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HomeMy WebLinkAboutresolution.council.064-94 .!l. KI ' \~,,<, !e'l'I, ~.. -, !'Ie" ~\ "'c, RESOLUTION NO. ~L\- Series of 1994 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF ASPEN AND THE ASPEN HISTORICAL SOCIETY AND ASPEN VALLEY SKI CLUB FOR USE OF WILLOUGHBY PARK. WHEREAS, there has been submitted to the City Council a Lease Agreement between the City of Aspen and the Aspen Historical Society and Aspen Valley Ski Club for use of Willoughby Park, a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves that Lease Agreement and dOes hereby authorize the City Manager of the City of Aspen to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the ?!~ day of ~ ' 1994. ~ 5:' t'7__-- =-# John S. Bennett, 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 on the day hereinabove stated. ~ Kath n S. Koch, City Clerk willough.rcs ~ ~_/ ~a '" '. ., @,e,...', 1,\ ~'; . \<, LEASE AGREEMENT THIS Lease is made and executed on , 1994, by and between the CITY OF ASPEN, Colorado, a home rule municipal corporation (hereinafter referred to as "Lessor"), and THE ASPEN HISTORICAL SOCIETY, a not-for-profit organization incorporated under the laws of the State of Colorado, (hereinafter referred to as "AHS"), and the ASPEN V ALLEY SKI CLUB, a not-for-profit organization incorporasted under the laws of the State of Colorado (hereinafter referred to as "A VS"),(AHS and A VS sometimes hereinafter collectively referred to as the "Lessee"). WIT N E SSE T H: WHEREAS, the Lessee wishes to lease certain property in the City of Aspen which the Lessor owns; and, . WHEREAS, the Lessor wishes' to lease said property to the Lessee; and, WHEREAS, the parties hereto wish to set forth the terms under which the Lessee may lease said property from the Lessor; and, WHEREAS, the Lessor and the Lessee are authorized to enter into this Lease for the purposes set forth herein; NOW, THEREFORE, in consideration of the mutual covenants, agreements, representa- tions and warranties herein contained, the parties hereto agree as follows: 1. Demise and Description. Lessor Leases to Lessee and Lessee hires from Lessor, for the purpose of conducting that lawful activity as hereinafter described and for no other purpose, that certain real property (hereinafter referred to as the "Leased Premises"), situate in the City of Aspen, County of Pitkin, State of Colorado, and more particularly described in the schedule attached hereto as Exhibit "A" and made a part hereof. 2. Representation by the Parties. (a) The Lessor hereby represents that the Leased Premises is owned by Lessor in fee, subject only to restriCtions established by the general planning and zoning code of the City of Aspen, Colorado, :jllld 'any state of facts which an accurate surveyor physical inspection would show. Lessee, by entering into this Lease, agrees that Lessee is satisfied as to Lessor's title to the demised premises and has found the same to be satisfactory. Lessor makes no warranty or representation, either express or implied, as to the value, design, condition, e ~-', 'if' Z\;,;, 0_ ~.. . "'!. merchantability or fitness for particular purpose or fitness for intended use of the Leased Premises, or any other representation or warranty with respect thereto. (b) Lessor hereby covenants, subject to the terms and conditions herein provided, that Lessee shall have the sole, peaceable and uninterrupted use and occupancy of the Leased Premises during the term of this Lease, for so long as Lessee performs all covenants herein agreed to be performed byLessee. (c) Lessee hereby represents that it is a not-for-profit organization incorporated under the laws of the State of Colorado, that it is operated exclusively for charitable purposes as those terms are defined by Article X, Section 5 of the Colorado Constitution; and, that it has received tax exempt status from the Internal Revenue Service pursuant to Section 50l(c)(3) of the IRS Code. 3. Construction of Initial Improvements. Subsequent Improvements and Alterations. (a) Lessee shall construct a building or buildings on the Leased Premises for the uses authorized by this Lease (hereinafter referred to as the "museum building and ski center"). Lessee shall obtain all governmental approvals and permits required by federal, state or local law for construction of the museum building and ski center and shall comply with such laws in the construction of the museum building arid ski center. Lessor shall have the right to approve all design, architectural, and construction plans for the museum building and related appurtenances. Lessor. shall not withhold its approvals unreasonably. (b) Lessee agrees not to demolish any buildings or improvements on the Leased Premises, in whole or in part, whether they be previously constructed by Lessee or not, unless such demolition is performed for the purpose of or incident to the erection of new buildings or improvements, or the replacement and repair of existing buildings and improvements, and only with the written consent of Lessor, and subject to all necessary approvals. (c) Upon the prior written consent of the Lessor, Lessee may at it own expense make reasonable and necessary alterations, improvements or additions to the museum building and ski center to be constructed on the Leased Premises. Lessee shall give Lessor no less than thirty (30) days written notice of any construction, alteration, addition, improvement, or repair estimated to cost in excess of Twenty Five Thousand Dollars ($25 ,000.00) and Lessor shall have the right to approve all design, architectural, and construction plans for said improvements. Said approvals shall not be unreasonably withheld by the City and if a request for an approval is not acted upon by the City within sixty (60) days from the date ofthe request by Lessee, it shall not thereafter be withheld. (d) Any such construction, alterations, improvements, additions, or repairs shall be done in good and workmanlike manner, in compliance with all laws, ordinances and ljegulations applicable thereto. (e) Lessee shall promptly pay for all such construction, alterations, improvements, additions, repairs or removals and shall discharge any and all liens against the Leased Premises arising therefrom in accordance with Section 9 of this Lease. 2 e\, , I. e, 1t: %. -"c. e (f) Lessee agrees that it shall not construct a fireplace or wood stove within the . museum building and ski center or include a fireplace or wood stove in any future remodeling, repair or renovation to the above referenced museum building. Gas appliances may be installed and used as permitted by law. . (g) Lessee agrees that prior to any construction or installation of alterations, additions or improvements, Lessee shall post in a conspicuous place within the museum building and ski center a notice of non-liability for mechanic's lien as specified at Section 38-22-105, C.R.S., on behalf of the Lessor and shall notify Lessor of such posting and the exact location of the same. Perfection of a mechanic's lien against the Leased Premises or the museum building and ski center as a result of Lessee's acts or omissions may be treated by Lessor as a material breach of this Lease. 4. Term. Subject to Lessee's satisfactory adherence to all of the terms and conditions herein, the term of this Lease shall be for an initial period of fifteen (15) years commencing on the date of execution by all parties. Lessee shall have the option at the end of the initial term to renew for an additional Lease term of ten (10) years. Thereafter, Lessee shall have five (5) additional options to renew for ten (10) additional years each. (The total term of this Lease shall not exceed seventy five (75) years; an initial term of fifteen (l5) years and six (6) optional renewal terms of ten (10) years each). The Lease terms described herein are subject to the Events of Default provisions set forth herein. The renewal terms shall be renewed automatically unless Lessee provides written notice, six (6) months prior to the end of the term, that it does not intend to renew its option. 5. Rent. (a) Lessee shall pay Lessor as rent for the Leased Premises an annual basic rent of One Dollar ($1.00) to be paid on the anniversary date of the Lease for each year of the Lease term. (b) Except as otherwise provided herein, the rent provided for in this Lease shall not include expenses or charges with respect to the Leased Premises, including maintenance, repairs, costs of construction and replacement Of buildings, insurance, utilities, taxes and assessments now or hereafter imposed upon or related to the Leased Premises. Lessee shall bear and pay for all such charges. " 6. Use of Leased Premises. (a) The Leased Premises shall be used exclusively by Lessee for the purpose of constructing a building to be used primarily as a community museum related to the history of the Aspen area, including the theme of skiing and/or facility to support the skiing related activities of A VSC. A portion of the building may be subleased to other non-profit organizations whose purpose is related to skiing and whose focus is local to the Aspen vicinity for use by those organizations as their principal headquarters. To the extent other uses do not unreasonably interfere with the primary purpose of a ski museum, and subject to subsections (b) through (h) below, and so long as the proposed uses are consistent with underlying zoning and land use requirements and regulations, Lessee may permit the Leased Premises to be used for special events for purposes not related to skiing. In the event space is available from time to time which 3 e @e' , , ,,< ~_. ~l. "\;~ - --- Lessee does not need for the primary purposes of this lease, Lessee may sublet that space for periods when the space is not needed for those primary purposes to non-profit charitable organizations with the prior written consent of the Lessor. Either directly or through concession or sublease agreements, Lessee may make or permit incidental uses of not more than 10% of its floor area space for a gift shop, a food service operation or both, without the prior written consent of the Lessor. The identity of the sublessee or concessionaire shall be subject to Lessor's orior written consent. Consent shall not be unreasonably wthheld. (b) Lessee shall not use, or permit the Leased Premises, or any part thereof, to be used, for any purpose or purposes other than the purpose or purposes for which the Leased Premises are hereby Leased; and no use shallbe made or permitted to be made of the.Leased Premises, or acts done, which will cause a cancellation of any insurance policy covering the museum building, or any part thereof, nor shall Lessee sell, or permit to be kept, used, or sold, in or about the Leased Premises, any article which may pe prohibited by the standard form of fire insurance policies. Lessee shall, at its sole cost, comply with all requirements pertaining to the Leased Premises of any insurance organization or company necessary for the maintenance of insurance as provided herein covering any building and appurtenances at any time located on the Leased Premises. (c) Lessee agrees to comply with all present and future federal, state and municipal laws, rules and regulations in its use and occupancy of the Leased Premises. (d) Lessee shall not, without the prior written consent of the Lessor, sell, convey, assign, transfer, sublease, pledge, surrender or otherwise encumber or dispose of this Lease, the museum building and improvements thereon, or any interest or estate created herein, except that Lessee shall have, the right to sublease a portion of the building as hereinabove noted and to pledge or otherwise encumber the museum building in an amount not to exceed twenty five percent (25 %) of the total cost of constructing the building; provided, however, that any such encumbrance is made only after thirty (30) days prior written notice to the City; and, provided further, that any such encumbrance is made subservient and secondary to the City's interests in the building as set forth in this Lease. (e) Lessee shall not commit, or suffer to be committed, any waste on the Leased Premises, or any nuisance. (f) Lessee shall not erect, install, operate nor cause nor permit to be erected, installed or operated in or upon the Leased Premises any temporary or special event sign(s) or other advertising device not otherwise required by law without having obtained the written consent of the City Manager for the City. Such consent mayor may not be given at the City Manager's sole discretion. 7. Utilities. Lessee shall fully and promptly pay for all water, gas, heat, light, power, telephone service, garbage removal, cable television, and other public utilities of every kind furnished to the Leased Premises throughout the term hereof, and all other costs and expenses of every kind whatsoever of or in connection with the use, operation, and maintenance of the 4 ~ \- (It e. \\i., , '~ --- premises and all activities conducted thereon, and Lessor shall have no responsibility of any kind for any thereof. 8. Taxes. Other Governmental Charges and Utility Charges. (a) The parties contemplate that the Leased Premises will be used strictly for charitable purposes and, therefore, that the Leased Premises will be exempt from all taxes presently assessed and levied with respect to real property. In the event that the use, possession, construction or equipping of the Leased Premises is found to be subject to taxation in any form, the Lessee shall pay same as they respectively come due; provided that, with respect to any governmental charges that may lawfully be paid in installments over a period of years, Lessee shall be obligated to pay only such installments as have accrued during any individual term of the Lease. (b) Lessee may at its expense and in good faith contest any taxes, assessments, and other charges and, in the event of any such contest, may permit the taxes, assessments, or other charges so contested to remain unpaid during the period of such contest and an appeal therefrom unless the City shall notify the Lessee that, in the opinion of the City Attorney, by nonpayment of any such items the title will be materially endangered or the Leased Premises or any portion thereof will be subject to loss or forfeiture, or the City will be subject to liability, in which event such taxes, assessments, utility or other charges shall be paid forthwith; provided, however, that such payment shall not constitute a waiver of the right to continue to contest such taxes, assessments, utility or other charges. 9. Liens. (a) Lessee shall keep all of the Leased Premises and every part thereof and all buildings and other improvements at any time located thereon free and clear of any and all mechanics', materialmen's and other liens for or arising out of or in connection with work or labor done, services performed, or materials or appliances used or furnished for or in connection with any operations of Lessee, any alteration, improvement, or repair or addition which Lessee may make or permit or cause to be made, or any work or construction, by, for, Of permitted by Lessee on or about the premises, or any obligations of any kind incurred by Lessee, and at all times promptly and fully pay and discharge any and all claims on which any such lien mayor could be based, and to indemnify Lessor and all of the premises and all buildings and improvements thereon against all such liens and claims of liens and suits or other proceedings pertaining thereto. (b) If Lessee desires to contest any such lien, it shall notify Lessor of its intention to do so within ninety (90) days after the filing of such lien. In such case, and provided that Lessee shall on demand protect Lessor by a good and sufficient surety bond, or such other security that is deemed adequate by the Lessor, against any such lien and any cost, liability, or damage arising out of such contest, Lessee shall not be in default hereunder until thirtY (30) days after the final determination of the validity thereof, within which time Lessee shall satisfy and discharge such lien to the extent held valid; but the satisfaction and discharge of any such lien shall not, in any case, be delayed until execution is had on any judgment rendered thereon, and such delay shall be a default of Lessee hereunder. In the event of any such contest, Lessee shall protect and indemnify Lessor against all loss, expense, and damage resulting therefrom. 5 (~ ., ,. ~., ,. ., 10. Maintenance. (a) Lessee shall, throughout the term of this Lease, at its own cost, and without any expense to Lessor, keep and maintain the premises, including all buildings and improvements of every kind which may be a part thereof, and all appurtenances thereto, in good sanitary, and neat order, condition and repair. Lessor shall not be obligated to make any repairs, replacements, or renewals of any kind, nature or description whatsoever to the Leased Premises or any buildings or improvements thereon. (b) Lessee shall, at its own expense, keep and maintain all entrances to the Leased Premises in a clean and orderly condition, free of dirt, rubbish, unlawful obstructions, snow, and ice. (c) Lessee shall; at its own expense, keep and maintain all landscaping adjacent to the Leased Premises in a well groomed and, orderly condition, free of rubbish and unlawful obstructions. ll. Access to Premises. Upon at least twenty four (24) hours prior notice, except in cases of emergency, Lessee shall permit Lessor or its agents and employees to enter the museum building at all reasonable business hours to inspect the Leased Premises and museum building or make repairs that Lessee may neglect or refuse to make in accordance with the provisions of this Lease. Lessee shall have the right to have a representative present throughout any such inspection or repair. Before entering the Leased Premises or the museum building to make repairs, Lessor shall give Lessee notice and a reasonable period of time to make necessary repairs. 12. Indemnification of Lessor. Lessee agrees to indemnify and hold harmless the Lessor, its officers, employees, insurers, and self-insurance pool, from and against all liability , claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this Lease, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in parr by, the act, omission, error, professional error, mistake, negligence, or other fault of the Lessee, any contractor of the Lessee, or any officer, employee, representative, or agent of the Lessee or of any contractor of the Lessee, or of any occupant, visitor, or user of any portion of the Leased Premises or museum building, or which arises out of any workmen's compensation claim, of any employee of the Lessee or of any employee of any contractor of the Lessee. The Lessee agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Lessee, or at the option of the Lessor, agrees to pay the Lessor or reimburse the Lessor for the defense costs incurred by the Lessor in connection with any such liability, claims, or demands. The Lessee also agrees to bear all other costs and expenses related thereto, including court costs and attorney fees, whether or not any such liability, claims, or demands alleged are groundless, false, or fraudulent. The obligations of this Section 12 shall not extend to any injury, loss, or damage which is caused in whole or in part by the act, omission, or other fault of the Lessor, its officers, or its employees. 6 e', , ~ ~.- lit. \Z<... ,-.", v\_ 13. Provisions Regarding Insurance. (a) Lessee agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Lessee pursuant to Section 12 above. Such insurance shall be in addition to any other insurance requirements imposed by this Lease or by law. The Lessee shall not be relieved of any -liability, claims, demands, or other obligations assumed pursuant to Section l2 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) Lessee shall procure and maintain, and shall cause any contractor of the Lessee to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to Lessor. All coverages shall be continuously maintained to cover all liability , claims, demands, and other obligations assumed by the Lessee pursuant to Section l2 above. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (1) During any periods of constructing the museum building or any subsequent construction of improvements, Lessee, Lessee's general contractor and all subcontractors shall procure and maintain Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($l,OOO,OOO.OO) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall include coverage for explosion, collapse, and underground hazards. The policy shall contain a severability of interests provision. (2) Public Liability insurance covering liabilities, damages, costs, expenses, causes of action, suits, claims, demands and judgment in limits of not less than FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) with respect to personal injury or death to any one person; and ONE MILLION DOLLARS ($1,000,000.00) aggregate per occurrence. ' (3) Casualty and Property Damage insurance sufficient to protect the full replacement value of the Leased Premises and the museum building constructed on the premises. (4) Such employee compensation and liability insurance as may be required under the laws of the State of Colorado. ' (5) Such other insurance as may be required from time to time under any federal, state, county or local law , ordinance or regulation. (c) The policy or policies required above shall be endorsed to include the Lessor and the Lessor's officers and employees as additional insured. Every policy required 7 . '" t_' ,~ "< (a - above shall be primary insurance, and any insurance carried by the Lessor, its officers or employees, or carried by or provided through any insurance pool of the Lessor, shall be excess and not contributory insurance to that provided by Lessee. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Lessee shall be solely responsible for any deductible losses under any policy required above. (d) A certificate of insurance shall be completed by the Lessee's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effeCt, and shall be reviewed and approved by the Lessor prior to commencement of the Lease. The certificate shall identify this Lease agreement and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the Lessor. (e) Failure on the part of the Lessee to procure or maintain policies providing the required coverages, conditions, and -minimum limits shall constitute an Event of Default as defined at Section 18, herein. In the event that Lessee shall fail to cure the default following notice as required by Section 19, herein, Lessor may, at its discretion, and in addition to any Remedies on Default which Lessor may have a right to by virtue of Section 19 herein, procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by Lessor shall be repaid by Lessee to Lessor upon demand, or Lessor may offset the cost of the premiums against monies due to Lessee from Lessor. (f) , Lessor reserves the right to request and receive a certified copy of any policy and any endorsements thereto. (g) The parties hereto understand and agree that Lessor is relying on, and does not waive or intend to waive by any provision of this Lease, the monetary limitations (presently $l50,000.00 per person and $400,000 per Occurrence) or any other rights, immunities, and protection provided by the Colorado Governmental Immunity Act, Section 24-1O-lOl et seq., C.R.S., as from time to time amended, or otherwise available to Lessor, its officers, or its employees. 14. Damage or Destruction. (a) In the event any or all of the improvements on the Leased Premises shall be damaged or destroyed by any cause whatsoever, whether in the course of construction or after completion thereof, Lessee shall, at Lessee's expense, repair, replace or rebuild the same at least to their condition immediately prior to such damage or destruction. Lessee shall obtain all required governmental approvals for repairing, replacing or rebuilding said improvement within six (6) months from the date of the damage or destruction and shall proceed with due diligence I to complete the same in a workmanlike manner. (b) All insurance proceeds received as a result of such damage or destruction shall be immediately available to and used by Lessee for repairing, rebuilding, or replacing such 8 e. ,s,." IX \\ \.\1" ,e1 \\\ '''< 'e@ ~ i:\~. improvements in accordance with Section 3. In the event that such insurance proceeds are inadequate for such repairs, rebuilding or replacement, Lessee shall pay the balance therefor. (c) Notwithstanding anything in this Section l4 to the contrary, if the improvements on the Leased Premises shall be damaged by fire or other casualty to the extent of 50 % or more of their value immediately preceding such damage or destruction within the last ten (10) years of the term of this Lease, any restoration of improvements shall be at the sole discretion of Lessee. In the event that Lessee elects not to restore the improvements, Lessee shall promptly remove the debris and restore the Leased Premises to a safe, clean and level condition, at which time or at any time thereafter, this Lease may be terminated by Lessor., l5. Condemnation. If during the term of this Lease, or any renewal of it, the whole or part of the Leased Premises, the museum building, or such portion as will make the Leased Premises unusable for the purpose Leased, or the Leasehold interest, be condemned by public authority, including the City of Aspen, for another or similar public use, then the Lease term granted herein shall cease as of the date of the vesting of title in the premises in such condemning authority, or when possession is given to such authority, whichever event occurs first. Upon such occurrence, Le~see shall not be entitled to any part of the condemnation proceeds, if any, for the value of the unexpired term of this Lease or for any other estate or interest in the Leased Premises, such amount belonging entirely to the Lessor. Lessee shall be entitled to all other condemnation proceeds as allowed by law; provided, however, that if the condemning authority is the Lessor, the value of the property shall be the Purchase Price as determined by Section 20, herein. l6. Lessee's Option to Terminate. Lessee shall have the right, by written notice to the Lessor given at least 120 days prior to its intention to do so, to terminate and surrender its Leasehold interests hereunder to Lessor, and on such effective date Lessee shall be relieved from all further liability hereunder, subject to the Remedies On Default provisions of this Lease which shall apply as if a default had occurred. 17. Abandonment of Premises Lessee shall not vacate or abandon the Leased Premises at any time during the term hereof; if Lessee shall abandon or surrender the Leased Premises, or be dispossessed by process of law, or otherwise, any personal property belonging to Lessee and left on the Leased Premises shall be deemed to be abandoned, at the option of Lessor, except such property as may be encumbered to Lessor. l8. Events of Default Defined. I The following shall be "Events of Default" under this Lease and the terms "event of default" and "default" shall mean, whenever they are used in this Lease, anyone or more of the following events: 9 '-" ra, \I \~" (~e:" '\\ " ,ei", ~. ~'"' (a) Failure by the Lessee to pay any rent or other payment required to be paid herein at the time specified; or, (b) Failure to obtain a building permit in accordance with Article II, Chapter 7 of the Municipal Code of the City of Aspen to begin construction of the museum building as described herein within sixty (60) months of ihe effective date of this Lease (Lessee may petition Lessor for an extensiOn of this time upon a showing of due diligence in obtaining a building permit); or, ( c) Allowing the building permit obtained pursuant to subsection (b) above to expire pursuant to Section 7-303(d) of the Municipal Code of the City of Aspen; or, (d) Failure to use the Leased Premises for a period of one hundred eighty (180) consecutive days for the purpose or purposes set forth in the Use of Leased Premises provisions of this Lease; provided, however, that time spent for the purpose of maintenance, remodeling, or repairs to the Leased Premises and! or for events beyond the control of the Lessee shall not be counted; or, (e) Failure by the Lessee to observe and perform any covenant, condition or agreement on its part to be observed or performed, unless the Lessor agree in writing to an extension of time or waiver prior to its expiration; or, (f) Lessee's interest in this Lease or any part hereof is assigned or transferred without the written consent of the Lessor, except as provided herein, either voluntarily or by operation of law or otherwise; or, (g) A proceeding under the United States Bankruptcy Code or any federal or state bankruptcy, insolvency, or similar law or any law providing for the appointment of a receiver, liquidator, trustee or similar official for the Lessee or of all or substantially all of its assets, is instituted without its consent and is not permanently stayed or dismissed within sixty (60) days, or if the Lessee offers to the Lessee's creditors to effect an extension of time to pay the Lessee's debts or asks, seeks or prays for a reorganization or to effect a plan of reorganization, or for readjustment of the Lessee's debts, or if the Lessee shall make a general or any assignment for the benefit of the Lessee's creditors; or, (h) Lessee abandons or vacates any part of the Leased Premises. (i) Failure by Lessee to obtain insurance as set forth at Section l3(e) herein. 19. Remedies on Default. (a) Whenever any Event of Default shall have happened ap.d be continuing Lessor shall have the right, in its sole option and discretion, to notify Le~see' of the Event of Default and require Lessee to cure the Event of Default within a reasonable period of time or suffer termination of the Lease and the Remedies of Default as provided herein. If Lessee fails to cure, or it is impossible to cure, Lessee may declare the Lease terminated. 10 '-" \.. - e*', 'Ii" '~,- (b) Upon termination of this Lease, the parties hereto shall cooperate in ensuring that the following remedial steps shall take place in an expeditious and efficient manner: (i) Lessee shall promptly pay to Lessor all rent or other monies due it pursuant to the terms of this Lease. (ii) The Lessor shall have a right to purchase the museum building and any improvements thereon at a Purchase Price of no more than that determined and calculated , in accordance with the Purchase Price provisions set forth hereunder. In the event that Lessor chooses to exercise its right to purchase the museum building from the Lessee, it shall pay to the Lessee the Purchase Price as determined and calculated herein within ninety (90) days of termination. (iii) In the event the Lessor chooses not to purchase the museum building within ninety (90) days of termination, the Lessor may choose, in its sole discretion, to do any of the following: (A) Extend the Lease term to the Lessee. The terms and condi- tions of any extended Lease to the Lessee shall be subject to renegotiation by the parties hereto at the time of the extension of the Lease. Until such time as the parties agree upon an extended Lease, the term shall be deemed to be on a month to month basis and all of Lessee's obligations under this Lease shall continue unabated. (B) Designate a non-profit entity or the City of Aspen or other governmental entity, to sublet the premises from the Lessee. The terms' and conditions of any sub-Lease agreement between the Lessee and the desigI;Iated non-profit entity shall be subject to prior approval by the Lessor. The Lessor, during the term of the sub-Lease with the designated non-profit entity, shall continue to have the option to exercise its right to purchase the museum building from the Lessee at a Purchase Price established in accordance with Section 20 of this Lease Agreement. So long as the Lessee is not dissolved or disbanded, the Lessee shall be entitled to receive rental proceeds generated pursuant to the terms of the sub-Lease; provided, however, that the amount of any such rental proceeds received by the Lessee shall be subtracted from the Purchase Price established in accordance with Section 20 of this Lease. Lessee shall take all necessary and reasonable steps, including the grant of complete access to the museum building, to assist Lessor in any efforts it may choose to undertake to renovate, remodel, or alter the museum building to enhance its utility, marketability, or for any other purpose. (C) Require the Lessee to make a good faith effort to sell the museum building to an entity acceptable to the Lessor subject to the terms and conditions of this Lease. 20. Purchase Price. (a) Whenever it shall become necessary to establish a Purchase Price for the museum building, said price shall be calculated in accordance with this section. The parties hereto agree that the initial value of the museum building shall be the actual cost of construction of the museum building. The actual cost of construction shall be equal to the basis for II !.;,.,' 'i(\,,,, 81' ~\ ' \1, " . depreciation which would be permitted by the Internal Revenue Code for nonresidential real property. For every full calendar year that the museum building is in use after December 31 of the year in which a Certificate of Occupancy is issued by the Aspen/Pitkin Building Department, the value of the museum building shall be depreciated by two percent (2 %) per year. By way of example, if the Certificate of Occupancy is issued on November 1, 1992, and the initial cost of the museum building is $2,000,000, the purchase price of the building calculated as of February 20, 2002, would be: January 1, 1993, through December 31, 200l, equals 9 years. 9 years times 2% times $2,000,000 equals $360,000 Purchase price = $2,000,000 less $360,000 = $1,640,000 (b) In the event that the Lessee.makes any alterations, additions or improvements which it considers to be a capital improvement to the museum building and Lessor consents to the proposed alteration, addition or improvementbeing considered a capital improvement to the museum building after notice is provided in accordance with Section 3(c) herein, the Lessee shall document the actual costs of such capital improvement and that value shall be added to the purchase price of the building and shall be depreciated at a two percent (2 %) rate for each year the capital improvement is in service. By way of example, if a $100,000.00 capital improvement is added to the museum building after five full years following December 31, 1992, the value of the calculated purchase price of the building as of February 20, 2002, would be as follows: Building purchase price from previous example = $1,640,000 'Depreciated value of improvement for 4 yrs (9yrs - 5 Yrs) $lOO,OOO less (4 Yrs X 2% X $100,000) = $92,000 New purchase Price = $1,640,000 plus $92,000 = $1,732,000 21. No Remedy Exclusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Lease or now or hereafter existing at law or in equity. No delay or omission hereunder shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. 22. Non-Discrimination. The parties hereto agree t? comply with all laws, ordinances, rules and regulations that may pertain or apply to the Leased Premises and its use. In performing under this Lease, Lessee shall not discriminate against any worker, employee or job applicant, or any member of the public, because of race, color, creed, religion, ancestry, national origin, sex, age, marital status, physical handicap, affectional or sexual orientation, family responsibility or political affiliation, nor otherwise commit an unfair employment practice. I2 .- ~ '" :\~ ! tA, ~.. ,a ~. 23. Attorneys' Fees. If any action at law or in equity shall be brought to recover any tent under this Lease, or for or on account of any breach of, or to enforce or interpret any of the covenants, terms, or conditions of this Lease, or for the recovery of the possession of the Leased Premises, the prevailing party shall be entitled to recover from the other party as part of the prevailing party's costs reasonable attorneys' fee, the amount of which shall be fixed by the court and shall be made a part of any judgment or decree rendered. 24. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage prepaid; addressed as follows: If to the Lessee: Aspen Historical Society Attn: Executive Director 620 West Bleeker Street Aspen, Colorado 81611 With a copy to: Holland & Hart Attn: James B. Boyd, Esq. 600 East Main Street Aspen, Colorado 81611 If to the Lessor: City of Aspen, Colorado 130 South Galena Street Aspen, Colorado 81611 Attention: City Manager With a copy to: City Attorney 130 South Galena Street Aspen, Colorado 81611 25. Binding Effect. This Lease shall inure to the benefit of and shall be binding upon the Lessor and the Lessee and their respective successors and assigns. I3 k!_' 10, ,!( ~,- ~" ~. -,,',', \1_ 26. Severability. In the event any provision of this Lease shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. 27. Amendments. The terms of this Lease shall not be waived, altered, modified, supplemented or amended in any manner whatsoever except by written instrument signed by the Lessor and the Lessee. 28. Execution in CounteJ1larts. This Lease shall be executed in three counterparts, each of whiCh shall be an original and all of which shall constitute but one and the same instrument. 29. Applicable Law. This Lease shall be governed by and construed in accordance with the laws of the State of Colorado. ' 30. Captions. The captions or headings in this Lease are for convenience of reference only and in no way define, limit or describe the scope or intent of any provision or sections of this Lease. 31. Waiver. The waiver by either party of, or failure of either party to take action with respect to any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, or condition, or subsequent breach of the same, or any other term, covenant, or condition therein contained. The subsequent acceptance of rent by Lessor or the acknowledgment by Lessor of Lessee's exercise of an option to renew the term of the Lease as provided herein shall not be deemed to be a waiver of any preceding breach by either party of any term, covenant, or condition of this Lease, regardless of either party's knowledge of such preceding breach. 32. Entire Agreement. This Lease constitutes the entire agreement between the Lessor and the Lessee. No waiver, consent, modification or'change of terms of this Lease shall bind either party unless in writing signed by both parties, and then such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given. There are no understandings, agreements, representations or warranties, express or implied, not specified herein regarding this Lease or the Leased Premises Leased hereunder. 33. . Further Assurances. I The parties further agree to execute and deliver such additional documents and agreements as necessary to carry out the intent of this Lease. . 34. No Third Party Beneficiaries. This Lease is not intended to create any right in or for the public, or any member of the public, including any subcontractor, supplier or any other third party, or to authorize 14 ~- ~,~-"",'" \* '(< 1'_",," I' ~t, anyone not a party to this Lease to maintain a suit to enforce or take advantage of its terms. The duties, obligations and responsibilities of the parties to this Lease with respect to, third parties shall remain as imposed by law. 35. Estop.,pel Certificates. Lessee and Lessor shall, at any time and from time to time upon not less than ten (10) days prior written request by the other party, execute, acknowledge and deliver to Lessor, or Lessee, as the case may be, a statement in writing certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications), and the date to which the fixed rent and any other charges have been paid. Any such statement may be relied upon by any prospective purchaser or encumbrancer (including assignees) of the Leased Premises. 36. Releases. Upon termination of this Lease as provided herein, if requested by Lessor, Lessee shall execute and deliver to Lessor an appropriate release, in form proper for recording in the real property records of Pitkin County, Colorado, of all Lessee's interest in the Leased Premises, and upon request of Lessee, Lessor will execute and deliver to Lessee a written cancellation and termination of this Lease and release of all claims in proper form for such recording. IN WITNESS WHEREOF, the Lessor has executed this Lease in its name with their seal hereunder affixed and attested by their duly authorized officers, and the Lessee has caused this Lease to be executed in its name and attested by its duly authorized officer. All of the above occurred as of the date first written above. CITY OF ASPEN, COLORADO By Amy Margerum, City Manager ATTEST: Kathryn S. Koch, City Clerk 15 -,It, ffi: \0- ~'\, "e \%~ , '\\" ~.,:"',, \\\'m Title: WITNESS: muscum.lse THE ASPEN HISTORICAL SOCIETY By: r6