknowledge and deliver to Landlord a statement in writing certifying that this
Lease is unmodified and in full force and effect (or, if there have been modifications, that the same is in
full force and effect as modified and stating the modifications), and the dates to which the fixed rent and
other charges have been paid in advance, if any, and confirming Tenant's acceptance of the Premises, the
commencement of the lease term, and the rent provided under the Lease, it being intended that such
statement delivered pursuant to this paragraph may be relied upon by any prospective purchaser,
mortgagee, or assignee of any mortgagee of the Leased Premises or the Building.
ARTICLE XXII
Waiver
One or more waivers of any covenant or condition by Landlord shall not be construed as a waiver of a
subsequent breach of the same or any other covenant or condition, and the consent or approval by
Landlord to or of any act by Tenant requiring Landlord's consent or approval shall not be deemed to waive
or render unnecessary Landlord's consent or approval to or of any subsequent similar act by Tenant. The
subsequent acceptance of rent hereunder by Landlord shall not constitute a waiver of any preceding
breach by Tenant of any term, covenant or condition of this Lease other than the failure of Tenant to pay
the particular rental so accepted, regardless of Landlord's knowledge of such preceding breach at the time
of acceptance of such rent. No waiver of any provision of this Lease shall be effective unless it is in
writing and signed by the Landlord.
ARTICLE XXIII
Hold Over
If Tenant should remain in possession of the Leased Premises after the expiration of the Term and without
executing a new lease, then such holding over shall be construed as a tenancy from month to month,
subject to all the conditions, provisions and obligations of this Lease insofar as the same are applicable to
a month to month tenancy.
ARTICLE XXIV
Surrender of Premises: Treatment of Tenant's Alterations at Expiration of Lease
All alterations, additions, improvements, partitions, flooring, carpeting or fixtures, including, but not
limited to light fixtures, electrical fixtures, and plumbing fixtures, which may be made or installed by
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either of the parties hereto upon the Leased Premises and which in any manner are attached to the floors,
walls, windows, or ceilings are to be the property of the Landlord upon installation of any part thereof
without disturbance or injury at the termination of this Lease, unless Landlord shall elect otherwise.
Landlord shall make such election by giving notice in writing to Tenant prior to the expiration or other
termination of this Lease, or any renewal or extension thereof. In the event the Landlord shall so elect,
such alterations, installations, additions or improvements made by Tenant upon the Leased Premises as
the Landlord shall so elect shall be removed by the Tenant and the Tenant shall restore the Premises to its
original condition at the commencement hereof, normal wear and tear excepted, at its own costs and
expense prior to the expiration or termination of the term hereof; or if the Tenant fails to do so at the
Tenant's expense. Also, at the expiration of the lease term, Tenant shall remove all of his movable trade
fixtures which shall not be the property of the Landlord under the foregoing provisions of this paragraph.
The Tenant's obligations to perform the covenants contained in this Paragraph of this Lease shall survive
the expiration or other termination of this Lease.
ARTICLE XXV
Si ns Displays, and Other Advertising Media
Tenant shall not erect or install any exterior or interior window or door signs, advertising media, window
or door lettering, or placards without Landlord's written consent. Tenant agrees to install an exterior sign
which shall be in strict conformance with Landlord's sign criteria as to design, material, colors, location,
size and style of lettering. The cost of such sign shall be the Tenant's sole expense. Tenant agrees not to
use an advertising media or other media that shall be deemed objectionable to Landlord or other tenants,
such as loudspeakers, phonographs, or radio broadcasts in a manner to be heard outside the Premises.
Tenant shall not install any exterior lighting, decoration, painting, or awning, or make any changes to the
exterior of the Leased Premises without Landlord's written consent.
ARTICLE XXVI
Notices
1. All notices to be given with respect to this Lease shall be in writing. Each notice shall be sent by
registered or certified mail, postage prepaid and return receipt requested, to the party to be notified at
the address set forth in the Lease Agreement or at such other address as either party may from time to
time designate in writing.
2. Every notice shall be deemed to have been given at the time it shall be deposited in the United States
mail in the manner prescribed herein. Nothing contained herein shall be construed to preclude
personal service of any notice in the manner prescribed for personal service of a summons or other
legal process.
ARTICLE XXVII
Attorney's 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 party of any judgment, award or other relief, its reasonable attorneys' fees
and costs incurred. In the event Landlord is asked to assign, subordinate, or sublet Leased Premises, all
costs incurred by Landlord will be paid by Tenant, including all reasonable attorney fees.
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ARTICLE XXVIII
Lien on Tenant's Im rovernents and Personal Pro e
Landlord shall have a first lien paramount to all others on every right and interest of the Tenant in and to
this Lease Agreement, and on any building or improvement on or hereafter placed on the Leased
Premises, and on any furnishings, equipment, fixtures, or other persona property of any kind belonging to
the Tenant, or the equity of the Tenant therein, on the Leased Premises. Such lien is granted for the
purpose of securing the payment of rents, taxes, assessments, 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. Upon request of Landlord, Tenant
shall execute such security agreement and financing statement as Landlord may deem necessary in order
to perfect the lien agreed to herein.
ARTICLE XXIX
Personal Guaranty
The shareholders of the Tenant, if Tenant is a Corporation, shall execute the Guaranty attached hereto as
Exhibit "1".
ARTICLE XXX
Miscellaneous Provisions
1. If any portion of this Lease Agreement shall be declared invalid or unenforceable, the remainder of the
Lease Agreement shall continue in full force and effect.
2. Where necessary to carry out the meaning hereof, the singular shall mean the plural, the plural the
singular, and any gender shall apply to all genders.
3. This Lease and the General Conditions constitute the total understanding of the parties with respect to
the subject matter hereof and no modification thereof may be made except by a writing signed by both
of the parties.
4. This Lease Agreement and all agreements herein contained shall bind the parties hereto and their
heirs, personal representative's successors and assigns.
5. Each term and each provision of this Lease Agreement shall be construed as and shall have the same
force and effect as though made in the form of a covenant.
6. This Lease Agreement shall be construed in accordance with the laws of the State of Colorado.
7. Time is of the essence for the performance of any obligation contained in this Lease Agreement.
8. 'Tenant will be charged $50 for each replacement building key, and the cost to replace any other key or
kcy card to access the building.
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EXHIBIT 1 TO YELLOW BRICK LEASE AGREEMENT
GUARANTY OF LEASE
FOR VALUE RECEIVED, and in consideration for, and as an inducement to the aforesaid
Landlord to make the fore§oing Lease Agreement with Aspen Mountain Tots as Tenant, the
undersigned Dawn ay n 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.
IN WITNESS WHEREOF, the undersigned guarantor has caused this guaranty to be executed
effective as of the day of lr�/25I2o22 j 12:49:42lI �dr Do,sloMdby.
J �aUl1n., aln,.
Board President Signature/Business Owner:
Program address: 215 N Garmisch St, Aspen
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