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HomeMy WebLinkAboutresolution.council.080-02 RESOLUTION 80 (Series of 2002) A RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, ANDASPEN JUNIO~ GOLF FOUNDATION SETTING FORTH THE TERMS AND CONDITIONS REGARDING THE MUNICIPAL GOLF AND NORDIC CENTER AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID LEASE WHEREAS, there has been submitted to the City Council a lease between the City of Aspen, Colorado, and Aspen Junior Golf Foundation, a Copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that lease between the City of Aspen, Colorado, and Aspen Junior Golf Foundation regarding the Municipal Golf and Nordic Center, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said lease on behalf of the City of Aspen. Dated: ~-~.c~~ ~L/. ,~'12~t:2~ Hel(n K~ali~ ~n~tem-d, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held August 26, 2002. Kat~ S. Koch, Ci~'tX2 lerk Page 1 OLD PRO SHOP BUILDING AT MUNICIPAL GOLF COURSE ASPEN JUNIOR GOLF ASSOCIATION 2002 golf season THIS LEASE AGREEMENT is made and entered into this day of 2001 by and between The City of Aspen, 130 South Galena Street, Aspen, Colorado 8161~ ("Landlord") and Aspen junior Golf Foundation ("Tenant"). WITNESSETH: WHEREAS, Landlord owns certain real property and all of the improvements thereon, known as the Municipal Golf and Nordic Center, located in Pitkin County, Colorado and described on Exhibit A attached hereto and incorporated herein by this reference ("Municipal Golf and Nordic Center '); and, WHEREAS, Landlord desires to lease the lease premises, consisting of approximately 2,495 square feet of the building previously used as the golf pro shop and nordic center 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 further consideration of the terms, conditions, covenants and mutual promises contained herein, the parties hereto agree as follows: 1. Lease of Premises. Landlord does hereby rent to Tenant the following described premises, subject to the covenants and conditions hereinafter contained, to wit: That portion of Municipal Golf and Nordic Center, Pitkin County, Colorado, known as the old golf pro-shop and nordic center constituting approximately 2,495 square feet. 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 City of Aspen nor Landlord shall be required to make any alterations thereto, unless agreed to in advance and in writing by the City of Aspen and Landlord. 2. E. quipment Provided by Landlord. The Landlord shall furnish Tenant with 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 C. Other articles deemed Page 2 necessary by Tenant for its use of the premises but not enumerated in Exhibit C shall be furnished by Tenant, at Tenant's expense. Ali items of equipment set forth in Exhibit C 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 is determined to be fully depreciated or incapable of repair. Tenant shall not be required to purchase a new piece of equipment nor shall the Landlord be obligated to purchase new equipment or substitute equipment that can't be repaired with working equipment. 3. Term. The term of the Lease, shall be for a period ,of one golf season running from ~ oO"L. thru /L~.~a~d~X~,-c~'<,c0g. Tenants occupancy of the lease premises durihg this term shall be limited by paragraph 4, below. (b) The parties hereto acknowledge that Landlord currently intends to construct in the near vicinity of the area that is the subject of this agreement. 4. Occupancy of the Lease Premises. Tenant shall be entitled to occupy the lease premises throughout the term of the lease: provided, however, that Tenant uses the premises as set forth in Paragraph 5 below. 5. Use. Tenant shall not occupy or use the lease premises or any part thereof, nor permit or suffer the same to be occupied or used for any purpose except to provide office space, storage and other uses related to the Junior Golf. Junior Soccer, junior hockey, or other similar non-profit organizations or programs in Aspen, Colorado, and for no other purpose. Tenant shall comply promptly with all applicable statutes, ordinances, rules, regulations, orders and requirements relating to the use of the lease premises, including any rules or regulations imposed by the City of Aspen. Tenant shall not use nor permit the use of the lease premises in any manner that will tend to create a nuisance or tend to disturb other tenants or occupants of the improvements or adjacent properties thereto. 6. Service to Patrons/No Discrimination. The service provided to patrons by Tenant shall be rendered courteously and efficiently. Landlord reserves the right to prohibit any activity or use of the leased premises that it deems objectionable. Tenant shall not discriminate against any employee or applicant for employment .because of race. religion, color, creed, ancestry, sex, age, sexual orientation or national origin. Tenant and Tenant's employees shall not discriminate against any person because of race, religion, color, creed, ancestry, sex, age, sexual orientation or national origin by refusing to furnish such person any service or privilege offered to or enjoyed by the general public. Neither Tenant nor Tenant's employees shall publicize the services provided hereunder in any manner that would directly or inferentially reflect on the acceptability of the patrons of any person because of race, religion, color, creed, ancestry, sex, age, sexual orientation or national origin. Aspen 0unlor C/olI .[-'oundation Page 3 7. Rent. The base rent for the or~e-year term of this Lease shall be $500.00 per month for the months of May, June, July, August; September, and October, 2001. The rent for November and in consideration of the lowered rent for the first six months shall be SI,000.00. Monthly rent payments shall be due and owing on the first of each month. 8. 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 of Aspen and the Landlord (as named or additional insureds) during the term hereof or any extension or renewal period, insurance to insure the lease 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 lease premises. In connection herewith, it is acknowledged that Landlord, for ease of administration, is carrying such insurance upon the entire .Municipal Golf and Nordic Center. Accordingly, Tenant shall pay to Landlord Tenant's prorated share of the insurance premium Landlord pays to insure the lease premises. Tenant's prorated share shall be equal to a sum calculated by dividing the area in square feet of the leased premises by the total number of square feet of Municipal Golf and Nordic Center and multiplying the result by the annual premium paid by Landlord for such insurance. This premium shall be paid to Landlord within ten (10) days of Tenant's receipt of notice of the amount due from Landlord. Throughout the term of this Lease, the Tenant shall carry and maintain in effect casualty insurance covering its trade fixtures, equipment, furnishings, leasehold improvements and plate glass, which insurance shall protect against fire, normal extended coverage perils, vandalism, malicious mischief, and sprinkler malfunction. Such insurance shall provide coverage to the extent of at least one hundred percent (100%) of the insurable replacement cost of the insured property. Both the Landlord and the Tenant waive any right of subrogation that their respective insurers may acquire against either of them. Both of these waivers shall automatically terminate at such time as either party's insurer requires that an additional premium be paid as a consequence of this waiver provision. 9. ..Liability Insurance. The Tenant, at its o~vn cost and expense, shall provide and keep in full force for the benefit of the Tenant and the City of Aspen 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 lease premises, for Five Hundred Thousand Dollars ($500,000.00) each occurrence with a One Million Dollar ($1.000,000.00) general aggregate combined single limit covering bodily injury, property damage, and personal injury. In addition, if Tenant serves, manufactures, or distributes alcoholic beverages on the lease 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 Aspen Junior Golf Foundation Page 4 successors. If for any mason as a result 0~ Tenant's activities, use, or business, ~t shall be impossible to obtain fire and other hazard insurance on the buildings and improvements on the lease premises, in an mount 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 lease 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 mounts 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. 10. Notice of Cancellation of Insurance Coverage. The above insurance policies shall contain clauses substantially similar to the following: (1) Notwithstanding any other provision in this policy, the insurance afforded hereunder to the City of Aspen and Landlord shall be primary as to any other insurance or reinsurance covering the City or 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. (2) This policy may not be canceled or changed until thirty (30) days after receipt by Landlord and the City of Aspen 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 and the City of Aspen of a written notice of such cancellation, as endorsed by receipt of a certified letter. t 1. Utilities and Maintenance. Landlord shall be responsible to pay for water, sewer, electric, gas, and trash pickup. Tenant shall pay to Landlord the sum of one hundred dollars ($100.00) per month for its share of the cost of utilities. Tenant shall be responsible for any other utilities provided to the leased premises and separately contracted for by Tenant. 12. Alterations. No alterations, additions, or improvements shall be made, and no fixtures shall be installed in or attached to the lease 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 lease premises, shall belong to and become the property of the Landlord and shall be SUrrendered with the lease premises as part thereof upon the expiration or sooner termination of this Lease, without hindrance, molestation, or injury. Aspen Junior Golf Foundation Page 5 Notwithstanding that they may have become an integral part of the lease 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 lease premises to the same condition existing at the beginning of the original term, ordinary wear and tear excepted. If Landlord does so require, Tenant shall repair all damages resulting from such removal and should Tenant fail to repair damages resulting from such removal, Landlord may remove the same or make such repairs for Tenant's account, and Tenant shall pay to Landlord, on demand, an amount equal to Landlord's costs incurred in such removal or repair. All work with respect to any permitted alterations, additions, or improvements shall be done at Tenant's sole expense in a good and workmanlike manner, strictly in accordance with the plans and specifications approved by Landlord. In doing said work, other Tenants of Landlord (if any) shall not be adversely affected nor unreasonably inconvenienced. Tenant shall, at its own expense, obtain all necessary building or other permits or approvals required by appropriate governmental authorities prior to beginning such work. If any mechanics' or other liens shall be created or filed against the lease 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 lease premises and not removed by Tenant upon the termination of this Lease, or upon any quitting, vacating or abandonment of the lease 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. 13. Repairs. The Tenant has examined the plans for the lease premises and has entered into this Lease without any representation on the part of the Landlord as to the condition thereof. Tenant is relying upon its own inquiry as to applicable zoning and other land use regulations, if any, governing the permitted uses of the lease premises. Tenant shall take good care of the lease premises and shall, at the Tenant's own cost and expense, make all repairs, including painting and decorating, and shall maintain the lease premises in good condition and state of repair, and at the end or other expiration of the term hereof, shall deliver up the lease 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, snow and ice. In case of destruction of, or any damage to the glass in the lease premises, or the destruction of, or damage of any kind whatsoever to the lease 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 lease premises, as speedily as possible, at the Tenant's own cost and expense. Aspen Junior Golf Foundation Page 6 14. Damage to Premises. If the lease 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 lease premises untenantable, the Tenant thereupon shall surrender the lease 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, xvhereupon Landlord shall at its expense make the lease 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 lease premises by reason of such damage and the repair thereof. If said lease 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 lease Premises are substantially restored. 15. Sublease/Assi,m'anent. 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 lease premises or any Portion thereof to be occupied by anyone without Landlord's prior written consent in each instance, which consent may be xvithheld in Landlord's sole and absolute discretion. In the event Landlord consents to Tenant's assignment or sublease of the lease premises, or any portion thereof, such assignment or sublease shall be subject to the following conditions: a. Prior approval of subtenant or assignee by Landlord, with respect to his financial capabilityl available references and proposed use of the lease premises; b. Tenant, and any guarantors of Tenant. shall remain jointly and severally liable to Landlord hereunder throughout the term of any such assignment or sublease and Landlord may look solely to Tenant for payment of any amounts due under the Lease Agreement and not paid by the subtenant or assignee; c. Any failure of the sublessee or assignee to perform under the terms of this Lease Agreement shall be deemed to be a breach by Tenant of this Lease Agreement; and, 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. Aspen Junior Golf Foundation Page 7 16. Maintenance and Repairs. Tenant shall during the term of this Lease keep in condition and repair equal to that which existed at the commencement of this lease the lease premises and every part thereof, including without limiting the generality of the foregoing, all plumbing fixtures, within the lease premises, refrigeration, electrical fixtures and lighting fixtures, additional fixtures, interior walls, wall covetings 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 lease premises, and shall, at its expense provide major repairs and required replacement to mechanical systems situated within the lease premises. Major repairs and replacements are agreed to be those which cost more than $500.00 for each single item, and are required to provide the level of service and serviceability thereof and therefrom currently existing. Any repairs or replacements that will exceed $500.00 may be undertaken by Landlord, provided Landlord and Tenant agree in advance upon a cost sharing arrangement for such repair or replacement. Absent such agreement, Landlord shall have no obligation to execute such repair or replacement, but in the event Landlord determines to effectuate such repair or replacement, Landlord shall have the sole discretion to determine the type, extent and quality 0frepair or replacement that shall be undertaken. 17. Signs. The Tenant shall not place nor allow to be placed any signs of any kind whatsoever, upon, in or about the said lease premises or any pan thereof, except of a design and structure and in or at such places as may be indicated and consented to by the Landlord in writing. In case the Landlord or the Landlord's agents, employees or representatives shall deem it necessary to remove any such signs in order to paint or make any repairs, alterations or improvements in or upon the lease 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. 18. Compliance with Law. Tenant shall obtain and pay for all permits or licenses that may be required for the operation of the lease 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 lease 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 lease 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. Aspen Junior L JotS' Foundation Page 8 Tenant shall not use the lease premises for any pUrPoses deemed unlawful, disreputable, or extra hazardous. 19. Quiet En. joyment. 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 lease 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 lease premises to Tenant is based upon Landlord's rights under the Master Lease. In the event Landlord loses the right to occupy and lease the lease 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 further force or effect, subject to the City of Aspen's rights pursuant to the Master Lease. 20. Condemnation. If the land and the lease premises leased herein, or of which the lease premises are a part, or any portion hemofi 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 or the City of Aspen shall grant an option to pumhase and/or shall sell and convey the said lease premises, or any portion thereof, to the governmental or other public authority, agency, body or public utility seeking to take said land and lease promises or any portion thereof, then this Lease, at the option of Landlord, shall terminate and the term hereof shall end as of such date as the Landlord shall fix by notice in writing; and the Tenant shall have no claim or right to claim or be entitled to any portion of any amount which may be awarded as damages or paid as the result of such condemnation proceedings or paid as the purchase price for such option, sale or conveyance in lieu of formal condemnation proceedings: and all rights of the Tenant to damages, if any, are hereby assigned to the Landlord. The Tenant agrees to execute and deliver any instruments, at the expense of the Landlord, as may be deemed necessary or required to expedite any condemnation proceedings or to effectuate a proper transfer of title to such governmental or other public authority, agency, body, or public utility seeking to take or acquire the said lands and lease premises or any portion thereof. The Tenant covenants and agrees to vacate said lease premises, remove all the Tenant's personal property therefrom 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. 21. Landlord's Lien. Tenant hereby grants to Landlord a security interest inany 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 Page 9 statement in form satisfactory to Landlord, which is to be executed and delivered by Tenant to Landlord. The exemise 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 Commemial Code, as in effect at the time of such default, but such exemise shall not preclude Landlord from exercising any or all other rights and remedies hereunder or as provided by law. 22. 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 lease premises or any pan thereof, at all reasonable hours, for the purpose of examining the same or making such repairs or alterations therein as may be necessary for the safety and preservation thereof. This clause shall not be deemed to be a covenant by the Landlord nor be construed to create an obligation on the pan 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 lease 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. 23. Landlord Remodel of Premises. In the event Landlord desires to remodel any portion of the lease 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 lease premises. 24. Default. If there should occur any default on the pan of the Tenant in the performance of any conditions or covenants herein contained or if, during the term hereofi the lease 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 rome or otherwise, without being liable for prosecution therefor or for damages, re-enter the said lease premises and again possess the same with or without terminating this Lease; and as agent for the Tenant or otherwise, re-let the lease premises and receive the rents therefor 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 alterahons, 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, at~er 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 Page 10 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, including any default by Tenant under the terms of the Master Lease, 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 or the Master 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 fight of redemption shall be exercised under any present or future law of the State of Colorado incase the Tenant shall be dispossessed for any cause or if the Landlord shall, in any other manner, obtain possession of the lease premises in consequence of the violation of any of the covenants and agreements of the Tenant. The Landlord shall have a lien paramount to all others on every right and interest of the Tenant in and to this Lease, and on any furnishings, equipment, fixtures, or other personal property of any kind belonging to the Tenant, or the equity of the Tenant therein, on the leased property. Such lien is granted for the purpose of securing the payment of rents, taxes, assessments, insurance charges, liens, penalties and damages herein covenanted to be paid by the Tenant and for the purpose of securing the performance of all of the Tenant's obligations under this Lease. Such lien shall be in addition to all rights of the Landlord given under statutes of this State, which are now or shall hereinafter be in effect. 25. Attorneys' Fees and Waiver of Right to Jury. 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 anyjudgment, award or other relief, its reasonable attorneys' fees and costs incurred. The Landlord and Tenant expressly waive any right which either may have to trial by jury of any dispute arising under this Lease relating to the issues of termination of this Lease and rights to possession of the lease premises. 26. 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. 27. Mortgage Priority. This Lease shall not be a lien against the lease premises with respect to any mortgages or trust deeds now or hereafter placed upon the lease premises or the Pa~e 11 building. The recording of such mortgage or ~0rtgages 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. In addition, this Lease shall be subordinate to the Master Lease. Tenant shall, upon request, execute any estoppel certificates or attomment agreements that may be required by the holder of any mortgage or trust deed now or hereafter placed upon the lease premises or the building or by the Owner of the building in which the lease 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 lease premises is located. Any such recording in violation hereof shall be considered a slander of Landlord's and the City of Aspen's title and a breach of this entire Lease. This covenant shall survive the expiration or earlier termination of this Lease. 28. Holding Oven 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 lease 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. 29. 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 fome and effect. 30. Cleanliness; Waste and Nuisance. Tenant shall keep the lease premises at all times in a neat, clean and sanitary condition, shall neither commit nor permit any waste or nuisance thereon, and shall keep the walks adjacent thereto free from waste and debris, and all snow and ice which shall not be the responsibility of the Landlord or the City of Aspen to remove. Tenant shall store all trash in the containers provided for that purpose. 31. _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. 32. 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. 33. Surrender of Premises. At the termination of this Lease, Tenant shall surrender the lease premises to Landlord in good condition and repair, excepting for reasonable wear and Page 12 tear and acts of God. Tenant shall have the ri~t 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 lease premises by Tenant and Tenant shall promptly repair any damage to the lease premises caused by such removal. 34. ..Governing Law. This Lease shall be construed and enfOmed 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 the District Court for Pitkin County. 35. 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. 36. Severability. The terms, conditions, covenants, and provisions of this Lease shall be deemed to be severable. If any clause or provision heroin contained shall be adjudged to be invalid or unenfomeable 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 heroin, but such other clauses or provisions shall remain in full force and effect. 37. 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. 38. Entire Lease. This Lease contains the entire contract between the parties and there are no other agreements, understandings, representations, or warranties except as expressly set forth herein. No additions, changes or modifications, renewals or extensions hereof shall be binding unless reduced to writing and signed by the Landlord and Tenant. To the extent possible, this Lease shall be construed vis-a-vis the Landlord and Tenant without reference to the Master Lease. However, in the event the rights of Landlord and Tenant hereunder are directly affected by and in conflict with provisions of the Master Lease, such that to adhere to the terms of this Lease would result in a default by Landlord under the Master Lease, the Master Lease provision shall control. 39. 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. 40. 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 a~'eements or obligations. The term Landlord when used in Page 13 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. 41. Binding Effect. All the terms, covenants, and conditions herein contained shall be for and shall inure to the benefit of and shall bind ~he respective parties hereto, and their heirs, executors, administrators, personal or legal representatives, successors and assigns respectively. 42. Guaran.ty. 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. 43. .Option to Pumhase. The parties hereto have discussed the possibility that Tenant may be interested in purchasing the leased premises. Landlord agrees to negotiate in good faith with the Tenant the sale price and other terms and conditions of the sale of the leased premises. Tenant agrees to notify Landlord of its intentions in this regard on or before ninety (90) days prior to the termination of this lease agreement. IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and year above first written. TENANT: LANDLORD: THE CITY OF ASPEN By: APPROVED'AS TO FORM: APPROVED AS TO CONTENT: Pa~¢ 14 John P.~6Y~,icr, Esq., Attorney to thc City of Aspen City Manager $PW-08/21/2002-G:\john\word~agr\jr.golf-2002.doc