HomeMy WebLinkAboutresolution.council.032-04RESOLUTION NO.
Series of 2004
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING A LEASE AGREEMENT BETWEEN L.M.K.R. CORPORATION AND THE CITY
OF ASPEN, COLORADo FOR THE LEASE OF THE BENTLEY' S ~STAURANT SPACE AT
THE WHEELER OPERA HOUSE, AND AUTHORIZING TI~' CITY MANAGER TO EXECUTE
SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a lease agreement between L.M.K.R.
Corporation 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 CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO:
That the City Council of the City of Aspen hereby approves that lease agreement between
L.M.K.R. Corporation and the City of Aspen, a copy of which is annexed hereto and incorporated herein,
and does hereby authorize the City Manager of the City of Aspen to execute said 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~ 2004.
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/~y hereinabove stated. // ,, //
Kathry~/. Koch, City Clerk
Bentley's Restaurant Lease
Page I
LEASE AGREEMENT
BENTLEY'S RESTAURANT
THIS L. EASE AGREEMENT is made and entered into this I ~n- v r~c ~O..~
2004 by and between the City of Aspen, 130 South Galena Street, Aspen, Color~t~-o ~1611
("Landlord") and L.M.K.R. Corporation, a Colorado Corporation whose address is 2 066 Lord
Baltimore Ave., Baltimore, MD 21244 ("Tenant").
WITNESSETH:
WHEREAS, Landlord is the owner of the real property and all of the improvements
thereon, known as the Wheeler Opera House, 328 East Hyman Avenue, Aspen, Colorado 81611'
and, ,
WHEREAS, the parties hereto desire to enter into a Lease Agreement for a certain
portion of the Wheeler Opera House as more fully described herein.
NOW, THEREFORE, for and in consideration of the payments to be made hereunder,
and in further consideration of the terms, conditions, covenants and mutual promises contained
herein, the parties hereto agree as follows:
1. Lease of Premises. Landlord does hereby rent to Tenant the following described
premises ("Leased Premises") subject to the covenants and conditions hereinafter contained, to
wit:
That portion of the first floor of the Wheeler Opera House currently
occupied by the Bentley's restaurant consisting of t,825 square feet and
436 square feet of storage basement space in the Wheeler Opera House
all as more fully described and depicted in the attached Exhibit A. In
addition the Leased Premises shall include the Additional Leased
Premises described in paragraph46, below.
for the term, at the rents, and upon the conditions and covenants hereinafter set forth. Taking
possession of the lease premises by Tenant shall constitute acknowledgment that such premises
are in good condition and neither' the Tenant nor Landlord shall be required to make any
alterations thereto, unless agreed to in advance and in writing by Landlord.
2. Term. Unless sooner terminated, as provided herein, the initial term of this Lease
Agreement shall be for a period of five (5) years (the "Initial Term"). The Initial Term shall
commence at 12:00 noon on May 1, 2004, and shall expire at 12:00 noon on April 30, 2009. A
Lease Year shall be a calendar year starting on the commencement date of the Initial Term
through 12:00 noon of the following calendar year and each calendar year thereafter. Tenant's
occupancy of the Leased Premises shall be limited by paragraph 5, below.
Bentley's Restaurant Lease
Page 2
3. Rent. Tenant agrees to pay Landlord a fixed minimum annual rental for each
Lease Year during the term 0fthis Lease Agreement, which initial rent shall be $60.00 per square
feet of leased space on the first floor per year; and $20.00 per square feet of leased space in the
basement p,er year. Commencing on the second Lease Year and every Lease Year thereafter, the
minimum annual rental shall be adjusted upward, based upon increases (if any) in the cost of
living during the preceding Lease Year using the "Price Index," all as more fully described in
Exhibit B appended hereto and made a part hereof. Throughout the term of this Agreement, rent
shall be payable no later than the first day of each month for the succeeding month.
..Equipment, Fixtures and Finishes Provided by Landlord and Tenant.
(a) The parties hereto acknowledge that certain remodeling of restroom areas within the
Leased Premises is contemplated during the term of this lease. Tenant represents that it has had
an opportunity to review the remodeling plans for the restroom area. The parties hereto
.understand that Landlord shall finish the remodeling of the restrooms only by the construction
and installation of a 11 work a nd materials a s s et forth i n t he remodeling plans for t he L eased
Premises. On a date mutually agreed to by the parties, but no later than two months following the
start of the term of this Lease Agreement, Tenant shall be given an opportunity to inspect the
Leased Premises to assure itself that the work and materi als to be constructed or installed for the
restroom remodeling are satisfactory. Tenant shall prepare a punch list of all items that require
further work and shall present the punch list to Landlord. Landlord shall take all reasonable steps
to correct or complete all items on the punch list within a reasonable period of time. Unless an
item on the punch list shall materially affect the Tenant's intended use of the Leased Premises,
the scheduled start of the lease term shall not be postponed.
(b) The parties hereby agree that the cost of the restroom remodeling shall be shared equally;
provided, however, that the Tenant's share of the remodeling does not exceed $22,189.00. In the
event that the one half of the total cost of remodeling exceeds $22,189.00, Landlord shall be
responsible for any additional costs..Landlord shall present Tenant with a full accounting of the
costs of remodeling upon completion and Landlord shall pay Landlord its share Of the costs no
later than October 1, 2004.
5. Occupancy of the Leased Premises. Tenant shall be entitled to occupy the Leased
Premises throughout the term of the lease; provided, however, that Tenant uses the premises as
set forth in Paragraph 6 below, and all other terms and conditions of this Lease Agreement. The
parties agree to meet no less than once every month to discuss Tenant's performance and any
other issues relating to the terms and conditions of this Lease Agreement.
6. Permitted Uses and Required Performance Standards Tenant shall use and
occupy the Leased Premises for a restaurant and associated storage and for no other purpose
without Landlord's written consent.
Bentley's Restaurant Lease
Page 3
7. Prohibited Uses. Tenant shall not use, occupy, or permit the Leased Premises
or any part thereof to be used or occupied for any unlawful or illegal business, use, or purposes
deemed by Landlord to be disreputable, or hazardous, nor in such manner as to constitute a
nuisance of any kind, nor for any purpose or in any way in violation of any present or future laws,
rules, requirements, orders, directions, ordinances or regulations of the United States of America,
State of Colorado, County Pitkin, City of Aspen, or other municipal, governmental, or lawful
authority whatsoever. Tenant shall not do or permit anything to be done in or about the LeaSed
Premises or bring or keep anything therein which will in any way increase the rate of fire
insurance upon the Building wherein the Premises are situated. Tenant shall, at its sole cost and
expense, comply with any .and all requirements pertaining to the Leased Premises of any
insurance company necessary for the maintenance of reasonable fire and public liability
insurance covering the Leased Premises. 'Tenant shall promptly comply with all laws, ordinances,
orders, and regulations affecting the Leased Premises and the cleanliness, safety, and use of the
same, including installation of additional _facilities as required for the COnduct and continUance of
Tenant's business on the Leased Premises. No auction for fire or bankruptcy sales may be
conducted on the Leased Premises without Landlord's consent.
8. Service to Patrons/No Discrimination. The service provided to patrons by Tenant
shall be rendered courteously and efficiently and within the limits for which the facility is
designed. Landlord reserves the right to prohibit the sale of any item that it deems objectionable,
and shall have the right to order the improvement of the quality of either the merchandise or the
services rendered. Landlord's fight to prohibit the sale of any i tern s hall not b e unreasonably
withheld. Tenant shall, not discriminate against any employee or applicant for employment
because of race, religion, color, creed, ancestry, sex, age, sexual orientation or national origin.
Tenant and Tenant's employees shall noi discriminate against any person because of race,
religion, color, creed, ancestry, sex, age, sexual orientation or national origin by refusing to
furnish such person any service or privilege offered to or enjoyed by the general public. Neither
Tenant nor Tenant's employees shall publicize the services provided hereunder in any manner
that would directly or inferentially reflect on the acceptability of the patrons of any person
because ofrace,.religion, color, creed, ancestry, sex, age, sexual orientation or national origin.
9. Late Charges. The 'Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent or other sums due hereunder will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which shall be extremely difficult to ascertain.
Such costs include, but are not limited to, processing and accounting charges and the late
charges. Accordingly, if any bona fide installment of rent or any .other sum due from Tenant
hereunder shall not be received by Landlord or Landlord's designee on or before the twentieth
(20th) day of each calendar month that a rent payment is due, then Tenant shall pay to Landlord a
late charge often percent (10%) on such overdue amount. The parties hereby agree that such a
late charge will represent a fair and reasonable settlement of the cost that Landlord would incur
by reason of the late payment by Tenant. Acceptance of such late charges by Landlord shall 'in
no event constitute a waiver of Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of the other rights and remedies granted hereunder unless the entire
amount due, plus late charge, is accepted by Landlord. In addition, any sum for which the Tenant
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shall be obligated to the Landlord, which is not received on the due date thereof, shall bear
interest at the rate often percent (10%) per annum from and after the due date until paid.
10. Personal and Real Property Taxes. Tenant shall pay, as additional rent hereunder,
all personal property taxes assessed against the personal property used by Tenant and located on
the Leased Premises. Likewise, Tenant shall be responsible for any and all sales, use,
withholding and other taxes assessed against the Leased Premises for Tenant's business operation
therein. Landlord shall pay any real estate taxes assessed upon the Leased Premises, except for
leasehold property interest taxes referenced above.
11. Fire and Casualty Insurance. The Tenant, at its own cost and expense, shall
provide and keep in full force for the benefit of the Tenant and the' City and the Landlord (as
named or additional insureds) during the term hereof or any extension or renewal period,
insurance to insure the Leased Premises against'fire, normal extended coverage perils, vandalism,
malicious mischief, and liability. Throughout the term of this Lease, the Tenant shall carry and
maintain in effect casualty insurance covering its trade fixtures, equipment, furnishings,
leasehold improvements and plate glass, which insurance shall protect against fire, normal
extended coverage perils, vandalism, malicious mischief, and sprinkler malfunction. Such
insurance shall provide coverage to the extent of at least one hundred percent (100%) of the
insurable replacement cost of the insured property. Both the Landlord and the Tenant waive any
right of subrogation that their respective insurers may acquire against either of them. Both of
these waivers shall automatically terminate at such time as either party's insurer requires that an
additional premium be paid as a consequence of this waiver provision.
12. Liability Insurance. The Tenant, at its own cost and expense, shall provide and
keep in full force for the benefit of the Tenant and the Landlord (as named or additional insureds)
during the term hereof or any extension or renewal period, general public liability insurance for
claims of liability arising out of, occasioned by or resulting from an accident or otherwise in or
about the Leased Premises, for Five Hundred Thousand Dollars ($500,000.00) each occurrence
with a One Million Dollar ($1,000,000.00) general aggregate combined single limit covering
bodily injury, property damage, and personal injury. In addition, if Tenant serves, manufactures,
or distributes alcoholic beverages on the Leased Premises, Tenant shall carry liability insurance
for such activity with limits in the same amounts as stated above. The policy or policies o f
insurance (or binders of insurance therefore) shall be issued by a reputable company or
companies authorized to do business in this State and shall name Landlord as an additional
insured. Tenant shall provide evidence of such insurance coverage to Landlord prior to the
commencement o fthe term hereof. T he Tenant also agrees to and shall save, hold and keep
harmless and indemnify the Landlord from and against any and all payments, expenses, costs,
attorneys' fees and/or damage to property or injuries to persons occasioned wholly or in part by or
resulting from any acts or omissions by the Tenant or any subtenants, assignees or successors. If
for any reason as a result of Tenant's activities, use, or business, it shall be impossible to obtain
fire and other hazard insurance on the buildings and improvements on the Leased Premises, in an
amount and with insurance companies acceptable to the Landlord, the Landlord may terminate
this Lease and the term hereof, upon giving to Tenant fifteen (15) days notice in writing of the
Bentley's Restaurant Lease
Page 5
Landlord's intention to do so and upon the expiration of the time provided in said notice, this
Lease and the term hereof shall terminate. If by reason of the use of the Leased Premises by the
Tenant or by character or manner in which the Tenant's business is carried on, Landlord's
insurance rates for fire and other hazards shall be increased, the Tenant shall pay, as additional
rent, the amounts by which the premiums for such insurance are increased. The Tenant waives
all rights of recovery against the Landlord or Landlord's agents, employees or other
representatives, for any loss, damages or injury of any nature whatsoever to property or persons
for which the Tenant is insured. Each party shall give. the other party prompt notice of any claim
coming to the knowledge of any Party that in any way directly or indirectly affects 'either party,
and both parties shall have the right to participate in the defense of such claim to the extent of its
interest.
13. Notice of Cancellation of Insurance Coverage. The above insurance policies shall
contain clauses substantially similar to the following:
(a) Notwithstanding any other provision in this policy, the insurance
afforded hereunder to the Landlord shall be primary as to any other insurance or
reinsurance covering the Landlord and such other insurance or reinsurance shall
not be required to contribute to any liability until the appropriate limit of liability
afforded hereunder is exhausted.
(b) This policy may not be canceled or changed until forty-five (45) days
after receipt by Landlord of a written notice of such cancellation or change in
coverage, as endorsed by receipt of a certified letter, unless such cancellation is a
result of nonpayment of premium due, in which case, this policy may not be
canceled until ten (10) days after receipt by Landlord of a written notice of such
cancellation, as endorsed by receipt of a certified letter.
14. Utilities. Tenant shall pay to Landlord its prorated share of all charges for utilities
that are not separately metered or contracted for separately by Tenant. Those utilities covered by
this pro-rated share include water, natural gas, and trash service. Utilities not covered by the pro-
rated share shall include any other utility or maintenance services used by the Tenant in or about
the Leased Premises during the term of this Lease. Tenant shali be responsible for any utility
charges that are separately metered or contracted for by Tenant.
15. Alterations. Landlord shall deliver the Leased Premises to Tenant on or before
the commencement date of this Lease Agreement. N o a Iterations, additions, o r improvements
shall be made, and no fixtures shall be installed in or attached .to the Leased Premises that are not
pre-approved in writing by Landlord. Unless otherwise provided herein, all such alterations,
additions or improvements when made, installed in or attached to the said Leased Premises, shall
belong t o a nd become t he property o f t he Landlord a nd shall be surrendered with the Leased
Premises as part thereof upon the expiration or sooner termination of this Lease, without
hindrance, molestation, or injury. Notwithstanding that they may have become an integral part of
the Leased Premises, Landlord may. require Tenant to remove all or any part of such alterations,
Bentley's Restaurant Lease
Page 6
additions, improvements or fixtures at the expiration or earlier termination of this Lease,
restoring the Leased Premises to the same condition existing at the beginning of the 'original
term, ordinary wear and tear excepted. If Landlord does so require, Tenant shall repair all
damages resulting from such removal and should Tenant fail to repair damages resulting from
such removal, Landlord may remove the same or make such repairs for Tenant's account, and'
Tenant shall pay to Landlord, on demand, an amount equal to Landlord's costs incurred in such
removal or repair. All work with respect to any permitted alterations, additions, or improvements
shall be done at Tenant's sole expense in a good and workmanlike manner, strictly in accordance
with the plans and specifications approved by Landlord. In doihg said work, other Tenants of
Landlord (if any) shall not be adversely affected nor unreasonably inconvenienced. Tenant shall,
at its own expense, obtain all necessary building or other permits or approvals required by
appropriate governmental authorities prior to beginning such work. If any mechanics' or other
liens shall be created or filed against the Leased Premises by reason of labor performed or
materials furnished for the Tenant in the alteration, addition or repair to any building or
improvement, the Tenant shall within ten (10) days thereafter, at the Tenant's own cost and
expense, cause such lien or liens to be satisfied and discharged of record together with any
Notices of Intention that may have been filed. Failure to do so shall entitle Landlord to resort to
such remedies as are provided herein in the case of any default of this Lease, in addition to such
as are permitted by law. Any goods, inventory or other personal property of Tenant not affix ed to
the Leased Premises and not removed by Tenant upon the termination of this Lease, or upon any
quitting, vacating or abandonment of the Leased Premises by the Tenant, or upon the Tenant's
eviction, shall be considered abandoned and Landlord shall have the right, without any notice to
the Tenant, to sell or otherwise dispose of the same, at the expense of the Tenant, and shall not be
accountable to the Tenant for any part of the proceeds of such sale, if any.
16. ...Repairs. The Tenant has examined the Leased Premises and has entered into this
Lease without any representation on the part of the Landlord as to the condition thereof, other
than as stated in this Lease Agreement. Tenant shall take good care of the Leased Premises and
shall, at the Tenant's own cost and expense, make all repairs, including painting and decorating,
and shall maintain the Leased Premises in .good condition and state of repair, and at the end or
other expiration of the term hereof, shall deliver up the Leased Premises in good order and
condition, wear and tear from reasonable use thereof, and damage by the elements not resulting
from the neglect or fault of the Tenant, excepted. The Tenant shall neither encumber nor
obstruct the sidewalks, driveways, yards, entrances, hallways and stairs, but shall keep and
maintain the same in a clean condition, free from debris, trash, refuse. In case of destruction of,
or any damage to the glass in the Leased Premises, or the destruction of, or damage of any kind
whatsoever to the Leased Premises, caused by the carelessness, negligence or improper conduct
on the part of the Tenant or the Tenant's agents, employees, guests, licenses, invitees, subtenants,
assignees or successors, the Tenant shall repair the said damage or replace or restore any
destroyed p arts o fthe Leased Premises, as speedily as possible, at the Tenant's own cost and
expense.
17. Maintenance and Repairs. Tenant shall during the term of this Lease keep in
condition and repair equal to that which existed at the commencement of this lease the Leased
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Page 7
Premises and every part thereof, including without limiting the generality of the foregoing, all
plumbing fixtures, within the Leased Premises, refrigeration, electrical fixtures and lighting
fixtures, additional fixtures, interior w ails, w all coverings and paint, ceilings, floors and floor
coverings, windows, doors, plate glass, awnings, and entrances. Landlord shall have
responsibility for the repair and maintenance of the building structure, roof, foundation and
structural integrity of any additional stories above the Leased Premises, and shall, at its expense
provide major repairs and required replacement to mechanical systems situated within the Leased
Premises that were originally provided by the Landlord. Major repairs and replacements are
agreed to be those which cost more than $500.00 for each single item, and are of what the
Landlord provided initially when construction was completed on the new facility, (other
additions that need repair which were completed by lease holder will be undertaken by the lease
holder at the lease holders sole cost and expense) and are required to proVide the level of service
and serviceability thereof and there from currently existing. Absent such agreement, Landlord
shall have no obligation to execute such repair or replacement, but in the event Landlord
determines to effectuate such repair or replacement, Landlord shall have the sole discretion to
determine the type, extent and quality of repair or replacement that shall be undertaken.
18. Damage to Premises. If the Leased Premises shall be so damaged by fire or other
catastrophe (which is not caused by the fault or negligence of the Tenant or imputable to the
Tenant) as to render said Leased Premises untenantable, the Tenant thereupon shall surrender the
Leased Premises to the Landlord. The Tenant shall pay rent, duly apportioned, up to the time of
such termination of this Lease. Notwithstanding the foregoing, in lieu of. any termination of the
Lease, Landlord may elect, at its sole option, within thirty (30) days after the event of such
damage, to continue the Lease without regard of such damage, whereupon Landlord shall at its
expense make the Leased Premises fit for occupancy and the rent shall be abated only for the
period during which the Tenant shall be deprived of the use of said Leased Premises by reason of
such damage and the repair thereof. If said Leased Premises, without the fault of the Tenant,
shall be slightly damaged by fire or other catastrophe but not so as to render the same
untenantable for any substantial period of time, the Landlord, after receiving notice in writing of
the occurrence of the injury, shall cause the same to be repaired with reasonable promptness; and
in such event, rent shall be proportionately abated, according to the loss of use, until the Leased
Premises are substantially restored.
19. Sublease/Assignment. Tenant shall not assign, sublease, mortgage, pledge or
otherwise hypothecate or transfer all or any~part of Tenant's leasehold estate hereunder, or permit
the Leased Premises or any portion thereof to be occupied by anyone without Landlord's prior
written consent in each instance, which consent shall not unreasonably be withheld. In the event
Tenant is a corporation, these provisions shall apply to any transfer, sale or other disposition,
whether voluntary or involuntary, .of any stock in Tenant or to any merger, consolidation or
dissolution Or any other transaction, the effect of which would be in any way to avoid or
circumvent such prohibitions. Any assignment or subletting contrary to the provisions of this
Paragraph shall be void and shall, at the option of the Landlord, constitute a default under the
terms of this Lease.
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Page 8
20. Signs. The Tenant shall not place nor allow to be placed any signs of any kind
whatsoever, upon, in or about the said Leased Premises or any part thereof that are visible from
the exterior of the Wheeler Opera House, except of a design and structure and in or at such places
as may be indicated and consented to by the Landlord in writing. In case the Landlord or the
Landlord's agents, employees or representatives shall deem it necessary to remove any such signs
in order to paint or make any repairs, alterations or improvements in or upon the Leased
Premises, they shall be replaced at the Landlord's expense when the said repairs, alterations or
improvements shall have been completed. Any signs permitted by the Landlord shall at all times
conform with all municipal ordinances or other laws and regulations applicable thereto.
21. Compliance with Law. Tenant shall obtain and pay for all permits or licenses that
may be required for the operation of the Leased Premises in accordance herewith. A copy of
such permits or licenses shall be submitted to Landlord for verification of this requirement prior
to occupancy.. The Tenant shall promptly comply.with all laws, ordinances, rules, regulations,
requirements, and directives of the federal, state, and municipal governments or public
authoriti es and of all their departments, bureaus and subdivisions, applicable to and affecting the
said Leased Premises, their use and occupancy, and shall promptly comply with all orders,
regulations, requirements and directives of the Board of Fire Underwriters or similar authority
and of any insurance companies which have issued or are about to issue policies of insurance
covering the said Leased Premises and its contents, for the prevention of fire or other, casualty,
damage or injury, all at Tenant's own cost and expense. Tenant shall obtain and maintain during
the life of this Lease, worker's compensation insurance and employer's liability insurance for
Tenant's employees in strict compliance with state laws. Certificates evidencing such insurance
or approved self-insurance shall be submitted to Landlord prior to occupancy.
Tenant s hall not u se t he L eased Premises for any purposes deemed unlawful, disreputable, or
extra hazardous.
22. Quiet Enio_wnent. So long as the Tenant is not in default hereunder during the
term hereof o r a ny renewal o r extension hereof, t he Landlord covenants that the Tenant shall
peacefully and quietly occupy and enjoy the Leased Premises subject to the terms hereof. The
Landlord warrants that' it has full power and authority to execute this Lease, be bouhd by, and
perform all its obligations hereunder.
23. Condemnation. If the land and the Leased Premises leased herein, or of which the
Leased Premises are a part, or any portion hereof, shall be taken under eminent domain or
condemnation proceedings, or if suit or other action shall be instituted for the taking or
condemnation thereof, or if in lieu of any formal condemnation proceedings or actions, if any, the
Landlord shall grant an option to purchase and/or shall sell and convey the said Leased Premises,
or any portion thereof, to the governmental or other public authority, agency, body or public
utility seeking to take said land and Leased Premises or any portion thereof, then this Lease, at
the option of Landlord, shall terminate .and the term hereof shall end as of such date as the
Landlord shall fix by notice in writing; and the Tenant shall have no claim or right to claim or be
entitled to any portion of any amount which may be awarded as damages or paid as the result of
such condemnation proceedings or paid as the purchase price for such option, sale or conveyance
Bentley's Restaurant Lease
Page 9
in lieu of formal condemnation proceedings; and all rights of the Tenant to damages, if any, are
hereby assigned to the Landlord. The Tenant agrees to execute and deliver any instruments, at
the expense of-the Landlord, as may be deemed necessary or required to expedite any
condemnation proceedings or to effectuate a proper transfer of title to such governmental or other
public authority, agency, body, or public utility seeking to take or acquire t he s aid 1 ands a nd
Leased Premises or any portion thereof. The Tenant covenants and agrees to vacate said Leased
Premises, remove all the Tenant's personal property there from and deliver up peaceable
possession thereof to the Landlord or to such other party designated by the Landlord in the
aforementioned notice. Failure by the Tenant to comply with any provisions in this clause shall
subject the Tenant to such costs, expenses, damages and losses as the Landlord may incur by
reason of the Tenant's breach hereof.
24. Landlord's Lien. Tenant hereby grants to Landlord a security interest in any and
all of Tenant's .furniture, fixtures, equipment .and inventory whenever acquired, t heir proceeds
and the proceeds of any and all insurance policies carried thereon as and for additional security
for the faithful performance by Tenant of all of its obligations hereunder. Tenant agrees to
execute and deliver to Landlord, upon request, such additional documents as Landlord may
require to establish and perfect such security interest including, without limitation, a financing
statement in form satisfactory to Landlord, which is to be executed and delivered by Tenant to
Landlord. The exercise by Landlord of any rights in and to such furniture, fixtures, equipment
and inventory upon default hereunder shall be governed by Article 9 of the Colorado Uniform
Commercial Code, as in effect at the time of such default, but such exercise shall not preclude
Landlord from exercising any or all other rights and remedies hereunder or as provided by law.
25. _Inspection and Repair. The Tenant agrees that the Landlord and the Landlord's
agents, employees or other representatives, shall have the right to enter into and upon the Leased
Premises or any part thereof, at all reasonable hours and upon reasonable notice, for the purpose
of examining the same or making such repairs or alterations therein as may be necessary for the
safety and preservation thereof. Nothing in this section is intended to restrict access to the
premises by an authorized City of Aspen inspector conducted pursuant to law, including, but not
limited to Environmental Health employees conducting routine health inspections. This clause
shall not be deemed to be a covenant' by the Landlord nor be construed to create an obligation on
the part of the Landlord to make such inspection or repairs. Tenant expressly waives and
releases any claim, demand, or cause of action it might have by reason of any inconvenience,
annoyance to Tenant, its guests, licensees or invitees arising from any maintenance, alteration or
repair to any portion of the Leased Premises, the building in which it is located or the property
upon which it is situate. Tenant grants to Landlord the right to temporarily discontinue utilities
or any of them at any such time or times as may be necessary by reason of any such maintenance
work, alteration or repair.
26. Landlord Remodel of Premises. In the event Landlord desires to remodel any
portion of the Leased Premises during the term of this lease agreement, it may do so, provided it
is solely at Landlord's expense and, provided further, that any remodel work commenced by
Landlord shall not interfere with or disrupt Tenant's business within the Leased Premises.
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Page 10
27. Default. If there should occur any default on the part of the Tenant in the
performance of any conditions or covenants herein contained or if, during the term hereof, the
Leased Premises or any part thereof shall be or become abandoned or deserted, vacated or vacant,
or should the Tenant be evicted by summary proceedings or otherwise, the Landlord, in addition
to any other remedies herein contained or as may be permitted by law, may either by force or
otherwise, without being liable for prosecution therefore or for damages, re-enter the said Leased
Premises and again possess the same with or without terminating this Lease; and as ~agent for the
Tenant or otherwise, re-let the Leased Premises and receive the rents therefore and apply the
same, first to the payment of such expenses and costs, as the Landlord' may have been put ~n re-
entering and repossessing the same and in making such repairs and alterations, as may be
necessary; and second to the payment of the rents due hereunder. Whether or not the Landlord
shall terminate this Lease, the Tenant shall remain liable for such rents as may be in arrears and
also the rents as may accrue subsequent to the re-entry by the Landlord, to the extent of the
difference between the rents reserved hereunder and the rents, if any, received by the Landlord
during the remainder of the unexpired term hereof, after deducting the aforementioned expenses,
fees, and costs; the same to be paid as such deficiencies arise and are ascertained each month. In
addition, upon any such default, or if Tenant be adjudicated a .bankrupt, insolvent or placed in
receivership; or should proceedings' be instituted by or against the Tenant for bankruptcy,
insolvency, receivership, agreement of composition or assignment for the benefit of creditors, or
if t his L ease o r t he e state o f t he Tenant hereunder s hall b e transferred b y virtue o f a ny court
proceedings, writ of execution or levy sale, the Landlord may, if the Landlord so elects, at any
time thereafter, terminate this Lease, upon written notice to Tenant or to any trustee, receiver, or
other person in charge of or acting as custodian of the assets or property of the Tenant. In the
event of default, except in the payment of rent or.additional rent hereunder, Landlord, prior to the
exercise of any of its rights or remedies hereunder, shall give Tenant notice of such default
together with a ten (10) day right to cure should such default be in the payment of any other sums
due Landlord hereunder or a twenty (20) day right to cure should such default be in any of the
other conditions or covenants of this Lease to be performed by Tenant, unless the same by its or
their nature require immediate or earlier attention. Upon the giving of such notice, this Lease and
the term hereof shall, unless the default shall be cured during the applicable period, end on the
date fixed in such notice as if the said date were originally fixed in this Lease for the expiration
hereof; and the Landlord shall have the right to remove all persons, goods, fixtures and chattels
therefrom, by force or otherwise, without liability for damages. No right of redemption shall be
exercised under any present or future law of the State of Colorado in case the Tenant shall be
' dispossessed for any cause or if the Landlord shall, in any other manner, obtain possession of the
Leased Premises in consequence of the violation of any of the covenants and agreements of the
Tenant. The Landlord shall have a lien paramount to all others on every right and interest of the
Tenant in and to this Lease, and on any furnishings, equipment, fixtures, or other' personal
properly of any kind belonging to the Tenant, or the equity of the 'Tenant therein, on the leased
property. Such lien is granted for the purpose of securing the payment of rents, taxes,
assessments, insurance charges, liens, penalties and damages herein covenanted to be paid by the
Tenant and for the purpose of securing the performance of all of the Tenant's obligations under
Bentley's Restaurant Lease
Page 11
this Lease. Such lien shall be in addition to all rights of the Landlord given under statutes of this
State, which are now or shall hereinafter be in effect.
28. Attorneys' Fees. 'In the event of any litigation or other action or proceeding
between the parties hereto arising out of the performance or non-performance of this Lease, or
enforcement of any rights or remedies hereunder, including any indemnities herein contained, the
prevailing party shall b~e entitled in such litigation, action or proceeding to also recover, as part of
anyjudgrnent, award or other relief, its reasonable attorneys' fees and costs incurred.
29. ..Delays. Whenever a period of time is provided in this Lease for either Landlord
or Tenant to do or perform any act or thing, neither Landlord nor Tenant shall be liable or
responsible for performing any obligation hereunder as a result of any unavoidable delay due to
strikes, lockouts, casualties, acts of God, or other governmental regulations or control or other
causes beyond such party's reasonable control, and the time for performance specified herein
shall be extended for a period of time corresponding to such delay.
30. Mortgage Priority. This Lease shall not be a lien against the Leased Premises with
respect to any mortgages or trust deeds now or hereafter placed upon the Leased Premises or the
building. The recording of such mortgage or mortgages shall have preference and precedence
and be superior and prior in lien to this Lease, irrespective of the date of recording and the
Tenant agrees to execute any instruments, without costs, which may be deemed necessary or
desirable, to further effect the subordination of this Lease to any such mortgage or mortgages.
Tenant shall, upon request, execute any estoppel certificates or attomment agreements that may
be required by the holder of any mortgage or trust deed now or hereafter placed upon the Leased
Premises or the building or by the Owner of the building in which the Leased Premises are
located. A refusal by the Tenant to execute any such instruments shall entitle the Landlord to at
once terminate this Lease. Tenant agrees not to record or file this Lease in the real estate records
affecting the building in which the Leased Premises is located. Any such recording in violation
hereof shall be considered a slander of Landlord's title and a breach of this entire Lease. This
covenant Shall survive the expiration or. earlier'termination of this Lease.
31. .Holding Over. This Lease shall expire of its own accord without notice at the end
of the term or earlier, as herein specified. If, after the expiration of this Lease, Tenant remains in
possession of the Leased Premises with the Landlord's consent, such holding over shall be a
tenancy-at-will at a rental equal to 125% of the last monthly rental provided in this Lease, and
otherwise subject to all the obligations and conditions of this Lease.
32. Cumulative Remedies. The various rights, remedies, options and elections of the
Landlord expressed herein are cumulative and the failure of the Landlord to enforce strict
performance by the Tenant of the conditions and covenants of this Lease or to exercise any
election or option or to resort or have recourse to any remedy herein conferred or the acceptance
by the Landlord of any installment of rent after any breach by the Tenant, in any one or more
instances, shall not be construed or deemed to be a waiver or a relinquishment for the future by
Bentley's Restaurant Lease
Page 12
the Landlord of any such conditions and covenants, options,' elections or remedies, but the same
shall continue in full force and effect.
33. Cleanliness; Waste and Nuisance. Tenant shall keep the Leased Premises at all
times in a neat, clean and sanitary condition, shall neither commit nor permit any waste or
nuisance thereon. Tenant shall store all trash in the containers provided for that purpose.
34. Brokers. Each party represents to the other that it has had no dealings with any
real estate broker or agent in connection with the negotiation of this Lease.
35. Waiver. No waiver by Landlord or Tenant of any provision of this Lease shall be
effective unless in writing nor shall such waiver be deemed a waiver of any other provision
hereof, nor of any subsequent breach by Tenant of the same or of any other provision.
36. Surrender of Premises. At the end of the lease period of possession of the Leased
Premises by Tenant, as well as at the termination of this Lease, Tenant shall surrender the Leased
Premises to Landlord in good condition and repair, excepting for reasonable wear and tear and
acts of God. Tenant shall have the right at the end of the term hereof to, and upon demand by
Landlord Tenant shall; remove any equipment, furniture, trade fixtures not affixed to the realty,
and other personal property placed in the Leased Premises by Tenant and Tenant shall promptly
repair any damage to the Leased Premises caused by such removal.
37. ~. This Lease shall be construed and enforced in accordance with
the laws of the State of Colorado. In the event of any litigation arising out of this Lease,
jurisdiction and venue shall rest with any court of competent jurisdiction in Pitkin County.
38. Time of Essence. Time is of the essence with respect to' the performance of every
provision of this Lease in which the time of performance is a factor.
39. Severabilffy..The terms, conditions, covenants, and provisions of this Lease shall
be deemed to be severable. If any clause or provision herein contained shall be adjudged to be
invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable
law, it shall not affect the validity of any other clause or provision herein, but such other clauses
or provisions shall remain in full force and effect.
40. Notices. All notices required under the terms of this Lease shall be given in
person or by mailing such notices by certified or registered mail, return receipt requested, to the
address of the party as shown at the beginning of this Lease, or to such other address as may be
designated in writing, which notice of change of address shall be given in the same manner. If
not sooner received, any notice given by mail shall conclusively be deemed received three (3)
days after the date of certification or registration.
41. Entire Lease. This Lease contains the entire contract between the parties and there
are no other agreements, understandings, representations, or warranties except as expressly set
Bentley's RestaurTM Lease
Page 13
forth herein. No additions, changes or modifications, renewals or extensions hereof shall be
binding unless reduced to writing and signed by the Landlord and Tenant.
42. References. In all references herein to any parties, persons, entities or
corporations, the use of any particular gender or the plural or singular number is intended to
include the appropriate gender or number as the text of the within Lease may require.
43. Tenant is an Independent Contractor. This Lease is not a. contract of
employment. No relationship of employer and employee, joint venture or partnership, exists
between Landlord and Tenant or between the Landlord and any employee or agent of the
Landlord. Tenant shall at all times be deemed to be an independent contractor. Tenant is not
authorized to bind Landlord to any agreements or obligations.
44. Binding Effect: All the terms, covenants, and conditions herein contained shall be
for and shall inure to the benefit of and 'shall bind the respective parties hereto, and their heirs,
executors, administrators, personal or legal representatives, successors and assigns respectively.
45. Guaranty. In the event Tenant hereunder is a corporation, this Lease and the
performance of all the payments, obligations, conditions and covenants contained herein shall be
personally guaranteed by the shareholders of Tenant by execution of a guaranty of lease in a form
provided by Landlord.
46. Use of City Right-of-Way. In addition to the leased premises described above and
depicted in Exhibit A, Tenant shall be entitled to seasonally occupy, weather permitting, a
portion of the City Right-of-Way abutting the Mill Street side of the leased premises between the
Mill Street entrance to the leased premises and the window well, and between the window well
and the stairwell ("Additional Leased Premises"), for no additional rental during the term of this
lease, subject to the following terms and conditions:
a. Tenant agrees to use such area for the sole purpose of selling and dispensing food
or beverages to the public. Such area shall be open to the public at least seven (7) hours
per day between the hours of 11:30 a.m. and 8:00 p.m., weather permitting, but in no
event shall food and beverage service be extended beyond 10:00 p.m. Food shall be
available in the leased area during all hours it is open to the public. Tenant further agrees
to use the premises for no purpose prohibited by the laws of the United States, the State
of Colorado, or ordinances ofthe City of Aspen. Further, Tenant agrees to comply with
all reasonable recommendations of the City of Aspen relating to the use of the leased
premises.
b. Tenant shall remove any structures on the Additional Leased Premises promptly
when not in use due to seasonal conditions. Failure to remove them within ten (10) days
of last use shall result in ownership therein transferring to the City of Aspen.
c. Tenant agrees to keep said premises in repair and free from all litter, dirt and
debris and in a clean and sanitary condition; to neither permit nor suffer any disorderly
Bentley's Restaurant Lease
Page 14
conduct or nuisance whatever about said premises which would annoy or damage, either
proximate or remote, occurring through or caused by an alteration to said leased premises,
or by any injury of accident occurring thereon. Further, Tenant does, by execution of th/s
agreement, indemnify and agree to save harmless the City of Aspen, its employees,
elected and appointed officials, against any and all claims for damages or personal
injuries arising from the use of the Additional Leased Premises per the insurance terms
and conditions set forth in Paragraphs 12, 13, and 14, below.
d. All construction, improvements or business fixtures on the Additional Leased
Premises shall comply with the following criteria:
i. Not be wider than the Mill Street frontage of the business nor extended
further than a maximum of five (5) feet from the edge of the building (window
well, stairwell and awnings are not considered to be the edge of the building),
while ensuring that such extension does not impede pedestrian traffi c by leaving a
minimum of 58 inches clear at all times.
ii. No portion of the Tenant's fixtures shall extend beyond the boundaries of
the Additional Leased Premises; this shall be construed to include planters,
umbrellas while closed or open, any type of lighting fixtures, and any other
fixtures of the Tenant.
iii. The perimeter of the Additional Leased Premises shall be enclosed by a
black wrought-iron fence as approved by the City, no less than thirty (30) inches
in height. Openings in the fence shall not be less than 44 inches wide. If there is
a gate which is not ~elf-closing and bi-directional it must be left open and swing
inward to prevent obstruction of the pedestrian right of way. These rules are in
compliance with state liquor and fire codes.
iv. No service facilities, including .but not limited to bus trays, hot plates,
water dispensing equipment and dish storage shall be located on the Additional
Leased Premises.
v. The extension of fixtures shall otherwise be cons/stent (in the
determination of the City Manager's Office and City Council) with the general
design guidelines and design criteria of the adjacent Hyman Avenue Mall.
vi~ The Tenant shall allow its fixtures and perimeter fencing to remain in
place at its own discretion and liability and shall accept and retain full
responsibility for any damage to such fixtures and perimeter fencing caused by the
operation of police, fire and ambulance vehicles in the performance of their
duties, and to hold harmless their duly authorized operators.
Bentley's Restaurant Lease
Page 15
vii. Neither electric nor gas lights nor electrical conduits are allowed on the
Additional Leased Premises.
viii. No signage, including but not limited to advertising on umbrellas,
furniture, planters or banners shall be allowed on the Additional Leased Premises,
except that menu signs shall be allowed in accordance with provisions of the City
of Aspen sign code (menu must be attached to the fence).
e. The Additional Leased Premises and improvements, additions and business
fixtures thereon shall be maintained and managed by the Tenant.
f. Tenant agrees to permit agents of the City to enter upon the premises at any time
to inspect the same and make any necessary repairs or alterations to the building,.
sidewalks, curbs, gutters, 'streets, utility poles, or other public facilities as the City may
deem necessary or proper for the safety, improvement, maintenance or preservation
thereof. Tenant further agrees that if the City shall determine to make major structural
changes to the building or sidewalk which may affect any structures placed within the
Additional Leased Premises by the Tenant, that the Tenant, by execution of this
agreement, hereby waives any and all right to make any claim for damages to the
improvements (or to its'leasehold interest) and agrees to remove any structures necessary
during such construction periods.
g. The City of Aspen by this demise hereby conveys no rights or interest in the
public way except the right to the uses on such terms and conditions as are above
described, and retains all title thereto.
h. Tenant agrees not to sublet or assign any portion of the Additional Leased
Premises.
i. Tenant agrees to surrender and deliver up possession of the Additional Leased
Premises promptly upon expiration of this lease.
Bentley's Restaurant Lease
Page 16
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and
year above first written.
TENANT:
L.M.~K.~.. Com0ration/h, _ _,
Title:
LANDLORD:
THE CITY OF ASPEN
APPROVED AS TO FORM:
APPROVED AS TO CONTENT:
/_----4o'~P. WorCester, Esq.,
City Attorney
City Manager
Bentley's Restaurant Lease
Page 17
CERTIFICATE OF INCORPORATION
)ss.
COUNTY OF /~(~--'{~ ','h .~?: X. )
On this /~ ~ day of ~dr'[ [ ,200~_, before me appeared
f-~r'0~ /('4. ~/~..~q/.f~'/f-- .~ . ,~to me personally known, who,
being by rrge first duly swo did sa~ tha.t s/he is -/J&.,"~--/-/.c~- of
/~' ~' ~- ~' {~"~d~f.r~'/2~vw " ' and that the seal affixed to
said instrument is the corporate~seal of said corporation, and that said instrument was signed and
sealed in behalf of said corporation by authority of its board Of directors, and said. deponent
acknowledged said instrument to be the free act and deed of said corporation.
WITNESS MY HAND AND NOTARIAL SEAL the day and year in this certificate first above
written.
My commission expires:
Notary Public
Address
Bentley's Restaurant Lease
Page 18
List of Exhibits Appended to Lease Agreement
A - Description of Leased Premises
B - Calculation of Cost of Living Increases.
fire
escape ccrridor
Bentley's Restaurant Lease
Page 19
EXHIBIT B
COST OF LIVING INCREASE CALCULATION
a) "Price Index" shall mean the Consumer Price Index - All Urban
Consumers (CPI-U) - U.S. City Average - All Items, or a successor or substitute index published
or authorized by the United States Department of Labor, Bureau of Labor Statistics.
b) The following formula shall be used for determining the adjustment, if
any, in the fixed minimum annual rent:
.Current Index Number
Base Index Number
"Price Index" for the next fiscal
year (Jan. 1)
"Price Index preceding fiscal year (Jan. 1)
c) As promptly as practicable after the commencement of the first adjustment
year, and thereafter as promptly as practicable after the first day of each succeeding adjustment
year, Landlord shall compute the increase, if any, in the cost of living for the year immediately
.preceding said adjustment year. Such computation shall be made by use of current and base index
numbers provided for each adjustment year as set forth in Paragraph c) abbve.
d) In computing increases for each adjustment year the current index number
shall be divided by the base index number. From the quotient thereof, there shall be Subtracted
the integer 1 and any resulting positive number shall be deemed to be the percentage of increase
of cost oftiving.
e) The percentage of increase in the cost of living shall be multiplied bY the
minimum annual rental including increases for the year preceding the adjustment year for which
the increase is being computed.
0 The Landlord shall, within a reasonable time after obtaining the
appropriate data necessary for computing such increases, give the Tenant notice of any increase
so determined, and the Landlord's computation thereof shall be conclusive and binding but shall
not preclude a ny adjustment oft he index figures upon which the computation was based and
Tenant shall, w/thin sixty (60) days. after receiving such notice, notify Landlord of any claimed
error therein; provided, however, nothing herein, shall be construed to extend the time when
rents, as determined by Landlord, are due and payable by Tenant.
g) Minimum annual rent for each adjustment year, together with increases
calculated in accordance with Paragraphs b) through f) of this Section, shall be due and payable
to Landlord in equal monthly installments due on the first day of each calendar month of each
adjustment year (retroactive payments then due being payable within thirty (30) days after giving
notice thereof by Landlord to Tenant). ·
Bentley's Restau;ant Lease
Page 20
h) If publication of the pertinent Consumer Price Index shall be discontinued,
the parties hereto shall thereafter accept comparable statistics on the cost of living for the average
of all U.S. cities, all items, as the same shall be computed and published by an agency of the
United States or by a responsible financial periodical of recognized authority then to be selected
by the parties hereto. In the event of (1) use of comparable statistics in place of the Consumer
Price Index as above mentioned, or (2) publication of the Index figures at other than bi-monthly
intervals, there shall be made in the method of computation above provided revisions as the
circUmstances may require to carry out the intent of this Article.
JPW'4/7/2004-G:\john\wordXagr\Wheeler~Bentley. Lease.3.12-04.doc
aforesa,d Landlor ' lderation for and . . ..
., . d to make the foregoing Lease wit}, ~ ~A ~/n as..an ~nducement to the
me Undersigned L ' ~ , .... gq. . ·
nd observance of ail 'the covenants, co~. erformance
performed, and observed by Tenant,~..a. gd ex-pressly agrees that the validity of this agreement, and
_ n--.ohs, and agreements therein provided to be
the obligations of the guarantors.hereunder shall in 'no Wise:be terminated, a
' . fleeted Or lmpmred
by reason of the assertion by Landlord aga, nst Tenant of any °fthe rights or remedies reserved to
Landlord pursuant to the provisions of the Within Lease or by the relief of Tenant 'from~ of
T, en. ant,'s obligations under the Lease by operation Of'law or otherwisel (including, .any
· . ' ' bu't without
hm~tatmn,' the rejection °fihe Lease m.connecti6n With proceedings under the bankruptcy laws
now or. hereafter enacted); the undersigned hereby WaiVing all suretyship defenses,
. The undersigned'further cOVenants ':and .agrees .that this guaranty shall ~emain and
continue in full force and effect'aS 'to any renewal, modification, or extension of'thiS Lease,
whether .or not the undersigned shall have received:any nOtice of oi' consented to such re~aewal,
m 'catio. n or exte~ns!on.' The undersigned'further agrees that his li" . '.'
~,m, ce primary, anti that in any H~,ht o~"o~,~.'' ..... ,-,-, .... ability under th~s guaranty
- o -,~,~,,.,~, wmcn snm~ accrue .to landlord under':the' Lease,
landlord, may, at Landlord's option,, proceed against' the Undersigned and Tenant, joinily or
severally, and may proceed against' the undersigned without having commenced anY action
against or having Obtainid any judgment against Tenant. The imdersigned further re/Sre~ents to
Land'!oral as an inducement for Landlord to make· the Lease, that the undersigned Owns i00% all
of the entire outstanding capital stock of Tenant.
It is agreed that the failure' of Landlord to insist in any one or more instanceS'upbn'h'strict
performance or observance of any of the terms, provisions or cO'venants of the foregoing Lease or
t° exercise any right therein contaiaed shall not be construed or deemed to be a .waiv'e~~ or
relinquishment for the future of'such term,' .provision,' covenant, oi right, but the Same' shall
continue and remain in full force and effect. Receipt by Landlord of rent .with knowlidg~i 6f the.
breach of any provision ofthe foregoing Lease' Shall not be deemed a waiver of such br, a~h.
Except as may be Otherwise specifically prOvided in the Lease subletting, assignment, or
other transfer of the within Lease, or any interest therein, shall not operate to extinguish or
diminish the liability of the undersigned guarantors under this guarani; and wherever reference
is made to the liability of Tenant named in the within Lease, such reference shall 'be d.eenied
likewise to refer to the undersigned guarantors.
It is further agreed that all of the terms and provisions hereof shall inure to the benefit of
the respective heirs, personal, representatives, successors and assigns oi~ Landlord, and shall be
binding upon the heirs and assigns of the un'der~igned,
. IN WI..T~. SS WHEREO~F, the undcrsigr~d guarantor has caused this gu~antY to be
executed eff¢ct~ve as of the /q e*' dav 'of ~ (~-"~/~ ,2004. : : '
Address:
2066 Lord Baltimore
Baltimore, MD 21244.
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