HomeMy WebLinkAboutresolution.council.087-98
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RESOLUTION #87
(Series of 1998)
A RESOLUTION APPROVING A LEASE EXTENSION AND LEASE
AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND
HIGHLINE GALLERY, SETTING FORTH THE TERMS AND CONDITIONS
OF SAID EXTENSION AND LEASE FOR THE WHEELER OPERA HOUSE
AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID
EXTENSION AND LEASE
WHEREAS, there has been submitted to the City Council a lease extension
and a lease agreement between the City of Aspen, Colorado, and Highline
Gallery, a copy of which extension is annexed hereto as exhibit A and a new
lease, a copy of which is annexed hereto as exhibit B, and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO:
Section 1
I"'""
That the City Council of the City of Aspen hereby approves that lease
extension and lease between the City of Aspen, Colorado, and Highline Gallery,
for space in the Wheeler Opera House, a copy of which is annexed hereto and
incorporated herein, and does hereby authorize the City Manger of the City of
Aspen to execute said extension and lease on behalf of the City of Aspen.
Dated:~4/~.J eP3 Itj9~
I
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~nohn S. Benne , 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 November 23, 1998.
~ JJdk-
athryn S. Koch, City Clerk
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LEASE
THIS LEASE, made and entered into as of 4~ h",/ ,,~, 19 11" , between
the City of Aspen, Aspen, Colorado (City), as Landlord, and Aspen Glass, Inc., d/b/a "Highline
Gallery", a <;:-' , corporation as Tenant (Tenant).
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In consideration of the mutual covenants contained herein, the parties agree as follows:
1. Description of Premises. City leases to Tenant that space in the Wheeler Opera
House, 328 Hyman Avenue, Aspen, Colorado, herein called the "Building" and substantially
shown on Exhibit "A" attached hereto, consisting of approximately 1,040 sqJ1are feet of floor
space, herein called the "Premise~".
2, Term. This Lease shall be for a term commencing as of May 1,1999, and ending
on April 30, 2002.
3. Rent (Minimum Plus Adiustment Upward). Tenant shall pay City rent during the
term of this Lease Agreement in monthly amounts as follows:
For the period of May 1, 1999 through April 30, 2000: $3,900.00 per month
For the period of May 1,2000 through April 30, 2001: $5,200.00 per month
For the period of May 1,2001 through April 30, 2002: $6,500.00 per month
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4. Use of Premises. Tenant shall use and occupy the Premises for: retail sale of
antiques, arts and prints, and glass and for no other purpose without City's prior written consent,
and in connection therewith Tenant shall comply with the rules, regulations and ordinances of
any governmental authority having jurisdiction in the premises or the business connected
thereon. Tenant shall not keep, use, or sell anything prohibited by any policy of fire insurance
covering the Premises and shall comply with all requirements of the insurers applicable to the
Premises necessary to keep in force fire and liability insurance.
S. Delivery and Acceptance of Premises. Acceptance of the Premises by Tenant
shall be construed as recognition that the Premises are in a good state of repair and in sanitary
condition.
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6. Maintenance and Repairs. Tenant shall, at Tenant's own expense, maintain the
interior of the Premises in good condition and repair in accordance with good housekeeping
practices. City shall, at its own expense, maintain the roof, structural members and the exterior
of the Building (including the windows and sidewalks), in good condition and repair in
accordance with good housekeeping practices. City shall reimburse Tenant for the expense of
any repairs which Tenant may be required to make which are occasioned by the acts or neglects
of City, its agents, employees, invitees or licensees; and Tenant shall reimburse City for the
expense of any repairs which City may be required to make which are occasioned by the acts or
neglects of Tenant, its agents, employees, invitees or licensees.
ATTACHMENT B
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7. Utilities. Tenant shall, at its own expense, provide all utilities used by Tenant
upon the Premises, including water, electricity, gas (all of which shall be separately metered),
telephone and garbage collection.
8. Tenant's Personal Propertv. All personal property and trade fixtures placed upon
the Premises by Tenant shall be at Tenant's sole risk and City shall not be liable for damage to or
loss of such personal property or trade fixtures arising from the acts or neglects of any persons or
from any losses whatsoever; except from the willful or wanton acts of City, its agents or
employees. The parties hereto recognize that Tenant intends to display for retail sales items that
may be delicate and/or expensive. City shall not be responsible for any loss of such property
except for the willful or wanton acts of the City, its agents or employees. Tenant further agrees
that the City's insurance carrier shall not be responsible for any loss or damage to such personal
property.
9. Public Liability Insurance; Tenant shall save City harmless from any liability for
injury to any person or damage to property on or about the Premises from any cause whatsoever,
and shall procure, at Tenant's own expense, public liability coverage for the benefit of Tenant
and City (naming the City as co-insured) with limits of not less than those specified by Section
24-10-114, C.R.S. 1973, as it may be amended from time to time and in such amounts as may be
agreed upon by City. As a condition of occupancy, Tenants shall maintain such coverage in full
force and effect during the term of the Lease and shall furnish the City with a copy of such
coverage or a certificate evidencing such coverage prior to, and as a condition of, occupancy; All
,....., insurance policies maintained pursuant to this paragraph shall contain the following
endorsement:
"It is hereby understood and agreed that this insurance policy may not be canceled by the
surety nor the intention not to renew be stated by surety until thirty (30) days after receipt
by the City, by registered mail, of a written notice of such intention to cancel or not to
renew."
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10. Destruction of the Premises. If the Premises shall be rendered untenantable by
fire or other casualty, City shall restore and repair the same to tenantable condition as speedily as
possible and the rent shall be abated in whole or in part, according to the portion of the Premises
rendered untenantable during the period of such restoration and repair; except that there shall be
no such abatement in rent if such fire or other casualty was caused by the acts or neglects of
Tenant, its agents, employees, invitees, or licensees. In the event of such fire or other casualty,
City shall, in its sole judgment, reasonably exercised, determine the length of time required to
restore and repair the Premises to tenantable condition, and notify Tenant of such determination
within ten (10) days after the occurrence of such fire or other casualty. If it is determined that the
Premises cannot be restored to tenantable condition within ninety (90) days, then either City or
Tenant may terminate this Lease by giving written notice of termination to the other within ten
(10) days after City shall have notified the Tenant of the time required for such restoration. In
the event the Building shall be so damaged by fire or other casualty that demolition or substantial
reconstruction is required (whether or not the Premises be affected) then City may terminate this
Lease by giving Tenant written notice of such termination within thirty (30) days after the date of
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such damage; provided, however that if the City, within one year of the date of such fire or
casualty reconstructs the building substantially the same as exists at the commencement of this
Lease, Tenant shall have the opportunity to renew its occupancy of the Premises under the terms
of this Lease, the same as if the fire or casualty had not occurred.
11. Assignment and Subletting. Tenant shall not assign the Lease or sublet the
Premises or any part thereof without the prior written consent of City, which consent shall not be
unreasonably withheld.
12. Signs and Advertising. Tenant shall not place any signs or advertising upon the
Premises or upon the Building, except of such design and structure as may be permitted by City.
any sign or advertising permitted by City shall at all times comply with all applicable ordinances,
rules and regulations.
13. Default bv Tenant. The occurrence of any of the following shall constitute an
event of default by Tenant:
(a) Delinquency by the Tenant in payment of any rent under this Lease for a
period of ten (10) days from the date such rent became due and payable.
(b)
Delinquency by the Tenant in the performance of or compliance with any
of the other obligations of Tenant contained in this Lease, for a period of
twenty (20) days after written notice thereof from the City to Tenant.
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(c) Filing by or against the Tenant in any court pursuant to any statute either
of the United States or of any state, of a petition or bankruptcy or
insolvency, or for reorganization, or for the appointment of a receiver or
trustee, or all or a portion of the Tenant's property, if within ninety (90)
days after the commencement of any such proceedings involving the
Tenant such petition shall not have been dismissed.
In the event of default in non-payment of rent as provided in subparagraph 13 (a)
above, this Lease shall automatically terminate on the date specified in the City's three (3) day
notice for payment of rent or surrender of possession of the premises under Section 13-40-1 04( d)
(1973 C.R.S.), if Tenant fails to pay such rent as demanded in said notice. To avoid potential
forfeiture on account of clerical error or oversight, Tenant shall have the right to require the City
to deliver any such notice to the President of a banking institution in Aspen, Colorado, or to
another responsible person in Aspen, Colorado, to permit Tenant to arrange for payment of such
rent within said three (3) day period. Notice of the identity and address of such bank or person
shall be specified in writing by Tenant from time to time. In the event of a default by Tenant as
provided in subparagraphs 13(b) and 13(c) above, this Lease shall automatically terminate on the
date specified in City's three (3) day notice thereof under Section 13-40-104(e) (1973 C.R.S.).
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Upon the premature termination pursuant to this Section 13, the Tenant shall
peacefully surrender the Leased Premises to the City, and the City upon or at any time after any
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such expiration, may, without further notice, re-enter the Leased Premises and repossess it by
reasonable force, summary proceedings, ejectment or otherwise, and may dispossess the Tenant
and remove the Tenant and all other persons and property from the Leased Premises, and may
have, hold and enjoy the Leased Premises and the right to receive all rental income therefrom.
At any suclI time after such premature termination, the City may relet the Leased
Premises or any part thereof, in the name of the City or otherwise for such term (which may be
greater or less than the period which would otherwise have constituted the balance of the term of
this Lease) and on such conditions as the City, in the City's uncontrolled discretion, may
determine, and may collect and receive the rents therefor. The City shall in no way be
responsible or liable for any failure to collect any rent due upon such reletting,
No such premature termination of this Lease shall relieve the Tenant from its
responsibility for the payment of rent for the full term set forth in Paragraph 2 above and
Tenant's liability and obligations shall survive any such expiration. In the event of any such
premature termination, the Tenant shall pay to the City the rent required to be paid by the Tenant
up to the time of such premature termination, and thereafter the Tenant, until the end of what
would have been the term of this Lease in the absence of such premature termination, shall be
liable to the City for, and shall pay to the City as and for liquidated and agreed damages for the
Tenant's default:
(a)
The equivalent of the amount of the rent which would be payable under
this Lease by the Tenant if the Lease were still in effect, less
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(b) The net proceeds of any reletting effected pursuant to the provisions of this
Paragraph 13, after deducting all of the Landlord's expenses in connection
with such reletting, including, without limitation, all repossession costs,
brokerage commission, legal expenses, attorneys' fees, costs and expenses
of preparation for such reletting. The rights, powers and remedies of the
City under this lease shall be cumulative and in addition to any other rights
given to City by law. The exercise of any right, power or remedy shall not
impair City's rights to other remedies.
14. Default bv City. Should City default in the performance of any covenant required
to be performed by City hereunder, Tenant may serve upon City a notice specifying the default
and requiring performance by City within a period of time set forth in the notice, which shall not
be less than fifteen (15) nor more than forty-five (45) days. In the event City shall not have
remedied the default within the time set forth in the notice, or, if the nature of the default so
requires, shall not have commenced to remedy the same, Tenant may serve upon the City another
written notice terminating this lease.
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IS. Surrender of Premises. Upon the termination of this Lease, by expiration of its
terms or otherwise, Tenant shall surrender the Premises to City in good order and condition,
ordinary wear and damage by the elements excepted; and Tenant shall remove all of its property
and shall repair any damage to the Premises caused by such removal. Any personal property of
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Tenant, or anyone claiming under Tenant, which shall remain upon the Premises after
termination of the Lease shall be deemed to have been abandoned and may be retained by City as
its property or disposed of in such manner as City sees fit.
16. Landlord's Lien, In the event of default by Tenant in the performance of its
obligations under this Lease, City, as Landlord, shall have as security for the payment of rent or
any other sums due hereunder, a lien on all personal property of Tenant situated upon the
Premises.
17. Access to Premises. City shall be entitled to enter upon the Premises at all
reasonable hours for the purpose of inspecting the same, preventing waste or loss, or enforcing,
any of City's rights hereunder. City may further enter upon the Premises for the purpose of
showing the same to prospective tenants at any time during the last six months of any term of this
Lease, during any month-to-month extension thereof.
18. Security Deposit. In the event Tenant is in default of its obligations under the
terms of this Lease, City may, at its option, require the deposit of the sum of $6,500.00 with the
City as security for the prospective faithful performance by Tenant of all terms of this Lease. In
the event required, Tenant may not use or apply any portion of the deposit in lieu of rent, and said
deposit shall be retained by City until the termination of this Lease, at which time the deposit will
either be returned to Tenant or retained in whole or in part by City in accordance with the
provisions of Section 38-12-101, et sea., C.R.S. 1973. City may, at its election, have recourse to
.-.... such security deposit to make good any default by Tenant, in which event Tenant shall, on
demand, promptly restore said security deposit to its original amount. Liability to repay the
security deposit to Tenant shall run with the reversion and title to the Premises and City shall
assign the security deposit, for the benefit of Tenant, to any subsequent owner or holder of the
reversion or title to the Premises, in which case the assignee shall become liable for the
repayment thereof, and City shall be deemed to be released by Tenant from all liability in
connection therewith.
19. Alterations. Additions and hnorovements. Prior to the commencement of any
work on alterations, additions and improvements, all plans and specifications shall be submitted
by Tenant to City for prior written approval. Additionally, prior to commencement of any work,
Tenant shall pay the amount of any increase in premiums on insurance policies because of
endorsements to be made covering such risk during the course of work. If the estimated cost of
the work shall exceed $1,000, Tenant shall, upon request of the City Manager, without cost to
City, furnish City with a performance bond naming the City and Tenant as co-insureds, written
by a surety acceptable to City in an amount equal to the estimated cost of the work, guaranteeing
the completion of work, free and clear of liens, encumbrances, and security interests according to
the approved plans and specifications. All alterations, additions and improvements on or in the
Premises at the commencement of this Lease and that may be erected or installed during the term
of this Lease shall become part of the Premises and the sole property of City, except that all
movable trade fixtures installed by Tenant shall be and remain the property of Tenant.
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,.-..., 20. Waste and Nuisance Prohibited. Tenant shall not commit, or suffer to be
committed, any waste on the Premises or any nuisance.
21. Holding: Over. No holding over in continuation of any business by Tenant after
the expiration of the term hereof shall be considered to be a renewal or extension of this Lease,
unless written approval of such holding over and a definite agreement to such effect is signed by
City defining the length of such additional term. Any holding over without the consent of City
shall be considered to be a day.to.day tenancy, rental rate to be determined by pro-rating the
annual rent for the year immediately preceding the termination of this Lease on a daily basis.
22. Transfer or Pledge of Leasehold Interest. Tenant shall not assign this Lease or any
interest therein or sublet the Premises or any part thereof or license the use of all or any portion
of the Premises or business conducted thereon or therein, or encumber or hypothecate this Lease,
without first obtaining the written consent of City; and any assignment, subletting, licensing,
encumbering or hypothecating of this Lease without such prior written consent shall, at option of
City, terminate this Lease.
23. Partnership or Agency. This Lease is not intended to create any relationship
between Tenant and City other than. as LandlordfTenant, and Tenant is neither the agent, partner,
employee nor joint venturer of or with City.
24. Additional Rent. All taxes, charges, costs and expenses that Tenant assumes or
r-- agrees to pay under this Lease, together with all interest and penalties that may accrue thereon in
the event of failure of Tenant to pay those items, and all other damages, costs, expenses, and
sums that City may suffer or incur, or that may become due, by reason of any default of Tenant or
failure of Tenant to comply with the terms and conditions of this Lease shall be deemed to be
additional rent, and, in the event of non-payment, City shall have all the rights and remedies as
herein provided for failure to pay rent.
25. Minimum Hours. Tenant shall be fully stocked and staffed and open for business
on the leased Premises continuously Monday through Saturday, inclusive, according to the
minimum hours established in the following schedule:
MINIMUM HOURS
April I - June 14
10:00 a.m. - 9:00 p.m.
11 :00 a.m. . 8:30 p.m.
or curtain time for scheduled
performances at the Wheeler
Theater, whichever is earlier
12:00 noon - S:OO p.m.
(Subject to Tenant's option
to close the Premises)
11 :00 a.m. - 8:30 p.m.
or curtain time for scheduled
December 16 - December 30
December 3 I - March 31
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June IS - August 31
September 1 - December 15
performances at the Wheeler
Theater, whichever is earlier
12:00 noon - 5:00 p.m.
(Subject to Tenant's option
to close the Premises)
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Tenant shall have the option to close the Premises for any purpose for twenty one (21)
days between April 1 - June 14 and for an additional twenty one (21) days between September 1 -
November 30.
At all times during which the Premises are closed for business, Tenant shall keep
Premises lighted in a manner acceptable to the City, so as to give the exterior of the Premises the
appearance of liveliness and invitation.
26. Citv. The term "City" as used herein encompasses, without limitation, those
officers, employees and designees of the City having responsibility (as may be determined by the
City Council or the City Manager) for the administration of this Lease.
27. Notice. All notices required hereunder shall be in writing and shall be deemed to
have been given if either delivered personally or mailed by certified or registered mail to City or
to Tenant, as the case may be, at their respective addresses as follows, or to such other address as
either party may so notify the other of in writing:
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City:
Tenant:
City Manager
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
Highline Gallery
c/o Sandy Hogopian
28. Quiet Enjovment. City covenants that upon Tenant's paying the rent and in
perfonning and observing all the terms and conditions on Tenant's part to be performed and
observed, Tenant may peacefully and quietly enjoy the Premises.
29. Binding Effect. The Lease shall be binding upon and shall inure to the benefit of
the City and Tenant and their respective heirs, personal representatives, successors and assigns.
30. Modifications. This Lease may be modified only by written agreement executed
by the parties hereto.
31. Descriptive Headings. Descriptive headings contained herein are inserted for
convenience and reference only and shall not in any way limit or amplify the terms and
provisions contained herein.
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,~ 32. Applicable Law. Venue. and Attorneys Fees. The laws of the State of Colorado
shall govern the construction, performance and enforcement of this Lease. Venue for all actions
arising out of this lease agreement shall be Pitkin County, Colorado. In the event legal remedies
must be pursued to resolve any dispute or conflict regarding this lease agreement, the prevailing
party shall be entitled to recover costs incurred in pursuing such remedies, including expert
witness fees and reasonable attorney's fees.
THE CITY OF ASPEN, COLORADO
By:
ATTEST:
f"'"'.
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THE ASPEN GLASS, INC.
A Colorado Corporation
By:
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By:
\l -dIJ,l\~
Armen ~laydjian, President
Approved as to form:
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John . Worcester, City Attorney
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JPW-09/08/98-G:\johnlwordlagrlhighlin2,doc
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LEASdZ
THIS LEASE, made and entered into as of ~ /7/J./ 3 {) , 19 7' r , between
the City of Aspen, Aspen, Colorado (City), as Landlord, and Aspen Glass, Inc., d/b/a "Highline
Gallery", a Colorado corporation as Tenant (Tenant).
In consideration of the mutual covenants contained herein, the parties agree as follows:
1. Description of Premises. City leases to Tenant that space in the Wheeler Opera
House, 32& Hyman A venue, Aspen, Colorado, herein called the "Building" and substantially
shown on Exhibit "A" attached hereto, consisting of approximately 1,040 square feet of floor
space, herein called the "Premises".
2. Term. This Lease shall be for a term commencing as of January 1, 1999, and
ending on April 30, 1999.
3. Rent (Minimum Plus Adiustment Upward). Tenant shall pay City rent during the
term of this Lease Agreement in monthly amounts of $3,231.04 per month payable in advance.
4. Use of Premises. Tenant shall use and occupy the Premises for: retail sale of
antiques, arts and prints, and glass and for no other purpose without City's prior written consent,
and in connection therewith Tenant shall comply with the rules, regulations and ordinances of
r-. any governmental authority having jurisdiction in the premises or the business connected
thereon. Tenant shall not keep, use, or sell anything prohibited by any policy of fire insurance
covering the Premises and shall comply with all requirements of the insurers applicable to the
Premises necessary to keep in force fire and liability insurance.
5. Delivery and Acceptance of Premises. Acceptance of the Premises by Tenant
shall be construed as recognition that the Premises are in a good state of repair and in sanitary
condition.
6. Maintenance and Repairs. Tenant shall, at Tenant's own expense, maintain the
interior of the Premises in good condition and repair in accordance with good housekeeping
practices. City shall, at its own expense, maintain the roof, structural members and the exterior
of the Building (including the windows and sidewalks), in good condition and repair in
accordance with good housekeeping practices. City shall reimburse Tenant for the expense of
any repairs which Tenant may be required to make which are occasioned by the acts or neglects
of City, its agents, employees, invitees or licensees; and Tenant shall reimburse City for the
expense of any repairs which City may be required to make which are occasioned by the acts or
neglects of Tenant, its agents, employees, invitees or licensees.
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7. Utilities. Tenant shall, at its own expense, provide all utilities used by Tenant
upon the Premises, including water, electricity, gas (all of which shall be separately metered),
telephone and garbage collection.
ATTACHMENT A
~ 8. Tenant's Personal Property. All personal property and trade fixtures placed upon
the Premises by Tenant shall be at Tenant's sole risk and City shall not be liable for damage to or
loss of such personal property or trade fixtures arising from the acts or neglects of any persons or
from any losses whatsoever; except from the willful or wanton acts of City, its agents or
employees. The parties hereto recognize that Tenant intends to display for retail sales items that
may be delicate and/or expensive. City shall not be responsible for any loss of such property
except for the willful or wanton acts of the City, its agents or employees. Tenant further agrees
that the City's insurance carrier shall not be responsible for any loss or damage to such personal
property.
9. Public Liabilitv Insurance. Tenant shall save City harmless from any liability for
injury to any person or damage to property on or about the Premises from any cause whatsoever,
and shall procure, at Tenant's own expense, public liability coverage for the benefit of Tenant
and City (naming the City as co-insured) with limits of not less than those specified by Section
24-10-114, C.R.S. 1973, as it may be amended from time to time and in such amounts as may be
agreed upon by City. As a condition of occupancy, Tenants shall maintain such coverage in full
force and effect during the term of the Lease and shall furnish the City with a copy of such
coverage or a certificate evidencing such coverage prior to, and as a condition of, occupancy. All
insurance policies maintained pursuant to this paragraph shall contain the following
endorsement:
/"""",
"It is hereby understood and agreed that this insurance policy may not be canceled by the
surety nor the intention not to renew be stated by surety until thirty (30) days after receipt
by the City, by registered mail, of a written notice of such intention to cancel or not to
renew."
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10. Destruction of the Premises. If the Premises shall be rendered untenantable by
fire or other casualty, City shall restore and repair the same to tenantable condition as speedily as
possible and the rent shall be abated in whole or in part, according to the portion of the Premises
rendered untenantable during the period of such restoration and repair; except that there shall be
no such abatement in rent ifsuch fire or other casualty was caused by the acts or neglects of
Tenant, its agents, employees, invitees, or licensees. In the event of such fire or other casualty,
City shall, in its sole judgment, reasonably exercised, determine the length of time required to
restore and repair the Premises to tenantable condition, and notify Tenant of such determination
within ten (10) days after the occurrence of such fire or other casualty. If it is determined that the
Premises cannot be restored to tenantable condition within ninety (90) days, then either City or
Tenant may terminate this Lease by giving written notice of termination to the other within ten
(10) after City shall have notified the Tenant of the time required for such restoration. In the
event the Building shall be so damaged by fire or other casualty that demolition or substantial
reconstruction is required (whether or not the Premises be affected) then City may terminate this
Lease by giving Tenant written notice of such termination within thirty (30) days after the date of
such damage; provided, however that if the City, within one year of the date of such fire or
casualty reconstructs the building substantially the same as exists at the commencement of this
Lease, Tenant shall have the opportunity to renew its occupancy of the Premises under the terms
of this Lease, the same as if the fire or casualty had not occurred.
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11. Assignment and Subletting. Tenant shall not assign the Lease or sublet the
Premises or any part thereof without the prior written consent of City, which consent shall not be
unreasonably withheld.
12. Signs and Advertising. Tenant shall not place any signs or advertising upon the
Premises or upon the Building, except of such design and structure as may be permitted by City.
any sign or advertising permitted by City shall at all times comply with all applicable ordinances,
rules and regulations.
13. Default bv Tenant. The occurrence of any of the following shall constitute an
event of default by Tenant:
(a) Delinquency by the Tenant in payment of any rent under this Lease for a
period of ten (10) days from the date such rent became due and payable.
(b) Delinquency by the Tenant in the performance of or compliance with any
of the other obligations of Tenant contained in this Lease, for a period of
twenty (20) days after written notice thereof from the City to Tenan.t.
(c)
Filing by or against the Tenant in any court pursuant to any statute either
of the United States or of any state, of a petition or bankruptcy or
insolvency, or for reorganization, or for the appointment of a receiver or
trustee, or all or a portion of the Tenant's property, if within ninety (90)
days after the commencement of any such proceedings involving the
Tenant such petition shall not have been dismissed.
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In the event of default in non-payment of rent as provided in subparagraph 13 (a)
above, this Lease shall automatically terminate on the date specified in the City's three (3) day
notice for payment of rent or surrender of possession of the premises under Section 13-40-1 04( d)
(1973 c.R.S.), if Tenant fails to pay such rent as demanded in said notice. To avoid potential
forfeiture on account of clerical error or oversight, Tenant shall have the right to require the City
to deliver any such notice to the President of a banking institution in Aspen, Colorado, or to
. another responsible person in Aspen, Colorado, to permit Tenant to arrange for payment of such
rent within said three (3) day period. Notice of the identity and address of such bank or person
shall be specified in writing by Tenant from time to time. In the event of a default by Tenant as
provided in subparagraphs 13(b) and 13(c) above, this Lease shall automatically terminate on the
date specified in City's three (3) day notice thereof under Section 13-40-104(e) (1973 C.R.S.).
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Upon the premature termination pursuant to this Section 13, the Tenant shall
peacefully surrender the Leased Premises to the .City, and the City upon or at any time after any
such expiration, may, without further notice, re-enter the Leased Premises and repossess it by
reasonable force, summary proceedings, ejectment or otherwise, and may dispossess the Tenant
. and remove the Tenant and all other persons and property from the Leased Premises, and may
have, hold and enjoy the Leased Premises and the right to receive all rental income therefrom.
,~
At any such time after such premature termination, the City may relet the Leased
Premises or any part thereof, in the name of the City or otherwise for such term (which may be
greater or less than the period which would otherwise have constituted the balance of the term of
this Lease) and on such conditions as the City, in the City's uncontrolled discretion, may
determine, and may collect and receive the rents therefor. The City shall in no way be
responsible or liable for any failure to collect any rent due upon such reletting,
No such premature termination ofthis Lease shall relieve the Tenant from its
responsibility for the payment of rent for the full term set forth in Paragraph 2 above and
Tenant's liability and obligations shall survive any such expiration. In the event of any such
premature termination, the Tenant shall pay to the City the rent required to be paid by the Tenant
up to the time of such premature termination, and thereafter the Tenant, until the end of what
would have been the term of this Lease in the absence of such premature termination, shall be
liable to the City for, and shall pay to the City as and for liquidated and agreed damages for the
Tenant's default:
(a) The equivalent of the amount of the rent which would be payable under
this Lease by the Tenant if the Lease were still in effect, less
(b)
The net proceeds of any reletting effected pursuant to the provisions of this
Paragraph 13, after deducting all of the Landlord's expenses in connection
with such re1etting, including, without limitation, all repossession costs,
brokerage commission, legal expenses, attorneys' fees, costs and expenses
of preparation for such reletting.. The rights, powers and remedies of the
City under this lease shall be cumulative and in addition to any other rights
given to City by law. The exercise of any right, power or remedy shall not
impair City's rights to other remedies.
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14. Default bv City. Should City default in the performance of any covenant required
to be performed by City hereunder, Tenant may serve upon City a notice specifying the default
and requiring performance by City within a period of time set forth in the notice, which shall not
be less than fifteen (15) nor more than forty-five (45) days. In the event City shall not have
remedied the default within the time set forth in the notice, or, if the nature of the default so
requires, shall not have commenced to remedy the same, Tenant may serve upon the City another
written notice terminating this lease.
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15. Surrender of Premises. Upon the termination of this Lease, by expiration of its
terms or otherwise, Tenant shall surrender the Premises to City in good order and condition,
ordinary wear and damage by the elements excepted; and Tenant shall remove all of its property
and shall repair any damage to the Premises caused by such removal. Any personal property of
Tenant, or anyone claiming under Tenant, which shall remain upon the Premises after
termination of the Lease shall be deemed to have been abandoned and may be retained by City as
its property or disposed of in such manner as City sees fit.
r" 16. Landlord's Lien. In the event of default by Tenant in the performance of its
obligations under this Lease, City, as Landlord, shall have as security for the payment of rent or
any other sums due hereunder, a lien on all personal property of Tenant situated upon the
Premises.
17. Access to Premises. City shall be entitled to enter upon the Premises at all
reasonable hours for the purpose of inspecting the same, preventing waste or loss, or enforcing
any of City's rights hereunder. City may further enter upon the Premises for the purpose of
showing the same to prospective tenants at any time during the last six months of any term of this
Lease, during any month-to-month extension thereof.
18. Security Deposit. In the event Tenant is in default of its obligations under the
terms of this Lease, City may, at its option, require the deposit of the sum of $6,500.00 with the
City as security for the prospective faithful performance by Tenant of all terms of this Lease. In
the event required, Tenant may not use or apply any portion of the deposit in lieu of rent, and said
deposit shall be retained by City until the termination of this Lease, at which time. the deposit will
either be returned to Tenant or retained in whole or in part by City in accordance with the
. provisions of Section 38-12-101, et seq., C.R.S. 1973. City may, at its election, have recourse to
such security deposit to make good any default by Tenant, in which event Tenant shall, on
demand, promptly restore said security deposit to its original amount. Liability to repay the
security deposit to Tenant shall run with the reversion and title to the Premises and City shall
assign the security deposit, for the benefit of Tenant, to any subsequent owner or holder of the
r. reversion or title to the Premises, in which case the assignee shall become liable for the '
repayment thereof, and City shall be deemed to be released by Tenant from all liability in
connection therewith.
19. Alterations. Additions and Improvements. Prior to the commencement of any
work on alterations, additions and improvements, all plans and specifications shall be submitted
by Tenant to City for prior written approval. Additionally, prior to commencement of any work,
Tenant shall pay the amount of any increase in premiums on insurance policies because of
endorsements to be made covering such risk during the course of work. If the estimated cost of
the work shall exceed $1,000, Tenant shall, upon request of the City Manager, without cost to
City, furnish City with a performance bond naming the City and Tenant as co-insureds, written
by a surety acceptable to City in an amount equal to the estimated cost of the work, guaranteeing
the completion of work, free and clear of liens, encumbrances, and security interests according to
the approved plans an'd specifications. All alterations, additions and improvements on or in the
Premises at the commencement of this Lease and that may be erected or installed during the term
of this Lease shall become part of the Premises and the sole property of City, except that all
movable trade fixtures installed by Tenant shall be and remain the property of Tenant.
20. Waste and Nuisance Prohibited. Tenant shall not commit, or suffer to be
committed; any waste on the Premises or any nuisance.
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21. Holding Over. No holding over in continuation of any business by Tenant after
the expiration of the term hereof shall be considered to be a renewal or extension of this Lease,
,,",, unless written approval of such holding over and a definite agreement to such effect is signed by
City defining the length of such additional term. Any holding over without the consent of City
shall be considered to be aday-to-day tenancy, rental rate to be determined by pro-rating the
annual rent for the year imm~diately preceding the termination of this Lease on a daily basis.
22. Transfer or Pledge of Leasehold Interest. Tenant shall not assign this Lease or any
interest therein or sublet the Premises or any part thereof or license the use of all or any portion
of the Premises or business conducted thereon or therein, or encumber or hypothecate this Lease,
without first obtaining the written consent of City; and any assignment, subletting, licensing,
encumbering or hypothecating of this Lease without such prior written consent shall, at option of
City, terminate this Lease.
23. Partnership or Agency. This Lease is not intended to create any relationship
between Tenant and City other than as LandlordlTenant, and Tenant is neither the agent, partner,
employee nor joint venturer of or with City.
24. Additional Rent. All taxes, charges, costs and expenses that Tenant assumes or
agrees to pay under this Lease, together with all interest and penalties that may accrue thereon in
the event of failure of Tenant to pay those items, and all other damages, costs, expenses, and
sums that City may suffer or incur, or that may become due, by reason of any default of Tenant or
failure of Tenant to comply with the terms and conditions of this Lease shall be deemed to be
additional rent, and, in the event of non-payment, City shall. have all the rights and remedies as
r-- herein provided for failure to pay rent.
25. Minimum Hours. Tenant shall be fully stocked and staffed and open for business
on the leased Premises continuously Monday through Saturday, inclusive, according to the
minimum hours established in the following schedule:
MINIMUM HOURS
September 1 - December IS
10:00 a.m. - 9:00 p.m.
11 :00 a.m. - 8:30 p.m.
or curtain time for scheduled
performances at the Wheeler
Theater, whichever is earlier
12:00 noon - 5:00 p.m.
(Subject to Tenant's option
to close the Premises)
II :00 a.m. - 8:30 p.m.
or curtain time for scheduled
performances at the Wheeler
Theater, whichever is earlier
12:00 noon - 5:00 p.m.
(Subject to Tenant's option
to close the Premises)
December 16 - December 30
December 31 - March 31
Apri!l - June 14
June 15 - August 31
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1""".
Tenant shall have the option to close the Premises for any purpose for twenty one (21)
days between April 1 - June 14 and for an additional twenty one (21) days between September 1 _
November 30.
At all times during which the Premises are closed for business, Tenant shall keep
Premises lighted in a manner acceptable to the City, so as to give the exterior of the Premises the
appearance of liveliness and invitation.
26. City. The term "City" as used herein encompasses, without limitation, those
officers, employees and designees of the City having responsibility (as may be determined by the
City Council or the City Manager) for the administration of this Lease. .
27. Notice. All notices required hereunder shall be in writing and shall be deemed to
have been given if either delivered personally or mailed by certified or registered mail to City or
to Tenant, as the case may be, at their respective addresses as follows, or to such other address as
either party may so notify the other of in writing:
City:
Tenant:
r"
City Manager
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
Highline Gallery
c/o Sandy Hogopian
28. Quiet Eniovment. City covenants that upon Tenant's paying the rent and in
performing and observing all the terms and conditions on Tenant's part to be performed and
observed, Tenant may peacefully and quietly enjoy the Premises.
29. BindingEffect. The Lease shall be binding upon and shall inure to the benefit of
the City and Tenant and their respective heirs, personal representatives, successors and assigns.
30. Modifications. This Lease may be modified only by written agreement executed
by the parties hereto.
31. Descriptive Headings. Descriptive headings contained herein are inserted for
convenience and reference only and shall not in any way limit or amplify the terms and
provisions contained herein.
32. Applicable Law. The laws ofthe State of Colorado shall govern the construction,
performance and enforcement of this Lease.
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('0
ATTEST:
~r),4~JJ~
Approved as to form:
~pn~ /~-r/c;%
Jo n P meester, City Attorney
JPW~05/26/98M\\-commons\aspattomey\john\word\agr\highline.doc
THE CITY OF ASPEN, COLORADO
By:
THE ASPEN GLASS, INC.
A Colorado Corporation
By:
By:
]0----
'U 1~
AmIen Kolaydji , President
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