HomeMy WebLinkAboutresolution.council.176-23RESOLUTION # 176
(Series of 2023)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A LEASE AGREEMENT BETWEEN THE CITY
OF ASPEN AND DANIEL JOSEPH WATKINS AND AUTHORIZING THE
CITY MANAGER TO EXECUTE A FINAL LEASE AGREEMENT ON
BEF[ALF OF THE CITY OF ASPEN, COLORADO.
tiVHEREAS, there has been submitted to the City Council a Lease
Agreement between the City of Aspen and Daniel Joseph Watkins regarding
the lease in the Wheeler Opera House of the premises now known as 213 S.
Mill Street, and as more fully described in the proposed Lease Agreement
thereto, a copy of which is attached hereto as Exhibit "A".
NOW, THEREFORE, BE IT RESOLVED BY TIE CITY COUNCIL
OF T`I� CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves the entry
into a Lease Agreement between the City of Aspen and Daniel Joseph
Watkins regarding the lease in the Wheeler Opera House of the premises
now known as 213 S. Mill Street, a copy of which is attached hereto and
incorporated herein, and does hereby authorize the City Manager of the City
of Aspen to execute such Lease Agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City
of Aspen on the 28th day of November 2023.
Torre, Mayor
I, Nicole Henning, duly appointed and y
acting City Clerk do certify that
the foregoing is a true and accurate copy of that resolution adopted bthe
City Council of the City of Aspen, Colorado, at a meeting held November 28,
2023. —
4
0
Nicole ..Henning, y Clerk
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LEASE AGREEMENT
WHEELER OPERA HOUSE
THIS LEASE AGREEMENT is made and entered into this 28t1' day of November, 2023
by and between the City of Aspen, 427 Rio Grande Place, Aspen, Colorado 81611 ("Landlord")
and Daniel Joseph Watkins, whose address is 531 E. Cooper Ave., #4, Aspen, CO 81611
("Tenant").
WITNESSETH:
WHEREAS, Landlord is the owner of the real property and all of the improvements
thereon, known as the Wheeler Opera House, 320 East Hyman Avenue, Aspen, Colorado 81611;
and,
WHEREAS, the parties hereto desire to enter into a Lease Agreement for a certain portion
of the Wheeler Opera House as more fully described herein.
NOW, THEREFORE, for and in consideration of the payments to be made hereunder, and
in further consideration of the terms, conditions, covenants and mutual promises contained herein,
the parties hereto agree as follows:
1. Lease of Premises. Landlord does hereby rent to Tenant the following described
premises ("Leased Premises") subject to the covenants and conditions hereinafter contained, to
W1t:
That portion of. the first floor of the Wheeler Opera House with a street
address of 213 S. Mill Street consisting of 497 square feet, as more fully
described and depicted in the attached Exhibit A.
for the term, 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 Tenant nor Landlord shall be required to make any alterations
thereto, unless agreed to in advance and in writing by Landlord.
2. Term. Unless sooner terminated, as provided herein, the term of this Lease
Agreement shall be for a period of five (5) years (the "Term"). The Term shall commence at
12*00 noon on May 1, 2024, and shall expire at 12:00 noon on April 30, 2029. A Lease Year
shall be a calendar year starting on the commencement date of the Term through 12:00 noon of
the following calendar year and each calendar year thereafter. Contingent upon Landlord's
written approval to renew this Lease following the expiration of the Term, Tenant has the right to
extend this lease for an additional five (5) year term, commencing May 1, 2029 and expiring
April 30, 2034, and Landlord and Tenant shall engage in negotiations to renew the terms of this
Lease Agreement. Tenant's occupancy of the Leased Premises shall be limited as set forth below.
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3. Early Termination of Term by Tenant. Tenant shall have the right to terminate this
Lease Agreement before the end of the Term. Early termination, except as provided herein, may
only occur on July 1 of each calendar year, provided that the Tenant provides the Landlord written
notice of an intent to terminate this lease on or before April 301h of the year of the proposed early
termination. However, in the case of a water damage event in which significant loss of the use of
the Lease Premises occurs and in which the Tenant cannot adequately recover from the Landlord,
the Landlord's insurance company, or the Tenant's insurance company (without cancellation of
Tenant's coverage), the Tenant shall have the right to terminate this Lease Agreement effective in
thirty days by providing the Landlord written notice of an intent to terminate this Lease no less
than thirty days before the proposed termination date. The notice of intent to terminate shall state
that the Tenant is availing itself of the provisions of the Lease and shall state the reasons the Tenant
believes that it is entitled to avail itself of the provisions of the Lease.
4. Rent. The base rental rate for Lease shall be five thousand dollars ($5,000} per
month for the period of May 1, 2024, through April 30, 2025. Monthly rent has been calculated as
follows: $120.73 X 497 feet / 12 months = $5,000 per month (rounded). Commencing after the
I rst Lease Year (i.e. beginning May 1, 2025) and every Lease year thereafter, the monthly rental
rate shall be adjusted upward, based upon increases it any) in the cost of living during the
preceding Lease Year using the "Price Index", all as more filly described in Exhibit B appended
hereto and made part hereof. The Rent shall be payable in equal monthly installments due on the
first day of each calendar month during the Term hereof without prior demand.
i) During the term of the Lease, Tenant shall keep accurate records of all its
operations. Within thirty (30) days after the end of each Lease Year, Tenant shall deliver to
Landlord a written statement signed by Tenant or some other person acceptable to Landlord,
setting forth the amount of Tenant's Gross Sales for the preceding Lease Year. These records shall
conform to generally accepted accounting practices and shall include records of gross sales and of
receipts and deliveries of all merchandise. Tenant shall keep all the documents relating to Tenant's
operations for at least thirty-six (36) months from the end of the Lease Year to which they apply.
ii} At any time during the Term of this Lease and following at least fourteen (14) days
written notice in wrng to Tenant, Landlord may request Tenant's records of gross sales and gross
receipts and deliveries of merchandise.
iii) Tenant shall also provide Landlord with (i) copies of the quarterly sales and
withholding tax statements it provides to the appropriate authorities, with a notation thereon by
Tenant's accountants reflecting the portion of the income reflected on those returns that is derived
from Gross Sales; and (ii) statements prepared by Tenant's accountants reflecting the Gross Sales
and sales tax paid by Tenant for each calendar quarter.
5. Security Deposit. Tenant shall pay Landlord five thousand dollars ($5,000) as a
security deposit on or before March 1, 2024. Interest shall not be paid on the amount of security.
h the event Tenant is in default of its obligations under the terms of this Lease, Landlord may, at
its option, use the security amount to ensure the faithful performance by Tenant of all terms of this
Lease. In the event required, Tenant may not use or apply any portion of the deposit in lieu of rent
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and said deposit shall be retained by Landlord until the termination of this Lease, at which time
the deposit will either be returned to Tenant or retained in whole or in part by Landlord in
accordance with the provisions of Section 3842-101, et seq., Colo. Rev. Stat, as amended.
Landlord may, at its election, have recourse to such security deposit to make good any default by
Tenant, in which event Tenant shall, on demand, promptly restore said security deposit to its
original amount. Liability to repay the security deposit to Tenant shall run with the reversion and
title to the Leased Premises and Landlord shall assign the security deposit, for the benefit of
Tenant, to any subsequent owner or holder of the reversion or title to the Leased Premises, in which
case the assignee shall become liable for the repayment thereof, and Landlord shall be deemed to
be released by Tenant from all liability in connection therewith.
6. 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 7 below, and all other terms and conditions of this Lease Agreement. The parties
agree to meet no less than once every three months to discuss Tenant's performance and any other
issues relating to the terms and conditions of this Lease Agreement.
7. Permitted Uses and Required Performance Standards. Tenant shall use and occupy
the Leased Premises for retail space as an art gallery showcasing primarily local Aspen and
Roaring Fork Valley artists and partnering with local nonprofits, arts organizations, artists and
curators, and for no other purpose without Landlord's written consent.
8. Prohibited Uses. Tenant shall not use, occupy, or permit the Leased Premises or
any part thereof to be used or occupied for any unlawful or illegal business, use, or purposes
deemed by Landlord to be 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 fiiture 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.
9. 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.
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
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employees shall not discriminate against any person because of race, religion, color, creed,
ancestry, sex, age, sexual orientation or national origin by refusing to furnish such person any
service or privilege offered to or enjoyed by the general public. Neither Tenant nor Tenant's
employees shall publicize the services provided hereunder in any manner that would directly or
inferentially reflect on the acceptability of the patrons of any person because of race, religion,
color, creed, ancestry, sex, age, sexual orientation or national origin.
10. Late Charges. The Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent or other sums due hereunder will cause Landlord to incur costs not contemplated
by this Lease, the exact amount of which shall be extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges and the late charges.
Accordingly, if any bona fide installment of rent or any other sum due from Tenant hereunder shall
not be received by Landlord or Landlord's designee on or before the twentieth (20th) day of each
calendar month that a rent payment is due, then Tenant shall pay to Landlord a late charge of ten
percent (10%) on such overdue amount. The parties hereby agree that such a late charge will
represent a fair and reasonable settlement of the cost that Landlord would incur by reason of the
late payment by Tenant. Acceptance of such late charges by Landlord shall in no event constitute
a waiver of Tenant's default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder unless the entire amount due,
plus late charge, is accepted by Landlord. In addition, any sum for which the Tenant shall be
obligated to the Landlord, which is not received on the due date thereof, shall bear interest at the
rate of ten percent (10%) per annum from and after the due date until paid.
11. Personal and Real Property Taxes. Tenant shall be responsible to pay all real or
personal property taxes assessed against the personal property used by Tenant and located on the
Leased Premises or upon the leasehold interest of the Tenant of the Leased Premises. Likewise,
Tenant shall be responsible for any and all sales, use, withholding and other taxes assessed against
the Leased Premises for Tenant's business operation therein.
Fire and Casualty Insurance. The Tenant, at its own cost and expense, shall provide
and keep in full force for the benefit of the Tenant and the City and the Landlord (as named or
additional insureds) during the term hereof or any extension or renewal period, insurance to insure
the Leased Premises against fire, normal extended coverage perils, vandalism, malicious mischief,
and liability. Throughout the term of this Lease, the Tenant shall carry and maintain in effect
casualty insurance covering its trade fixtures, equipment, furnishings, leasehold improvements and
plate glass, which insurance shall protect against fire, normal extended coverage perils, vandalism,
malicious mischief, and sprinkler malfunction. Such insurance shall provide coverage to the extent
of at least one hundred percent (100%) of the insurable replacement cost of the insured property.
Both the Landlord and the Tenant waive any right of subrogation that their respective insurers may
acquire against either of them. Both of these waivers shall automatically terminate at such time as
either party's insurer requires that an additional premium be paid as a consequence of this waiver
provision.
13. Liability Insurance. The Tenant, at its own cost and expense, shall provide and
keep in full force for the benefit of the Tenant and the Landlord (as named or additional insureds)
during the term hereof or any extension or renewal period, general public liability insurance for
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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 ($12,000,000.00) general aggregate combined single limit covering bodily injury,
property damage, and personal injury. In addition, if Tenant serves, manufactures, or distributes
alcoholic beverages on the Leased Premises, Tenant shall carry liability insurance for such activity
with limits in the same amounts as stated above. The policy or policies of insurance (or binders
of insurance therefore) shall be issued by a reputable company or companies authorized to do
business in this State and shall name Landlord as an additional insured. Tenant shall provide
evidence of such insurance coverage to Landlord prior to the commencement of the term hereof.
The Tenant also agrees to and shall save, hold and keep harmless and indemnify the Landlord from
and against any and all payments, expenses, costs, attorneys' fees and/or damage to property or
injuries to persons occasioned wholly or in part by or resulting from any acts or omissions by the
Tenant or any subtenants, assignees or successors. If for any reason as a result of Tenant's
activities, use, or business, it shall be impossible to obtain fire and other hazard insurance on the
buildings and improvements on the Leased Premises, in an amount and with insurance companies
acceptable to the Landlord, the Landlord may terminate this Lease and the term hereof, upon giving
to Tenant fifteen (15) days' notice in writing of the Landlord's intention to do so and upon the
expiration of the time provided in said notice, this Lease and the term hereof shall terminate. If by
reason of the use of the Leased Premises by the Tenant or by character or manner in which the
Tenant's business is carried on, Landlord's insurance rates for fire and other hazards shall be
increased, the Tenant shall pay, as additional rent, the amounts by which the premiums for such
insurance are increased. The Tenant waives 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.
14. Notice of Cancellation of Insurance Coverage. The above insurance policies shall
contain clauses substantially similar to the following:
(a) Notwithstanding any other provision in this policy, the insurance
afforded hereunder to the Landlord shall be primary as to any other insurance or
reinsurance covering the Landlord and such other insurance or reinsurance shall not
be required to contribute to any liability until the appropriate limit of liability
afforded hereunder is exhausted.
(b) This policy may not be canceled or changed until forty -eve (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.
15. Utilities. All utilities shall be metered separately. Tenant shall be responsible for
any and all utility charges that are separately metered or contracted for by Tenant.
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16. Alterations. Landlord shall deliver the Leased Premises to Tenant on or before the
commencement date of this Lease Agreement. No alterations, additions, or improvements shall be
made, and no fixtures shall be installed in or attached to the Leased Premises that are not pre~
approved in writing by Landlord. Unless otherwise provided herein, all such alterations, additions
or improvements when made, installed in or attached to the said Leased Premises, shall be made
at Tenant's expense and will belong to and become the property of the Landlord and shall be
surrendered with the Leased Premises as part thereof upon the expiration or sooner termination of
this Lease, without hindrance, molestation, or injury. Notwithstanding that they may have become
an integral part of the Leased Premises, Landlord may require Tenant to remove all or any part of
such alterations, additions, improvements or fixtures at the expiration or earlier termination of this
Lease, restoring the Leased Premises to the same condition existing at the beginning of the original
term, ordinary wear and tear excepted. If Landlord does so require, Tenant shall repair all damages
resulting from such removal and should Tenant fail to repair damages resulting fiom such removal,
Landlord may remove the same or make such repairs for Tenant's account, and Tenant shall pay
to Landlord, on demand, an amount equal to Landlord's costs incurred in such removal or repair.
All work with respect to any permitted alterations, additions, or improvements shall be done at
Tenant's sole expense in a good and workmanlike manner, strictly in accordance with the plans
and specifications approved by Landlord. In doing said work, other Tenants of Landlord (if any)
shall not be adversely affected nor unreasonably inconvenienced. Tenant shall, at its own expense,
obtain all necessary building or other permits or approvals required by appropriate governmental
authorities prior to beginning such work. If any mechanics' or other liens shall be created or filed
against the Leased Premises by reason of labor performed or materials furnished for the Tenant in
the alteration, addition or repair to any building or improvement, the Tenant shall within ten (10)
days thereafter, at the Tenant's own cost and expense, cause such lien or liens to be satisfied and
discharged of record together with any Notices of Intention that may have been filed. Failure to
Jo 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.
17. Re airs. 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
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in a clean condition, free from debris, trash, refuse. In case of destruction of, or any damage to the
glass in the Leased Premises, or the destruction of, or damage of any kind whatsoever to the Leased
Premises, caused by the carelessness, negligence or improper conduct on the part of the Tenant or
the Tenant's agents, employees, guests, licenses, invitees, subtenants, assignees or successors, the
Tenant shall repair the said damage or replace or restore any destroyed parts of the Leased
Premises, as speedily as possible, at the Tenant's own cost and expense.
18. Maintenance and Repairs. Tenant shall during the term of this Lease lceep in
condition and repair equal to that which existed at the commencement of this lease the Leased
Premises and every part thereof, including without limiting the generality of the foregoing, all
plumbing fixtures, within the Leased Premises, refrigeration, electrical fixtures and lighting
fI
xtures, 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 structural
repairs and required replacement to mechanical systems situated within the Leased Premises that
were originally provided by the Landlord.
19. Damage to Premises. If the Leased Premises shall be so damaged by fire or other
catastrophe (which is not caused by the fault or negligence of the Tenant or imputable to the
Tenant) as to render said Leased Premises untenantable, the Tenant thereupon shall surrender the
Leased Premises to the Landlord. 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.
20. Sublease/Assignment. Tenant shall not assign, sublease, mortgage, pledge or
otherwise hypothecate or transfer all or any part of Tenant's leasehold estate hereunder, or permit
the Leased Premises or any portion thereof to be occupied by anyone without Landlord's prior
written consent in each instance, which consent shall not unreasonably be withheld. In the event
Tenant is a corporation, these provisions shall apply to any transfer, sale or other disposition,
whether voluntary or involuntary, of any stock in Tenant or to any merger, consolidation or
dissolution or any other transaction, the effect of which would be in any way to avoid or circumvent
such prohibitions. Any assignment or subletting contrary to the provisions of this Paragraph shall
be void and shall, at the option of the Landlord, constitute a default under the terms of this Lease.
21. Signs. The Tenant shall not place nor allow to be placed any signs of any kind
whatsoever, upon, in or about the said Leased Premises or any part thereof that are visible from
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the exterior of the Wheeler Opera House, except of a design and structure and in or at such places
as may be indicated and consented to by the Landlord in writing. Awning(s) affixed to the Wheeler
Opera House and serving the Leased Premises are the property of the Landlord. Landlord will, at
its own costs, arrange for the initial printing of the name of the business, as mutually agreed upon
by the Tenant and Landlord, on the awning(s) solely serving the entrance or the windows of the
Leased Premises. In case the Landlord or the Landlord's agents, employees or representatives shall
deem it necessary to remove any such signs in order to paint or make any repairs, alterations or
improvements in or upon the Leased Premises, they shall be replaced at the Landlord's expense
when the said repairs, alterations or improvements shall have been completed. Any signs
permitted by the Landlord shall at all times conform with all municipal ordinances or other laws
and regulations applicable thereto.
22. Compliance wit11 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.
23. Quiet Enjoyment. So long as the Tenant is not in default hereunder during the term
hereof or any renewal or extension hereof, the Landlord covenants that the Tenant shall peacefully
and quietly occupy and enjoy the Leased Premises subject to the terms hereof. The Landlord
warrants that it has full power and authority to execute this Lease, be bound by, and perform all
its obligations hereunder.
24. Condemnation. If the land and the Leased Premises leased herein, or of which the
Leased Premises are a paY-t, 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
A 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 any condemnation
proceedings or to effectuate a proper transfer of title to such governmental or other public
authority, agency, body, or public utility seeking to take or acquire the said lands and Leased
Premises or any portion thereof. The Tenant covenants and agrees to vacate said Leased Premises,
remove all the Tenant's personal property there from and deliver up peaceable possession thereof
to the Landlord or to such other party designated by the Landlord in the aforementioned notice.
Failure by the Tenant to comply with any provisions in this clause shall subject the Tenant to such
costs, expenses, damages and losses as the Landlord may incur by reason of the Tenant's breach
hereof.
25. Landlord's Lien. Tenant hereby grants to Landlord a security interest in any and all
of Tenant's furniture, fixtures, equipment 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. Landlord shall not have any security
interest, lien, or claim whatsoever on any artifact, artwork, paintings, or sculptures in the leased
premises; as such items are generally displayed or sold on a consignment basis. Tenant agrees to
execute and deliver to Landlord, upon request, such additional documents as Landlord may require
establishing and perfecting such security interest including, without limitation, a financing
statement in form satisfactory to Landlord, which is to be executed and delivered by Tenant to
Landlord. The exercise by Landlord of any rights in and to such furniture, fixtures, equipment and
inventory upon default hereunder shall be governed by Article 9 of the Colorado Uniform
Commercial Code, as in effect at the time of such default, but such exercise shall not preclude
Landlord from exercising any or all other rights and remedies hereunder or as provided by law.
26. Infection and Repair. The Tenant agrees that the Landlord and the Landlord's
agents, employees or other representatives, shall have the right to enter into and upon the Leased
Premises or any part thereof, at all reasonable hours and upon reasonable notice, for the purpose
of examining the same or making such repairs or alterations therein as may be necessary for the
safety and preservation thereof. Nothing in this section is intended to restrict access to the premises
by an authorized City of Aspen inspector conducted pursuant to law, including, but not limited to _
Environmental Health employees conducting routine health inspections. This clause shall not be
deemed to be a covenant by the Landlord nor be construed to create an obligation on the part of
the Landlord to make such inspection or repairs. Tenant expressly waives and releases any claim,
demand, or cause of action it might have by reason of any inconvenience, annoyance to Tenant,
its guests, licensees or invitees arising from any maintenance, alteration or repair to any portion of
the Leased Premises, the building in which it is located or the property upon which it is situate.
Tenant grants to Landlord the right to temporarily discontinue utilities or any of them at any such
time or times as may be necessary by reason of any such maintenance work, alteration or repair.
27. 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.
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28. Minimum Hours. Tenant shall be fully stocked and staffed and open for business
on the Leased Premises continuously Monday through Sunday, inclusive, according to the
minimum hours established in the following schedule;
MINIMUM HOURS
December 16 —March 31
April 1 - June 14
June 15 -August 31
September 1 - December 15
40 +hours per week
30 + hours per week
(Subject to Tenant's option
to close the Premises)
40 + hours per week
30 + hours per week
(Subject to Tenant's option
to close the Premises)
Landlord agrees to cooperate in good faith to adjust seasonal minimum hours based upon
Tenant's actual business operations.
,, Tenant shall have the option to close the Premises for any purpose for thirty (30) days total
between April 1 - June 14 and between September 1 - November 30. Additionally, Tenant shall
have the option to close the Premises for two (2) day periods up to eight (8) times a year to change
over exhibits in the gallery.
At all times during which the Premises are closed for business, Tenant shall keep Premises
lighted in a manner acceptable to the City, consistent with the City's lighting regulations, so as to
give the exterior of the Premises the appearance of liveliness and invitation.
29. Default. If there should occur any default on the part of the Tenant in the
performance of any conditions or covenants herein contained or if, during the term hereof, the
Leased Premises or any part thereof shall be or become abandoned or deserted, vacated or vacant,
or should the Tenant be evicted by summary proceedings or otherwise, the Landlord, in addition
to any other remedies herein contained or as may be permitted by law, may either by force or
otherwise, without being liable for prosecution therefore or for damages, re-enter the said Leased
Premises and again possess the same with or without terminating this Lease; and as agent for the
Tenant or otherwise, re -let the Leased Premises and receive the rents therefore and apply the same,
first to the payment of such expenses and costs,.as the Landlord may have been put in re-entering
and repossessing the same and in making such repairs and alterations, as may be necessary; and
second to the payment of the rents due hereunder. Whether or not the Landlord shall terminate
this Lease, the Tenant shall remain liable for such rents as may be in arrears and also the rents as
may accrue subsequent to the re-entry by the Landlord, to the extent of the difference between the
rents reserved hereunder and the rents, if any, received by the Landlord during the remainder of
the unexpired term hereof, after deducting the aforementioned expenses, fees, and costs; the same
to be paid as such deficiencies arise and are ascertained each month. In addition, upon any such
default, or if Tenant be adjudicated a bankrupt, insolvent or placed in receivership, or should
proceedings be instituted by or against the Tenant for bankruptcy, insolvency, receivership,
agreement of composition or assignment for the benefit of creditors, or if this Lease or the estate
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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, and provided further that if the alleged default is such that more than twenty (20) days
are reasonably required for its cure, that it shall not be deemed a default if Tenant commences such
cure within the twenty (20) day period and diligently prosecutes the cure to completion. Upon the
giving of such notice, this Lease and the term hereof shall, unless the default shall be cured during
the applicable period, end on the date fixed in such notice as if the said date were originally fixed
in this Lease for the expiration hereof, and the Landlord shall have the right to remove all persons,
goods, fixtures and chattels therefrom, by force or otherwise, without liability for damages. No
right of redemption shall be exercised under any present or future law of the State of Colorado in
case the Tenant shall be dispossessed for any cause or if the Landlord shall, in any other manner,
obtain possession of the Leased Premises in consequence of the violation of any of the covenants
and agreements of the Tenant. The Landlord shall have a lien paramount to all others on every
right and interest of the Tenant in and to this Lease, and on any furnishings, equipment, fixtures,
or other personal property of any kind belonging to the Tenant, or the equity of the Tenant therein,
on the leased property except for artifacts and art work. 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.
30. Attorneys' Fees,. In the event of any litigation orother 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.
31. 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.
32. 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
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further effect the subordination of this Lease to any such mortgage or mortgages. Tenant shall,
upon request, execute any estoppel certificates or attornment agreements that may be required by
the holder of any mortgage or trust deed now or hereafter placed upon the Leased Premises or the
building or by the Owner of the building in which the Leased Premises are located. A refusal by
the Tenant to execute any such instruments shall entitle the Landlord to at once terminate this
Lease. Tenant agrees not to record or file this Lease in the real estate records affecting the building
in which the Leased Premises is located. Any such recording in violation hereof shall be
considered a slander of Landlord's title and a breach of this entire Lease. This covenant shall
survive the expiration or earlier termination of this Lease.
33. Holding Over. This Lease shall expire of its own accord without notice at the end
of the term or earlier, as herein specified. If, after the expiration of this Lease, Tenant remains in
possession of the Leased Premises with the Landlord's consent, such holding over shall be a
tenancy -at -will at a rental equal to the last monthly rental provided in this Lease, and otherwise
subject to all the obligations and conditions of this Lease.
34. Cumulative Remedies. The various rights, remedies, options and elections of the
Landlord expressed herein are cumulative and the failure of the Landlord to enforce strict
performance by the Tenant of the conditions and covenants of this Lease or to exercise any election
or option or to resort or have recourse to any remedy herein conferred or the acceptance by the
Landlord of any installment of rent after any breach by the Tenant, in any one or more instances,
shall not be construed or deemed to be a waiver or a relinquishment for the future by the Landlord
of any such conditions and covenants, options, elections or remedies, but the same shall continue
in full force and effect.
35. Cleanliness; Waste and Nuisance. ,Tenant shall keep the Leased Premises at ali
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.
36. Brokers. Each party represents to the other that it has had no dealings with any real
estate broker or agent in connection with the negotiation of this Lease. _
37. 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.
38. 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
A 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.
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39. 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.
40. 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.
41. 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.
42. Notices. All notices required. under the terms of this Lease shall be given in person
or by mailing such notices by certified or registered mail, return receipt requested, to the address
of the party as shown at the beginning of this Lease, or to such other address as may be designated
in writing, which notice of change of address shall be given in the same manner. If not sooner
received, any notice given by mail shall conclusively be deemed received three (3) days after the
date of certification or registration.
43. 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.
44. 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.
4S. Tenant is an Independent Contractor. This Lease is not a contract of employment.
No relationship of employer and employee, joint venture or partnership, exists between Landlord
and Tenant or between the Landlord and any employee or agent of the Landlord. Tenant shall at
all times be deemed to be an independent contractor. Tenant is not authorized to bind Landlord to
any agreements or obligations.
46. Bindin E� ffect. All the terms, covenants, and conditions herein contained shall be
for and shall inure to the benefit of and shall bind the respective parties hereto, and their heirs,
executors, administrators, personal or legal representatives, successors and assigns respectively.
47. Guaranty. In the event Tenant hereunder is a corporation, or partnership, 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.
DocuSign Envelope ID: C51482A9-795F-400D-90DC-4F71CFDBD157
APPROVED AS TO FORM:
DocuBipned by:
,�4lY�iLS �, fiV1�tt..
James True
City Attorney
TENANT:
Daniel Joseph Watkins
By:
Title:
LANDLORD:
THE CITY OF ASPEN
APPROVED AS TO CONTENT:
DocuSigned by:
9nAdn91dFE19d9R
Sara Ott
City Manager
DocuSign Envelope ID: C51482A9-795F-400D-90DC-4F71CFDBD157
In of Exhibits Appended to Lease A61L eement
A -Description of Leased Premises
B —Calculation of Cost of Living Increases.
DocuSign Envelope ID: C51482A9-795F-400D-90DC-4F71CFDBD157
Exhibit A
DocuSign Envelope ID: C51482A9-795F-400D-90DC-4F71CFDBD157
fi_051
COST OF LIVING INCREASE CALCULATION
a) "Price Index" shall mean the Consumer Price Index -All Urban Consumers
(CPI-U) - U.S. City Average - All Items, or a successor or substitute index published or authorized
by the United States Department of Labor, Bureau of Labor Statistics.
b) The following formula shall be used for determining the adjustment, if any,
in the fixed minimum annual rent:
"Price Index" for the next fiscal year
Current Index Number = (January 1)
Base Index Number "Price Index" of preceding year
(January 1)
c} As promptly as practicable after the commencement of the first adjustment
year, and thereafter as promptly as practicable after the first day of each succeeding adjustment
year, Landlord shall compute the increase, if any, in the cost of living for the year immediately
preceding said adjustment year. Such computation shall be made by use of current and base index
numbers provided for each adjustment year as set forth in Paragraph c) above.
d) In computing increases for each adjustment year the current index number
shall be divided by the base index number. From the quotient thereof, there shall be subtracted
the integer I and any resulting positive number shall be deemed to be the percentage of increase
of cost of living.
e) The percentage of increase in the cost of living shall be multiplied by the
minimum annual rental including increases for the year preceding the adjustment year for which
the increase is being computed.
f) The Landlord shall, within a 10 time after obtaining the appropriate
data necessary for computing such increases, give the Tenant notice of any increase so determined,
and the Landlord's computation thereof shall be conclusive and binding but shall not preclude any
adjustment of the index figures upon which the computation was based and Tenant shall, within
sixty (60) days after receiving such notice, notify Landlord of any claimed error therein; provided,
however, nothing herein shall be construed to extend the time when rents, as determined by
Landlord, are due and payable by Tenant.
g) Minimum annual rent for each adjustment year, together with increases
calculated in accordance with Paragraphs b) through f) of this Section, shall be due and payable to
Landlord in equal monthly installments due on the first day of each calendar month of each
adjustment year (retroactive payments then due being payable within thirty (30) days after giving
notice thereof by Landlord to Tenant).
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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.
DocuSign Envelope ID: C51482A9-795F-400D-90DC-4F71CFDBD157
DocuSign Envelope ID: C51482A9-795F-400D-90DC-4F71CFDBD157
Daniel Joseph Watkins Lease for Wheeler
Tenant Space
Final Audit Report
Created: 2023-11-17
By: Karen McConnell (Karen.McConnell@aspen.gov)
Status: Signed
Transaction ID: CBJCHBCAABAAhwaEFQlgfborW8tHjaX-TvrAMYFSUU8s
2023-11-17
"Daniel Joseph Watkins Lease for Wheeler Tenant Space" Histo
ry
Document created by Karen McConnell (Karen.McConnell@ripen.gov)
2023-11-17 - 4:36:33 PM GMT
Document emailed to Daniel Watkins (danieljosephwatkins@gmail.com) for signature
2023-11-17 - 4:38:18 PM GMT
Email viewed by Daniel Watkins (danieljosephwatkins@gmail.com)
2023-11-17 - 4:45:09 PM GMT
Document e-signed by Daniel Watkins (danieljosephwatkins@gmail.com}
Signature Date: 2023-11-17 - 4:47:04 PM GMT - Time Source: server
Agreement completed.
2023-11-17 - 4:47:04 PM GMT
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