HomeMy WebLinkAboutresolution.council.004-23RESOLUTION #004
(Series of 2023)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND KIND PEOPLE LLC, AND AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS there has been submitted to the City Council a contract for
concession services between the City of Aspen and Kind People LLC, 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 Contract for
concession services by and between the City of Aspen and Kind People 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 January 2023.
7W1F'e--
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, January 24, 2023.
Nicole Henning, City Jerk
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LEASE AGREEMENT
CONCESSION FACILITY AT ASPEN RECREATION CENTER
THIS LEASE AGREEMENT is made and entered into this _ day of December, 2022 by
and between The City of Aspen, 427 Rio Grande Place, Aspen, Colorado 81611 ("Landlord") and
Kind People LLC whose address is 410 Paepcke Dr #102, Aspen, Colorado, 81611 ("Tenant").
WITNESSETH:
WHEREAS, Landlord is the owner of the real property and all the improvements thereon,
known as the Aspen Ice Garden, Aspen Recreation Center, Iselin Park, and Rotary Park located in
Pitkin County, Colorado and described on Exhibit A attached hereto and incorporated herein by
this reference; and,
WHEREAS, Landlord desires to lease a certain portion of the Aspen Recreation Center,
consisting of approximately 299 square feet of concession space (including a kitchen area), as
more specifically described in Exhibit A attached hereto and incorporated herein and referred to
herein as the "premises" or the "lease premises", in accordance with the terms and conditions
contained in this Lease Agreement; and,
WHEREAS, Tenant desires to lease from Landlord the lease 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 fiirther 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 the Aspen Recreation Center, Pitkin County, Colorado,
delineated on Exhibit A attached hereto and incorporated herein, with a
street address of 0895 Maroon Creek Road, constituting approximately
299 square feet of concession space; and
(b) The right to vend upon Iselin Park and Rotary Park from a movable
cart; and/or acceptable Bar B-Q apparatus approved by the Environmental
Health Department.
(c) The right to place furniture in an area adjacent to the concession
space to serve customers; provided, however, that Landlord grants prior
written approval to the location of the furniture and the type and design of
the furniture.
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A The first right of refusal for concessions and restaurant space at the
Aspen lee Garden. Any food sold in the building will need to follow
environunental health guidelines.
for the terra, at the rents, and upon the conditions and covenants hereinafter set forth. Taking
possession of the lease premises by Tenant shall constitute acknowledgment that such premises
are in good condition and neither the City of Aspen nor Landlord shall be required to make any
alterations thereto, unless agreed to in advance and in writing by Landlord.
2. Term.
(a) Unless sooner terminated, as provided herein, the initial term of this Lease
Agreement shall be for a period of five (5) years (the "Initial Term"). The Initial Term
shall conunence at 12:00 noon on December 1 Ott', 2022 and shall exph-e at 12:00 noon five
calendar years later. A Lease Year shall be a calendar year starting on the commencement
date of the Initial Term through 12:00 noon of the following calendar year and each
calendar year thereafter. Tenant's occupancy of the Leased Premises shall be limited by
paragraph 5, below. If Tenant is not in default of the terms of this Agreement during the
Initial Term, Tenant shall have the right to renew this Agreement for an additional period
of five years. Renewal discussion shall coninnence no later than six months prior to the
expiration of the Initial Term, and conclude no later than three months before the expiration
of the Initial Term.
(b) In the event that a governmental authority, including Landlord, bans the sale
of certain goods or foods from the leased premises that represent ten percent (10%) or more
of Tenant's total gross sales as defined in paragraph 3(b) above, Tenant shall have the right
to terminate this Agreement upon sixty (60) days written notice to Landlord.
3.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 3% of the Monthly
Gross Sales and $175 dollars monthly for utility cost. The 3% of sales monthly will
commence once an initial $50,000 of revenue is earned. 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 the event that this Lease Agreement is renewed following the Initial Term
in accordance with Paragraph 2(a), commencing at the start of the renewal period, the
minimum annual rental shall be adjusted upward, based upon increases (if any) in the cost
of living during (i) the preceding Initial Term (five Lease Years) for the first increase for
the first Lease Year of the renewal term, and (ii) during the preceding Lease Year for every
succeeding Lease Year after the first Lease Year of the renewal term, using the "Price
Index", all as more particularly described in Exhibit D appended and made a part hereof
as if fully set forth herein.
(i) 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
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(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 ainount
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, including all sales from
vending machines and cart sales. The figure for gross sales will include deposits
not refunded to customers, orders of any kind received or filled at the Leased
Premises, receipts fi•om vending machines located upon the Leased Premises,
receipts from all sales generated from the carts referenced in paragraph l(b), 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
followuig items, if applicable, shall be deducted from gross sales:
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. 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
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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 twenty-four (24)
hours notice in writing to Tenant, Landlord or Landlord's authorized representative
may audit any of Tenant's records of gross sales. If, when Landlord audits the
records for a Lease Year based on normal accounting procedures, it finds that the
Tenant has understated its gross sales for the Lease Year by five percent (5%) 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 (I S%) per anuum 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 five percent (5%) 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.
4. ) quipnient,_Fixtures and Finishes Provided by Landlord and Tenant.
(a) Tenant represents that lie has had an opportunity to review the building
plans for the Leased Premises. The parties hereto understand that. Landlord and Tenant
shall finish the Leased Premises by the construction and installation of all work and
materials as set forth in the building plans for the Leased Premises. On a date mutually
agreed to by the parties, but no later than the start of the term of this Lease Agreement,
Tenant shall be given an opportunity to inspect the Leased Premises to assure himself that
the work and materials to be constructed or installed in the Leased Premises are
satisfactory. Tenant shall prepare a punch list of all items that require further work and
shall present the punch list to Landlord. Landlord shall take all reasonable steps to correct
or complete all items on the punch list within a reasonable period of time. Unless an item
on the punch list shall materially affect the Tenant's intended use of the Leased Premises,
the scheduled start of the lease term shall not be postponed.
(b) The Landlord shall fiunish Tenant with certain fixtures and those items of
moveable equipment (equipment that is not attached or otherwise built in to the premises)
described in the inventory appended hereto as Exhibit B. Tenant shall furnish other
fixtures and articles deemed necessary by Tenant for its use of the premises but not
enumerated in Exhibit B, at Tenant's expense. Such fixtures, equipment, and articles shall
be sold to Landlord at the end of the lease period, and extensions thereto, at Landlord's
option, for a price not to exceed the original purchase price less normal depreciation.
(Tenant shall provide to Landlord a bill of sale and schedule of useful life for any fixtures
or equipment that Landlord requests at the commencement of this Lease.) All items of
equipment and fixtures set forth in 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
the termination of this Lease in the same condition as when accepted by Tenant, ordinary
wear and tear excepted. If the equipment or fixture is determined to be frilly depreciated
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or incapable of repair, Tenant shall neither be required to purchase a new piece of
equipment or fixture nor shall the Landlord be obligated to purchase new equipment or
substitute working equipment for equipment that can't be repaired. Special or time
sensitive maintenance other than routine maintenance as required by warranties covering
individual pieces of equipment and fixtures shall be the responsibility of the Landlord;
provided, however, that the equipment or fixture is supplied by Landlord as indicated oil
Exhibit B; and provided fiirther, that Tenant operates the equipment and fixtures in
accordance with any operational manuals supplied by the equipment or fixture
manufacturer.
5. 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 6 below, and all other terms and conditions of this Lease Agreement. The parties
agree to meet no less than once every two weeks to discuss Tenant's performance and any other
issues relating to the terms and conditions of this Lease Agreement. Tenant may provide
improvements to the space upon written approval by the Lessor. All improvements will be listed
in Exhibit "C" and any permanent fixtures must remain with the leased space and financial
consideration will only be granted upon and written and signed addendum to this agreement.
6. Permitted Uses and Required Performance Standards. The parties hereto recognize
and acknowledge that the construction of the Aspen Recreation Center, including the Leased
Premises, by Landlord was done, in part, to create a concession facility that caters to the customers
and users of the Aspen Recreation Center, Iselin Park and Rotary Park facilities. Tenant recognizes
that a major and important consideration inducing Landlord to rent the Leased Premises to Tenant
is the operation of a high -quality concession business offering food services to the customers and
users of the recreational facilities at the Aspen Recreation Center, Iselin Park, and Rotary Park.
Accordingly, Tenant agrees to the following minimum standards of operation and uses of the
Leased Premises:
Tenant shall operate the leased premises in accordance with the following schedule of hours of
operation: Tenant can change hours as necessary to accommodate guest.
Suggested hours:
Monday -Friday I Iam-6pm Saturday 10ani-5pm Sunday 12pm -5pm
Aspen Ice Garden Special Events (Fall Face Off, Roller Skating)
In addition to the above stated minimum hours of operation, Tenant shall operate the
concession during all special events; provided, however, that Landlord notifies Tenant of
such special events at least 72 hours in advance. Special events shall include, but not
necessarily be limited to, ice skating shows, exhibition hockey gauzes, or swim meets.
Vending machines required to be provided and operated by Tenant within the Aspen
recreation Center and Aspen Ice Garden shall be always operational during the year.
Vending machines required to be provided and operated.
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The parties hereto agree to review and negotiate in good faith the above stated hours of
operation at the end of the first Lease year. In the event of an impasse in said negotiations,
Tenant agrees to abide by Landlord's decision in this regard.
Tenant may provide outdoor food service from a cart to customers at Iselin Park and Rotary
Park. The Landlord shall approve the design and operation of the food cart(s) before Tenant
uses them, Landlord shall not allow any other vendors to vend upon Iselin Park or Rotary
Park during any times that Tenant is vending from Tenant's cart(s) provided that the Tenant
is operating the cart during the minimum established and agreed upon hours of operation.
Landlord shall provide any electrical outlets required by Tenant to vend upon the
aforementioned parks.
Special Events — Tenant shall have the exclusive right to all food service in the Aspen
Recreation Center and Aspen Ice Garden (except the area leased by the Youth Center).
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 Tenants' services for such events.
Tenant shall not schedule or serve any special event that is not authorized in advance and
in writing by Landlord. User groups desiring to have "bake sales" or other similar
fundraising activities or desiring to bring food for any purpose within the Aspen Recreation
Center shall be requited to obtain the prior written permission of Tenant. Tenant shall not
unreasonably witl-lrold its permission for such events.
In the case that the Event Organizer chooses not to use the tenant's serf+Ices, they iidll bit},
out the SerWces of this agl-eeMent,for• t's500 anll r•eceNe in 11l1111ng; (r3 IlleOfled above, that
811ch an agr'eernent has been appr•oi ed h)/ tenant.
7. 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 nuisance of any
kind, nor for any purpose or in any way in violation of any present or fixture 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.
S. Service to Patrons/No Discrimination. The service provided to patrons by Tenant
shall be rendered courteously and efficiently and within the limits for which the facility is designed.
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Landlord reserves the right to prohibit the sale of any item that it deems 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 unreasonably withheld,
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 mariner that would directly or
inferentially reflect on the acceptability of the patrons of any person because of race, religion,
color, creed, ancestry, sex, age, sexual orientation or national origin.
9. Ern l3loyee Uniforms. All employees of Tenant shall wear, at all times, uniforms
of a consistent appearance. Said uniforms shall be subject to the approval of Landlord.
10. Entertainment. Live entertainment and the use or playing of televisions, stereo
systems, games, and the type and volume of music, shall be approved by Landlord before
implementation,
11, Parking. One Free parking will be designated by the City of Aspen and provided
for the Tenant's patrons and employees. Patron and employee parking shall be consistent with the
parking provided for the City's employees and patrons.
12. Accountina. In addition to the accounting to be provided to Landlord pursuant to
paragraph 3, above, Tenant shall provide Landlord: a) with copies of the quarterly sales and
wid-Aiolding 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 Charizes. The Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent or other slums 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 wluch 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.
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14. Personal and Real Proper 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 fiill 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 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 Recreation Center. 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 0.0037 multiplied 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
malfiuiction. 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
their. 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 hisurance. The Tenant, at its own cost and expense, shall provide and
keep in fiill 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
One million dollars ($1.000,000.00) each occurrence with a Two million dollar ($2,000,000.00)
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 terns 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
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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 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 Covera e. 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. During the Lease Term, Tenant shall pay $100 monthly
as and for its prorated share of all charges for utilities that are not separately metered or contracted
for separately by Tenant. Those utilities covered by this pro -rated share include gas, electricity,
water, sewer, trash removal, and the cost of cleaning the common restrooms on the main floor.
Utilities not covered by this pro -rated share amount shall include telephone, cable televisions and
any other utility or maintenance services used by the Tenant in or about the Leased Premises during
the term of this Lease. After the first Lease Year, the prorated share amount shall be increased (or
decreased) based upon any percentage change in the actual cost of providing the pro -rated share
of the utilities.
19. Alterations. No alterations, additions, or improvements shall be made, and no
fixtures shall be installed in or attached to the Leased Premises without the written consent of the
Landlord. Unless otherwise provided herein, all such alterations, additions or improvements when
made, installed in or attached to the said Leased Premises, shall belong to and become the property
of the Landlord and shall be surrendered with the Leased Premises as part thereof upon the
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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
workunaulike 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, assignees or successors, the
Tenant shall repair the said damage or replace or restore any desiroyed parts of the Leased
Premises, as speedily as possible, at the Tenant's own rost and expense,
21. Damage to Premises. If the Leased Premises shall be so damaged by fire or other
catastrophe (which is not caused by the fault or negligence of the Tenant or imputable to the
Tenant) as to render said Leased Premises untenantable, the Tenant thereupon shall surrender the
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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 catastrophe but not so as to render the same untenantable for any
substantial period of time, the Landlord, after receiving notice in writing of the occurrence of the
injury, shall cause the same to be repaired with reasonable promptness; and in such event, rent
shall be proportionately abated, according to the loss of use, until the Leased Premises are
substantially restored.
22. Sublease/Assi :�tg ient. 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 conunencement of this lease the Leased
Premises and every part thereof, including without limiting the generality of the foregoing, all
plumbing fixtures, withal 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 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 deternvnes 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
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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 tile said repairs,
alterations or improvements shall have been completed. Any signs permitted by the Landlord shall
at all times conform to all municipal ordinances or other laws and regulations applicable thereto.'
25. ComWianee 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 Enjavzment. 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 shal I 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 tinder 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 obligation hereunder
to Tenant and this Lease shall be of no fiirther 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
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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 ally condemnation
proceedings or to effectuate a proper transfer of title to such govermiiental 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 Conuliercial 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 ally part thereof, at all reasonable hours and upon reasonable notice, for the purpose
of examining the same or making such repairs or alterations therein as may be necessary for the
safety and preservation thereof Nothing in this section is intended to restrict access to the premises
by an authorized City of Aspen inspector conducted pursuant to law, including, but not limited to
Environmental Health employees conducting routine health inspections, This clause shall not be
deemed to be a covenant by the Landlord nor be construed to create an obligation on the part of
the Landlord to make such inspection or repairs. Tenant expressly waives and releases any claim,
demand, or cause of action it might have 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 ,vhich 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,
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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 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
fiirnishings, 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' Fccs. 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.
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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 attormnent 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 refirsal 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,
35. Holdinp, Over. This Lease shall expire of its own accord without notice at the end
of the terra 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. Cumtutative 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 relinquislunent 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. Tenant shall store all trash in the containers provided for that purpose,
38. Brokczs. 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.
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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.
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 deeined 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 here -Linder 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.
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47. Tenant is an Indel2endent 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. 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. Guaranty. 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
provided by Landlord.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and year
above first written.
Tenant: Kind People LLC
Date: 0/. IPY- 2
Landlord: City of Aspen
❑—'ignetl by:
By: $A x G. M
Sara G. Ott, City Manager
Date:1/25/2023 1 8:52:38 PM PST
A raved as to form:
❑oucuS(ignod by:
3arnes rue; City Attorney
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List of Exhibits Auvended to Lease Aereement
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,
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Exhibit A
Aspen Recreation Center, consisting of approximately 299 square feet of concession space
Space for 2 Vending Machines in the AIG and ARC
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Exhibit B:
Storage Space with Utility Sink
Counter and Sink in Concession Space
Lighting
Power
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Exhibit C
List of Improvements and Fixtures to be made or Provided by Tenant.
Tenant will Paint the space.
Tenant has asked for a facet, drain and outlet repair.
Tenant has asked for cleaning of vent and gate.
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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
Currant Index Number = of next Lease Year
Base Index Number "Price Index for first mouth 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 1 and any resulting positive number shall be deemed to be the percentage of increase
of cost of living.
e) The percentage of increase in the cost of living shall be multiplied by the
minimum annual rental including increases for the year preceding the adjustment year for which
the increase is being computed.
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 f) 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 each
adjustment year (retroactive payments then due being payable within thirty (30) days after giving
notice thereof by Landlord to Tenant).
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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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GUARANTY OF LEASE
FOR VALUE RECEIVED, and in consideration for, and as an inducement to the aforesaid
Landlord to make the foregoing Lease with Kind People LLC, as Tenant, the undersigned Kind
People LLC unconditionally guarantees the fitll 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. 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.
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.
TN WITNESS WHEREOF, the undersigned guarantor has caused this guaranty to be executed
effective as of the day of 20
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