Loading...
HomeMy WebLinkAboutresolution.council.016-93 '. \" " " I%~. ~.' "", ~.~" -,' '. - -. RESOLUTION NO. & Series of 1993 A RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE ASPEN ART MUSEUM AND THE CITY OF ASPEN, COLORADO, FOR THE LEASE OF THE ART MUSEUM BUILDING AND SURROUNDING LAND, AND AUTHORIZING THE MAYOR TO EXECUTE SAID LEASE AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a lease agreement between the Aspen Art Museum and the City of Aspen, 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 between the City of Aspen and the Aspen Art Museum, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the Mayor to execute said lease agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 01~ day of J),t1../t.C4- , 1993. (fL '5:-. (>~ 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, atam~eting held on the day hereinabove stated. museum. res (., ~. 'ei, , ~ ~,< / <e - .IRIII. LEASE AGREEMENT THIS LEASE AGREEMENT is made and executed on 517aA.~ ::2:2.- , 1993, by and between the CITY OF ASPEN, Colorado, a home rule municipal corporation (hereinafter referred to as the "City"), and the ASPEN ART MUSEUM, a not-for-profit organization incorporated under the laws of the State of Colorado, (hereinafter referred to as the "Art Museum"). WIT N E SSE T H: WHEREAS, the City is the owner of that certain building commonly referred to as the Aspen Art Museum and formerly known as the Holy Cross Electric building located at North Mill Street, Aspen, Colorado, (hereinafter referred to as the "Art Museum Building"); and WHEREAS, pursuant to that Agreement between the City and Holy Cross Electric Association, Inc. dated June 3, 1977, the City has an equitable interest in the property commonly referred to as the Art Museum property and formerly known as the Holy Cross Electric building property, upon which the Aspen Art Museum is situated, and more particularly described in Exhibit" A" and illustrated in Exhibit "B", said exhibits attached hereto and made a part hereof by reference, (hereinafter referred to as the "Art Museum Land"); and WHEREAS, the City will receive title to said Art Museum Land in fee by warranty deed from Holy Cross Electric Association, Inc. on June 3, 1997, provided all terms and conditions of said Agreement between the City and Holy Cross Electric Association, Inc. are complied with by the City; and WHEREAS, the City has leased said Art Museum Building and a small portion of the Art Museum Land to the Art Museum by virtue of that certain Lease Agreement dated March 10, 1980; and WHEREAS, the Art Museum desires to create a spawning habitat for fish by improving the ditch and pond currently upon the Art Museum Land; and WHEREAS, the Art Museum has obtained written authorization from Holy Cross Electric Association, Inc. to construct a spawning habitat pond on the Art Museum Land; and WHEREAS, the Art Museum has received Water Rights with the District Court, Water Division No.5 (Case No. 92CW195) in the amount of 3 cfs of water from the Roaring fork River for use in the spawning habitat pond; and WHEREAS, the City owns a right to appropriate .3 cfs of water for the existing ditch and pond which is a superior water right to that sought by the Art Museum and the City desires to protect that right; and ;ilt , \\-- (it (.', , t - -. WHEREAS, the City desires to authorize the Art Museum to construct, operate, and maintain a spawning habitat pond and a ditch or stream upon the Art Museum Land; and WHEREAS, the parties desire to enter into a new lease for all purposes which shall supersede the prior lease. 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. The City leases to the Art Museum, for the purpose of conducting that lawful activity as hereinafter described and for no other purpose, that certain real property referred to above as the Art Museum Land and Art Museum Building (hereinafter referred io collectively 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. It is the intent of the parties that this Lease Agreement shall supersede all the terms and conditions of that certain lease dated March 10, 1980. 2. Representation by the Parties. (a) The City hereby represents that the Art Museum Building is owned by the City in fee, subject only to restrictions established by the general planning and zoning code of the City of Aspen, Colorado, and any state of facts which an accurate surveyor physical inspection would show. The City further represents that the Art Museum Land is owned by the Holy Cross Electric Association, Inc. in fee and the City has an equitable interest in the property as previously described above. (b) The City hereby covenants, subject to the terms and conditions herein provided, that the Art Museum shall have the sole, peaceable and uninterrupted use and occupancy of the Art Museum Land and Building during the term of this Lease, for so long as the Art Museum performs all covenants herein agreed to be performed by the Art Museum. (c) The Art Museum 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. Constmction of Improvements. (a) The Art Museum has, or shortly will hereafter, construct and operate on the Leased Premises a spawning habitat, together with onsite improvements, at no cost to the City in accordance with plans, specifications, and detailed description of the work which has been approved by the U.S. Army Corp of Engineers, the Colorado Division of Wildlife and City of Aspen Planning and Zoning Commission. Said plans and specifications are made a part hereof as if fully set forth here. 2 ~- j. (It . 4. Term. Subject to the Art Museum's satisfactory adherence to all of the terms and conditions herein, the term of this Lease Agreement shall terminate at midnight, May 31, 1999. the Art Museum shall have the option at the end of the initial term for an additional lease term of ten (10) years. Thereafter the Art Museum shall have two additional options to renew for ten (10) additional 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 the Art Museum 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) The Art Museum shall pay the City as rent for the Leased Premises an annual basic rent of Ten Dollars ($10.00) 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 the Art Museum for the purpose of operating a publicly accessible visual arts center, for all related purposes, and spawning habitat all in accordance with its Articles of Incorporation and for no other purpose. ' The Leased Premises shall be used exclusively by the Art Museum for public benefit and enjoyment. (b) The Art Museum 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 shall be made or permitted to be made of the Leased Premises, or acts done, which will cause a cancellation of any insurance policy covering the building located on the premises, 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 be prohibited by the standard form of fire insurance policies. Lessee shall, at its sole cost, comply with all requirements of any insurance organization or company necessary for the maintenance of insur- ance covering any building and appurtenances at any time located on the Leased PremiseS. (c) The Art Museum 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) The Art Museum shall not sell, convey, assign, transfer, sublease, pledge, surrender or otherwise encumber or dispose of this Lease, the Art Museum Building, or any interest or estate created herein, without the written permission of the City. (e) The Art Museum shall not commit, or suffer to be committed, any waste on the Leased Premises, or any nuisance. 3 d.1t ~ , \<. (It . (f) The Art Museum 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 without having obtained the written consent of the City Manager for the City. Such consent shall not be unreasonably withheld. (g) The Art Museum shall not permit any other person, persons, company, corporation, or organization not related to the Art Museum's normal activities to occupy or use the Leased Premises for a period of time in ,excess of two (2) consecutive weeks without the express written consen t of the City. 7. Utilities. The Art Museum 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 premises and all activities conducted thereon, and the City shall have no responsibility of any kind for any thereof. The City agrees to continue to plow snow from the driveway entrance and parking lot at no expense to the Art Museum until such time as the City determines, in accordance with the standards set forth hereafter, that it can no longer financially provide this service. The City shall apply reasonable and customary business standards to determine whether or not it can financially afford to continue the snow removal at no cost to the Art Museum. The City shall take into account all of its budgeting concerns recognizing the history of the Art Museum as a valuable cultural asset to the community. A decision to terminate shall not be arbitrarily made and shall be supported by credible information. 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 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 Art Museum 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, the Art Museum shall be obligated to pay only such installments as have accrued during any individual term of the lease. (b) The Art Museum 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 Art Museum 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. 4 ~, ~. e; I '\' (i: ,,' '" ~., \~- 9. Alterations. (a) The Art Museum may at its own expense make reasonable and necessary alterations or improvements to the Art Museum Building. All alterations, additions and improvements shall be performed in a workmanlike manner, in accordance with all applicable building and safety codes, and shall not weaken or impair the structural strength or lessen the value of the premises. The Art Museum shall give the City written notice no less than thirty (30) days in advance of the commencement of any construction, alteration, addition, improvement, or repair estimated to cost in excess of Ten Thousand Dollars ($10,000.00). (b) The Art Museum agrees that prior to any construction or installation of alterations, additions or improvements, the Art Museum shall post in a conspicuous place within or on the Art Museum Building a notice of non-liability for mechanic's lien as specified at Section 38-22-105, C.R.S. on behalf of the City and shall notify the City of such posting and the exact location of the same. Perfection of a mechanic's lien against the Leased Premises or the Art Museum Building as a result of the Art Museum's acts or omissions may be treated by the City as a material breach of this Lease. 10. Liens. (a) ,The Art Museum 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 the Art Museum, any alteration, improvement, or repair or addition which the Art Museum may make or permit or cause to be made, or any work or construction, by, for, or permitted by the Art Museum on or about the premises, or any obligations of any kind incurred by the Art Museum, and, subject to paragraph (b) hereof, at all times promptly and fully to pay and discharge any and all claims on which any such lien may or could be based, and to indemnify the City 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 the Art Museum desires to contest any such lien, it shall notify the City of its intention to do so within ninety (90) days after the filing of such lien. In such case, and provided that the Art Museum shall on demand protect the City by a good and sufficient surety bond, or such other security that is deemed adequate by the City, against any such lien and any cost, liability, or damage arising out of such contest, the Art Museum shall not be in default hereunder until thirty (30) days after the final determination of the validity thereof, within which time the Art Museum 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 the Art Museum hereunder. In the event of any such contest, the Art Museum shall protect and indemnify the City against all loss, expense, and damage resulting therefrom. 11. Maintenance. (a) The Art Museum shall, throughout the term of this lease without any expense to the City, 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 5 ~e _I" \; " ~.: '4Ol neat order, condition and repair. The City 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) The Art Museum 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 obstmctions, snow, and ice. (c) The Art Museum 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. (d) The Art Museum shall, at its own expense, keep and maintain the ditch, spawning pond, diversionary structures, headgates, pumps, flow measuring devices and other fixtures and appurtenances associated with the spawning pond in good operating condition. 12. Access to Premises. Upon at least twenty four (24) hours prior notice, except in cases of emergency, the Art Museum shall permit the City or its agents and employees to enter the Leased Premises at all reasonable hours to inspect the Leased Premises or make repairs that the Art Museum may neglect or refuse to make in accordance with the provisions of this Lease. Before entering the Leased Premises to make repairs, the City shall give the Art Museum notice and a reasonable period of time to make necessary repairs. 13. Indemnification of the City. The City shall not be liable for any loss, injury, death, or damage to persons or property which at any time may be suffered or sustained by the Art Museum or by any person whosoever may at any time be using or occupying or visiting the Leased Premises or be in, on, or about the same, whether such loss, injury, 'death, or damage shall be caused by or in anyway result from or arise out of any act, omission, or negligence of the Art Museum or of any occupant, visitor, or user of any portion of the Leased Premises, or shall result from or be caused by any other matter or thing whether of the same kind as or of a different kind than the matters or things above set forth, and the Art Museum shall indemnify the City against all claims, liability, loss, or damage whatsoever on account of any such loss, injury, death, or damage. The Art Museum hereby waives all claims against the City for damages to the building and improvements that are now or hereafter placed or built on the demised premises and to the property of the Art Museum in, on, or about the Leased Premises, and for injuries ,to persons or property in or about the Leased Premises, from any cause arising at any time. The last two preceding sentences shall not apply to loss, injury, death, or damage arising by reason of the negligence or misconduct of Lessors, its agents, or employees, subject to those terms, conditions and limitations as contained in the Colorado Governmental Immunity Act, Section 24-10-101, et seq. 14. Provisions Regarding Insurance. (a) At its own expense the Art Museum shall carry and maintain casualty and property damage insurance sufficient to protect the full replacement value of the Leased Premises and all contents thereof (including all works of art); and 6 - ~ '. "'. t (b) At its own expense the Art Museum shall carry and maintain comprehen- sive general public liability insurance against all direct or contingent loss or liability for property damage, personal injury or death occasioned by reason of the operation, control or construction upon the Leased Premises, of not less than those specified by Section 24-10-114, C.R.S., as may be amended from time to time, naming the City as additional or co-insureds. The Art Museum shall maintain said coverage in full force and effect during the term of this Lease. (c) The Art Museum shall furnish the City with a copy of all reqllired insurance policies or certificates evidencing such required coverage. All insurance policies maintained pursuant to this agreement shall contain the following endorsement: It is hereby understood and agreed that this insurance policy may not be canceled by the surety until thirty (30) days after receipt by the City of Aspen, by regis- tered mail, of a written notice of such intention to cancel or not to renew. (d) In the event full insurance coverage required by this Lease is not maintained as provided for herein, the City may, but shall be under no obligation to, purchase the required policies of insurance and pay the premiums necessary and provide for payment thereof and all amounts so advanced therefor by the City, if any, shall be added to the rent due from the Art Museum. 15. Damage or Destruction. If prior to the termination of this Lease the Leased Premises or any portion thereof are destroyed, in whole or in part, or are damaged by fire or other casualty, the parties shall cause the Net Proceeds of any insurance claim to be applied to the prompt repair, restora- tion, modification, replacement or improvement of the Leased Premises. Any balance of the Net Proceeds remaining after such work has been completed shall be paid to the Art Museum. If Net Proceeds are insufficient to pay in full the cost of any repair, restoration, modification or improvements, referred to hereinabove, the Art Museum shall complete the work and pay any cost in excess of the amount of the Net Proceeds, in which case the Art Museum shall not be entitled to any reimbursement therefor from the City. Notwithstanding the foregoing, the parties may agree to other application of such Net Proceeds. 16. Condemnation. If during the term of this Lease, or any renewal of it, the whole or part of the Leased Premises 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, for 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, the Art Museum 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 City. 17. Water Rights. (a) The Art Museum shall take no actions that would constitute an abandonment of any water rights associated with the Art Museum Land and hereby agrees to cooperate in the 7 _0" ~ "" lilt M.. .. '~\ ", 'e1 \\\, " - -. opposition of any attempt by the State of Colorado Water Engineer to have said rights declared abandoned. (b) The Art Museum hereby agrees that the first .3 cfs of water diverted for the ditch and spawning pond constitute water diverted from the Roaring Fork River in accordance with water rights associated with the Electric - Art Park, Basin Rank 4727 and not part of the 3 cfs for which an application has been filed by the Art Museum in the District Court, Water Division No.5. (c) The Art Museum agrees that upon termination of this Lease or abandonment of the Leased Premises, all diversion structures, headgates, water rights, pumps, flow metering devices and other fixtures and appurtenances associated with the spawning pond shall become the property of the City. 18. Public Trails. The City, in cooperation with others, has placed a trail across the Leased Premises for public use. It is understood that the City may be interested in establishing other trails across the Leased Premises as well. The City hereby agrees to keep the Art Museum informed of its plans to construct such trails over the Leased Premises and to seek the advice and input of the Art Museum staff prior to the design, location or construction of any additional trails over the Leased Premises. The City further agrees to make all reasonable efforts to design, locate and construct any future trails over the Leased Premises so as to minimize any adverse impacts upon the Art Museum's use of the Leased Premises. Notwithstanding any other provision to the contrary, the Art Museum acknowledges and hereby agrees that the City may, in its sole discretion, design, locate and construct additional trails over the Leased Premises as it determines is in the best interests of the City. 19. Abandonment of Premises The Art Museum shall not vacate or abandon the Leased Premises at anytime during the term hereof; if the Art Museum shall abandon or surrender the Leased Premises, or be dispossessed by process of law, or otherwise, any personal property belonging to the Art Museum and left on the Leased Premises shall be deemed to be abandoned at the option of the City, except such property as may be encumbered to the City. 20. Events of Default Defined. 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: (a) Failure by the Art Museum to pay any rent or other payment required to be paid herein at the time specified; or, (b) Failure to use the Leased Premises for a period of sixty (60) 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 Art Museum shall not be counted; or, 8 ~e;. \\ '<:~ e 1.- ~. ~ (c) Failure by the Art Museum to observe and perform any covenant, condition or agreement on its part to be observed or performed, unless the City agrees in writing to an extension of time or waiver prior to its expiration; or, (d) The Art Museum's interest in this Lease or any part hereof is assigned or transferred without the written consent of the City, except as provided herein, either voluntarily or by operation of law or otherwise; or, (e) 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 Art Museum, 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 Art Museum offers to the Art Museum's creditors to effect an extension of time to pay the Art Museum's debts or asks, seeks or prays for a reorganization or to effect a plan of reorganization, or for readjustment of the Art Museum's debts, or if the Art Museum shall make a general or any assignment for the benefit of the Art Museum's creditors; or, (g) The Art Museum abandons or vacates any part of the Leased Premises. 21. Remedies on Default. Whenever any Event of Default shall have happened and be continuing, the City shall have the right, at its sole option and discretion, to notify the Art Museum of the Event of Default and require the Art Museum to cure the Event of Default within thirty (30) days of the receipt of written notice of the default or suffer termination of the Lease and the Remedies of Default as provided herein. If the Art Museum fails to cure, or it is impossible to cure, the City may declare the Lease terminated. If there is an issue as to whether or not the claimed default is a default and if so, if it has been cured, then the City must institute legal proceedings in accordance with Colorado law in order to attempt to terminate this lease. 22. No Remedy Exclusive. No remedy herein conferred upon or reserved to the City 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. 23. Non-Discrimination. The parties hereto agree to 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, the Art Museum shall not discriminate against any worker, employee or job applicant, or any member of the public, because ofrace, 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. 9 '-' I; \\"'m ie,.'. ~ ~, ~- 1&. 'l! 24. Attorneys' Fees. If any action at law or in equity shall be brought to recover any rent 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 attorney's fees, the amount of which shall be fixed by the court and shall be made a part of any judgment or decree rendered. 25. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by certified mail, postage prepaid, addressed as follows: If to the Art Museum: Aspen Art Museum 590 NOrth Mill Street Aspen, Colorado 81611 Attention: Director If to City: 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 26. Binding Effect. This Lease shall inure to the benefit of and shall be binding upon the City and the Art Museum and their respective successors and assigns. 27. 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. 28. 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 City and the Art Museum. 10 @It. ~, '""-.. ,. 'II' e 29. Execution in Counterparts. 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. 30. Applicable Law. This Lease shall be governed by and construed in accordance with the laws of the State of Colorado. 31. 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. 32. Waiver. The waiver by the City of, or failure of the City 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 the City or the acknowledgment by the City of the Art Museum'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 the Art Museum of any term, covenant, or condition of this Lease, regardless of the City's knowledge of such preceding breach. 33. Entire Agreement. This Lease constitutes the entire agreement between the City and the Art Museum. 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. 34. Further Assurances. The parties further agree to execute and deliver such additional documents and agreements as necessary to carry out the intent of this Lease. 35. 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 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. IN WITNESS WHEREOF, the City has executed this Lease in its name with its seal hereunder affixed and attested by their duly authorized officers, and the Art Museum 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. 11 1-. ~.. ~- .. ,It' ~!i, ",-" A1TtST: ~~~ Kathryn s. , City" Clerk STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) CITY OF ASPEN, COLORADO: By ~ -5 6~ John S. Bennett, Mayor The foregoing instrument was acknowledged before me this,&) day Of~~ 79 9.::;? by JOnY\ ~ . teVl nett 6\M.. ~~V\ s. ~ WITNESS my hand and official seal. ~~,r1.~ My Commission expires: A /;?-'7 /'16 12 t- . ,fA. ~\. @e. \>- l(\(" WITNESS: " - C (-.~ ./) vi ASPEN ART MUSEUM: J -"-~: ~~ By c:.d~u. ~) ~ - Title: ~ ~~~AA -J. lfJ /ko.A j 6 ~u~ -~- ./ STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this Jf,.Jf. day of rYl ttAoh ) 1'1'11 by 1?oB&f'..7A- IJ/../..€N WITNESS my hand and official seaL artmuseu.lse 6-~a. -?'7~~~ Notary Public My Commission expires: OCJob&R,Z;j, /'J").L! 13 .'~ ~ , ~ ~ ,e. I.' h ~ EXHIBIT A A tract of land situated in the NE 1/4 SW 1/4 and the NW 1/4 SW 1/4 of section 7, T. 10 S., R. 84 W. of the 6th Principal Meridi- an, Pitkin County, Colorado. Being more fully described as follows: . Beginning at a point on the Northeasterly line of land described in Deed to the Roaring Fork Electric Light and Power Co., record- ed November 20, 1889, in Book 61 at Page 185, said point bears South 45"34'57" West 1507.97 feet from the center of said section 7; thence South 00"16'00" East 25.24 feet to a point on the Northerly Boundary of a tract of land described in Book 270 at Page 836; thence North 78"23'00" West 38.77 feet along said boundary; thence South 59"50'00" West 94.23 feet along said boundary; thence South 78"55' West 60.15 feet along said bound- ary; thence South 75"05'00" West 35.77 feet along said boundary to the point of intersection with the Williams-Hallam line as described in Book 30 at Page 47; thence continuing South 75"05'00" West 40.61 feet to a point on the centerline of the Roaring Fork River; thence South 89"42'58" West 129.58 feet along said centerline; thence North 51030'00" West 87.00 feet along said centerline; thence North 04045'00" West 47.00 feet along said centerline; thence North 20032'11" East 272.19 feet along said centerline to the point of intersection with the Southeast- erly right-of-way line of the Red Mountain Road; thence North 71031'00" East 73.00 feet along said right-of-way line; thence continuing along said right-of-way line 49.56 feet along the arc of a curve to the left having a radius of 170.00 feet, the chord of which bears North 63009'55" East 49.38 feet to the point of intersection with the southwesterly right-of-way line of Gibson Avenue; thence South 45021'00" East 79.67 feet along said south- westerly right-of-way line; thence continuing along said South- westerly right-of-way line 73.01 feet along the arc of a curve to the left having a radius of 438.00 feet; thence South 54054'00" East 20.64 feet along said Southwesterly right-of-way line to the Point of Intersection with the Northeasterly line of land de- scribed in Book 61 at Page 185; thence South 31016'00" East 222.35 feet along said Northeasterly line to the Point of Begin- ning. County of Pitkin, State of Colorado. jwl124.1 ~ '~c.. EXHIBIT ,liB" \ \ , uJ ~. . ~.. il c ~. ~, . '1, - >, '-' H o '" "'" " p.::> '" 0 ::8<'1