HomeMy WebLinkAboutresolution.council.002-06
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RESOLUTION NO. ~
Series of 2006
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, AUTHORIZING THE CITY MANAGER
TO EXECUTE, ON BEHALF OF THE CITY OF ASPEN, A LEASE AGREEMENT BETWEEN THE
CITY OF ASPEN, PITKIN COUNTY, AND SACHS ON, INC., DOING BUSINESS AS THE ASPEN
PITKIN COUNTY ANIMAL SHELTER AND BOARDING KENNEL, FOR THE OPERATION OF THE
ANIMAL SHELTER ON BEHALF OF THE CITY AND COUNTY
WHEREAS, there has been submitted to the City Council a proposed agreement for lease and
operation of the Animal Shelter between the City of Aspen, the Board of County Commissioners of Pitkin
County, Colorado, and Sachson, Inc., a Colorado corporation doing business as The Aspen Pitkin County
Animal Shelter and Boarding Kennel, for the joint commitment to provide continued animal shelter,
boarding and animal care services; and
WHEREAS, after due deliberation and consideration the City Council has determined that it is in
the best interest of the City of Aspen to approve said lease agreement and authorize the City Manager to
execute same on behalf of the City of Aspen.
NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, that the City Manager is hereby authorized to execute on behalf of the City of Aspen the
Agreement for Lease and Operation of the Animal Shelter for the City of Aspen and Pitkin County
appended hereto as Exhibit A.
Dated:~ /-J---,2006.
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 ~ a;; 9,2006.
TLO- saved: l/3/2006~76-G:\iohn\wordlresos\animal-shelter-new.doc
AGREEMENT FOR LEASE AND OPERATION OF THE
ANIMAL SHELTER FOR THE CITY OF ASPEN AND PITKIN COUNTY
THIS LEASE AGREEMENT (this "Lease") is made and entered into on November
_,2005, by and between the City of Aspen and the Board of County Commissioners of Pitkin
County, Colorado, (hereinafter referred to collectively as the "Lessors"), on the one hand, and
Sachson Inc., a Colorado corporation d/b/a The Aspen Pitkin County Animal Shelter and
Boarding Kennel, whose address is 101 Animal Shelter Road Aspen, Colorado 81611,
(hereinafter "Lessee"), on the other hand.
WITNESSETH:
WHEREAS, Lessors desire to privatize and contract for the provision of animal shelter
and animal care services;
WHEREAS, Lessee desires to provide animal shelter and animal care services to the
Lessors upon the terms and conditions as set forth below;
WHEREAS, Lessee has spent a substantial amount of time and money in fundraising
activities, directly and indirectly, for the acquisition and development of the Premises (as defined
below); and
WHEREAS, Lessors desire that Lessee enjoy the benefits of such expenditures of time
and money as set forth hereunder.
NOW, THEREFORE, in consideration of the covenants as contained herein, the Lessors
and Lessee agree as follows:
ARTICLE I
GRANT AND TERM
1.1 Lease Grant. In consideration of the recitals and the mutual covenants herein and
the rental to be paid hereunder, Lessors grant to Lessee a lease of the premises ("Premises"),
more particularly illustrated on that diagram attached hereto and incorporated herein as Exhibit
"A" including any and all equipment and inventory in place in or on the Premises at the time of
the Commencement Date of this lease, and subject to utility and other easements in place and of
record or as reasonably required to service the Premises and subject to all encumbrances of
record. The Premises shown on Exhibit A includes the entire Animal Shelter Building and
property with the exception of the two rental units, access to those units and parking spaces
reserved for the two rental units, which shall remain the property of Lessors.
Lessee hereby expressly acknowledges that it will carefully examine the Premises prior to
occupancy. Lessee will notify Lessor if the condition of the Premises is satisfactory for all
purposes and intended uses hereunder, and if Lessee accepts the same in its then current state and
condition. If accepted, Lessee will accept the Premises "AS IS," without reliance of any kind on
any representations of Lessors with respect thereto all of which are hereby disclaimed by Lessors.
1.2 Base Term. This lease shall commence at 12:01 a.m. on
2005, ("Commencement Date") and continue for a period of five (5) years, (the "Initial Term"),
unless earlier terminated under the provisions hereof. Upon full execution of this lease, payment
of the $1.00 and required rentals, and compliance with insurance requirements hereof, Lessee
shall be allowed possession of the Premises.
1.3 Successive Terms. If Lessee substantially performs and abides by all material
provisions and conditions of this Lease, upon expiration of the Initial Term of this Lease, Lessee
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shall have two (2) consecutive rights of first refusal to renew this lease for two (2) additional
successive terms of five (5) years (each, a "Renewal Term"); provided, however, if Lessee does
not renew this Lease in writing for a first Renewal Term by exercising the option granted
pursuant to this Section, Lessee shall forgo its right of first refusal to lease the Premises for a
second Renewal Term. In order to exercise its rights of first refusal to renew this Lease, Lessee
shall notifY Lessors in writing of its desire to renew this Lease no less than one hundred and
twenty (120) days and no more than one hundred and eighty (180) days prior to the expiration of
the term then in effect.
1 A No Partnership or Joint Venture. Nothing contained in this lease shall create a
partnership or joint venture as between Lessors and Lessee or render Lessors in any way
responsible for the debts or losses, of Lessee, it being the express intention that the relationship of
the parties shall be at all times that of Lessors and Lessee. AU moneys payable to Lessors under
this lease, shall be due, payable and collectible as Rent, and Lessors shall have all the rights with
respect to the collection thereof as are given under the terms and conditions of this lease or under
Colorado law with respect to the payment.
1.5 Condemnation bv Public Authoritv. If during the Initial Term of this lease,
or any Renewal Term, the whole or part of the Premises, or such portion as will make the
Premises unusable for the purpose leased, or the leasehold interest, be condemned by public
authority including Lessors, for public use, then this Lease shall cease as of the date of the vesting
of title in the Premises in such condemning authority, or when possession is given to such
authority, whichever event occurs first.
1.6 Lessee's Right to Terminate. Lessee may terminate this Lease and be relieved
of all obligations hereunder by providing Lessors sixty (60) days written notice of its intent to
terminate. Upon receipt of such notice, Lessors may participate in the operations of the Shelter
with Lessee to accommodate the transition of Shelter management from Lessee to the Lessors.
Lessee shall provide a full accounting of all funds, costs and equipment upon termination.
ARTICLE II
RENT
2.1 Rent.
a. Lessee agrees to pay Lessors a fixed annual rent for each year of the Initial Term
and each Renewal Term in the amount of $1.00 (one dollar) per year. Lessors acknowledge that
rent for the Initial Term has been paid in advance of the Commencement Date.
b. In the event that the Lessee elects to renew this Lease pursuant to Section 1.3,
Lessee shall pay to Lessors, as additional rent, during each year of any Renewal Term a sum
equal to 15% of all Net Profits (as defined below) generated in, on or from the Premises in excess
of $100,000 (the "Net Profits Base Amount") during the immediately preceding fiscal year,
without prior demand therefor and without any set-off or deduction whatsoever (the "Net Profits
Payment"). The Net Profits Base Amount shall be adjusted in accordance with the percentage
increase, if any, in the Consumer Price Index (the "CPr') from the Commencement Date through
the commencement of each Renewal Term. The CPI index to be utilized in connection with the
calculation of Net Profits Base Amount shall be defined as the CPI for all Urban Consumers
United States City Average, All Items, as published by the U.S. Department of Labor. By way of
example, in calculating the additional rent amount due under this Section, if the cpr on
November 1, 2005 was 150 and the CPI on the November 1, 2010 is 175, there would be a 17%
increase in the Net Profits Base Amount (i.e. 175-150=25; 25/150=.166 or 17%; $100,000 x 17%
= $17,000; Net Profits Base Amount = $117,000).
c. Lessee shall pay each Net Profits Payment on or before the twentieth (20th) day
of each calendar month in which such payment is due. The rental amounts due for any Renewal
Term shall be paid in advance.
d. In order to facilitate the calculation of the Net Profits Payment, Lessee agrees to
submit to Lessors on or before May 1" of the final year of the Initial Term and the final year of
each Renewal Term (i) an itemized statement of Net Profits (as defmed below) and sales tax
report for the fiscal year immediately preceding the commencement of each year of a Renewal
Term, and (ii) a written statement signed by a certified public accountant or by some other person
reasonably acceptable to Lessors, setting forth the amount of Lessee's Net Profit for the
preceding fiscal year. The accountant or other person shall certify that the Net Profits has been
computed in accordance with the definition of "Net Profits" set forth below, and the statement
shall be sufficiently detailed to demonstrate that it was prepared in accordance with such
defmition.
e. As used herein, the term "Net Profits" shall mean the amount of all "Revenues"
less "Expenses" for the relevant period. As used herein, "Revenues" shall include the actual
income generated for the benefit of Lessee from the sale of all merchandise or services in or from
the Premises, including any rental income received by Lessee from third party sub-lessees of the
Premises. As used herein, "Expenses" shall mean all expenses customarily attributed to a
business such as those proposed for the Premises, but shall not include any salary expense paid to
an equity owner of the Lessee.
f. During the Term, Lessee shall keep accurate records of all of its operations.
Lessee shall keep all of the documents relating to its operations for at least 36 months from the
end of each Lease year to which such documents apply. If any audit is required, or there is a
dispute between Lessee and Lessors regarding the amount of the Net Profits, Lessee shall
maintain the relevant records until the audit is complete or the dispute is settled.
g. Not later than 30 days following Lessors' receipt of the deliveries set forth in
Section 2.1(d) above from Lessee, Lessors will deliver to Lessee a written notice setting forth
disputes, if any, with Lessee's determination of Net Profits. Lessors and Lessee shall have 10
business days following the date of Lessors' notice to Lessee to attempt in good faith to resolve
any differences with respect to the determination of the Net Profits. If Lessors and Lessee are
unable to resolve any such disputes within such 10 business day period, then the issues in dispute
will be submitted for resolution in accordance with the procedures set forth in Section 2.1(h)
below.
h. If Lessors and Lessee have a dispute with respect to the calculation of Net Profits
and are unable to resolve the dispute as provided above, then the issues in dispute will be
submitted for resolution to an accountant or accounting firm to be selected jointly by Lessee and
Lessor (the "Referee"). The Referee shall determine the item(s) in dispute within 30 days after
the dispute is submitted to it in accordance with this Agreement. If issues in dispute are
submitted to the Referee for resolution, (i) each of Lessee and Lessors will furnish to the Referee
such work papers and other documents and information relating to the disputed issues as the
Referee may request and are available to such party (or its accountants) and will be afforded the
opportunity to present to the Referee any material relating to the determination of the item(s) in
dispute and to discuss such determination with the Referee; and (ii) the determination by the
Referee of the item(s) in dispute, as set forth in a written notice delivered to both parties by the
Referee, will be binding and conclusive on the parties.
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1. In the event Lessee and Lessors submit any unresolved disputes to the Referee
for resolution, Lessee and Lessors shall share responsibility for the fees and expenses of the
Referee as follows:
i. If the Referee resolves all of the remaining objections in favor of
Lessee's position (the Net Profits as so determined is referred to herein as the
"Low Value"), then Lessors shall be jointly and severally responsible for all ofthe
fees and expenses of the Referee;
ii. If the Referee resolves all of the remaining objections in favor of
Lessors' position (the Net Profits as so determined is referred to herein as the
"High Value"), then Lessee shall be responsible for all of the fees and expenses of
the Referee; and
1lI. If the Referee neither resolves all of the remaining objections in
favor of Lessee's position nor resolves all of the remaining objections in favor of
Lessors' position (the Net Profits as so determined is referred to herein as the
"Actual Value"), then Lessor shall be responsible for that fraction of the fees and
expenses of the Referee equal to (x) the difference between the High Value and
the Actual Value over (y) the difference between the High Value and the Low
Value for the Net Profits, and Lessee shall be responsible for the remainder of the
fees and expenses of the Referee.
j. To the extent permitted by law, Lessors shall treat all financial documents
provided by Lessee related to the determinations of Net Profits hereunder as confidential and
shall not release the information to the public without the prior consent of Lessee.
2.2 Maintenance. Lessee agrees to maintain the Premises in substantially the marmer
set forth in the Municipal Animal Shelter and Care Services Policies and Procedures Manual
attached to this Lease as Exhibit B.
2.3 Utilities. The City of Aspen shall pay directly to the respective utilities for all
water, sewer, trash collection, alarm services, natural gas, and electric services. Lessee shall pay,
as additional rent, directly to the City of Aspen 82% of the utility bills received from utility
companies or entities providing the utility services referenced above. The tenants of the rental
units shall be responsible for paying the remaining 18% for the above referenced utility services
(10% by the tenants of the two bedroom unit and 8% by the tenant(s) of the one bedroom unit.)
Lessee shall pay directly to the respective utility companies in a timely fashion all deposits,
connection and service charges for utility services not referenced above (e.g. cable television,
and any other utilities used on the Premises from and after the commencement of the term hereof)
and shall indemnify Lessors against any liability therefor. Lessee shall be immediately obligated
to Lessors to repay such sum as additional rent hereunder. Lessors may make inquiries to any
utility serving the Premises regarding the status of utility bill obligations.
ARTICLE III
POSSESSION AND USE
3.1 Operation of Business. As and in consideration for the use and occupancy of the
Premises and equipment specified hereinabove, Lessee agrees to and shall occupy and use or
cause the Premises to be used for the following purposes:
a. Animal Shelter and Care Services. Lessee agrees to assume the
operational responsibility and management of the Aspen Animal Shelter ("Shelter")
under the terms and conditions as contained in the attached Aspen! Pitkin County Animal
Shelter and Care Services Policies and Procedures Manual (Exhibit "B"), which is fully
incorporated herein. The policies and procedures as contained in said manual may be
amended from time to time as deemed necessary by the Lessors. Lessee's failure to
accept or adhere to modifications in the policies and procedures as specified by Lessors
may cause this Lease to be terminated by either Lessors or Lessee as hereinafter
provided.
b. Private Boarding and Care Services. In further consideration of the
municipal animal shelter and care service to be provided as described above, Lessee shall
be permitted to operate a private animal boarding and care service within that portion of
the Premises as illustrated on Exhibit "A" attached hereto. Such private boarding care
services shall comply with all licensing and animal care standards as set forth under any
federal, state or local law and with the following terms:
1. Lessee shall completely segregate its private animal boarding
and care services from those municipal shelter services it shall provide under the
terms of this Lease. Lessee shall not commingle funds, records, supplies,
equipment, or services between its private operation and the municipal shelter
operations as described above. At not time shall Lessee house its privately
boarded animals with animals housed pursuant to the municipal shelter
provisions contained in this Lease.
3.2 Payment of Taxes. In the event any taxes are levied and assessed upon the
Premises or upon the improvements, fixtures or personal property of the Lessee during the term
of Lessee's occupancy of the Premises, or arising therefrom, or upon the leasehold or possessory
interests as created through this Lease, Lessee shall be solely responsible to satisfy and pay all
such taxes in a timely fashion. Lessee shall not allow any liens for taxes or assessments to exist
with respect to the Premises, except that Lessee may permit such taxes or assessments to remain
unpaid while pursuing any good faith contest or appeal of same.
3.3 Compliance With Laws. Lessee shall during the entire term of this Lease
materially comply with, observe and perform all requirements of law and ordinances, including
timely payment of sales, withholding, FICA, personal property, workers' compensation and
unemployment insurance taxes and payments and shall maintain all required licenses applicable
to the Premises or the use thereof, whether now or hereafter made by any governmental authority,
will each month during the term hereof make available for inspection by Lessors copies of all
such tax, and will indemnify the Lessors against all losses suffered by reason of any suits, actions,
claims or damages by whomsoever brought or made, by reason, of the non-compliance, non-
observance or nonperformance by Lessee of said laws, ordinances, regulations, orders or required
licenses or this covenant.
3.4 Local Laws. Lessee shall have the sole responsibility to obtain all local
government regulatory permits or approvals for the occupancy and use of the Premises under this
Lease.
3.5 Restrictions On Use.
a. Nuisance. Lessee shall not use or permit the use of the Premises in any
manner that will create a nuisance or disturb other occupants of the building or properties
adjacent thereto; it being understood and acknowledged that Shelter and boarding
services contemplated hereunder will necessarily involve a certain level of nuisance and
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d:sturbance for occupants and adjacent properties and that such nuisances and
d:sturbances will not be deemed a violation of this paragraph.
b. Rental Units. Whenever either of the two rental units are vacant, they
shall be made available first to qualified Shelter Employees. If there are no Shelter
Employees able or willing to rent the rental units, then the units shall be made available
to other qualified City/County employees. In each lease with a Shelter Employee, the
lease agreement shall contain a provision that the lease shall terminate 60 days following
termination, for whatever reason, of tenant's employment with the Shelter. Tenants for
the two rental units shall be qualified through the Aspen/Pitkin County Housing
Authority guidelines. Lessors shall be responsible for the rental unit leases and shall
receive all revenues generated from their leases. Lessee herein shall not be responsible
for any utility or maintenance costs associated with the two rental units.
c. Hazardous Materials. Lessee covenants and agrees not to suffer, permit,
introduce, or maintain any substances or materials which are considered, at any time
during the term of this Lease or any renewal, to be hazardous or toxic under any federal,
state or local laws, rules, or regulations. Lessee shall indemnify, defend and hold Lessors
harmless against any and all loss, cost, or damages of any nature whatsoever (including
without limitation costs and attorney and professional fees) arising out of the introduction
of any hazardous materials on or to the building or the Premises by or on behalf of
Lessee, its contractors, agents, or employees, including, without limitation, the cost of
removing such hazardous materials.
d. Trash. All garbage and refuse shall be kept in closed containers which do
not emit odors as specified by Lessors and shall be placed outside of the Premises,
prepared for collection in the manner and at the times and places specified by Lessors.
e. Temperature. Lessee shall keep the Premises at a temperature
compatible with comfortable occupancy during business hours and at all times
sufficiently high to prevent freezing of water pipes or fixtures. The plumbing facilities
and systems of the building shall not be used for any purpose; other than that for which
they are constructed, and no foreign substance of any kind shall be thrown into the sewer
system.
f. Utilities. Lessee will not overload or abuse the electrical wiring,
plumbing, floors, walls or structures serving the building and will install at Lessee's
expense any additional electrical wiring which may be required in connection with any of
Lessee's uses, improvements or fixtures, Lessors may have an electrical engineer analyze
the Lessee's loads on the system and adequacy of service and if found deficient may give
Lessee notice to upgrade the service. Lessee shall comply with such notice within ten
days. Lessee will not allow water to leak onto or through floors or walls. Lessee further
agrees that Lessee will not install or use any equipment or fixture which will exceed or
overload the capacity of any utility system, and if any equipment or fixture installed by
Lessee shall require additional utility facilities, the same shall be installed and maintained
at Lessee's expense in accordance with plans and specifications which shall be approved
by Lessors in writing before installation.
g. Clean Condition. The Premises and every part thereof shall be kept by
Lessee in a reasonably neat, orderly and clean condition. Lessee shall take no action
which would jeopardize Lessors' title to the Premises or jeopardize the value of the
Premises or the building.
h. Antennae. No communications antennae or dish shall be erected on the
roof or outside of the Premises without first obtaining Lessors' written consent.
i. fugn. Lessee may maintain one acceptable sign on the Premises which
conforms to requirements of any applicable County zoning and building codes.
j. Lighting. Lessee shall not install in, on, or about the Premises any
exterior lighting or use in, on or about the Premises any advertising medium or other
device which may be heard or experienced outside the Premises, including but not limited
to flashing tights, flashlights, loudspeakers, tapes, cd's or phonograph records or radio
broadcasts, awnings, or any change to the exterior of the building without first having
obtained Lessors' written consent.
k. Surfaces and Walls. Lessee shall not deface, gouge, mark, paint, stain,
drill or otherwise alter the surfaces and walls inside or outside of the Premises or any of
the support columns without the prior specific written approval of Lessors. Lessee shall
repair any damage to the surfaces or support columns caused by Lessee.
1. Notice. In the event Lessee is in violation of any of the foregoing
restrictions on use or is in violation or breach of any other provision of this Article ill,
Lessors shall provide Lessee with written notice to Lessee specifying the nature of such
of violation or breach. Lessee shall have thirty (30) days following such written notice to
cure, adjust or correct the violation or breach. If Lessee fails to cure the breach or default
within such time period, Lessor shall have the right to assess a penalty of $500.00 plus all
costs of correcting such violation against Lessee as Additional Rent to be paid the first of
the month following notice of such assessment. Lessors shall not be liable to Lessee for
any claim of damages for correcting such violation.
ARTICLE IV
CONSTRUCTION-ALTERATIONS-REPAIRS
4.1 Alteration at Lessee's Expense. Following the issuance of a certificate of
occupancy and inspection of Premises by Lessee that is to its reasonable satisfaction, Lessee
agrees to accept the property in its present condition, as is, without calling upon Lessors to make
any other expenditures or to perform any work for the preparation of the Premises for Lessee's
use, provided that it will be delivered clean with the existing plumbing, heating and electrical
systems functioning and in good repair and in substantial conformity with the plans and
specifications set forth on Exhibit C attached hereto. Lessee shall, at its own cost and expense,
make any necessary alterations and installations in the Premises required for Lessee's business,
using a contractor or contractors who shall have been approved in writing by Lessors, which
approval shall not to be unreasonably withheld.
4.2 Preconditions. Prior to commencing any work or installing any fixtures or
equipment. Lessee shall comply with the following preconditions.
a. Approval of Plans. Lessee shall submit the plans and specifications for
such alterations to Lessors for written approval. Such approval will not be unreasonably
withheld and the request for approval shall be responded to within five business days
after receipt by Lessors of such plans. All work to be done by Lessee shall be performed
in a workmanlike manner in strict accordance with the approved plans and specifications
without any deviation therefrom, unless such deviation is also first approved in writing by
Lessors. In the event of any construction which is a material deviation from any approved
plans in violation hereof, Lessors shall have the right to demand construction be
immediately stopped, and, if construction continues 24 hours after such notice, Lessors
may dispossess Lessee, lock and secure the Premises and cause all work to cease until
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there is compliance with this provision.
b. Permits. Lessee shall obtain (and Lessors shall provide reasonable
assistance in obtaining) the necessary consents, authorizations and licenses from federal,
state and municipal authorities having jurisdiction over the work to be done; and no work
shall be started or equipment installed unless and until all such necessary consents,
authorizations and licenses shall have first been duly obtained by the Lessee or its
contractor or other persons doing the work or installing the equipment on behalf of
Lessee. Lessee shall reimburse Lessors for any expenses incurred on account of the
failure by Lessee to comply with any such requirements; and any expenses so incurred by
Lessors as aforesaid shall be deemed Additional Rent under this lease and due and
payable by Lessee to Lessors on the first day of the month immediately following the
payment of the same by Lessors.
c. Contract - COpy to Lessors. Lessee shall enter into contracts with
contractors and persons who will do the work and install the equipment referred to, which
contract will provide that the work shall be done in a good workmanlike manner in
accordance with the approved plans and specifications and permits and licenses
previously obtained and which contract shall provide that the contractor or other persons
above referred to will look solely to Lessee for payment and will hold Lessors and the
property free from all liens and claims of all persons furnishing labor or materials
therefor, or both, and will also require that similar waivers of the right to file liens shall
be obtained from subcontractors or material men. A copy of the contract and evidence of
its recording with the county clerk together with a duly executed waiver of the right to
file liens executed by the contractor or other persons above referred to shall be furnished
to Lessors prior to beginning work.
d. Insurance - Copv to Lessors. Lessee or any contractor or subcontractors
employed by Lessee or any other persons who will do the work or install the equipment
as aforesaid shall be fully covered by workers' compensation insurance, and a copy of the
certificate thereof shall be furnished to Lessors before commencement of any work by
any such contractor or persons as aforesaid. Lessee covenants and agrees to indemnify
and hold Lessors harmless from any and all claims for personal injury, death or property
damage occasioned during the progress or as a result of any or all of the work done as
aforesaid in or about the Premises or the building
4.3 Mechanics Lien; Notice. Lessee shall keep the Premises and the building free and
clear of all mechanics, material men's and other liens on account of work done for Lessee. Lessee
shall indemnify Lessors against liability, loss, damage, costs or expenses, including attorney fees,
on account of claims of lien of laborers or material men or others for work performed for or
materials or supplies furnished to Lessee. If Lessee shall desire to contest any claim or lien,
Lessee shall furnish to Lessors security of a cash deposit with Lessors of 20% of the amount of
the claim, plus estimated costs and interest, conditioned on the discharge of the lien or a corporate
surety bond meeting requirements of the applicable statutes sufficient to discharge any lien. If a
fmal judgment establishing the validity of a lien is entered, Lessee shall pay and satisfy the same
at once. If Lessee shall be in default in paying any charge for which a mechanic's lien claim or
suit to fi)reclose the lien has been recorded or filed and shall not have given Lessors security as
aforesaid, Lessors may (hut without being required to do so) pay said lien or claim and any costs,
and the amount so paid, together with reasonable attorney fees and costs and expenses incurred
by Lessors in connection therewith shall be immediately due and owing from Lessee to Lessors
with interest at the rate of 5% per annum from the dates of Lessors' payments. Should any claims
of lien he filed against the Premises or the building or any action affecting the title thereto be
commenced, Lessee shall give Lessors written notice thereof as soon as possible. During any such
work, Lessors shall have the right to post and keep posted upon the premises notices that Lessors'
interest in the Premises should not be subject to any lien for such work done. Lessors hereby
designates Lessee as its agent for the sole purpose of posting in a conspicuous place upon the
Premises a notice containing the following language which Lessee shall be required to post prior
to commencement of any work:
Notice. The interest of Lessors of these premises, the City of Aspen and the Board of
County Commissioners of Pitkin County, and the building and lands upon which it is situated
shall not be subject to any lien for work done or materials or equipment supplied by any
contractor or other person for Lessee's improvements pursuant to this Notice and S 38-22 105(2),
C.R.S.
4.4 Lessee to Compensate Lessors for Insurance Increase. Lessee shall pay upon
demand as additional rent hereunder any increase in Lessors' insurance premium, which results
solely and directly on account of Lessors' endorsements covering the risk during work or upon
completion of such alterations or improvements or as a result of subsequent use of the premises
by Lessee.
4.5 Lessee's Maintenance and Repair Obligation. Lessee agrees, during the term
hereof, and at Lessee's expense, to maintain the interior of the Premises in good condition and
promptly and diligently repair any damage to every part thereof including walls, partitions, doors,
door jambs, closets, door hardware, fixtures, glass, floors, ceilings, railings, banisters, plumbing
lines and fixtures, electric lines and fixtures, gas lines and fixtures, heating and any other items
and services associated with the Premises, with the exception of wear and tear and aging
consistent with normal animal shelter and boarding kermel use, and except such damage as is
attributable to the negligence or the act or omission of Lessors, to promptly and diligently repair
any damage to other premises in the building attributable to the negligence or the act or omission
of Lessee, or Lessee's employees, guests, or invitees, to maintain and promptly and diligently
repair, improve or remodel the interior of the Premises to meet requirements of any governmental
authority having jurisdiction thereof, and maintain in good condition and promptly and diligently
repair any damage to (or replace if necessary in the circumstances) any trade fixtures installed in
or attached to the Premises. Lessee shall also be responsible for maintenance of grounds and
landscaping as well as the parking lots. Lessors will be responsible for snow-plowing.
a. In the event of default by Lessee for failure to perform Lessee's repair
and maintenance obligations, Lessors shall have the right, but not the obligation, to
perform such work as Lessors deem necessary; and all such costs shall be payable by
Lessee on demand as Additional Rent hereunder due on the first day of the following
month. Lessors shall have no responsibility for damage caused through defects or
malfunctions of equipment operated by another Lessee. Lessee agrees to make repairs or
compensate any other Lessee of Lessors for damages caused such Lessee by the
negligence or act or omission of Lessee or Lessee's employees.
b. Lessor reserves the right, from time to time, at is own expense and by its
officials, employees and contractors, to make such alterations, renovations or repairs in
and about the Premises, other than those noted above as required by Lessee. Lessee shall
make no claim against Lessors for any interference with its interest as herein provided in
the Premises. Lessors shall provide reasonable notice to Lessee in advance of any intent
to undertake alterations or repairs as authorized in this paragraph and all work shall be
performed at such time as mutually agreed to between the parties so as to eliminate or
minimize any disruption of Lessee's business.
4.6 Lessors' Repair Obligation.
II
a. With respect to Lessors' repair obligations hereunder, if the damage to the
Premises or the building, as the case may be, is covered by standard fire and extended
coverage insurance and exceeds 50% of the then replacement cost of the Premises or the
building, as the case may be (excluding foundation and excavation costs), or if the
damage to the Premises or the building is not covered by such insurance or if the damage
IS such that the Premises or building, as the case may be, carmot reasonably be repaired or
reconstructed within a period of 90 days, Lessors may (but without any obligation to do
so) elect to repair or reconstruct the same, in which event this lease shall continue in full
force and effect, or Lessors may elect not to repair or reconstruct the same, in which
event this lease shall terminate. In any such event, Lessors shall give written notice to
Lessee of Lessors' intention within 60 days from the date of destruction; and, if Lessors
shall elect to repair or reconstruct the Premises or the building, as the case may be,
Lessors shall exercise diligence in commencing the work and in prosecuting the same to
completion. Lessee shall not be entitled to damages from Lessors in the event of damage
or destruction of the Premises or said building, by reason of leaking of any water or
sewer pipes, or neglect of other Lessees, or water coming through the ceiling, or gas or
electrical problems or for interruption of services or any inconvenience or loss of
business or property sustained by Lessee unless such loss is attributable to the negligence
or the intentional net or omission of Lessors.
b. Lessee's Monthly Rent obligation hereunder shall abate during any
period Lessors' repair obligation exists and when the Premises are so damaged as to be
unusable by Lessee, unless the damage was caused by Lessee or Lessee's employees,
agents, guests or invitees, in which case the rental oblige ion shall continue.
ARTICLE V
TRADE FIXTURES
5.1 Lessors' Furniture. Fixtures and Equipment (FF &E). Lessors are the owners of all
attached furniture, fIxtures and equipment on the Premises as of the commencement date. These
fIxtures are and shall remain the property of Lessors. Lessee covenants it will maintain, repair
and/or replace (with items of equal or better quality) any of such FF&E so that, at the expiration
or earlier termination of this lease, Lessee shall return to Lessors all FF&E which are part of the
initial inventory or qualifying replacements in good condition subject to normal wear.
a. Annual Inventorv. Initial inventory shall be agreed upon by Lessors
and Lessee within 60 days of the beginning of this Lease and shall be updated whenever
additional fIxtures or equipment is added by Lessors.
5.2 No Warranties bv Lessors. Lessors, not being the manufacturer of the FF&E or
manufacturer's agent, MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS
OR IMPLIED, WITH RESPECT TO, AMONG OTHER THINGS, FITNESS, QUALITY,
DESIGN, CONDITION, CAPACITY, SUITABILITY, MERCHANTABILITY, OR
PERFORMANCE OF THE FF&E OR OF THE MATERIAL OR WORKMANSHIP THEREOF,
IT BEING AGREED THAT THE FF&E IS LEASED "AS IS" AND THAT ALL SUCH RISKS,
AS BETWEEN LESSORS AND LESSEE, ARE TO BE BORNE BY LESSEE AT ITS SOLE
RISK. Lessors shall not be liable to Lessee for any liability, loss, or damage caused or alleged to
be caused directly or indirectly by the FF&E, by any inadequacy of or defect therein or by any
incident in connection therewith, Lessee, accordingly, agrees not to assert any claim whatsoever
against Lessors based thereon. Lessee further agrees, regardless of cause, not to assert any claim
whatsoever against Lessors for loss of anticipatory profits or consequential damages. No oral
agreement, guarantee, promise, condition, representation, or warranty shall be binding.
5.3 Surrender of Premises: Treatment of Lessee's Alterations at Expiration or
Termination of Lease. Upon termination of this lease or termination of Lessee's possession rights
in the leased Premises, Lessee shall promptly deliver possession thereof to Lessors. All
alterations, additions, improvement's, partitions, flooring, carpeting, plumbing fixtures, shelving
and other fixtures (excepting Lessee's trade fixtures which can be removed without material
damage to the leased Premises, which shall remain the property of Lessee provided Lessee
completely repairs such damage), which may be made or installed by Lessee upon the leased
Premises during the term of this lease and which in any manner are attached to the floors, walls,
windows, or ceilings, shall become the property of the Lessors upon the expiration or other
termination of this lease or of Lessee's possessory rights hereunder. In all other respects, Lessee
shall return the Premises to Lessors in their original condition existing at the commencement of
this lease. Lessee agrees to return the Premises to substantially the same office configuration
(walls, partitions, doors, etc.) as when delivered to Lessee at the commencement of the lease.
Lessee agrees to perform the work to return the Premises to the configuration employing
professional contractor services, and to perform the work prior to the termination of the lease.
Lessors shall notify Lessee sixty (60) days prior to the expiration of the lease for enforcement or
waiver of this provision.
ARTICLE VI
INSURANCE
6.1 Liabilitv and Comprehensive Insurance. Lessee shall maintain comprehensive all
risks casualty, public liability and property damage insurance (at replacement values), with
responsible insurance companies licensed to conduct business in Colorado and acceptable to
Lessors which will insure Lessors and Lessee against liability for bodily injury, loss of life, or
other injury, with limitations in amounts deemed reasonable by Lessors, and shall name Lessors
and, at Lessors' option, Lessors' mortgagee as an additional insured with respect to each such
policy. The amount of this insurance, without co-insurance clauses, shall not be less than the
maximum liability that can be imposed upon the City of Aspen and the Board of County
Commissioners of Pitkin County under the laws of the State of Colorado found at C.R.S. ~ 24-10-
101, et. seq., as amended. At present such amounts shall be as follows:
$150,000.00 for any injury to one person in any single occurrence;
$600,000.00 for any injury to two or more persons in any single
occurrence.
In no event shall such insurance amounts fall below those maximum liability limits as set forth at
C.R.S. ~ 24~10-114, as amended.
Copies of such policies shall be promptly delivered to the Lessors upon issuance thereof;
and, as often as any such policy or policies shall expire or terminate, renewal or additional
policies shall be procured and maintained by Lessee and copies promptly" furnished to Lessors.
Lessee shall name Lessor as co-insured or additional insured on all insurance policies and such
policies shall provide for a ten-day advance written notice to Lessors in the event of cancellation
or material change in coverage or 20 days' advance notice of cancellation for nonpayment. To the
maximum extent permitted by the insurance policies owned by Lessors and Lessee, the parties
hereto for their mutual benefit waive any and all rights of subrogation which might otherwise
exist. If Lessee fails to comply with this paragraph, Lessors shall have the right to obtain the said
insurance and pay the premiums therefor; and, in such event, the entire amount of such premium
shall be immediately paid by Lessee to Lessors upon demand and as Additional Rent hereunder.
6.2 Indemnification. Lessee agrees to indemnify Lessors against all demands, claims,
Ii
causes of action, and any expenses (including attorney fees) incurred in resisting such claims, for
injury to person, loss of life or damage to property occurring during the term of this lease or any
extension thereof and (a) occurring on the Premises and arising out of Lessee's use and occupancy
thereof or (b) occurring outside the Premises if caused by the act, omission or neglect of Lessee
or the employees, agents, contractors, licensees, guests, invites, or sub-Lessees thereof.
6.3 Fire Insurance. Lessors shall insure the building against fire and other damage to
the building for the leased space. During the term hereof and any extension thereof, Lessee shall,
at its expense, maintain in full force and effect on all of the trade fIxtures, interior furnishing, wall
and floor coverings and inventory in the Premises a policy of fIre, theft and malicious mischief
insurance coverage with standard extended coverage endorsement to the extent of replacement
cost value naming Lessors as an additional insured party. Lessee shall provide copies of such
policy and any renewals and extensions thereof to Lessors promptly upon issuance. As long as
this lease is in effect, the proceeds from any such policy shall be used for the repair or
replacement of the trade fixtures and inventory so insured.
6.4 Waiver of Subrogation. Anything in this lease to the contrary notwithstanding,
neither Lessors nor Lessee shall be liable to the other for any business interruption or any loss or
damage to property occurring on the Premises or the building or in any manner growing out of or
connected with Lessee's use and occupation of the building or the condition thereof caused by the
negligence or fault of Lessors or Lessee or of their respective agents, employees, sub-Lessees,
licensees, or assignees to the extent that such business interruption or loss or damage to property
is coverable by a standard all-risk or special form policy (including, at a minimum, fire and
extended coverage insurance) or a business interruption policy (regardless of whether such
insurance is carried or not) or for which such party is otherwise reimbursed; and Lessors and
Lessee each waive all right of recovery against the other, its agents, employees, sub-Lessees,
licensees, and assignees for any such loss or for damage to the property of the waiving party.
Each of the parties shall notify its respective insurance carrier that the foregoing waiver is
contained in this lease and shall require such carrier to include an appropriate waiver of
subrogation provision in its policies.
ARTICLE VII
UTILITIES
7.1 Supplied to Premises. Lessors shall pay for costs of supplying utilities to the
Premises, except for any additional telephone lines required by Lessee (which shall be paid for by
Lessee).
7.2 Interruption of Services. Lessors shall not be liable to Lessee in damages or
otherwise; (i) if any utility shall become unavailable from any public utility company, public
authority, or any other person or entity (including Lessors) supplying or distributing such utility
or (ii) for any interruption in any utility service caused by the making of any necessary repairs or
by any cause beyond Lessors' reasonable control or enforcement of the provisions of this
paragraph, and the same shall not constitute a termination of this lease or an eviction of Lessee.
Lessors shall use reasonable efforts to attempt to schedule any necessary repairs during times
when Lessee is not open for business.
7.3 Notice. Lessee agrees to notify promptly the Lessors or its representative of any
accidents or defects in the Premises of which Lessee becomes aware, including defects in pipes,
electric wiring, and heating or ventilation equipment. In addition, Lessee shall provide Lessors
with prompt notification of any matter or condition of the Premises which may cause injury or
damage to the building or any person or property therein.
ARTICLE VIII
DEFAULTS
8.1 Lessee's Default. Each of the following events shall be deemed an "event of
default" or a "default" hereunder if not cured within the time allowed by Paragraph 8.2 hereof.
a. Monetarv Default. Any breach of or failure to pay Rent due or other
monetary amounts due hereunder ifnot paid within five (5) days of the date due.
b. Other Obligations. Any failure of Lessee to perform any other obligation
hereunder.
c. Seizure. Seizure of this lease or the Premises by execution or other
process oflaw directed against Lessee and not discharged within thirty (30) days.
d. Abandonment or Failure to Occupv. Lessee shall vacate (except for
temporary closures expressly permitted under the Lease) or abandon the Premises
provided that, except as otherwise specifically allowed hereunder. Lessee shall be
deemed to have abandoned the Premises, in the event Lessee fails to operate its business
therein for five consecutive business days (unless due to causes beyond Lessee's
reasonable control). Lessee shall fail to take possession of the Premises within thirty (30)
days of the receipt of a certificate of occupancy.
e. Assignment or Transfer. This Lease or the successor in interest of Lessee
hereunger shall be transferred to or shall pass to or devolve upon any other person or
party except as expressly consented to by Lessors in the marmer herein provided.
f. Failure to pav Debts. Lessee generally fails to pay its debts as they
become due, and such failure continues after notice and a reasonable opportunity to cure.
g. lllegal Activitv. Lessee shall not at any time, knowingly suffer or
knowingly permit any illegal activity on or use of the Premises by Lessee, its sub.
Lessees, licensees, agents or employees.
8.2 Right to Cure. Lessee shall have a period of ten (10) business days after written
notice is sent from Lessors to cure any failure to pay any Rent or monetary amount due under the
lease. Lessee shall have a period of thirty (30) business days after written notice of the failure to
perform or observe any other (non-monetary) term, condition, covenant or agreement of Lessee
under this lease to cure such failure or, if the failure cannot by exercise of reasonable diligence be
remedied within thirty (30) business days after written notice of the failure is delivered to Lessee,
Lessee fails to commence efforts to cure the failure within thirty (30) business days after written
notice of the failure is delivered to Lessee, or if Lessee commences its efforts to cure but
thereafter fails to diligently pursue all action reasonably necessary to cure the failure, or if Lessee
fails actually to cure the failure in all respects within 45 days following delivery of written notice
of the failure to Lessee.
8.3 Lessors' Rights. Should Lessee at any time be in default in the performance of
any of its covenants herein and fail to cure such default within the time periods allowed by
Paragraph 8.2 above, Lessee's right to possession of the Premises shall automatically terminate.
Upon the termination of Lessee's possessory rights in the leased Premises pursuant to the
preceding sentence, the Lessee shall peacefully surrender the Premises to the Lessors. Lessors, at
its option, upon the occurrence of any event of default and at any time thereafter while such event
of default continues, shall have the right to declare by written notice to Lessee the term of this
lease ended on the date of such notice or any later date specified therein, to take possession of the
Premises, to exclude Lessee from the Premises, and to remove all persons from the Premises.
II
After Lessors declare the term ended as provided herein, Lessee shall have no further claim or
right to possession of the Premises.
8.4 Remedies: Damages. In the event Lessors terminate Lessee's right to possession of
the Premises pursuant to Paragraph 8.3 above, Lessors shall be entitled to payment from Lessee,
as its sole remedy hereunder, Lessors' direct and reasonable (i) repossession expenses, (ii)
broker's commissions, and (iii) repair costs, it being acknowledged that ordinary wear and tear
will be excepted.
8.5 Lessors' Lien. To secure the payment of all Rent and other sums of money due
and to become due hereunder and the faithful performance of this lease by Lessee, Lessee hereby
grants to Lessors an express first and prior contract lien and security interest on all tangible
property belonging to Lessee (including fixtures, equipment, furniture, furnishings, and other
chattels, but excluding inventory and merchandise) which may be placed in the Premises and also
upon all proceeds of any insurance which may accrue to Lessee by reason of destruction of or
damage to any such property. Such property shall not be removed from the Premises by Lessee,
its agents or assigns, without the prior written consent of Lessors until all arrearages in Rent and
other sums of money then due to Lessors hereunder shall first have been paid. All exemption laws
are hereby waived in favor of said lien and security interest. The provisions of this Paragraph
shall constitute a security agreement under the Uniform Commercial Code. This lien and security
interest is given in addition to any statutory lien to which Lessors is entitled and shall be
cumulative thereto upon the occurrence of am event of default. This lien may be foreclosed with
or without court proceedings by public or private sale provided Lessors gives Lessee at least ten
days' notice of the time and place of said sale; and Lessors shall have the right to become the
purchaser, upon being the highest bidder at such sale.
8.6 Property Left on Premises. Any property of Lessee or of anyone claiming under,
by or through Lessee which is left on the Premises more than 15 days after expiration of the term
of the lease or termination of possessory rights shall be conclusively deemed abandoned; and
Lessors may keep, use, remove, store, sell, destroy, discard, or otherwise deal with it in Lessors'
absolute discretion without liability of any sort to Lessee or anyone claiming under, by or through
Lessee.
ARTICLE IX
ASSIGNMENT OR SUBLETTING
9.1 Lessors' Consent to Assignment Required. Lessee shall not transfer, assign,
sublet, mortgage, encumber, or hypothecate this lease or Lessee's interest in and to the Premises,
or any part thereof without first procuring the written consent of Lessors which shall not be
unreasonably withheld or delayed (within 45 business days of written request from Lessee). Any
assignment or sublet applicant shall be equally or more qualified [mancially to perform the
obligations of this lease. Any attempted transfer, without required consent, shall be void and shall
constitute a default by Lessee under this lease. In the event of an approved assignment, such
transferee, assignee, sublessee or mortgagee shall agree in writing for the benefit of the Lessors to
assume, to be bound by and to perform Lessee's obligations under the terms, covenants and
conditions of this lease upon any such assignment. Lessee shall remain liable to Lessors as a
principal and not merely as a surety for the full performance of the obligations of the Lessee
hereunder. The granting of a management contract, concession or license to any person, fum or
corporation to operate in or use in any marmer, any portion of the Premises shall be deemed a
subletting. Prohibition on assignment and subletting of this lease, except as specifically excepted
herein, includes a prohibition on any assignment which would otherwise occur by operation of
law, merger, consolidation, reorganization, transfer or other change of Lessee's capital structure
or ownership, in whole or in part, and to an assignment to or by a receiver or trustee in any
federal or state bankruptcy, insolvency, or similar proceeding
9.2 Subleasing to businesses within Premises. The parties hereto acknowledge that
Lessee's business plan requires that a certain portion of the Premises may be sublet to businesses
that are compatible to the operation of an animal shelter. The parties hereto further acknowledge
that Lessee may charge those third party businesses for rent or for other services rendered by
Lessee. Lessee shall obtain the prior written approval of Lessors prior to entering into any sublet
with third party businesses to operate within the Premises. The approval of Lessors shall not be
unreasonably withheld and Lessors approval or disapproval shall not be delayed by more than 10
business days. All revenues received by Lessee from such third party business relationships
operating out of the Premises shall be included in Net Profit as that term is defmed in this Lease
Agreement.
9.3 No Waiver. Consent by Lessee to anyone assignment or sublease shall not
constitute a waiver with respect to any further assignments or subleases. Lessors, in approving
any assignment or sublease, shall be entitle to consider among other things the fmancial
capability of the assignee or sublessee and compatibility of the proposed use with other uses in
the building. If Lessee shall purport in violation hereof to assign this lease or sublet all or any
portion of the Premises or permit any person or persons other than Lessee to occupy the premises,
Lessors may collect rent from the person or persons then occupying the premises and apply the
net amount collected to any damages or the rent reserved herein, but no such collection shall be
deemed a waiver of this Article or the acceptance by Lessors of such purported assignees or
subleases of Lessee or occupant or the release of Lessee of the further performance by Lessee of
covenants of Lessee herein.
ARTICLE X
GENERAL PROVISIONS
10.1 Successors to Lessors. The term "Lessors" herein shall be limited to mean and
include only the owner or owners at the time in question of the fee interest in the building; and, in
the event of any transfers of the title to such fee, Lessors herein named (and, in the case of any
subsequent transfers or conveyances, grantor) shall be automatically freed and relieved, from and
after the date of such transfer or conveyance, of all liability as respects the performance of any
covenants or obligations on the part of Lessors contained in this lease thereafter to be performed,
provided transferee shall in such assignment agree to assume and perform Lessors' obligations
hereunder and provided that any funds in the hands of Lessors or the then grantor at the time of
such transfer, in which Lessee has an interest, shall be delivered to the grantee, it being intended
hereby that the covenants and obligations contained in this lease on the part of Lessors shall be
binding on Lessors, its successors and assigns, only during and in respect to their respective
successive periods of ownership of the fee.
10.2 Subordination to Mortgage. This lease and all right of title Lessee hereunder are
and shall be subject and subordinate to the lien of any and all mortgages or consolidated mortgage
or mortgages which may now or hereafter affect the Premises or building or any part thereof and
to all renewals, modifications, consolidations, replacements and extensions thereof, provided that
any such mortgage placed upon the Premises shall provide that, as long as there shall be no event
of default outstanding in any of the terms, conditions, covenants or agreements of this lease on
the part of the Lessee to be performed, the leasehold estate of the Lessee created hereby shall be
undisturbed by any foreclosure of such mortgage. Lessee agrees to execute such instruments as
may reasonably be requested by any beneficiary or mortgagee to evidence and make a record of
the fact that this lease is to be inferior to any such deed of trust or mortgage as well as provide
'I
copies of any financial statements which may be requested from time to time by any such
beneficiary or mortgagee.
10.3 Subdivision. Lessors reserves the right, without the consent of the Lessee, to
execute and record such declarations, restrictive covenants, maps or other documents or
amendments or supplements thereto for the purpose of subdividing or re-subdividing the building
containing the Premises into separate units and common elements pursuant to the Colorado
Common Interest Ownership Act, provided that the Lessors' right as declarant and owner thereof
shall be subject and subordinate to the possessory and other rights of the Lessee to the Premises
under this lease.
lOA Accord and Satisfaction. No payment by Lessee or receipt by Lessors of a lesser
amount than the Rent due hereunder shall be deemed to be other than on account of the earliest
rent due and payable hereunder. Any endorsement or statement accompanying or inserted upon
any check or payment as rent shall not be deemed an accord and satisfaction, and Lessors may
accept any such check or payment without prejudice to Lessors' rights to recover the balance of
such rent or pursue any other remedy provided in this Lease or at law or in equity.
10.5 Non-Waiver. Failure of Lessors to require strict performance of any covenant or
condition shall not be deemed a waiver of such covenant or condition as to that or any subsequent
failure. One or more waivers of any breach of any covenant or condition by Lessors shall not be
construed as a waiver of a subsequent breach of the same or any other covenant or condition, and
the consent or approval by Lessors to or of any act by Lessee requiring Lessors' consent or
approval shall not be deemed to waive or render urmecessary Lessors' consent or approval to or
of any subsequent similar or dissimilar act by Lessee. The acceptance of rent hereunder by
Lessors shall not constitute a waiver of any preceding breach by Lessee of any term, covenant, or
condition of this lease other than the failure of Lessee to pay the particular rental so accepted,
regardless of Lessors' knowledge of such preceding breach at the time of acceptance of such rent.
No waiver of any provision of this lease shall be effective unless it is in writing and signed by
Lessors.
10.6 Estoppel Certificates. Lessee agrees at any time and from time to time, upon ten
days' prior request by Lessors, to execute, acknowledge, and deliver to Lessors a statement in
writing certifying that this lease is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating the modifications),
and the dates to which the Rent and other charges have been paid in advance, if any, and
confirming Lessee's acceptance of the Premises, the commencement of the lease term, and the
Rent provided under the lease, and any ether affirmations or certifications reasonably requested
by Lessors with the intent that the statement delivered, may be relied upon by any prospective
purchaser, mortgagee, or assignee of any mortgagee of the building or the Premises.
10.7 Attornev Fees. Reasonable costs and attorney fees and other expenses incurred
by the Lessors in obtaining legal advice, preparing notices or demands or otherwise enforcing any
provision of this lease by reason of a default by the Lessee or by anyone holding under Lessee in
complying with any requirement of this lease shall be paid by Lessee as Additional Rent within
three days of notice of the amount thereof. All attorney fees incurred by the Lessors by reason of
any action which Lessors shall institute or be made a party because of this Lease (unless Lessors
is joined because of acts of Lessors determined by such litigation to be wrongful) shall be
awarded to Lessors.
10.8 Interest. Without affecting any of Lessors' rights hereunder, any sum provided
for herein accruing to Lessors under the provisions of this Lease other than monthly rent which
shall not be paid when due shall bear interest at the rate of 7% per armum from the date of an
event of default until paid in full.
10.9 Recording. Lessee shall not record or permit the recordation of this Lease or any
assignment, sublease, license, grant of concession, mortgage or any other document evidencing
the transfer or hypothecation of all or any part of this Lease or Lessee's interest in the Premises
without in each instance having received the prior written consent of Lessors. Lessors may file or
record this Lease or any of the documents related to this Lease or a summary of some or all of the
provisions hereof at any time without Lessee's consent.
10.10 Notices. Wherever in this lease it shall be required or permitted that notice or
demand be given or served by either party to this lease on the other, such notice or demand shall
be given or served in writing and either personally served at or forwarded by certified mail to the
following addresses and shall be deemed effective upon personal service or deposit as certified
mail.
To Lessors:
For City:
Aspen City Manager
130 South Galena Street
Aspen, Colorado 81611
Pitkin County Manager
530 East Main Street
Aspen, Colorado 81611
For County:
With a Copy To:
John M. Ely, Esq.
Pitkin County Attorney's Office
530 East Main, Suite 302
Aspen, Colorado 81611
To Lessee:
Sachson Inc, Lessee
Aspen Pitkin County Animal Shelter and
Boarding Kermel
101 Animal Shelter Road
Aspen, Colorado 81611
II
Michael H. Newman, Esq.
Gardere Wynne Sewell LLP
1601 Elm Street Suite 3000
Dallas, TX 75201-2761
Either party may change such address from time to time by written notice given as herein
above provided.
With a Copy To:
10.11 Additional. In addition to the other remedies in this lease provided, Lessors shall
be entitled to the restraint by injunction of the violation or attempted or threatened violation of
any of the covenants, conditions or provisions of this lease.
10.12 Holding Over. Any holding over after the expiration of the term hereof shall be
construed to be a tenancy from month to month with the Fixed Monthly Rent at 150% of the rent
herein provided for the last month of the term or any extension of the term hereof and which
tenancy shall otherwise be on the conditions herein specified except that Lessors shall have the
right to terminate such tenancy at the end of any calendar month upon ten days' advance written
notice.
10.13 Covenant of Ouiet Enjovment. So long as the Lessee is not in default or breach
hereunder, the Lessors covenants that the Lessee shall peaceably and quietly occupy and enjoy
the leased Premises subject to the terms hereof. The Lessors warrants and agrees to defend the
title to the Premises and further warrants that it has full authority to execute this lease.
10.14 Severability. The terms, conditions, covenants, and provisions of this lease shall
be deemed to be severable. If any provision contained herein shall be determined to be invalid 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.
10.15 Entrv-bv Lessors. Lessors and his authorized agents, employees, attorneys and
contractors shall be entitled, at all posted business hours (and in emergencies at all times), to enter
the Premises to inspect the same or determine compliance herewith and shall have all such rights
as may enable Lessors promptly, efficiently and economically to carry on any work or repair,
reconstruction, or restoration, to which Lessors is obligated hereunder. Lessee waives any claims
for damages for business interference, inconvenience or loss of quiet enjoyment or other loss
occasioned by such entry and repairs unless such repairs were occasioned by the negligence or
intentional acts of Lessors. Lessors and his authorized representatives shall have the right to enter
the Premises at times other than Lessee's business hours to exhibit the Premises to perspective
purchasers, lenders, or Lessees. Lessors agrees to provide Lessee with reasonable prior notice,
whenever he deems it necessary to enter. Lessors shall at all times have and retain a key with
which to unlock all of the doors in, on, or about the Premises. Lessee may not change the locks on
the Premises without Lessors' prior written approval; and, upon such approval Lessors shall be
provided a key to any changed locks. Lessors shall have the right to use any and all means which
Lessors may deem proper to open doors in and to the Premises in an emergency in order to obtain
entry to the Premises. Any entry to the Premises obtained by Lessors by any means shall not
under any circumstances be construed or deemed to be a forcible or unlawful entry into or a
detainer of the Premises, or an eviction, actual or constructive of Lessee from the Premises, or
any portion thereof, nor shall any such entry entitle Lessee to damages or an abatement of rent or
other charges, which this lease requires Lessee to pay.
10.16 Binding Effect. This lease and all agreements herein contained shall bind the
parties hereto. Each term and each provision of this lease shall be construed as and shall have the
same force and effect as though made in the form of a covenant. The parties covenant that the
signatory to this lease has the authority to sign on behalf of the principal.
10.17 Counterparts. This lease may be executed in counterparts and with facsimile
signatures which taken together shall be one document. The parties shall deliver original signed
copies within seven days offacsimile transmission of their signatures.
10.18 Governing Law. This lease shall be construed in accordance with the laws of the
State of Colorado. The parties agree to submit to the personal Jurisdiction of the State of
Colorado in connection with any action or proceeding relating to this lease or the Premises. The
parties expressly acknowledge and agree that venue of any action shall be in Pitkin County,
Colorado.
10.19 Time of Essence. Time is of the essence for all obligations in this lease.
10.20 Lessee's Authoritv. Lessee shall not be construed as or have any authority to act
as the agent of Lessors concerning the Premises. Lessee shall have no authority to surrender,
waive, compromise, alter or convey any of Lessors' rights in the Premises.
10.21 Headings. The headings and captions contained in this lease are inserted for
convenience of reference only and are not to be deemed part of, or to be used as an aid in
construing, this lease.
10.22 Survival. All of the representations, warranties, and covenants in this lease shall
survive the expiration or termination of this lease.
10.23 Entire agreement. This lease covers in full each and every agreement of every
kind and nature whatsoever between the parties hereto concerning the Premises, and all
preliminary negotiations and agreements of whatever kind or nature are merged herein. Lessors
has made no representations or promises whatsoever with respect to the Premises and/or the
building except those contained herein; and no other person, firm or corporation has, at any time,
had any authority from Lessors to make any representations or promises on behalf of Lessors; and
Lessee expressly agrees that, if any such representations or promises have been made by others,
Lessee hereby waives all right to rely thereon. No verbal agreement or implied covenant shall be
held to vary the provisions hereof, any statute, law or custom to the contrary notwithstanding.
10.24 Waiver of Jurv Trial. Lessors and Lessee waive any right to a trial by a jury of
any dispute related to this lease.
10.25 Force Majeure. In the event that the Lessors or the Lessee shall be delayed or
hindered or prevented from the performance of any act required hereunder, by reason of
governmental restrictions, scarcity of labor or materials, strikes, or for reasons beyond such
party's control, the performance of such act shall be excused for the period of delay; and the
period for the performance of any such act shall be extended for the period necessary to complete
performance after the end of the period of such delay.
10.26 Amendment or Modification. Except as otherwise provided herein, this
agreement and all of these terms and conditions may not be amended or modified absent a written
agreement duly executed by the parties.
II
IN WITNESS WHEREOF, the Lessors and Lessee have duly executed this lease on the
day and year first above written.
LESSORS:
BOARD OF COUNTY COMMISSIONERS
By:
By:
Patti Kay-Clapper
Chair
ATTEST:
Jeanette Jones,
Deputy Clerk
LESSEE
By
Sachson, Inc. fa
The Aspen Pitkin County Animal
Shelter and Boarding Kennel
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AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
APPROVING AN AGREEMENT FOR LEASE AND OPERATION OF THE CHERYL
AND SAM WYLEY ANIMAL SHELTER
ORDINANCE OtJ'7
- 2006
I. The City of Aspen and Pitkin County jointly own the Cheryl and Sam Wyley
Animal Shelter located at 101 Animal Shelter Lane, Aspen, Colorado.
2. The City and County desire to privatize and contract for the provision of animal
shelter and animal care services at that location. Sachson Inc. desires to provide such services to
the City and County.
3. Tbe City and County have discussed an Agreement for Lease and Operation of
the Animal Shelter, a copy ofthe latest draft of which is available in the Deputy Clerk's office.
4. The County desires to formally delegate responsibility for signing any documents
required by the Agreement, including consents required of the County, to the County Manager,
with such direction from the Board as may be appropriate in the circumstances.
NOW THEREFORE, be it ordained by the Board of County Commissioners o(Pitkin
County, Colorado that the Board of County Comnnssioners does hereby approve the Agreement
for Lease and Operation of the Animal Shelter for the City of Aspen and Pitkin County and
authorizes the Chairman of the Board of County Commissioners to execute the Agreement on
behalf of the entire Board, in its present form or in a substantially similar form as approved by
the County Attorney. It is further ordained that the Board delegates to the County Manager the
ability to sign on behalf of the County any consents to sublease or other documents required by
the Agreement, with such direction from the Board as may be appropriate in the circumstances.
INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON THE 21st
DAY OF DECEMBER, 200S.
NOTICE OF PUBLIC HEARING PUBLISHED IN THE WEEKEND EDITION
OF THE ASPEN TIMES ON THE I Pi'DA Y OF JANUARY, 2006.
APPROVED UPON SECOND READING AND PUBLIC HEARING ON THE 11 th
DAY OF JANUARY, 2006.
PUBLISHED AFTER ADOJ'TION IN T WEEKEND EDITION OF THE
ASPEN TIMES ON THE ~q~ DAY OF. . 2006.
111111I11111 ~IIIIIIIIIIIIII :~~~Z;~ :~:4'
JRNICE K V'OS CRUD ILL PITKIN COUNTY co R 0.00 0 0.00
Ordinance # aD I)- -2006, page 2 of 2
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
.letr
,
APPROVED AS TO FORM:
J-~I
11111111111111111111111 :~~~Z:! :~41
JANICE K VOS C~UDILL PITKIN COUNTY CO R 0.00 0 0.00
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AGREEMENT FOR LEASE AND OPERATION OF THE
ANIMAL SHELTER FOR THE CITY OF ASPEN AND PITKIN COUNTY r
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THIS LEASE AGREEMENT (this "Lease") is made and entered into on Na"8Hl8Of
L ~ by and between the City of Aspen and the Board of County Commissioners of Pitkin
Countr,"'t1norado, (hereinafter referred to collectively as the "Lessors"), on the one hand, and
Sachson Inc., a Colorado corporation d/b/a The Aspen Pitkin County Animal Shelter and
Boarding Kennel, whose address is 101 Animal Shelter Road Aspen, Colorado 81611,
(hereinafter "Lessee"), on the other hand.
WITNESSETH:
WHEREAS, Lessors desire to privatize and contract for the provision of animal shelter
and animal care services;
WHEREAS, Lessee desires to provide animal shelter and animal care services to the
Lessors upon the terms and conditions as set forth below;
WHEREAS, Lessee has spent a substantial amount of time and money in fundraising
activities, directly and indirectly, for the acquisition and development of the Premises (as defined
below); and
WHEREAS, Lessors desire that Lessee enjoy the benefits of such expenditures of time
and money as set forth hereunder.
NOW, THEREFORE, in consideration of the covenants as contained herein, the Lessors
and Lessee agree as follows:
ARTICLE I
GRANT AND TERM
1.1 Lease Grant. In consideration of the recitals and the mutual covenants herein and
the rental to be paid hereunder, Lessors grant to Lessee a lease of the premises ("Premises"),
more particularly illustrated on that diagram attached hereto and incorporated herein as Exhibit
"A" including any and all equipment and inventory in place in or on the Premises at the time of
the Commencement Date of this lease, and subject to utility and other easements in place and of
record or as reasonably required to service the Premises and subject to all encumbrances of
record. The Premises shown on Exhibit A includes the entire Animal Shelter Building and
property with the exception of the two rental units, access to those units and parking spaces
reserved for the two rental units, which shall remain the property of Lessors.
Lessee hereby expressly acknowledges that it will carefully examine the Premises prior to
occupancy. Lessee will notify Lessor if the condition of the Premises is satisfactory for all
purposes and intended uses hereunder, and if Lessee accepts the same in its then current state and
condition. If accepted, Lessee will accept the Premises "AS IS," without reliance of any kind on
any representations of Lessors with respect thereto all of which are hereby disclaimed by Lessors.
1.2 Base Term. This lease shall commence at 12:01 a.m. on ~rv II.
2Q&5; ("Commencement Date") and continue for a period of five (5) years, (the "Initia "),
unless earlier terminated under the provisions hereof. Upon full execution of this lease, payment
of the $1.00 and required rentals, and compliance with insurance requirements hereof, Lessee
shall be allowed possession of the Premises.
1.3 Successive Terms. If Lessee substantially performs and abides by all material
provisions and conditions of this Lease, upon expiration of the Initial Term of this Lease, Lessee
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shall have two (2) consecutive rights of first refusal to renew this lease for two (2) additional
successive terms of five (5) years (each, a "Renewal Term"); provided, however, if Lessee does
not renew this Lease in writing for a first Renewal Term by exercising the option granted
pursuant to this Section, Lessee shall forgo its right of flTst refusal to lease the Premises for a
second Renewal Term. In order to exercise its rights of first refusal to renew this Lease, Lessee
shall notify Lessors in writing of its desire to renew this Lease no less than one hundred and
twenty (120) days and no more than one hundred and eighty (180) days prior to the expiration of
the term then in effect.
1.4 No Partnership or Joint Venture. Nothing contained in this lease shall create a
partnership or joint venture as between Lessors and Lessee or render Lessors in any way
responsible for the debts or losses, of Lessee, it being the express intention that the relationship of
the parties shall be at all times that of Lessors and Lessee. All moneys payable to Lessors under
this lease, shall be due, payable and collectible as Rent, and Lessors shall have all the rights with
respect to the collection thereof as are given under the terms and conditions of this lease or under
Colorado law with respect to the payment.
1.5 Condemnation by Public Authoritv. If during the Initial Term of this lease,
or any Renewal Term, the whole or part 0 f the Premises, or such portion as will make the
Premises unusable for the purpose leased, or the leasehold interest, be condemned by public
authority including Lessors, for public use, then this Lease shall cease as of the date of the vesting
of title in the Premises in such condemning authority, or when possession is given to such
authority, whichever event occurs first.
1.6 Lessee's Right to Terminate. Lessee may terminate this Lease and be relieved
of all obligations hereunder by providing Lessors sixty (60) days written notice of its intent to
terminate. Upon receipt of such notice, Lessors may participate in the operations of the Shelter
with Lessee to accommodate the transition of Shelter management from Lessee to the Lessors.
Lessee shall provide a full accounting of all funds, costs and equipment upon termination.
ARTICLE II
RENT
2.1 Rent.
a. Lessee agrees to pay Lessors a fixed annual rent for each year of the Initial Term
and each Renewal Term in the amount of $1.00 (one dollar) per year. Lessors acknowledge that
rent for the Initial Term has been paid in advance of the Commencement Date.
b. In the event that the Lessee elects to renew this Lease pursuant to Section 1.3,
Lessee shall pay to Lessors, as additional rent, during each year of any Renewal Term a sum
equal to 15% of all Net Profits (as defined below) generated in, on or from the Premises in excess
of $100,000 (the "Net Profits Base Amount") during the immediately preceding fiscal year,
without prior demand therefor and without any set-off or deduction whatsoever (the "Net Profits
Payment"). The Net Profits Base Amount shall be adjusted in accordance with the percentage
increase, if any, in the Consumer Price Index (the "CPI") from the Commencement Date through
the commencement of each Renewal Term. The CPI index to be utilized in connection with the
calculation of Net Profits Base Amount shall be defined as the CPI for all Urban Consumers
United States City Average, All Items, as published by the U.S. Department of Labor. By way of
example, in calculating the additional rent amount due under this Section, if the CPI on
November 1,2005 was 150 and theCPI on the November 1, 2010 is 175, there would be a 17%
increase in the Net Profits Base Amount (i.e. 175-150=25; 25/150=.166 or 17%; $100,000 x 17%
= $17,000; Net Profits Base Amount = $117,000).
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c. Lessee shall pay each Net Profits Payment on or before the twentieth (201h) day
of each calendar month in which such payment is due. The rental amounts due for any Renewal
Term shall be paid in advance.
d. In order to facilitate the calculation of the Net Profits Payment, Lessee agrees to
submit to Lessors on or before May I" of the fmal year of the Initial Term and the final year of
each Renewal Term (i) an itemized statement of Net Profits (as dermed below) and sales tax
report for the fiscal year immediately preceding the commencement of each year of a Renewal
Term, and (ii) a written statement signed by a certified public accountant or by some other person
reasonably acceptable to Lessors, setting forth the amount of Lessee's Net Profit for the
preceding fiscal year. The accountant or other person shall certify that the Net Profits has been
computed in accordance with the defmition of "Net Profits" set forth below, and the statement
shall be sufficiently detailed to demonstrate that it was prepared in accordance with such
defmition.
e. As used herein, the term "Net Profits" shall mean the amount of all "Revenues"
less "Expenses" for the relevant period. As used herein, "Revenues" shall include the actual
income generated for the benefit of Lessee from the sale of all merchandise or services in or from
the Premises, including any rental income received by Lessee from third party sub-lessees of the
Premises. As used herein, "Expenses" shall mean all expenses customarily attributed to a
business such as those proposed for the Premises, but shall not include any salary expense paid to
an equity owner of the Lessee.
f. During the Term, Lessee shall keep accurate records of all of its operations.
Lessee shall keep all of the documents relating to its operations for at least 36 months from the
end of each Lease year to which such documents apply. If any audit is required, or there is a
dispute between Lessee and Lessors regarding the amount of the Net Profits, Lessee shall
maintain the relevant records until the audit is complete or the dispute is settled.
g. Not later than iO days following Lessors' receipt of the deliveries set forth in
Section 2.l(d) above from Lessee, Lessors will deliver to Lessee a written notice setting forth
disputes, if any, with Lessee's determination of Net Profits. Lessors and Lessee shall have 10
business days following the date of Lessors' notice to Lessee to attempt in good faith to resolve
any differences with respect to the determination of the Net Profits. If Lessors and Lessee are
unable to resolve any such disputes within such 10 business day period, then the issues in dispute
will be submitted for resolution in accordance with the procedures set forth in Section 2.1 (h)
below.
h. If Lessors and Lessee have a dispute with respect to the calculation of Net Profits
and are unable to resolve the dispute as provided above, then the issues in dispute will be
submitted for resolution to an accountant or accounting firm to be selected jointly by Lessee and
Lessor (the "Referee"). The Referee shall determine the item(s) in dispute within 30 days after
the dispute is submitted to it in accordance with this Agreement. If issues in dispute are
submitted to the Referee for resolution, (i) each of Lessee and Lessors will furnish to the Referee
such work papers and other documents and information relating to the disputed issues as the
Referee may request and are available to such party (or its accountants) and will be afforded the
opportunity to present to the Referee any material relating to the determination of the item(s) in
dispute and to discuss such determination with the Referee; and (ii) the determination by the
Referee of the item( s) in dispute, as set forth in a written notice delivered to both parties by the
Referee, will be binding and conclusive on the parties.
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1. In the event Lessee and Lessors submit any unresolved disputes to the Referee
for resolution, Lessee and Lessors shall share responsibility for the fees and expenses of the
Referee as follows:
i. If the Referee resolves all of the remaining objections in favor of
Lessee's position (the Net Profits as so determined is referred to herein as the
"Low Value''), then Lessors shall be jointly and severally responsible for all of the
fees and expenses of the Referee;
ii. If the Referee resolves all of the remaining objections in favor of
Lessors' position (the Net Profits as so determined is referred to herein as the
"High Value"), then Lessee shall be responsible for all of the fees and expenses of
the Referee; and
lll. If the Referee neither resolves all of the remaining objections in
favor of Lessee's position nor resolves all of the remaining objections in favor of
Lessors' position (the Net Profits as so determined is referred to herein as the
"Actual Value"), then Lessor shall be responsible for that fraction of the fees and
expenses of the Referee equal to (x) the difference between the High Value and
the Actual Value over (y) the difference between the High Value and the Low
Value for the Net Profits, and Lessee shall be responsible for the remainder ofthe
fees and expenses of the Referee.
J. To the extent permitted by law, Lessors shall treat all financial documents
provided by Lessee related to the determinations of Net Profits hereunder as confidential and
shall not release the information to the public without the prior consent of Lessee.
2.2 Maintenance. Lessee agrees to maintain the Premises in substantially the manner
set forth in the Municipal Animal Shelter and Care Servic~ Policies and Procedures Manual
attached to this Lease as Exhibit B.
2.3 Utilities. The City of Aspen shall pay directly to the respective utilities for all
water, sewer, trash collection, alarm services, natural gas, and electric services. Lessee shall pay,
as additional rent, directly to the City of Aspen 82% of the utility bills received from utility
companies or entities providing the utility services referenced above. The tenants of the rental
units shall be responsible for paying the remaining 18% for the above referenced utility services
(10% by the tenants of the two bedroom unit and 8% by the tenant(s) of the one bedroom unit.)
Lessee shall pay directly to the respective utility companies in a timely fashion all deposits,
connection and service charges for utility services not referenced above (e.g. cable television,
and any other utilities used on the Premises from and after the commencement of the term hereof)
and shall indemnify Lessors against any liability therefor. Lessee shall be immediately obligated
to Lessors to repay such sum as additional rent hereunder. Lessors may make inquiries to any
utility serving the Premises regarding the status of utility bill obligations.
ARTICLE ill
POSSESSION AND USE
3.1 Operation of Business. As and in consideration for the use and occupancy of the
Premises and equipment specified hereinabove, Lessee agrees to and shall occupy and use or
cause the Premises to be used for the following purposes:
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a. Animal Shelter and Care Services. Lessee agrees to assume the
operational responsibility and management of the Aspen Animal Shelter ("Shelter")
under the terms and conditions as contained in the attached Aspen! Pitkin County Animal
Shelter and Care Services Policies and Procedures Manual (Exhibit "B"), which is fully
incorporated herein. The policies and procedures as contained in said manual may be
amended from time to time as deemed necessary by the Lessors. Lessee's failure to
accept or adhere to modifications in the policies and procedures as specified by Lessors
may cause this Lease to be terminated by either Lessors or Lessee as hereinafter
provided.
b. Private Boarding and Care Services. In further consideration of the
municipal animal shelter and care service to be provided as described above, Lessee shall
be permitted to operate a private animal boarding and care service within that portion of
the Premises as illustrated on Exhibit "A" attached hereto. Such private boarding care
services shall comply with all licensing and animal care standards as set forth under any
federal, state or local law and with the following terms:
I. Lessee shall completely segregate its private animal boarding
and care services from those municipal shelter services it shall provide under the
terms of this Lease. Lessee shall not commingle funds, records, supplies,
equipment, Or services between its private operation and the municipal shelter
operations as described above. At not time shall Lessee house its privately
boarded animals with animals housed pursuant to the municipal shelter
provisions contained in this Lease.
3.2 Payment of Taxes. In the event any taxes are levied and assessed upon the
Premises or upon the improvements, fixtures or personal property of the Lessee during the term
of Lessee's occupancy of the Premises, or arising therefrom, or upon the leasehold Or possessory
interests as created through this Lease, Lessee shall be solely responsible to satisfy and pay all
such taxes in a timely fashion. Lessee shall not allow any liens for taxes or assessments to exist
with respect to the Premises, except that Lessee may permit such taxes or assessments to remain
unpaid while pursuing any good faith contest or appeal of same.
3.3 Compliance With Laws. Lessee shall dwing the entire term of this Lease
materially comply with, observe and perform all requirements of law and ordinances, including
timely payment of sales, withholding, FICA, personal property, workers' compensation and
unemployment insurance taxes and payments and shall maintain all required licenses applicable
to the Premises or the use thereof, whether now or hereafter made by any governmental authority,
will each month during the term hereof make available for inspection by Lessors copies of all
such tax, and will indemnify the Lessors against all losses suffered by reason of any suits, actions,
claims or damages by whomsoever brought or made, by reason, of the non-compliance, non-
observance or nonperformance by Lessee of said laws, ordinances, regulations, orders or required
licenses or this covenant.
3.4 Local Laws. Lessee shall have the sole responsibility to obtain all local
government regulatory permits or approvals for the occupancy and use of the Premises under this
Lease.
3.5 Restrictions On Use.
a. Nuisance. Lessee shall not use or permit the use of the Premises in any
manner that will create a nuisance or disturb other occupants of the building or properties
adjacent thereto; it being understood and acknowledged that Shelter and boarding
services contemplated hereunder will necessarily involve a certain level of nuisance and
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disturbance for occupants and adjacent properties and that such nwsances and
disturbances will not be deemed a violation of this paragraph.
b. Rental Units. Whenever either of the two rental units are vacant, they
shall be made available first to qualified Shelter Employees. If there are no Shelter
Employees able or willing to rent the rental units, then the units shall be made available
to other qualified City/County employees. In each lease with a Shelter Employee, the
lease agreement shall contain a provision that the lease shall terminate 60 days following
termination, for whatever reason, of tenant's employment with the Shelter. Tenants for
the two rental units shall be qualified through the Aspen/Pitkin County Housing
Authority guidelines. Lessors shall be responsible for the rental unit leases and shall
receive all revenues generated from their leases. Lessee herein shall not be responsible
for any utility or maintenance costs associated with the two rental units.
c. Hazardous Materials. Lessee covenants and agrees not to suffer, permit,
introduce, or maintain any substances or materials which are considered, at any time
during the term of this Lease or any renewal, to be hazardous or toxic under any federal,
state or local laws, rules, or regulations. Lessee shall indemnify, defend and hold Lessors
harmless against any and all loss, cost, or damages of any nature whatsoever (including
without limitation costs and attorney and professional fees) arising out of the introduction
of any hazardous materials on or to the building or the Premises by or on behalf of
Lessee, its contractors, agents, or employees, including, without limitation, the cost of
removing such hazardous materials.
d. Trash. All garbage and refuse shall be kept in closed containers which do
not emit odors as specified by Lessors and shall be placed outside of the Premises,
prepared for collection in the marmer and at the times and places specified by Lessors.
e. Temoerature. Lessee shall keep the Premises at a temperature
compatible with comfortable occupancy during business hours and at all times
sufficiently high to prevent freezing of water pipes or fixtures. The plumbing facilities
and systems of the building shall not be used for any purpose; other than that for which
they are constructed, and no foreign substance of any kind shall be thrown into the sewer
system.
f. Utilities. Lessee will not overload or abuse the electrical wmng,
plumbing, floors, walls or structures serving the building and will install at Lessee's
expense any additional electrical wiring which may be required in connection with any of
Lessee's uses, improvements or fixtures, Lessors may have an electrical engineer analyze
the Lessee's loads on the system and adequacy of service and if found deficient may give
Lessee notice to upgrade the service. Lessee shall comply with such notice within ten
days. Lessee will not allow water to leak onto or through floors or walls. Lessee further
agrees that Lessee will not install or use any equipment or fixture which will exceed or
overload the capacity of any utility system, and if any equipment or fixture installed by
Lessee shall require additional utility facilities, the same shall be installed and maintained
at Lessee's expense in accordance with plans and specifications which shall be approved
by Lessors in writing before installation.
g. Clean Condition. The Premises and every part thereof shall be kept by
Lessee in a reasonably neat, orderly and clean condition. Lessee shall take no action
which would jeopardize Lessors' title to the Premises or jeopardize the value of the
Premises or the building.
h. Antennae. No communications antennae or dish shall be erected on the
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roof or outside of the Premises without fIrst obtaining Lessors' written consent.
i. .fugg: Lessee may maintain one acceptable sign on the Premises which
conforms to requirements of any applicable County zoning and building codes.
j. Lighting. Lessee shall not install in, on, or about the Premises any
exterior lighting or use in, on or about the Premises any advertising medium or other
device which may be heard or experienced outside the Premises, including but not limited
to flashing tights, flashlights, loudspeakers, tapes, cd's or phonograph records or radio
broadcasts, awnings, or any change to the exterior of the building without first having
obtained Lessors' written consent.
k. Surfaces and Walls. Lessee shall not deface, gouge, mark., paint, stain,
drill or otherwise alter the surfaces and walls inside or outside of the Premises or any of
the support columns without the prior specifIc written approval of Lessors. Lessee shall
repair any damage to the surfaces or support columns caused by Lessee.
\. Notice. In the event Lessee is in violation of any of the foregoing
restrictions on use or is in violation or breach of any other provision of this Article ill,
Lessors shall provide Lessee with written notice to Lessee specifying the nature of such
of violation or breach. Lessee shall have thirty (30) days following such written notice to
cure, adjust or correct the violation or breach. If Lessee fails to cure the breach or default
within such time period, Lessor shall have the right to assess a penalty of $500.00 plus all
costs of correcting such violation against Lessee as Additional Rent to be paid the first of
the month following notice of such assessment. Lessors shall not be liable to Lessee for
any claim of damages for correcting such violation.
ARTICLE IV
CONSTRUCTION-ALTERATIONS-REPAIRS
4.1 Alteration at Lessee's Expense. Following the issuance of a certifIcate of
occupancy and inspection of Premises by Lessee that is to its reasonable satisfaction, Lessee
agrees to accept the property in its present condition, as is, without calling upon Lessors to make
any other expenditures or to perform any work for the preparation of the Premises for Lessee's
use, provided that it will be delivered clean with the existing plumbing, heating and electrical
systems functioning and in good repair and in substantial conformity with the plans and
specifications set forth on Exhibit C attached hereto. Lessee shall, at its own cost and expense,
make any necessary alterations and installations in the Premises required for Lessee's business,
using a contractor or contractors who shall have been approved in writing by Lessors, which
approval shall not to be unreasonably withheld.
4.2 Preconditions. Prior to commencing any work or installing any fixtures or
equipment. Lessee shall comply with the following preconditions.
a. ApJlroval of Plans. Lessee shall submit the plans and specifications for
such alterations to Lessors for written approval. Such approval will not be unreasonably
withheld and the request for approval shall be responded to within five business days
after receipt by Lessors of such plans. All work to be done by Lessee shall be performed
in a workmanlike rnarmer in strict accordance with the approved plans and specifications
without any deviation therefrom, unless such deviation is also fIrst approved in writing by
Lessors. In the event of any construction which is a material deviation from any approved
plans in violation hereof, Lessors shall have the right to demand construction be
immediately stopped, and, if construction continues 24 hours after such notice, Lessors
may dispossess Lessee, lock and secure the Premises and cause all work to cease until
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b. Permits. Lessee shall obtain (and Lessors shall provide reasonable
assistance in obtaining) the necessary consents, authorizations and licenses from federal,
state and municipal authorities having jurisdiction over the work to be done; and no work
shall be started or equipment installed unless and until all such necessary consents,
authorizations and licenses shall have first been duly obtained by the Lessee or its
contractor or other persons doing the work or installing the equipment on behalf of
Lessee. Lessee shall reimburse Lessors for any expenses incurred on account of the
failure by Lessee to comply with any such requirements; and any expenses so incurred by
Lessors as aforesaid shall be deemed Additional Rent under this lease and due and
payable by Lessee to Lessors on the first day of the month immediately following the
payment of the same by Lessors.
c. Contract - Copv to Lessors. Lessee shall enter into contracts with
contractors and persons who will do the work and install the equipment referred to, which
contract will provide that the work shall be done in a good workmanlike manner in
accordance with the approved plans and specifications and permits and licenses
previously obtained and which contract shall provide that the contractor or other persons
above referred to will look solely to Lessee for payment and will hold Lessors and the
property free from all liens and claims of all persons furnishing labor or materials
therefor, or both, and will also require that similar waivers of the right to me liens shall
be obtained from subcontractors or material men. A copy of the contract and evidence of
its recording with the county clerk together with a duly executed waiver of the right to
file liens executed by the contractor or other persons above referred to shall be furnished
to Lessors prior to beginning work.
d. Insurance - Copv to Lessors. Lessee or any contractor or subcontractors
employed by Lessee or any other persons who will do the work or install the equipment
as aforesaid shall be fully covered by workers' compensation insurance, and a copy of the
certificate thereof shall be furnished to Lessors before commencement of any work by
any such contractor or persons as aforesaid. Lessee covenants and agrees to indemnify
and hold Lessors harmless from any and all claims for personal injury, death or property
damage occasioned during the progress or as a result of any or all of the work done as
aforesaid in or about the Premises or the building
4.3 Mechanics Lien: Notice. Lessee shall keep the Premises and the building free and
clear of all mechanics, material men's and other liens on account of work done for Lessee. Lessee
shall indemnify Lessors against liability, loss, damage, costs or expenses, including attorney fees,
on account of claims of lien of laborers or material men or others for work performed for or
materials or supplies furnished to Lessee. If Lessee shall desire to contest any claim or lien,
Lessee shall furnish to Lessors security of a cash deposit with Lessors of 20% of the amount of
the claim, plus estimated costs and interest, conditioned on the discharge of the lien or a corporate
surety bond meeting requirements of the applicable statutes sufficient to discharge any lien. If a
final judgment establishing the validity of a lien is entered, Lessee shall pay and satisfy the same
at once. If Lessee shall be in default in paying any charge for which a mechanic's lien claim or
suit to foreclose the lien has been recorded or filed and shall not have given Lessors security as
aforesaid, Lessors may (but witHout being required to do so) pay said lien or claim and any costs,
and the amount so paid, together with reasonable attorney fees and costs and expenses incurred
by Lessors in connection therewith shall be immediately due and owing from Lessee to Lessors
with interest at the rate of 5% per annum from the dates of Lessors' payments. Should any claims
of lien be filed against the Premises or the building or any action affecting the title thereto be
commenced, Lessee shall give Lessors written notice thereof as soon as possible. During any such
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work, Lessors shall have the right to post and keep posted upon the premises notices that Lessors'
interest in the Premises should not be subject to any lien for such work done. Lessors herehy
designates Lessee as its agent for the sole purpose of posting in a conspicuous place upon the
Premises a notice containing the following language which Lessee shall be required to post prior
to commencement of any work:
Notice. The interest of Lessors of these premises, the City of Aspen and the Board of
County Commissioners of Pitkin County, and the building and lands upon which it is situated
shall not be subject to any lien for work done or materials or equipment supplied by any
contractor or other person for Lessee's improvements pursuant to this Notice and 9 38-22 105(2),
C.R.S.
4.4 Lessee to Compensate Lessors for Insurance Increase. Lessee shall pay upon
demand as additional rent hereunder any increase in Lessors' insurance premium, which results
solely and directly on account of Lessors' endorsements covering the risk during work or upon
completion of such alterations or improvements or as a result of subsequent use of the premises
by Lessee.
4.5 Lessee's Maintenance and Repair Obligation. Lessee agrees, during the term
hereof, and at Lessee's expense, to maintain the interior of the Premises in good condition and
promptly and diligently repair any damage to every part thereof including walls, partitions, doors,
door jambs, closets, door hardware, fixtures, glass, floors, ceilings, railings, banisters, plumbing
lines and fixtures, electric lines and fixtures, gas lines and fixtures, heating and any other items
and services associated with the Premises, with the exception of wear and tear and aging
consistent with normal animal shelter and boarding kennel use, and except such damage as is
attributable to the negligence or the act or omission of Lessors, to promptly and diligently repair
any damage to other premises in the building attributable to the negligence or the act or omission
of Lessee, or Lessee's employees, guests, or invitees, to maintain and promptly and diligently
repair, improve or remodel the interior of the Premises to meet requirements of any governmental
authority having jurisdiction thereof, and maintain in good condition and promptly and diligently
repair any damage to (or replace if necessary in the circumstances) any trade fixtures installed in
or attached to the Premises. Lessee shall also be responsible for maintenance of grounds and
landscaping as well as the parking lots. Lessors will be responsible for snow-plowing.
a. In the event of default by Lessee for failure to perform Lessee's repair
and maintenance obligations, Lessors shall have the right, but not the obligation, to
perform such work as Lessors deem necessary; and all such costs shall be payable by
Lessee on demand as Additional Rent hereunder due on the first day of the following
month. Lessors shall have no responsibility for damage caused through defects or
malfunctions of equipment operated by another Lessee. Lessee agrees to make repairs or
compensate any other Lessee of Lessors for damages caused such Lessee by the
negligence or act or omission of Lessee or Lessee's employees.
b. Lessor reserves the right, from time to time, at is own expense.and by its
officials, employees and contractors, to make such alterations, renovations or repairs in
and about the Premises, other than those noted above as required by Lessee. Lessee shall
make no claim against Lessors for any interference with its interest as herein provided in
the Premises. Lessors shall provide reasonable notice to Lessee in advance of any intent
to undertake alterations or repairs as authorized in this paragraph and all work shall be
performed at such time as mutually agreed to between the parties so as to eliminate or
minimize any disruption of Lessee's business.
4.6 Lessors' Reoair Obligation.
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a. With respect to Lessors' repair obligations hereunder, if the damage to the
Premises or the building, as the case may be, is covered by standard fire and extended
coverage insurance and exceeds 50% of the then replacement cost of the Premises or the
building, as the case may be (excluding foundation and excavation costs), or if the
damage to the Premises or the building is not covered by such insurance or if the damage
is such that the Premises or building, as the case may be, carmot reasonably be repaired or
reconstructed within a period of 90 days, Lessors may (but without any obligation to do
so) elect to repair or reconstruct the same, in which event this lease shall continue in full
force and effect, or Lessors may elect not to repair or reconstruct the same, in which
event this lease shall terminate. In any such event, Lessors shall give written notice to
Lessee of Lessors' intention within 60 days from the date of destruction; and, if Lessors
shall elect to repair or reconstruct the Premises or the building, as the case may be,
Lessors shall exercise diligence in commencing the work and in prosecuting the same to
completion. Lessee shall not be entitled to damages from Lessors in the event of damage
or destruction of the Premises or said building, by reason of leaking of any water or
sewer pipes, or neglect of other Lessees, or water coming through the ceiling, or gas or
electrical problems or for interruption of services or any inconvenience or loss of
business or property sustained by Lessee unless such loss is attributable to the negligence
or the intentional net or omission of Lessors.
b. Lessee's Monthly Rent obligation hereunder shall abate during any
period Lessors' repair obligation exists and when the Premises are so damaged as to be
unusable by Lessee, unless the damage was caused by Lessee or Lessee's employees,
agents, guests or invitees, in which case the rental oblige ion shall continue.
ARTICLE V
TRADE FIXTURES
5.1 Lessors' Furniture. Fixtures and Equipment (FF&E). Lessors are the owners of all
attached furniture, fixtures and equipment on the Premises as of the commencement date. These
fixtures are and shall remain the property of Lessors. Lessee covenants it will maintain, repair
and/or replace (with items of equal or better quality) any of such FF&E sO that, at the expiration
or earlier termination of this lease, Lessee shall return to Lessors all FF&E which are part of the
initial inventory or qualifying replacements in good condition subject to normal wear.
a. Annual Inventorv. Initial inventory shall be agreed upon by Lessors
and Lessee within 60 days of the beginning of this Lease and shall be updated whenever
additional fixtures or equipment is added by Lessors.
5.2 No Warranties bv Lessors. Lessors, not being the manufacturer of the FF&E or
manufacturer's agent, MAKES NO W ARRANfY OR REPRESENTATION, EITHER EXPRESS
OR IMPLIED, WITH RESPECT TO, AMONG OTHER THINGS, FITNESS, QUALITY,
DESIGN, CONDITION, CAPACITY, SUITABILITY, MERCHANTABILITY, OR
PERFORMANCE OF THE FF&E OR OF THE MATERIAL OR WORKMANSHIP THEREOF,
IT BEING AGREED THAT THE FF&E IS LEASED "AS IS" AND THAT ALL SUCH RISKS,
AS BETWEEN LESSORS AND LESSEE, ARE TO BE BORNE BY LESSEE AT ITS SOLE
RISK. Lessors shall not be liable to Lessee for any liability, loss, or damage caused or alleged to
be caused directly or indirectly by the FF &E, by any inadequacy of or defect therein or by any
incident in connection therewith, Lessee, accordingly, agrees not to assert any claim whatsoever
against Lessors based thereon. Lessee further agrees, regardless of cause, not to assert any claim
whatsoever against Lessors for loss of anticipatory profits or consequential damages. No oral
agreement, guarantee, promise, condition, representation, or warranty shall be binding.
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5.3 Surrender of Premises: Treatment of Lessee's Alterations at Expiration or
Termination of Lease. Upon termination of this lease or termination of Lessee's possession rights
in the leased Premises, Lessee shall promptly deliver possession thereof to Lessors. All
alterations, additions, impro.vement's, partitions, flooring, carpeting, plumbing fIxtures, shelving
and other fixtures (excepting Lessee's trade. fIxtures which can be removed without material
damage to the leased Premises, which shall remain the property of Lessee provided Lessee
completely repairs such damage), which may be made or installed by Lessee upon the leased
Premises during the term of this lease and which in any manner are attached to the floors, walls,
windows, or ceilings, shall become the property of the Lessors upon the expiration or other
termination of this lease or of Lessee's possessory rights hereunder. In all other respects, Lessee
shall return the Premises to Lessors in their original condition existing at the commencement of
this lease. Lessee agrees to return the Premises to substantially the same office confIguration
(walls, partitions, doors, etc.) as when delivered to Lessee at the commencement of the lease.
Lessee agrees to perform the work to return the Premises to the configuration employing
professional contractor services, and to perform the work prior to the termination of the lease.
Lessors shall notify Lessee sixty (60) days prior to the expiration of the lease for enforcement or
waiver of this provision.
ARTICLE VI
INSURANCE
6.1 Liability and Comprehensive Insurance. Lessee shall maintain comprehensive all
risks casualty, public liability and property damage insurance (at replacement values), with
responsible insurance companies licensed to conduct business in Colorado and acceptable to
Lessors which will insure Lessors and Lessee against liability for bodily injury, loss of life, or
other injury, with limitations in amounts deemed reasonable by Lessors, and shall name Lessors
and, at Lessors' option, Lessors' mortgagee as an additional insured with respect to each such
policy. The amount of this insurance, without co-insurance clauses, shall not be less than the
maximum liability that can be imposed upon the City of Aspen and the Board of County
Commissioners of Pitkin County under the laws ofthe State of Colorado found at c.R.S. 9 24-10-
101, et. seq., as amended. At present such amounts shall be as follows:
$150,000.00 for any injury to one person in any single occurrence;
$600,000.00 for any injury to two or more persons in any single
occurrence.
In no event shall such insurance amounts fall below those maximum liability limits as set forth at
C.R.S. 9 24-10-114, as amended.
Copies of such policies shall be promptly delivered to the Lessors upon issuance thereof;
and, as often as any such policy or policies shall expire or terminate, reNewal or additional
policies shall be procured and maintained by Lessee and copies promptly. furnished to Lessors.
Lessee shall name Lessor as co-insured or additional insured on all insurance policies and such
policies shall provide for a ten-day advance written notice to Lessors in the event of cancellation
or material change in coverage or 20 days' advance notice of cancellation for nonpayment. To the
maximum extent permitted by the insurance policies owned by Lessors and Lessee, the parties
hereto for their mutual benefit waive any and all rights of subrogation which might otherwise
exist. If Lessee fails to comply with this paragraph, Lessors shall have the right to obtain the said
insurance and pay the premiums therefor; and, in such event, the entire amount of such premium
shall be immediately paid by Lessee to Lessors upon demand and as Additional Rent hereunder.
6.2 Indemnification. Lessee agrees to indemnify Lessors against all demands, claims,
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causes of action, and any expenses (including attorney fees) incurred in resisting such claims, for
injury to person, loss of life or damage to property occurring during the term of this lease or any
extension thereof and (a) occurring on the Premises and arising out of Lessee's use and occupancy
thereof or (b) occurring outside the Premises if caused by the act, omission or neglect of Lessee
or the employees, agents, contractors, licensees, guests, invites, or sub-Lessees thereof.
6.3 Fire Insurance. Lessors shall insure the building against fire and other damage to
the building for the leased space. During the term hereof and any extension thereof, Lessee shall,
at its expense, maintain in full force and effect on all of the trade fIxtures, interior furnishing, wall
and floor coverings and inventory in the Premises a policy of fIre, theft and malicious mischief
insurance coverage with standard extended coverage endorsement to the extent of replacement
cost value naming Lessors as an additional insured party. Lessee shall provide copies of such
policy and any renewals and extensions thereof to Lessors promptly upon issuance. As long as
this lease is in effect, the proceeds from any such policy shall be used for the repair or
replacement of the trade fixtures and inventory so insured.
604 Waiver of Subrogation. Anything in this lease to the contrary notwithstanding,
neither Lessors nor Lessee shall be liable to the other for any business interruption or any loss or
damage to property occurring on the Premises or the building or in any marmer growing out of or
connected with Lessee's use and occupation of the building or the condition thereof caused by the
negligence or fault of Lessors or Lessee or of their respective agents, employees, sub-Lessees,
licensees, or assignees to the extent that such business interruption or loss or damage to property
is coverable by a standard all-risk or special form policy (including, at a minimum, fire and
extended coverage insurance) or a business interruption policy (regardless of whether such
insurance is carried or not) or for which such party is otherwise reimbursed; and Lessors and
Lessee each waive all right of recovery against the other, its agents, employees, sub-Lessees,
licensees, and assignees for any such loss or for damage to (he property of the waiving party.
Each of the parties shall notify its respective insurance carrier that the foregoing waiver is
contained in this lease and shall require such carrier to include an appropriate waiver of
subrogation provision in its policies.
ARTICLE vn
UTILITIES
7.1 Supplied to Premises. Lessors shall pay for costs of supplying utilities to the
Premises, except for any additional telephone lines required by Lessee (which shall be paid for by
Lessee).
7.2 Interruption of Services. Lessors shall not be liable to Lessee in damages or
otherwise; (i) if any utility shall become unavailable from any public utility company, public
authority, or any other person or entity (including Lessors) supplying or distributing such utility
or (ii) for any interruption in any utility service caused by the making of any necessary repairs or
by any cause beyond Lessors' reasonable control or enforcement of the provisions of this
paragraph, and the same shall not constitute a termination of this lease or an eviction of Lessee.
Lessors shall use reasonable efforts to attempt to schedule any necessary repairs during times
when Lessee is not open for business.
7.3 Notice. Lessee agrees to notify promptly the Lessors or its representative of any
accidents or defects in the Premises of which Lessee becomes aware, including defects in pipes,
electric wiring, and heating or ventilation equipment. In addition, Lessee shall provide Lessors
with prompt notification of any matter or condition of the Premises which may cause injury or
damage to the building or any person or property therein.
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ARTICLE VIII
DEFAULTS
8.1 Lessee's Default. Each of the following events shall be deemed an "event of
default" or a "default" hereunder ifnot cured within the time allowed by Paragraph 8.2 hereof.
a. Monetary Default. Any breach of or failure to pay Rent due or other
monetary amounts due hereunder if not paid within five (5) days of the date due.
b.
hereunder.
Other Obligations. Any failure of Lessee to perform any other obligation
c. Seizure. Seizure of this lease or the Premises by execution or other
process of law directed against Lessee and not discharged within thirty (30) days.
d. Abandonment or Failure to OCCUPY. Lessee shall vacate (except for
temporary closures expressly permitted under the Lease) or abandon the Premises
provided that, except as otherwise specifically allowed hereunder. Lessee shall be
deemed to have abandoned the Premises, in the event Lessee fails to operate its business
therein for five consecutive business days (unless due to causes beyond Lessee's
reasonable control). Lessee shall fail to take possession of the Premises within thirty (30)
days of the receipt of a certificate of occupancy.
e. Assignment or Transfer. This Lease or the successor in interest of Lessee
hereunder shall be transferred to or shall pass to or devolve upon any other person or
party except as expressly consented to by Lessors in the manner herein provided.
f. Failure to pav Debts. Lessee generally fails to pay its debts as they
become due, and such failure continues after notice and a reasonable opportunity to cure.
g. m~al Activitv. Lessee shall not at any time, knowingly suffer or
knowingly permit any illegal activity on or use of the Premises by Lessee. its sub-
Lessees, licensees, agents or employees.
8.2 Right to Cure. Lessee shall have a period of ten (10) business days after written
notice is sent from Lessors to cure any failure to pay any Rent or monetary amount due under the
lease. Lessee shall have a period of thirty (30) business days after written notice of the failure to
perform or observe any other (non-monetary) term, condition, covenant or agreement of Lessee
under this lease to cure such failure or, if the failure cannot by exercise of reasonable diligence be
remedied within thirty (30) business days after written notice of the failure is delivered to Lessee,
Lessee fails to commence efforts to cure the failure within thirty (30) business days after written
notice of the failure is delivered to Lessee, or if Lessee commences its efforts to cure but
thereafter fails to diligently pursue all action reasonably necessary to cure the failure, or if Lessee
fails actually to cure the failure in all respects within 45 days following delivery of written notice
of the failure to Lessee.
8.3 Lessors' Ril!hts. Should Lessee at any time be in default in the performance of
any of its covenants herein and fail to cure such default within the time periods allowed by
Paragraph 8.2 above, Lessee's right to possession of the Premises shall automatically terminate.
Upon the termination of Lessee's possessory rights in the leased Premises pursuant to the
preceding sentence, the Lessee shall peacefully surrender the Premises to the Lessors. Lessors, at
its option. upon the occurrence of any event of default and at any time thereafter while such event
of default continues. shall have the right to declare by written notice to Lessee the term of this
lease ended on the date of such notice or any later date specified therein, to take possession of the
Premises, to exclude Lessee from the Premises, and to remove all persons from the Premises.
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After Lessors declare the term ended as provided herein, Lessee shall have no further claim or
right to possession of the Premises.
8.4 Remedies: Dama2es. In the event Lessors terminate Lessee's right to possession of
the Premises pursuant to Paragraph 8.3 above, LesSQrs shall be entitled to payment from Lessee,
as its sole remedy hereunder, Lessors' direct and reaSQnable (i) repossession expenses, (ii)
broker's commissions, and (iii) repair costs, it being acknowledged that ordinary wear and tear
will be excepted.
8.5 Lessors' Lien. To secure the payment of all Rent and other sums of money due
and to become due hereunder and the faithful performance of this lease by Lessee, Lessee hereby
grants to Lessors an express first and prior contract lien and security interest On all tangible
property belonging to Lessee (including fixtures, equipment, furniture, fumishings, and other
chattels, but excluding inventory and merchandise) which may be placed in the Premises and also
upon all proceeds of any insurance which may accrue to Lessee by reason of destruction of or
damage to any such property. Such property shall not be removed from the Premises by Lessee,
its agents or assigns, without the prior written consent of Lessors until all arrearages in Rent and
other sums of money then due to Lessors hereunder shall first have been paid. All exemption laws
are hereby waived in favor of said lien and security interest. The provisions of this Paragraph
shall constitute a security agreement under the Uniform Commercial Co'de. This lien and security
interest is given in addition to any statutory lien to which Lessors is entitled and shall be
cumulative thereto upon the occurrence of am event of default. This lien may be foreclosed with
or without court proceedings by public or private sale provided Lessors gives Lessee at least ten
days' notice of the time and place of said sale; and Lessors shall have the right to become the
purchaser, upon being the highest bidder at such sale.
8.6 Property Left on Premises. Any property of Lessee or of anyone claiming under,
by or through Lessee which is left on the Premises more than 15 days after expiration of the term
of the lease or termination of possessory rights shall be conclusively deemed abandoned; and
Lessors may keep, use, remove, store, sell, destroy, discard, or otherwise deal with it in Lessors'
absolute discretion without liability of any sort to Lessee or anyone claiming under, by or through
Lessee.
ARTICLE IX
ASSIGNMENT OR SUBLE'ITING
9.1 Lessors' Consent to Assil!llll1ent Reauired. Lessee shall not transfer, assign,
sublet, mortgage, encumber, or hypothecate this lease or Lessee's interest in and to the Premises,
or any part thereof without first procuring the written consent of Lessors which shall not be
unreasonably withheld or delayed (within 45 business days of written request from Lessee). Any
assigmnent or sublet applicant shall be equally or more qualified financially to perform the
obligations of this lease. Any attempted transfer, without required consent, shall be void and shall
constitute a default by Lessee under this lease. In the event of an approved assignment, such
transferee, assignee, sublessee or mortgagee shall agree in writing for the benefit of the Lessors to
assume,' to be bound by and to perform Lessee's obligations under the terms, covenants and
conditions of this lease upon any such assignment. Lessee shall remain liable to Lessors as a
principal and not merely as a surety for the full performance of the obligations of the Lessee
hereunder. The granting of a management contract, concession or license to any person, firm or
corporation to operate in or use in any manner, any portion of the Premises shall be deemed a
subletting. Prohibition on assignment and subletting of this lease, except as specifically excepted
herein, includes a prohibition on any assignment which would otherwise occur by operation of
law, merger, consolidation, reorganization, transfer or other change of Lessee's capital structure
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or ownership, in whole or in part, and to an assignment to or by a receiver or trustee in any
federal or state bankruptcy, insolvency, or similar proceeding
9.2 Subleasin" to businesses within Premises. The parties hereto acknowledge that
Lessee's business plan requires that a certain portion of the Premises may be sublet to businesses
that are compatible to the operation of an animal shelter. The parties hereto further acknowledge
that Lessee may charge those third party businesses for rent or for other services rendered by
Lessee. Lessee shall obtain the prior written approval of Lessors prior to entering into any sublet
with third party businesses to operate within the Premises. The approval of Lessors shall not be
unreasonably withheld and Lessors approval or disapproval shall not be delayed by more than 10
business days. All revenues received by Lessee from such third party business relationships
operating out of the Premises shall be included in Net Profit as that term is defined in this Lease
Agreement.
9.3 No Waiver. Consent by Lessee to anyone assignment or sublease shall not
constitute a waiver with respect to any further assignments or subleases. Lessors, in approving
any assignment or sublease, shall be entitle to consider among other things the fmancial
capability of the assignee or sublessee and compatibility of the proposed use with other uses in
the building. If Lessee shall pwport in violation hereof to assign this lease or sublet all or any
portion of the Premises or permit any person or persons other than Lessee to occupy the premises,
Lessors may collect rent from the person or persons then occupying the premises and apply the
net amount collected to any damages or the rent reserved herein, blJt no such collection shall be
deemed a waiver of this Article or the acceptance by Lessors of such purported assignees or
subleases of Lessee or occupant or the release of Lessee of the further performance by Lessee of
covenants of Lessee herein.
ARTICLE X
GENERAL PROVISIONS
10.1 Successors to Lessors. The term "Lessors" herein shall be limited to mean and
include only the owner or owners at the time in question of the fee interest in the building; and, in
the event of any transfers of the title to such fee, Lessors herein named (and, in the case of any
subsequent transfers or conveyances, grantor) shall be automatically freed and relieved, from and
after the date of such transfer or conveyance, of all liability as respects the performance of any
covenants or obligations on the part of Lessors contained in this lease thereafter to be performed,
provided transferee shall in such assignment agree to assume and perform Lessors' obligations
hereunder and provided that any funds in the hands of Lessors or the then grantor at the time of
such transfer, in which Lessee has an interest, shall be delivered to the grantee, it being intended
hereby that the covenants and obligations contained in this lease on the part of Lessors shall be
binding on Lessors, its successors and assigns, only during and in respect to their respective
successive periods of ownership of the fee.
10.2 Subordination to Mortl!al!e. This lease and all right of title Lessee hereunder are
and shall be subject and subordinate to the lien of any and all mortgages or consolidated mortgage
or mortgages which may now or hereafter affect the Premises or building or any part thereof and
to all renewals, modifications, consolidations, replacements and extensions thereof, provided that
any such mortgage placed upon the Premises shall provide that, as long as there shall be no event
of default outstanding in' any of the terms, conditions, covenants or agreements of this lease on
the part of the Lessee to be performed, the leasehold estate of the Lessee created hereby shall bc
undisturbed by any foreclosure of such mortgage. Lessee agrees to execute such instruments as
may reasonably be requested by any beneficiary or mortgagee to evidence and make a record of
the fact that this lease is to be inferior to any such deed of trust or mortgage as well as provide
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copies of any financial statements which may be requested from time to time by any such
beneficiary or mortgagee.
10.3 Subdivision. Lessors reserves the right, without the consent of the Lessee, to
execute and record such declarations, restrictive covenants, maps or other documents or
amendments or supplements thereto for the purpose of subdividing or re-subdividing the building
containing the Premises into separate units and common elements pursuant to the Colorado
Common Interest Ownership Act, provided that the Lessors' right as declarant and owner thereof
shall be subject and subordinate to the possessory and other rights of the Lessee to the Premises
under this lease.
10.4 Accord and Satisfaction. No payment by Lessee or receipt by Lessors of a lesser
amount than the Rent due hereunder shall be deemed to be other than on account of the earliest
rent due and payable hereunder. Any endorsement or statement accompanying or inserted upon
any check or payment as rent shall not be deemed an accord and satisfaction, and Lessors may
accept any such check or payment without prejudice to Lessors' rights to recover the balance of
such rent or pursue any other remedy provided in this Lease or at law or in equity.
10.5 Non-Waiver. Failure of Lessors to require strict performance of any covenant or
condition shall not be deemed a waiver of such covenant or condition as to that or any subsequent
failure. One or more waivers of any breach of any covenant or condition by Lessors shall not be
construed as a waiver of a subsequent breach of the same or any other covenant or condition, and
the consent or approval by Lessors to or of any act by Lessee requiring Lessors' consent or
approval shall not be deemed to waive or render urmecessary Lessors' consent or approval to or
of any subsequent similar or dissimilar act by Lessee. The acceptance of rent hereunder by
Lessors shall not constitute a waiver of any preceding breach by Lessee of any term, covenant, or
condition of this lease. other than the failure of Lessee to pay the particular rental so accepted,
regardless of Lessors' knowledge of such preceding breach at the time of acceptance of such rent.
No waiver of any provision of this lease shall be effective unless it is in writing and signed by
Lessors.
10.6 Estoppel Certificates. Lessee agrees at any time and from time to time, upon ten
days' prior request by Lessors, to execute, acknowledge, and deliver to Lessors a statement in
writing certifying that this lease is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating the modifications),
and the dates to which the Rent and other charges have been paid in advance, if any, and
confirming Lessee's acceptance of the Premises, the commencement of the lease term, and the
Rent provided under the lease, and any ether affirmations or certifications reasonably requested
by Lessors with the intent that the statement delivered, may be relied upon by any prospective
purchaser, mortgagee, or assignee of any mortgagee of the building or the Premises.
10.7 Attornev Fees. Reasonable costs and attorney fees and other expenses incurred
by the Lessors in obtaining legal advice, preparing notices or demands or otherwise enforcing any
provision of this lease by reason of a default by the Lessee or by anyone holding under Lessee in
complying with any requirement of this lease shall be paid by Lessee as Additional Rent within
three days of notice of the amount thereof. All attorney fees incurred by the Lessors by reason of
any action which Lessors shall institute or be made a party because of this Lease (unless Lessors
is joined because of acts of Lessors determined by such litigation to be wrongful) shall be
awarded to Lessors.
10.8 Interest. Without affecting any of Lessors' rights hereunder, any sum provided
for herein accruing to Lessors under the provisions of this Lease other than monthly rent which
shall not be paid when due shall bear interest at the rate of 7% per annum from the date of an
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event of default until paid in full.
10.9 Recordilll1:. Lessee shall not record or permit the recordation of this Lease or any
assignment, sublease, license, grant of concession, mortgage or any other document evidencing
the transfer or hypothecation of all or any part of this Lease or Lessee's interest in the Premises
without in each instance having received the prior written consent of Lessors. Lessors may file or
record this Lease or any of the documents related to this Lease or a summary of some or all of the
provisions hereof at any time without Lessee's consent.
10.10 Notices. Wherever in this lease it shall be required or permitted that notice or
demand be given or served by either party to this lease on the other, such notice or demand shall
be given Or served in writing and either personally served at or forwarded by certified mail to the
following addresses and shall be deemed effective upon personal service or deposit as certified
mail.
To Lessors:
For City:
Aspen City Manager
130 South Galena Street
Aspen, Colorado 81611
Pitkin County Manager
530 East Main Street
Aspen, Colorado 81611
For County:
With a Copy To:
John M. Ely, Esq.
Pitkin County Attorney's Office
530 East Main, Suite 302
Aspen, Colorado 81611
To Lessee:
Sachson Inc, Lessee
Aspen Pitkin County Animal Shelter and
Boarding Kennel
101 Animal Shelter Road
Aspen, Colorado 81611
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With a Copy To:
Michael H. Newman, Esq.
Gardere Wynne Sewell LLP
160 I Elm Street Suite 3000
Dallas, TX 75201-2761
Either party may change such address from time to time by written notice given as herein
above provided.
10.11 Additional. In addition to the other remedies in this lease provided, Lessors shall
be entitled to the restraint by injunction of the violation or attempted or threatened violation of
any of the covenants, conditions or provisions of this lease.
10.12 Holding Over. Any holding over after the expiration of the term hereof shall be
construed to be a tenancy from month to month with the Fixed Monthly Rent at 150% of the rent
herein provided for the last month of the term or any extension of the term hereof and which
tenancy shall otherwise be on the conditions herein specified except that Lessors shall have the
right to terminate such tenancy at the end of any calendar month upon ten days' advance written
notice.
10.13 Covenant of Quiet Eniovment. So long as the Lessee is not in default or breach
hereunder, the Lessors covenants that the Lessee shall peaceably and quietly occupy and enjoy
the leased Premises subject to the terms hereof. The Lessors warrants and agrees to defend the
title to the Premises and further warrants that it has full authority to execute this lease.
10.14 Severability. The terms, conditions, covenants, and provisions of this lease shall
be deemed to be severable. If any provision contained herein shall be determined to be invalid 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.
10.15 Entrv-bv Lessors. Lessors and his authorized agents, employees, attorneys and
contractors shall be entitled, at all posted business hours (and in emergencies at all times), to enter
the Premises to inspect the same or determine compliance herewith and shall have all such rights
as may enable Lessors promptly, efficiently and economically to carry on any work or repair,
reconstruction, or restoration, to which Lessors is obligated hereunder. Lessee waives any claims
for damages for business interference, inconvenience or loss of quiet enjoyment or other loss
occasioned by such entry and repairs unless such repairs were occasioned by the negligence or
intentional acts of Lessors. Lessors and his authorized representatives shall have the right to enter
the Premises at times other than Lessee's business hours to exhibit the Premises to perspective
purchasers, lenders, or Lessees. Lessors agrees to provide Lessee with reasonable prior notice,
whenever he deems it necessary to enter. Lessors shall at all times have and retain a key with
which to unlock all ofthe doors in, on, or about the Premises. Lessee may not change the locks on
the Premises without Lessors' prior written approval; and, upon such approval Lessors shall be
provided a key to any changed locks. Lessors shall have the right to use any and all means which
Lessors may deem proper to open doors in and to the Premises in an emergency in order to obtain
entry to the Premises. Any entry to the Premises obtained by Lessors by any means shall not
under any circumstances be construed or deemed to be a forcible or unlawful entry into or a
detainer of the Premises, or an eviction, actual or constructive of Lessee from the Premises, or
any portion thereof, nor shall any such entry entitle Lessee to damages or an abatement of rent or
other charges, which this lease requires Lessee to pay.
10 .16 Binding Effect. 1bis lease and all agreements herein contained shall bind the
parties hereto. Each term and each provision of this lease shall be construed as and shall have the
same force and effect as though made in the form of a covenant. The parties covenant that the
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signatory to this lease has the authority to sign on behalf of the principal.
10.17 Counternarts. This lease may be executed in counterparts and with facsimile
signatures which taken together shall be one document. The parties shall deliver original signed
copies within seven days offacsimile transmission of their signatures.
10.18 Governing L&w. This lease shall be construed in accordance with the laws of the
State of Colorado. The parties agree to submit to the personal Jurisdiction of the State of
Colorado in connection with any action or proceeding relating to this lease or the Premises. The
parties expressly acknowledge and agree that venue of any action shall be in Pitkin County,
Colorado.
10.19 Time of Essence. Time is of the essence for all obligations in this lease.
10.20 Lessee's Authority. Lessee shall not be construed as or have any authority to act
as the agent of Lessors concerning the Premises. Lessee shall have no authority to surrender,
waive, compromise, alter or convey any of Lessors' rights in the Premises.
10.21 Headinl!S. The headings and captions contained in this lease are inserted for
convenience of reference only and are not to be deemed part of, or to be used as an aid in
construing, this lease.
10.22 Survival. All of the representations, warranties, and covenants in this lease shall
survive the expiration or termination of this lease.
10.23 Entire agreement. This lease covers in full each and every agreement of every
kind and nature whatsoever between the parties hereto concenring the Premises, and all
preliminary negotiations and agreements of whatever kind or nature are merged herein. Lessors
has made no representations or promises whatsoever with respect to the Premises and/or the
building except those contained herein; and no other person, fum or corporation has, at any time,
had any authority from Lessors to make any representations or promises on behalf of Lessors; and
Lessee expressly agrees that, if any such representations or promises have been made by others,
Lessee hereby waives all right to rely thereon. No verbal agreement or implied covenant shall be
held to vary the provisions hereof, any statute, law or custom to the contrary notwithstanding.
10.24 Waiver of Jurv Trial. Lessors and Lessee waive any right to a trial by a jury of
any dispute related to this lease.
10.25 Force Majeure. In the event that the Lessors or the Lessee shall be delayed or
hindered or prevented from the performance of any act required hereunder, by reason of
governmental restrictions, scarcity of labor or materials, strikes, or for reasons beyond such
party's control, the performance of such act shall be excused for the period of delay; and the
period for the performance of any such act shall be extended for the period necessary to complete
performance after the end of the period of such delay.
10.26 Amendment or Modj.fication. Except as otherwise provided herein, this
agreement and all of these terms and conditions may not be amended or modified absent a written
agreement duly executed by the parties.
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IN WITNESS WHEREOF, the Lessors and Lessee have duly executed this lease on the
day and year fIrst above written.
LESSORS:
BOARD OF COUNTY COMMISSIONERS CITY OF ASPEN
BY~W.:!c,:!~~/,,; By
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Deputy Clerk
LESSEE
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Kathryn S. Koch,
By
Sachson, Inc. fa
The Aspen Pitkin County Animal
Shelter and Boarding Kermel
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EXIDBIT B
ASPENlPITKIN COUNTI ANIMAL SHELTER
AND CARE SERVICES
POLICIES AND PROCEDURES MANUAL
Thi$ manual has been prepared as a guide for the operation of the Aspcn/Pitkin County Animal shelter
and the provisions as contained herein shall govern those activities and procedUlCS as specifically provided for.
TERMS
"City" shall mean the City of Aspen, its officers and employees.
"County" shaU mean the County of Pitkin, Colorado, its officers and employee..
"Operator" shall mean that perlIOll or entity charged with the operational responsibility for the
AspenIPitkin County Animal shelter.
"Shelter"' shall mean that portion of the building at Aspen, Colorado, thai houses the AspenIPitkin County
AnirnaJ shelter.
POLICIES AND PROCEDU!UlS
1. Operator shall accept for impoundment, boarding and care, without fee or charge, aU animal. brought to the
Shelter by the City and/or County, and/or any dog or cat abandoned, found allargc, or to be surrendered for adoption, as
presented by any citizen, except thai Operator may charge a fee for Fifty DoUors ($50.00) for every animal presented by a
citizen for <nnmder and adoption contingent upon the fact that the animal i. from the City of Aspen and/or Pitkin County.
2. The Shelter may be open to the public DOt less than seven (7) hours per day Monday tIuough Friday, and not
less than two (2) hours per day on weekends, bolidays ,",cluded.
3. Operator shall secure and maintain aI all times all neeesSlll)' fedenll, state and/or locaIliccnses requiJcd to
operate a boarding kennel.
4. Animal enclosures shall be maintained in a sanitary and structwally .ound condition and provide en ough
space to allow normal postural movements fOT all animals housed therein.
\ \1111\ 11\\\11 II \\\111 \\1111\ I\IIIU 1111\111 111\ :;~~~:} 0~~ 41
JANICE K vas CRUD ILL PITKIN COUNTY CO R 0.00 0 0.00
23
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5. Animals housed in the """,e enclosure shall be maintained in compatible groups. Females in season (es1rUs)
shall nol be enclosed with or in near p<oximity to males. Animals exhibiting a vicious disposition shall be physically
segregated from other animals. Puppies and kittens shall be segregated from adults when deemed necessary. Dogs shall not
be enclosed with cats. Any animal displaying symptoms of disease or injwy, or subject to quarantine, shall he physically
segregated from other animals until such time as the animals' condition is diagnosed and il is detemJined that the animal
may be maintained in the general sheller population. The hcalth and condition of all animals shall be regularly monilored
and written records shal1 be maintained of sick or injured animal..
6. No privately boarded animal shall be housed in that part of the Shelter utilized by the operator for
City/County sheller pUlposes.
7. All dogs shall be provided reasonable and regular outside e.erei.. on a daily basis.
8. Animal wastes shall be removed from kennel enclosures as often as is necessary to prevent contamination
and to reduce disease hazards and odors. All enclosures shall be washed at least daily, or at such more frequent intelValS so
as to maintain a disinfected and sanitary environment Animals shall be removed from their enclosures during cleaning and
shall remain clean and dIy. Water and food containers and other utensils and equipment shall be washed daily to maintain
them in a sanitary and clean condition utilizing generally accepted cleaning methods_ Animal wastes shall be slored and
disposed of in a timely and sanitary fashion. Community Safety Officers and County Animal Safety Officers shall be
notified immediately of all deceased animals. who shall thereafter arrange for the necropsy and disposal of the remains.
9. Animals shall be fed no lesS than once a day and shall be provided clean drinking water at all times, unless
when otherwise directed hy a veterinarian. Food shall be of a sufficient nutritive quality and quantity 10 meet the daily
requirements for the condition and size of animal. Refrigeration shall be provided for perishable food and all food shall be
appropriately stored.
10. AU indoor enclosures shall be adequately heated when necessary to p<otect animals from the cnld and to
provide for their health and comfort All enclosure.s shall be adequately and regularly ventilated with fresh air.
1 ]. City and/or County shall, at its costs and expense, provide fOT visits and inspection of the Shelter and housed
animals by a duly licensed veterinarian as needed. Veterinarian services and medical expenses required for the animals
housed by the City and the County in the shelter shall be the responsibility of the City and/or County, unless caused by
negligence of the Shelter Operator.
The County must first consenllo veterinarian or medical cost in excess of two hundred dollars (S2oo.oo) prior
to the County being responsible for such charges. Operator shall faithfully perform and adhere to all ~I, <:Me and
medical direction provided by a veterinarian in the care and housing of sick or injured animals. Operator shall immediately
report to the City andJor County any ill or injured animal so that appropriate examination and treatment may be arranged.
12. Operator shall nol cuthanizc any animal. All animals 10 be cuthaoized shall be the responsibility of the City and/or
County, including all costs associated therewith, and shall be perfOI1l1ed by a veterinarian. All animal remains shan be humanely
handled and disposed of The Shelter Operator shall maintain a written record identifYing the animal and physical condition
prior to death and date of cutbaniza for every animal cuthanized.
13. Operator shall adhere to the following adopriDn and redemption polices for all animals brought to and released from
the sbelter.
1111111111111111111111111111 :;~~~r0~f 0~~ 41
JANICE K VOS CAUOILL PITKIN COUNTY CO R 0.00 D 0.00
24
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a Animals foUlld nmnmg at large and impoUllded at the Shelter oball be available for adoption five (5) days of its
admission to the Shelter if the anima1 originated in the City and after eight (8) days if the animal originated in the
County.
b. Animals S1l1'J'aldered to the Shelter by their owner shall be available for adoption inunediately unless the animal is
deemed to be unadoptable, in which case the owner of the animal oball be advised at the time of surrender that the
animal will be euthanized. Euthaniza will be the responsibility of a City or County animal safety office<. Any mimal
available for adoption, that becomes unadoptable while being housed at the Shelter shall be euthanizcd and is the
responstbility of a City or County animal safely o!licer.
c. No animal shall be rcleased (or adoption without having received standard vaccinations, to include a rabies vaccine.
AJJy dog adopted by a citizen ....iding in lDlinCOl'pOl'8ted Pitkin County shall obtain a Pitkin County dog license from
the Pitkin Cowty Sheriffs Office. Shell'" Operator shllll distribute mail-in licensing information to Pitkin County
residents adopting dogs from the Sh.lt....
d. Operator oball insure that all animals adopted from the Sheller bav. been spayedlneutered prior to adoption. No anima1
will be adopted without being spayedlneutered with the exception to the Shelter Openotors' determination ofwheth", or
not the anima1 is too young or too old to be spayed/neutered. If too young, the Sh.1ter operator win amnge the
spaylneuter of the anima1 at the appropriate age.
e. All owners residing in the City of Aspen seeking to redeem their animals shall first be referred to the Aspen Police
Department for issuance and receipt of any animal control violation citation. Owners shall not be permitted to redeem
their animal with out fust providing operator with written authorization from the Aspen Police Department.
f. For owners residing io Pitkin County, the Shelter Operator shall not permil an animlll to be redeemed without first
obtaining and retaining information needed by the Pitkin County Animal Safety Officer for issuance of a citation,
including, but nol timited to, the date, time, and location wh..... the animal was picked op. The Animal Safety Officer
shall provide to the Shel"" Operator the forms that request the necessary information and the Shelter Operator shalt
retain completed forms for each animal released. The Pitkin County Animal Safety Officer shall collect the completed
forms frnm the Sbeller.
g. Operator shall charge, collect and retain the following fees from owners for the housing and adoption of animals:
Imnound Fees:
City:
County:
$50.00 plus $10.00 a day
$50.00 plus 510.00 a day
Surrender Fee:
$50.00
III ~HIIIIIIIIIIIIIIIIIII :;~~~r0~f 0~~41
JANICE K VOS CAUDILL PITKIN COUNTY CO R 0.N D 0.00
AdoDtion Fee;
$95.00
These fees may be amended at any timc by the City or County upon written notice to the Operator.
(
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These fees may be incrnlSCd yearly by rhe Operator upon approval by rhe City and County.
14. Operator shall maintain up to date and complete records of the impoondment, surrender, adoption, rei.... and death of
all animals housed in the Shelter. Every animal shall be documented as to breedlspecies, color, size, weight and sex; evidence of
ownership; approximate age and physical conditionlhealth of animal upon admission, adoption and release/death; date of
admission, adoption, release/death; name, address and telephone number of any owner and/or the person who may have
presented the animal for impoundmenllhousing at the Shelter; name, address and telephone number of all persons claiming
ownership and/or redeeming or adopting any animal; and such other infonnation as may be requested by the City/County.
Operator shall utilize such fonus as mutually agreed to with City/Coonty in recording and maintaining the above-<lescribed
information.
IS. Operator shalll1l8il)tain up to date and complete reconIs documenting all monies collected from fees charged in the
operation of the Shelter, and any funds, food or supplies contributed or donated for Shelter openllions. Complete and up to date
records shall also be maintained illustnting all expenditures for food, supplies and equipment expended in Shelter operations.
Food, supplies and equipment may be subject to inventory inspection by City/County at any time. Operator shall utilize such
fonus as lTDItually agreed to with City/County in recording and maintaining the above-described information_
16. Operator shall provide City/County a regular written monthly report showing the number of animals impounded and
housed at the Shelter; the number of animals adopted, released and euthanized; lbe lDtal amount of fees collected, and the total
monthly Shelter expenses for food and direct animal care.
17. City/County may at any time seck and obtain access lD all accounts, records or books maintained by or on bchalf of
OperalDr in the administration and the openllion of rhe Shelter. Additionally, City/County shall have access to any and all parts
of the Shelter premises at any time to as to inspect same for purposes of insuring compliance by Operator with all terms of this
manual.
18. Operator agrees to utilize, when offered and made available, the volunteer services of the Pitkin Animal Welfare
Society ("PAWS") in the operation of the Shelter and in the care and placement of the animals housed therein. Operator shall
retain final supervisory control over any volunteer and may dismiss or refuse any volunteer whicb Operator, within its sole
discretion, deems injurious to the efficient and proper operation of the Shelter.
19. Operator acknowledges that the City/County shall form a citizen board known as the AspenlPitkin County Animal
SbeJta Advisory Board to provide recommenda.tions and advice to the: Operator and the City/County in the operation of the
Shelter. Operator agrees to cooperalC with the Advisory Board.
20. The above and foregoing policies and procedures may be amended from rime to time as deemed necessary. No
amendment shall be effective until it has been reduced to writing and incorporated into this manual. Likewise, no amendment
shall become effective absent of the City of Aspen and Pitkin County.
21. Operators charged with the administtation and or the operation of the Shelter shall have input on all proposed
amendments to this DlBIlual. Failure on the part of an Operator to adhere to the terms of this manual may result in the termination
of any service or other agreement between operator and the City of Aspen and Pitkin County.
11111111111111111111111111111111
JRNICE K VOS CAUDILL PITKIN COUNTY CO R
520773
Page: 29 of 40
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EXHIBIT C
COST OF UVlNG INCREASE CALCULATION
a) "Price Index" sball mean the Consumer Price Index - All Urban
Consumers (CPI-U) - U.S. City Average - All Items, or a successor or substitute index published
OT 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:
"Price Index" for the fust month
Current Index Number
Base Index Number
= of next Lease Year
"Price Index for fust month of
of preceding Lease Year
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) above.
\.
d) In computing increases for each adjUS1ment 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 shabe deemed to be the percentage
of increase of cost of living.
e) The percentage of increase in the cost of living shall be
multiplied by the mmunum annual rental including increases for the year preceding the
adj ustment year for which the increase is being computed.
f) The Landlord shall, within a reasonable time after obtaining the
appropriate data necessary fOT computing such increases, give the Tenant notice of any increase
so determined, and the Landlord's computation thereof shall be conclusive and binding but sball
not preclude any adjustment of the index figures upon which the computation was based and
Tenant shall, within 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.
27
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g) Minimum annual rent for each adjustment year, together with
increases calculated in accordance with Paragraphs b) through f) of this Section 11, shall be due
and payable to Landlord in equal monthly instalhnents 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).
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 fmancial 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 shaH be made in the method of computation above provided revisions
as the circumstances may require to carry out the intent of this Article.
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EXHIBIT B
ASPENIPI11CIN COUNlY ANIMAL SHELTER
AND CARE SERVICES
POUCIES AND PROCEDURES MANUAL
This mmual has been prepmd as . guide for the operatioo of the Aspeo/Pitkin County Animal shelter
and the provisions as contained hacin shall govcro those activities and procedures as specifically provided for.
TERMS
"City" shall mean the City of Aspen, its offian and employees.
"County" shall mean lbeCountyofPitkin, Colorado, its offian and employees.
"Openltor" shall mean that paoon or entity charged wilb lb. operatinnal responsibility for the
AspenlPitkin County Animal shelter.
"Shelta" shall mean that portion of the building at Aspen, Colorado, that houses the AspenIPitkin County
Animal sheller.
POUClES AND PROCEDURES
I. Operator shall accept for ill1JlOundment, boarding and care, without fee or charge, all animals brought to the
Shelter by the City and/or County, .and/or any dog or cat abandoned. found at large. or to be sumodered for adoption, as
presented by any citizen, except thl! Operator may charge . fee for Fifty Dollars (S50.00) for every animal presented by.
citizen fOT surrender and adoption contingent upon the fact that the animal is :from the City of Aspen and/or Pitldn County.
2. The Shelter may be. open to lb. public not less than seven (7) bours per day Monday tbrough Friday, and not
less than two (2) hours per day on weclcends, bolidays excluded.
3. Operator shall secure. and maintain at all times all necessary federal, state andfe>r le>cal licenses required to
operate a boarding kennel.
4. Animal enclo..... shall be maintained in . sanitaJy and structura1ly sound condition and provide enough
space to allow normal postural movements for all animals housed therein..
111111111111111111111111 II ~~~~r} 0~0 4\
JANICE K \lOS C~uOtLL PITKIN COUNTY CO R 0.00 0 0.00
23
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5. Animals housed in the same enclosure shall be rnainlllined in compatible groups. Females in season (estrus)
sha11 not be enclosed with or in near proximity to males. Animals exlubiting a vicious disposition shall be physiC3!ly
segregated from other animals. Puppies and lcitten. shall be .egregated from adults whcn deemed necessary. Dogs shall not
be enclosed with cats. Any animal displaying symptoms of disease or injury, or subject to quarantine, shall be physically
segregated from other animal. until such time as the animals' condition is diagnostd and it is detemtined that the animal
may be maintained in the general shelter population. The hcalth and condition of all animals shall be regularly monitored
and written records sball be maintained of sick or iojured animals.
6. No privately boarded animal shaI1 be boused io that part of the Shelter utitizcd by the operator for
City/County shelter purposes.
7. All dogs shall be provided reasonable and regular outside exercise on a daily basis.
8. Animal wastes shall be rcnoved from kennel enclosures as often as, is ~ecessuy to prevent contamination
and to reduce disease hazards md odors. All enclosures shall be washed at least daily, or at .uch more frequent intervals so
as to maintain a disinfected and sanitary environment. Animals shall be removed :from their enclosures during cleaning and
.hall remain clean and dry. Water and food containas and other utensils and equipment .hall be washed daily to maintain
them in a sanitaJy and clean condition utilizing generally accepted cleaning methods Animal wastes shall be stored and
disposed of in a timely and sanitary 1iIshion. Community Safety Officers BOd County Animal Safety Officers shall he
notified immediately of all deceased BOimals, who shall thereafter arrange for the necropsy and disposal of the remains.
9. Animals shall be fed no Ie.. than once a day and shall be provided clean drinlcing water at all times, unless
when otherwise dincted by a veterinarian. Food shall be of a sullicient nutritive quality and quantity to meet the daily
requirements for the condition and size of animal. Refrigenllion shall be provided for perishable food and all food shall be
appropriately stored.
to. All indoor enclosures .haI1 be adequately heated when necessary to protect animals from the cold and to
provide for their health and comfort. All enclosures .hall be adequately and regularly ventilated with fresh air.
] I. City and/or Couoty shall, at its costs and expense, provide for visits and inspection of the Sheller and housed
animals by a duly licensed veterinarian as needed. Veterinarian services and medical expenses required fOT the animals
housed by the City and the County in the shelter shall be the responsibility of the City and/or County, unless caused by
negligence of the Shelter Operator.
The County must first consent to veterinarian or medical cost in excess of two hundred dollars ($200.00) prior
to the County being responsible for such charges. Operator shall faithfully perform and adhere to all treatment, care and
medical direction provided by a veterinarian in the care and housing of sick or injured animals. Operator shall immediately
report to the City and/or County any ill or in jural animal so that appropriate examination and tn:atmenI may be arranged.
12. Operator shall not euthaniz.e any animal. All animals to be euthanizcd .hall be the tespoJlSlbility of the City and/or
County, inclnding all costs associated therewith, md shall be performed by . veterinarian. All animal remains shall be humanely
handled and disposed of. The Shelter Operator shall maintain a written record identifying the animal and physical condition
prior to death and date of cuthaniza for every animal euthaniz.ed.
13. Operator shall adhere to the following adoption and redemption polices for all animals brought to and released from
the shelter.
\ 111 \II II 11111111111 \ 1111\ I III 1111111111111 :;~~~~:~f 0i~ 4\
JANICE K VOS CAUDILL PITKIN COlJ>JTY CO R 0.00 0 0.00
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3(.
L Animals folDld J1llU1ing at large 8Dd impounded at the Shelter shall be availoble for adoplioo five (5) days of its
admission to the Shelter if lbe animal originated in the City and after eight (S) days if lbe animal originalc:d in the
County.
b. Animals surrendaed to the Shelter by lbeir owoer shaD be availoble for adoption immediately unless lbe animal is
deemed to be lDladoptable, in which case the own", of the animal shall be advised at the time of 5UlJCDdcr that the
animal will be enlhaniud. Euthaniza will be the responsibility of a City or County animal safety officer. Any animal
availoble for adoption, that becomes tmadoptabJe while being housed at lbe Shell'" shall be euthanized and is the
responsibility ofa City or ColDlty animal safetyofficer.
c. No animal shall he released for adoption without having received standard vaccination.. to include a ",bies vaccine.
Any dog adoptal by a citizen residing in uWnCOlpOrated Pitkin County shall obtain a Pitkin ColDlty dog license from
the Pitkin County Sheriffs Office. Shelter Operator shall distribute mail-in licensing infonnalion to Pitkin County
residents adopting dogs from lbe Shelter.
d. Operator shall insure that all animals adopted from lbe Shelter have been spayed/Deutered prior to adoption. No animal
will be adopted without beinS spayedlneutered wilb lbe exception to the Shelter Operators' determination of whether or
not the animal is too young or too old to be spaycdlneuteml. If too young, the Shelter operator will amuge the
spaylneuter of lbe animal at lbe appropriate age.
e. All owners residing in the City of A<pen seeking to redeem their animals shall first be refem:d to the A<pen Police
Departmenl for issuance and receipt of any animal control violation citation. Owners shall not be permitted to redeem
lbeir animal with oul first providing operator wilb written authorization from the Aspen Police Department
f For owners residing in Pitkin County, the Shelter Operator shall not permit an animal 10 be redeemed without first
obtaining and retaining information needed by the Pitkin County Animal Safety Officer for issuance of a citation,
including, but not limited to, the date, time, and location where the animal was picked up. The Animal Safety Officer
shall provide to the Shelter Opendor the forms that request the necessmy infonnation and lbe Shelter Opendor shall
retain completed forms for each animal released. The Pitkin County Animal Safety Officer shall collect the completal
forms from the Shelter.
g. Opendor shall charge, collect and retain the following fees from owners for the housing and adoption of animals:
lmnound Fees:
City.
S50.OO plus SIO.oo a day
S50.OO plus SIO.oo a day
County:
Surrender Fcc:
S50.oo
Adovtion Fcc:
S95.oo
These fees may be amendal at any time by the City or County upon written notice to the Opendor.
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These fees may be inereased yearly by lbe Operator upon approval by the City and County.
14. Operator shall maintain up to date and complete records oflbe impoundment, surrender, adoption, ",lease and death of
all animals housed in the Shelter. Every animal shall be documenl<d as to breedlspecies, color, size, weight and sex; evidence of
ownership; approximate age and physical coDditionlhealth of animal upon admission, adoption and release/death; date of
admission, adoption, release/death; name, address and telephone nwnl>cr of any owner and/or the person who may have
prescnl<d the animal for impoundmcotlhousing at the Sbelter; name, address and telephone number of all persons claiming
ownership and/or redeeming or adopting any animal; and such other information as may be requested by the City/County.
Openttor shall utilize such forms as mutually agreed to with City/County in recording and maintaining the aboVlHlescribed
infOrmatiOIL
15. Operator shall maintain up to date and complete records documenting alllllOnies collected from rees charged in the
operation of the Shelter, and any funds, food or supplies contributed or donated for Shelter operations. Complete and up to date
records shall also be maintained illustrating all expenditures for food, supplies and equipment expended io Shelter operations.
Food, supplies and equipmeot may be subject to inventory inspection by CitylCounty at any time. Operator shall utiliu such
forms as nwtually agreed to with City/County in recordiog and maintaining the above-dcscribed jnformation.
16. Operator shall provide City/County a regular written monthly report showing the numba' of animals impounded and
housed at the Shelter; the nwnl>cr of animals adopl<d, released and euthanized; the total amount of fccs collected, and the lDtaI
monthly Sbelter expenses for food and direct animal Cllfe.
17. City/County may at any time seck and obtain access to all accounts, records or books maintained by or on behalf of
Operator in the administration and the operation of the Shelter. Additionally. City/County shall have access to any and all parts
of the Shelter premises at any time to as to inspect same for pUIpOSCS of insuring compliance by Operator with all terms of this
manual.
J 8. Operator agrees to utilize, wben offered and made available, the volunteer services of the Pitkin Animal Welfare
Society ("PAWS") in the operation of the Sbelter and in the Cllfe and placement of the animals housed therein. Operator shall
retain final supervisory control over any volunteer and may dismiss or refuse any volunteer which Operator, within its sole
discretion, deems iojurious to the efficient and proper operation of the Sbelter.
19. Operator acknowledges that tbe City/County shall form a citizen board known as the AspenIPitkin County Animal
Shelter Advisory Board to provide recommendations and advice to the Operator and the City/County in the operation of the
Shelter. Operator agrees to cooperate with the Advisory Board.
20. The above and foregoing policies and procedures may be amended from time to time as deemed necessary. No
amendment shall be effective until it bas been reduced to writing and incorporated into this manual. Likewise, no amendment
shall become effective absent of the City of Aspen and Pitkin County.
21. Operators cbaJged with the administration and or the operation of the Shelter shall bave input on all proposed
amendments to this manual. Failmc 00 the part of an Operator to adhere to the terms of this manual may result in the termination
of any service or other agreement between operator and the City of Aspen and Pitkin County.
IIIIIIIH 11111111111111 ~;~~~r~r 0~0 4 1
JRNlCE K VOS C~UDILL PITKIN COUNTY CO R 0,08 D 0.00
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3<6
EXHIBIT C
COST OF LIVING INCREASE CALCULATION
a) "Price Index" shall mean the Consumer Price Index - All Urban
Consumers (CPI-V) - U.S. City Average - All Items, or a suCC'.essor 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:
"Price Index" for the first month
Current Index Number
Base Index Number
= of next Lease Year
"Price Index for first month of
of preceding Lease Year
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
adjusbnent 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) above.
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 shabe deemed to be the percentage
of increase of cost of living.
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.
f) The Landlord shall, within a reasonable time after obtaining the
appropriate data Becessary 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 any adjustment of the index figures upon which the computation was based and
Tenant shall, within 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.
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g) Minimum annual rent for each adjustment year, together with
increases calculated in accordance with Paragraphs b) through f) of this Section 11, 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).
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
Conswner 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.
\111\111111111111 II11I1 1111 1I1I 111\11111\ 1111\ \111 1111 :;~~~~:~: 0~~ 41
JRNICE K vos OOUDILL PITKIN COUNT'i CO R 0.00 0 0.
28
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AGREEMENT FOR LEASE AND OPERATION OF THE
ANIMAL SHELTER FOR THE CITY OF ASPEN AND PITKIN COUNTY ___.
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THIS LEASE AGREEMENT (this "Lease") is made and entered into on NB1'B1ft90r
L ~ by and between the City of Aspen and the Board of COtnlty Commissioners of Pitkin
Countf,oClSlorado, (hereinafter referred to collectively as the "Lessors"), on the one hand, and
Sachson Inc., a Colorado corporation d/b/a The Aspen Pitkin County Animal Shelter and
Boarding Kennel, whose address is 101 Animal Shelter Road Aspen, Colorado 81611,
(hereinafter "Lessee"), on the other hand.
WITNESSETH:
WHEREAS, Lessors desire to privatize and contract for the provision of animal shelter
and animal care services;
WHEREAS, Lessee desires to provide animal shelter and animal care services to the
Lessors upon the terms and conditions as set forth below;
WHEREAS, Lessee has spent a substantial amount of time and money in fundraising
activities, directly and indirectly, for the acquisition and development of the Premises (as defined
below); and
WHEREAS, Lessors desire that Lessee enjoy the benefits of such expenditures of time
and money as set forth hereunder_
NOW, THEREFORE, in consideration of the covenants as contained herein, the Lessors
and Lessee agree as follows:
ARTICLE I
GRANT AND TERM
1.1 Lease Grant. In consideration of the recitals and the mutual covenants herein and
the rental to be paid hereunder, Lessors grant to Lessee a lease of the premises ("Premises"),
more particularly illustrated on that diagram attached hereto and incorporated herein as Exhibit
"A" including any and all equipment and inventory in place in or on the Premises at the time of
the Commencement Date of this lease, and subject to utility and other easements in place and of
record or as reasonably required to service the Premises and subject to all encumbrances of
record. The Premises shown on Exhibit A includes the entire Animal Shelter Building and
property with the exception of the two rental units, access to those units and parking spaces
reserved for the two rental units, which shall remain the property of Lessors.
Lessee hereby expressly acknowledges that it will carefully examine the Premises prior to
occupancy. Lessee will notify Lessor if the condition of the Premises is satisfactory for all
purposes and intended uses hereunder, and if Lessee accepts the same in its then current state and
condition. If accepted, Lessee will accept the Premises "AS IS," without reliance of any kind on
any representations of Lessors with respect thereto all of which are hereby disclaimed by Lessors.
1.2 Base Term. This lease shall commence at 12:01 a.m. on ~rll k.' of.
~ ("Commencement Date") and continue for a period of five (5) years, (the "Initia r: rrn"),
unless earlier terminated under the provisions hereof. Upon full execution of this lease, payment
of the $1.00 and required rentals, and compliance with insurance requirements hereof, Lessee
shall be allowed possession of the Premises.
1.3 Successive Terms. If Lessee substantially performs and abides by all material
provisions and conditions of this Lease, upon expiration of the Initial Term of this Lease, Lessee
11111111111111111111111111 ~~~~~~~:~ :44
JRNICE K VOS CAUDILL PITKIN COUNTY CO R 0.00 0 0.00
'3
shall have two (2) consecutive rights of first refusal to renew this lease for two (2) additional
successive terms of five (5) years (each, a "Renewal Term'1; provided, however, if Lessee does
not renew this Lease in writing for a first Renewal Term by exercising the option granted
pursuant to this Section, Lessee shall forgo its right of first refusal to lease the Premises for a
second Renewal Term. In order to exercise its rights of first refusal to renew this Lease, Lessee
shall notify Lessors in writing of its desire to renew this Lease no less than one hundred and
twenty (120) days and no more than one hundred and eighty (180) days prior to the expiration of
the term then in effect.
1.4 No Partnership or Joint Venture. Nothing contained in this lease shall create a
partnership or j oint venture as between Lessors and Lessee or render Lessors in any way
responsible for the debts or losses, of Lessee, it being the express intention that the relationship of
the parties shall be at all times that of Lessors and Lessee. All moneys payable to Lessors under
this lease, shall be due, payable and collectible as Rent, and Lessors shall have all the rights with
respect to the collection thereof as are given under the terms and conditions of this lease or under
Colorado law with respect to the payment.
1.5 Condemnation bv Public Authoritv. If during the Initial Term of this lease,
or any Renewal Term, the whole or part of the Premises, or such portion as will make the
Premises unusable for the purpose leased, or the leasehold interest, be condemned by public
authority including Lessors, for public use, then this Lease shall cease as of the date of the vesting
of title in the Premises in such condemning authority, or when possession is given to such
authority, whichever event occurs first.
1.6 Lessee's Right to Terminate. Lessee may terminate this Lease and be relieved
of all obligations hereunder by providing Lessors sixty (60) days written notice of its intent to
terminate. Upon receipt of such notice, Lessors may participate in the operations of the Shelter
with Lessee to accommodate the transition of Shelter management from Lessee to the Lessors.
Lessee shall provide a full accounting of all funds, costs and equipment upon termination.
ARTICLE II
RENT
2.1 Rent.
a. Lessee agrees to pay Lessors a fixed armual rent for each year of the Initial Term
and each Renewal Term in the amount of $1.00 (one dollar) per year. Lessors acknowledge that
rent for the Initial Term has been paid in advance of the Commencement Date.
b. In the event that the Lessee elects to renew this Lease pursuant to Section 1.3,
Lessee shall pay to Lessors, as additional rent, during each year of any Renewal Term a sum
equal to 15% of all Net Profits (as defined below) generated in, on or from the Premises in excess
of $100,000 (the "Net Profits Base Amount") during the immediately preceding fiscal year,
without prior demand therefor and without any set-off or deduction whatsoever (the "Net Profits
Payment"). The Net Profits Base Amount shall be adjusted in accordance with the percentage
increase, if any, in the Consumer Price Index (the "CPI") from the Commencement Date through
the commencement of each Renewal Term. The CPI index to be utilized in connection with the
calculation of Net Profits Base Amount shall be defined as the CPI for all Urban Consumers
United States City Average, All Items, as published by the U.S. Department of Labor. By way of
example, in calculating the additional rent amount due under this Section, if the CPI on
November 1, 2005 was 150 and the CPI on the November 1,2010 is 175, there would be a 17%
increase in the Net Profits Base Amount (i.e. 175-150=25; 25/150=.166 or 17%; $100,000 x 17%
= $17,000; Net Profits Base Amount = $117,000).
1111111111111111111111111111111111I rl/II/III ~~~~~1;~; 44
JRNICE K vas CAUDILL PITKIN COUNTY CO R 0.00 0 0.00
J(
c. Lessee shall pay each Net Profits Payment on or before the twentieth (20~ day
of each calendar month in which such payment is due. The rental amounts due for any Renewal
Term shall be paid in advance.
d. In order to facilitate the calculation of the Net Profits Payment, Lessee agrees to
submit to Lessors on or before May I" of the final year of the Initial Term and the final year of
each Renewal Term (i) an itemized statement of Net Profits (as defmed below) and sales tax
report for the fiscal year immediately preceding the commencement of each year of a Renewal
Term, and (ii) a written statement signed by a certified public accountant or by some other person
reasonably acceptable to Lessors, setting forth the amount of Lessee's Net Profit for the
preceding fiscal year. The accountant or other person shall certify that the Net Profits has been
computed in accordance with the definition of "Net Profits" set forth below, and the statement
shall be sufficiently detailed to demonstrate that it was prepared in accordance with such
defmition.
e. As used herein, the term "Net Profits" shall mean the amount of all "Revenues"
less "Expenses" for the relevant period. As used herein, "Revenues" shall include the actual
income generated for the benefit of Lessee from the sale of all merchandise or services in or from
the Premises, including any rental income received by Lessee from third party sub-lessees of the
Premises. As used herein, "Expenses" shall mean all expenses customarily attributed to a
business such as those proposed for the Premises, but shall not include any salary expense paid to
an equity owner of the Lessee.
f. During the Term, Lessee shall keep accurate records of all of its operations.
Lessee shall keep all of the documents relating to its operations for at least 36 months from the
end of each Lease year to which such documents apply. If any audit is required, or there is a
dispute between Lessee and Lessors regarding the amount of the Net Profits, Lessee shall
maintain the relevant records until the audit is complete or the dispute is settled.
g. Not later than 30 days following Lessors' receipt of the deliveries set forth in
Section 2.1(d) above from Lessee, Lessors will deliver to Lessee a written notice setting forth
disputes, if any, with Lessee's determination of Net Profits. Lessors and Lessee shall have 10
business days following the date of Lessors' notice to Lessee to attempt in good faith to resolve
any differences with respect to the determination of the Net Profits. If Lessors and Lessee are
unable to resolve any such disputes within such 10 business day period, then the issues in dispute
will be submitted for resolution in accordance with the procedures set forth in Section 2.I(h)
below.
h. If Lessors and Lessee have a dispute with respect to the calculation of Net Profits
and are unable to resolve the dispute as provided above, then the issues in dispute will be
submitted for resolution to an accountant or accounting firm to be selected jointly by Lessee and
Lessor (the "Referee"). The Referee shall determine the jtem(s) in dispute within 30 days after
the dispute is submitted to it in accordance with this Agreement. If issues in dispute are
submitted to the Referee for resolution, (i) each of Lessee and Lessors will furnish to the Referee
such work papers and other documents and information relating to the disputed issues as the
Referee may request and are available to such party (or its accountants) and will be afforded the
opportunity to present to the Referee any material relating to the determination of the item(s) in
dispute and to discuss such determination with the Referee; and (ii) the determination by the
Referee of the item(s) in dispute, as set forth in a written notice delivered to both parties by the
Referee, will be binding and conclusive on the parties.
!J
i. In the event Lessee and Lessors submit any unresolved disputes to the Referee
for resolution, Lessee and Lessors shall share responsibility for the fees and expenses of the
Referee as follows:
i. If the Referee resolves all of the remaining objections in favor of
Lessee's position (the Net Profits as so determined is referred to herein as the
"Low Value"), then Lessors shall be jointly and severally responsible for all of the
fees and expenses of the Referee;
ii. If the Referee resolves all of the remaining objections in favor of
Lessors' position (the Net Profits as so determined is referred to herein as the
"High Value"), then Lessee shall be responsible for all of the fees and expenses of
the Referee; and
111. If the Referee neither resolves all of the remaining objections in
favor of Lessee's position nor resolves all of the remaining objections in favor of
Lessors' position (the Net Profits as so determined is referred to herein as the
"Actual Value"), then Lessor shall be responsible for that fraction of the fees and
expenses of the Referee equal to (x) the difference between the High Value and
the Actual Value over (y) the difference between the High Value and the Low
Value for the Net Profits, and Lessee shall be responsible for the remainder of the
fees and expenses ofthe Referee.
j. To the extent permitted by law, Lessors shall treat all financial documents
provided by Lessee related to the determinations of Net Profits hereunder as confidential and
shall not release the information to the public without the prior consent of Lessee.
2.2 Maintenance. Lessee agrees to maintain the Premises in substantially the manner
set forth in the Municipal Animal Shelter and Care Services Policies and Procedures Manual
attached to this Lease as Exhibit B.
2.3 Utilities. The City of Aspen shall pay directly to the respective utilities for all
water, sewer, trash collection, alarm services, natural gas, and electric services. Lessee shall pay,
as additional rent, directly to the City of Aspen 82% of the utility bills received from utility
companies or entities providing the utility services referenced above. The tenants of the rental
units shall be responsible for paying the remaining 18% for the above referenced utility services
(10% by the tenants of the two bedroom unit and 8% by the tenant(s) of the one bedroom unit.)
Lessee shall pay directly to the respective utility companies in a timely fashion all deposits,
connection and service charges for utility services not referenced above (e.g. cable television,
and any other utilities used on the Premises from and after the commencement of the term hereof)
and shall indemnify Lessors against any liability therefor. Lessee shall be immediately obligated
to Lessors to repay such sum as additional rent hereunder. Lessors may make inquiries to any
utility serving the Premises regarding the status ofutijity bill obligations.
ARTICLE III
POSSESSION AND USE
3.1 Ooeration of Business. As and in consideration for the use and occupancy of the
Premises and equipment specified hereinabove, Lessee agrees to and shall occupy and use or
cause the Premises to be used for the following purposes:
\ \11\11 111\1 UIIII 111\1 IIII IIII 1111111 II "III IIII \11\ :;~~i~~t;~: 4&
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a. Animal Shelter and Care Services. Lessee agrees to assume the
operational responsibility and management of the Aspen Animal Shelter ("Shelter")
under the terms and conditions as contained in the attached Aspen! Pitkin County Animal
Shelter and Care Services Policies and Procedures Manual (Exhibit "B"), which is fully
incorporated herein. The policies and procedures as contained in said manual may be
amended from time to time as deemed necessary by the Lessors. Lessee's failure to
accept or adhere to modifications in the policies and procedures as specified by Lessors
may cause this Lease to be terminated by either Lessors or Lessee as hereinafter
provided.
b. Private Boarding and Care Services. In further consideration of the
municipal animal shelter and care service to be provided as described above, Lessee shall
be permitted to operate a private animal boarding and care service within that portion of
the Premises as illustrated on Exhibit "A" attached hereto. Such private boarding care
services shaIl comply with all licensing and animal care standards as set forth under any
federal, state Or local law and with the following terms:
1. Lessee shall completely segregate its private animal boarding
and care services from those municipal shelter services it shall provide under the
terms of this Lease. Lessee shall not commingle funds, records, supplies,
equipment, or services between its private operation and the municipal shelter
operations as described above. At not time shall Lessee house its privately
boarded animals with animals housed pursuant to the municipal shelter
provisions contained in this Lease.
3.2 Payment of Taxes. In the event any taxes are levied and assessed upon the
Premises or upon the improvements, fixtures or personal property of the Lessee during the term
of Lessee's occupancy of the Premises, or arising therefrom, or upon the leasehold or possessory
interests as created through this Lease, Lessee shall be solely responsible to satisfy and pay all
such taxes in a timely fashion. Lessee shall not allow any liens for taxes or assessments to exist
with respect to the Premises, except that Lessee may permit such taxes or assessments to remain
unpaid while pursuing any good faith contest or appeal of same.
3.3 Compliance With Laws. Lessee shall during the entire term of this Lease
materially comply with, observe and perform all requirements of law and ordinances, including
timely payment of sales, withholding, FICA, personal property, workers' compensation and
unemployment insurance taxes and payments and shall maintain all required licenses applicable
to the Premises or the use thereof, whether now or hereafter made by any governmental authority,
will each month during the term hereof make available for inspection by Lessors copies of all
such tax, and will indemnifY the Lessors against all losses suffered by reason of any suits, actions,
claims or damages by whomsoever brought or made, by reason, of the non-compliance, non-
observance or nonperformance by Lessee of said laws, ordinances, regulations, orders or required
licenses or this covenant.
304 Local Laws. Lessee shall have the sole responsibility to obtain all local
government regulatory permits or approvals for the occupancy and use of the Premises under this
Lease.
3.5 Restrictions On Use.
a. Nuisance. Lessee shall not use or permit the use of the Premises in any
manner that will create a nuisance or disturb other occupants of the building or properties
adjacent thereto; it being understood and acknowledged that Shelter and boarding
services contemplated hereunder will necessarily involve a certain level of nuisance and
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JANICE K IJOS CAUDILL PITKIN COUNTY CO R 0.00 00.00
1
disturbance for occupants and adj acent properties and that such nuisances and
disturbances will not be deemed a violation of this paragraph.
b. Rental Units. Whenever either of the two rental units are vacant, they
shall be made available first to qualified Shelter Employees. If there are no Shelter
Employees able or willing to rent the rental units, then the units shall be made available
to other qualified City/County employees. In each lease with a Shelter Employee, the
lease agreement shall contain a provision that the lease shall terminate 60 days following
termination, for whatever reason, of tenant's employment with the Shelter. Tenants for
the two rental units shall be qualified through the Aspen/Pitkin County Housing
Authority guidelines. Lessors shall be responsible for the rental unit leases and shall
receive all revenues generated from their leases. Lessee herein shall not be responsible
for any utility or maintenance costs associated with the two rental units.
c. Hazardous Materials. Lessee covenants and agrees not to suffer, permit,
introduce, or maintain any substances or materials which are considered, at any time
during the term of this Lease or any renewal, to be hazardous or toxic under any federal,
state or local laws, rules, or regulations. Lessee shall indemnify, defend and hold Lessors
harmless against any and all loss, cost, or damages of any nature whatsoever (including
without limitation costs and attorney and professional fees) arising out of the introduction
of any hazardous materials on or to the building or the Premises by or on behalf of
Lessee, its contractors, agents, or employees, including, without limitation, the cost of
removing such hazardous materials.
d. Trash. All garbage and refuse shall be kept in closed containers which do
not emit odors as specified by Lessors and shall be placed outside of the Premises,
prepared for collection in the manner and at the times and places specified by Lessors.
e. Temoerature. Lessee shall keep the Premises at a temperature
compatible with comfortable occupancy during business hours and at all times
sufficiently high to prevent freezing of water pipes or fixtures. The plumbing facilities
and systems of the building shall not be used for any purpose; other than that for which
they are constructed, and no foreign substance of any kind shall be thrown into the sewer
system.
f. Utilities. Lessee will not overload or abuse the electrical wiring,
plumbing, floors, walls or structures serving the building and will install at Lessee's
expense any additional electrical wiring which may be required in connection with any of
Lessee's uses, improvements or fixtures, Lessors may have an elec\rical engineer analyze
the Lessee's loads on the system and adequacy of service and if found deficient may give
Lessee notice to upgrade the service. Lessee shall comply with such notice within ten
days. Lessee will not allow water to leak onto or through floors or walls. Lessee further
agrees that Lessee will not install or use any equipment or fixture which will exceed or
overload the capacity of any utility system, and if any equipment or fixture installed by
Lessee shall require additional utility facilities, the same shall be installed and maintained
at Lessee's expense in accordance with plans and specifications which shall be approved
by Lessors in writing before installation.
g. Clean Condition. The Premises and every part thereof shall be kept by
Lessee in a reasonably neat, orderly and clean condition. Lessee shall take no action
which would jeopardize Lessors' title to the Premises or jeopardize the value of the
Premises or the building.
h. Antennae. No communications antennae or dish shall be erected on the
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~
roof or outside of the Premises without first obtaining Lessors' written consent.
i. fugn. Lessee may maintain one acceptable sign on the Premises which
conforms to requirements of any applicable County zoning and building codes.
j. Lighting. Lessee shall not install in, on, or about the Premises any
exterior lighting or use in, on or about the Premises any advertising medium or other
device which may be heard or experienced outside the Premises, including but not limited
to flashing tights, flashlights, loudspeakers, tapes, cd's or phonograph records or radio
broadcasts, awnings, or any change to the exterior of the building without first having
obtained Lessors' written consent.
k. Surfaces and Walls. Lessee shall not deface, gouge, mark, paint, stain,
drill or otherwise alter the surfaces and walls inside or outside of tbe Premises or any of
the support columns without the prior specific written approval of Lessors. Lessee shall
repair any damage to the surfaces or support columns caused by Lessee.
\. Notice. In the event Lessee is in violation of any of the foregoing
restrictions on use or is in violation or breach of any other provision of this Article III,
Lessors shall provide Lessee with written notice to Lessee specifYing the nature of such
of violation or breach. Lessee shall have thirty (30) days following such written notice to
cure, adjust or correct the violation or breach. If Lessee fails to cure the breach or default
within such time period, Lessor shall have the right to assess a penalty of$500.00 plus all
costs of correcting such violation against Lessee as Additional Rent to be paid the first of
the month following notice of such assessment. Lessors shall not be liable to Lessee for
any claim of damages for correcting such violation.
ARTICLE IV
CONSTRUCTlON-AL TERATIONS-REP AIRS
4.1 Alteration at Lessee's Expense. Following the issuance of a certificate of
occupancy and inspection of Premises by Lessee that is to its reasonable satisfaction, Lessee
agrees to accept the property in its present condition, as is, without calling upon Lessors to make
any other expenditures or to perform any work for the preparation of the Premises for Lessee's
use, provided that it will be delivered clean with the existing plumbing, heating and electrical
systems functioning and in good repair and in substantial conformity with the plans and
specifications set forth on Exhibit C attached hereto. Lessee shall, at its own cost and expense,
make any necessary alterations and installations in the Premises required for Lessee's business,
using a contractor or contractors who shall have been approved in writing by Lessors, which
approval shall not to be unreasonably withheld.
4.2 Preconditions. Prior to commencing any work or installing any fixtures or
equipment. Lessee shall comply with the following preconditions.
a. Approval of Plans. Lessee shall submit the plans and specifications for
such alterations to Lessors for written approval. Such approval will not be umeasonably
withheld and the request for approval shall be responded to within five business days
after receipt by Lessors of such plans. All work to be done by Lessee shall be performed
in a workmanlike manner in strict accordance with the approved plans and specifications
without any deviation therefrom, unless such deviation is also first approved in writing by
Lessors. In the event of any construction which is a material deviation from any approved
plans in violation hereof, Lessors shall have the right to demand construction be
immediately stopped, and, if construction continues 24 hours after such notice, Lessors
may dispossess Lessee, lock and secure the Premises and cause all work to cease until
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JANICE K vas CAUDILL PITKIN COUNTY CO R 0.00 D 0.00
q
there is compliance with this provision.
b. Permits. Lessee shall obtain (and Lessors shall provide reasonable
assistance in obtaining) the necessary consents, authorizations and licenses from federal,
state and municipal authorities having jurisdiction over the work to be done; and no work
shall be started or equipment installed unless and until all such necessary consents,
authorizations and licenses shall have first been duly obtained by the Lessee or its
contractor or other persons doing the work or installing the equipment on behalf of
Lessee. Lessee shall reimburse Lessors for any expenses incurred on account of the
failure by Lessee to comply with any such requirements; and any expenses so incurred by
Lessors as aforesaid shall be deemed Additional Rent under this lease and due and
payable by Lessee to Lessors on the first day of the month immediately following the
payment of the same by Lessors.
c. Contract - Copv to Lessors. Lessee shall enter into contracts with
contractors and persons who will do the work and install the equipment referred to, which
contract will provide that the work shall be done in a good workmanlike manner in
accordance with the approved plans and specifications and permits and licenses
previously obtained and which contract shall provide that the contractor or other persons
above referred to will look solely to Lessee for payment and will hold Lessors and the
property free from all liens and claims of all persons furnishing labor or materials
therefor, or both, and will also require that similar waivers of the right to me liens shall
be obtained from subcontractors or material men. A copy of the contract and evidence of
its recording with the county clerk together with a duly executed waiver of the right to
file liens executed by the contractor or other persons above referred to shall be furnished
to Lessors prior to beginning work.
d. Insurance - Copv to Lessors. Lessee or any contractor or subcontractors
employed by Lessee or any other persons who will do the work or install the equipment
as aforesaid shall be fully covered by workers' compensation insurance, and a copy of the
certificate thereof shall be furnished to Lessors before commencement of any work by
any such contractor or persons as aforesaid. Lessee covenants and agrees to indemnify
and hold Lessors harmless from any and all claims for personal injury, death or property
damage occasioned during the progress or as a result of any or all of the work done as
aforesaid in or about the Premises or the building
4.3 Mechanics Lien: Notice. Lessee shall keep the Premises and the building free and
clear of all mechanics, material men's and other liens on account of work done for Lessee. Lessee
shall indemnify Lessors against liability, loss, damage, costs or expenses, including attorney fees,
on account of claims of lien of laborers or material men or others for work performed for or
materials or supplies furnished to Lessee. If Lessee shall desire to contest any claim or lien,
Lessee shall furnish to Lessors security of a cash deposit with Lessors of 20% of the amount of
the claim, plus estimated costs and interest, conditioned on the discharge of the lien or a corporate
surety bond meeting requirements of the applicable statutes sufficient to discharge any lien. If a
final judgment establishing the validity of a lien is entered, Lessee shall pay and satisfY the same
at once. If Lessee shall be in default in paying any charge for which a mechanic's lien claim or
suit to foreclose the lien has been recorded or filed and shall not have given Lessors security as
aforesaid, Lessors may (but without being required to do so) pay said lien or claim and any costs,
and the amount so. paid, together with reasonable attorney fees and costs and expenses incurred
by Lessors in cormection therewith shall be immediately due and owing from Lessee to Lessors
with interest at the rate of 5% per annum from the dates of Lessors' payments. Should any claims
of lien be filed against the Premises or the building or any action affecting the title thereto be
commenced, Lessee shall give Lessors written notice thereof as soon as possible. During any such
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work, Lessors shall have the right to post and keep posted upon the premises notices that Lessors'
interest in the Premises should not be subject to any lien for such work done. Lessors hereby
designates Lessee as its agent for the sole purpose of posting in a conspicuous place upon the
Premises a notice containing the following language which Lessee shall be required to post prior
to commencement of any work:
Notice. The interest of Lessors of these premises, the City of Aspen and the Board of
County Commissioners of Pitkin County, and the building and lands upon which it is situated
shall not be subject to any lien for work done or materials or equipment supplied by any
contractor or other person for Lessee's improvements pursuant to this Notice and ~ 38-22 105(2),
C.R.S.
4.4 Lessee to Compensate Lessors for Insurance Increase. Lessee shall pay upon
demand as additional rent hereunder any increase in Lessors' insurance premium, which results
solely and directly on account of Lessors' endorsements covering the risk during work or upon
completion of such alterations or improvements or as a result of subsequent use of the premises
by Lessee.
4.5 Lessee's Maintenance and Reoair Obligation. Lessee agrees, during the term
hereof, and at Lessee's expense, to maintain the interior of the Premises in good condition and
promptly and diligently repair any damage to every part thereof including walls, partitions, doors,
door jambs, closets, door hardware, fixtures, glass, floors, ceilings, railings, banisters, plumbing
lines and fixtures, electric lines and fixtures, gas lines and fixtures, heating and any other items
and services associated with the Premises, with the exception of wear and tear and aging
consistent with normal animal shelter and boarding kennel use, and except such damage as is
attributable to the negligence or the act or omission of Lessors, to promptly and diligently repair
any damage to other premises in the building attributable to the negligence or the act or omission
of Lessee, or Lessee's employees, guests, or invitees, to maintain and promptly and diligently
repair, improve or remodel the interior of the Premises to meet requirements of any governmental
authority having jurisdiction thereof, and maintain in good condition and promptly and diligently
repair any damage to (or replace if necessary in the circumstances) any trade fixtures installed in
or attached to the Premises. Lessee shall also be responsible for maintenance of grounds and
landscaping as well as the parking lots. Lessors will be responsible for snow-plowing.
a. In the event of default by Lessee for failure to perform Lessee's repair
and maintenance obligations, Lessors shall have the right, but not the obligation, to
perform such work as Lessors deem necessary; and all such costs shall be payable by
Lessee on demand as Additional Rent hereunder due on the first day of the following
month. Lessors shall have no responsibility for damage caused through defects or
malfunctions of equipment operated by another Lessee. Lessee agrees to make repairs or
compensate any other Lessee of Lessors for damages caused such Lessee by the
negligence or act or omission of Lessee or Lessee's employees.
b. Lessor reserves the right, from time to time, at is own expense and by its
officials, employees and contractors, to make such alterations, renovations or repairs in
and about the Premises, other than those noted above as required by Lessee. Lessee shall
make no claim against Lessors for any interference with its interest as herein provided in
the Premises. Lessors shall provide reasonable notice to Lessee in advance of any intent
to undertake alterations or repairs as authorized in this paragraph and all work shall be
performed at such time as mutually agreed to between the parties so as to eliminate or
minimize any disruption of Lessee's business.
4.6 Lessors' Repair Obligation.
/1
a. With respect to Lessors' repair obligations hereunder, if the damage to the
Premises or the building, as the case may be, is covered by standard fife and extended
coverage insurance and exceeds 50% ofthe then replacement cost of the Premises or the
building, as the case may be (excluding foundation and excavation costs), or if the
damage to the Premises or the building is not covered by such insurance or if the damage
is such that the Premises or building, as the case may be, carmot reasonably be repaired or
reconstructed within a period of 90 days, Lessors may (but without any obligation to do
so) elect to repair or reconstruct the same, in which event this lease shall continue in full
force and effect, or Lessors may elect not to repair or reconstruct the same, in which
event this lease shall terminate. In any such event, Lessors shall give written notice to
Lessee of Lessors' intention within 60 days from the date of destruction; and, if Lessors
shall elect to repair or reconstruct the Premises or the building, as the case may be,
Lessors shall exercise diligence in commencing the work and in prosecuting the same to
completion. Lessee shall not be entitled to damages from Lessors in the event of damage
or destruction of the Premises or said building, by reason of leaking of any water or
sewer pipes, or neglect of other Lessees, or water coming through the ceiling, or gas or
electrical problems or for interruption of services or any inconvenience or loss of
business or property sustained by Lessee unless such loss is attributable to the negligence
or the intentional net or omission of Lessors.
b. Lessee's Monthly Rent obligation hereunder shall abate during any
period Lessors' repair obligation exists and when the Premises are so damaged as to be
unusable by Lessee, unless the damage was caused by Lessee or Lessee's employees,
agents, guests or invitees, in which case the rental oblige ion shall continue.
ARTICLE V
TRADE FIXTURES
5.1 Lessors' Furniture. Fixtures and ECluipment CFF&E). Lessors are the owners of all
attached furniture, fixtures and equipment on the Premises as of the commencement date. These
fixtures are and shall remain the property of Lessors. Lessee covenants it will maintain, repair
and/or replace (with items of equal or better quality) any of such FF&E so that, at the expiration
or earlier termination of this lease, Lessee shall return to Lessors all FF&E which are part of the
initial inventory or qualifYing replacements in good condition subject to normal wear.
a. Annual Inventorv. Initial inventory shall be agreed upon by Lessors
and Lessee within 60 days of the beginning of this Lease and shall be updated whenever
additional fixtures or equipment is added by Lessors.
5.2 No Warranties bv Lessors. Lessors, not being the manufacturer of the FF&E or
manufacturer's agent, MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS
OR IMPLIED, WITH RESPECT TO, AMONG OTHER THINGS, FITNESS, QUALITY,
DESIGN, CONDITION, CAPACITY, SUITABILITY, MERCHANTABILITY, OR
PERFORMANCE OF THE FF&E OR OF THE MATERIAL OR WORKMANSHIP THEREOF,
IT BEING AGREED THAT THE FF&E IS LEASED "AS IS" AND THAT ALL SUCH RISKS,
AS BETWEEN LESSORS AND LESSEE, ARE TO BE BORNE BY LESSEE AT ITS SOLE
RISK. Lessors shall not be liable to Lessee for any liability, loss, or damage caused or alleged to
be caused directly Or indirectly by the FF&E, by any inadequacy of or defect therein or by any
incident in connection therewith, Lessee, accordingly, agrees not to assert any claim whatsoever
against Lessors based thereon. Lessee further agrees, regardless of cause, not to assert any claim
whatsoever against Lessors for loss of anticipatory profits or consequential damages. No oral
agreement, guarantee, promise, condition, representation, or warranty shall be binding.
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5.3 Surrender of Premises: Treatment of Lessee's Alterations at Expiration or
Termination of Lease. Upon termination of this lease or termination of Lessee's possession rights
in the leased Premises, Lessee shall promptly deliver possession thereof to Lessors. All
alterations, additions, improvement's, partitions, flooring, carpeting, plumbing fIxtures, shelving
and other fixtures (excepting Lessee's trade fixtures which can be removed without material
damage to the leased Premises, which shall remain the property of Lessee provided Lessee
completely repairs such damage), which may be made or installed by Lessee upon the leased
Premises during the term of this lease and which in any manner are attached to the floors, walls,
windows, or ceilings, shall become the property of the Lessors upon the expiration or other
termination of this lease or of Lessee's possessory rights hereunder. In all other respects, Lessee
shall return the Premises to Lessors in their original condition existing at the commencement of
this lease. Lessee agrees to retum the Premises to substantially the same office configuration
(walls, partitions, doors, etc.) as when delivered to Lessee at the commencement of the lease.
Lessee agrees to perform the work to return the Premises to the configuration employing
professional contractor services, and to perform the work prior to the termination of the lease.
Lessors shall n\)tify Lessee sixty (60) days prior to the expiration of the lease for enforcement or
waiver of this provision.
ARTICLE VI
INSURANCE
6.1 Liabilitv and Comprehensive Insurance. Lessee shall maintain comprehensive all
risks casualty, public liability and property damage insurance (at replacement values), with
responsible insurance companies licensed to conduct business in Colorado and acceptable to
Lessors which will insure Lessors and Lessee against liability for bodily injury, loss of life, or
other injury, with limitations in amounts deemed reasonable by Lessors, and shall name Lessors
and, at Lessors' option, Lessors' mortgagee as an additional insured with respect to each such
policy. The amount of this insurance, without co-insurance clauses, shall not be less than the
maximum liability that can be imposed upon the City of Aspen and the Board of County
Commissioners of Pitkin County under the laws of the State of Colorado found at c.R.S. g 24-10-
101, et. seq., as amended. At present such amounts shall be as follows:
$150,000.00 for any injury to one person in any single occurrence;
$600,000.00 for any injury to two or more persons in any single
occurrence.
In no event shall such insurance amounts fall below those maximum liability limits as set forth at
C.R.S. g 24-10-114, as amended.
Copies of such policies shall be promptly delivered to the Lessors upon issuance thereof;
and, as often as any such policy or policies shall expire or terminate, renewal or additional
policies shall be procured and maintained by Lessee and copies promptly furnished to Lessors.
Lessee shall name Lessor as co-insured or additional insured on all insurance policies and such
policies shall provide for a ten-day advance written notice to Lessors in the event of cancellation
or material change in coverage or 20 days' advance notice of cancellation for nonpayment. To the
maximum extent permitted by the insurance policies owned by Lessors and Lessee, the parties
hereto for their mutual benefit waive any and all rights of subrogation which might otherwise
exist. If Lessee fails to comply with this paragraph, Lessors shall have the right to obtain the said
insurance and pay the premiums therefor; and, in such event, the entire amount of such premium
shall be immediately paid by Lessee to Lessors upon demand and as Additional Rent hereunder.
6.2 Indemnification. Lessee agrees to indemnify Lessors against all demands, claims,
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causes of action, and any expenses (including attorney fees) incurred in resisting such claims, for
injury to person, loss of life or damage to property occurring during the term of this lease or any
extension thereof and (a) occurring on the Premises and arising out of Lessee's use and occupancy
thereof or (b) occurring outside the Premises if caused by the act, omission or neglect of Lessee
or the employees, agents, contractors, licensees, guests, invites, or sub-Lessees thereof.
6.3 Fire Insurance. Lessors shall insure the building against fIre and other damage to
the building for the leased space. During the term hereof and any extension thereof, Lessee shall,
at its expense, maintain in full force and effect on all of the trade fixtures, interior furnishing, wall
and floor coverings and inventory in the Premises a policy of fire, theft and malicious mIschief
insurance coverage with standard extended coverage endorsement to the extent of replacement
cost value naming Lessors as an additional insured party. Lessee shall provide copies of such
policy and any renewals and extensions thereof to Lessors promptly upon issuance. As long as
this lease is in effect, the proceeds from any such policy shall be used for the repair or
replacement of the trade fIxtures and inventory so insured.
604 Waiver of Subrogation. Anything in this lease to the contrary notwithstanding,
neither Lessors nor Lessee shall be liable to the other for any business interruption or any loss or
damage to property occurring on the Premises or the building or in any manner growing out of or
connected with Lessee's use and occupation of the building or the condition thereof caused by the
negligence or fault of Lessors or Lessee or of their respective agents, employees, sub-Lessees,
licensees, or assignees to the extent that such business interruption or loss or damage to property
is coverable by a standard all-risk or special form policy (including, at a minimum, fIre and
extended coverage insurance) or a business interruption policy (regardless of whether such
insurance is carried or not) or for which such party is otherwise reimbursed; and Lessors and
Lessee each waive all right of recovery against the other, its agents, employees, sub-Lessees,
licensees, and assignees for any such loss or for damage to the property of the waiving party.
Each of the parties shall notify its respective insurance carrier that the foregoing waiver is
contained in this lease and shall require such carrier to include an appropriate waiver of
subrogation provision in its policies.
ARTICLE VII
UTILITIES
7. I SupPlied to Premises. Lessors shall pay for costs of supplying utilities to the
Premises, except for any additional telephone lines required by Lessee (which shall be paid for by
Lessee).
7.2 Interruption of Services. Lessors shall not be liable to Lessee in damages or
otherwise; (i) if any utility shall become unavailable from any public utility company, public
authority, or any other person or entity (including Lessors) supplying or distributing such utility
or (ii) for any interruption in any utility service caused by the making of any necessary repairs or
by any cause beyond Lessors' reasonable control or enforcement of the provisions of this
paragraph, and the same shall not constitute a termination of this lease or an eviction of Lessee.
Lessors shall use reasonable efforts to att<:mpt to schedule any necessary repairs during times
when Lessee is not open for business.
7.3 Notice. Lessee agrees to notify promptly the Lessors or its representative of any
accidents or defects in the Premises of which Lessee becomes aware, including defects in pipes,
electric wiring, and heating or ventilation equipment. In addition, Lessee shall provide Lessors
with prompt notification of any matter or condition of the Premises which may cause injury or
damage to the building or any person or property therein.
1111111111111111 1111 II ~~~~~;0~f 0~~ 44
JANICE K vas CRUDILl PITKIN COUNTY CO R 0.00 0 0.00
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ARTICLE VIII
DEFAULTS
8.1 Lessee's Default. Each of the following events shall be deemed an "event of
default" or a "default" hereunder ifnot cured within the time allowed by Paragraph 8.2 hereof.
a. Monetary Default. Any breach of or failure to pay Rent due or other
monetary amounts due hereunder ifnot paid within five (5) days of the date due.
b. Other Obligations. Any failure of Lessee to perform any other obligation
hereunder .
c. Seizure. Seizure of this lease or the Premises by execution or other
process of law directed against Lessee and not discharged within thirty (30) days.
d. Abandonment or Failure to OCCUpy. Lessee shall vacate (except for
temporary closures expressly permitted under the Lease) or abandon the Premises
provided that, except as otherwise specifically allowed hereunder. Lessee shall be
deemed to have abandoned the Premises, in the event Lessee fails to operate its business
therein for five consecutive business days (unless due to causes beyond Lessee's
reasonable control). Lessee shall fail to take possession of the Prenlises within thirty (30)
days of the receipt of a certificate of occupancy.
e. Assignment or Transfer. This Lease or the successor in interest of Lessee
hereunder shall be transferred to or shall pass to or devolve upon any other person or
party except as expressly consented to by Lessors in the manner herein provided.
f. Failure to oav Debts. Lessee generally fails to pay its debts as they
become due, and such failure continues after notice and a reasonable opportunity to cure.
g. Illegal Activitv. Lessee shall not at any time, knowingly suffer or
knowingly permit any illegal activity on or use of the Premises by Lessee, its sub-
Lessees, licensees, agents or employees.
8.2 Right to Cure. Lessee shall have a period of ten (10) business days after written
notice is sent from Lessors to cure any failure to pay any Rent or monetary amount due under the
lease. Lessee shall have a period of thirty (30) business days after written notice of the failure to
perform or observe any other (non-monetary) term, condition, covenant or agreement of Lessee
under this lease to cure such failure or, if the faihn-e cannot by exercise of reasonable diligence be
remedied within thirty (30) business days after written notice of the failure is delivered to Lessee,
Lessee fails to commence efforts to cure the failure within thirty (30) business days after written
notice of the failure is delivered to Lessee, or if Lessee commences its efforts to cure but
thereafter fails to diligently pursue all action reasonably necessary to cure the failure, or if Lessee
fails actually to cure the failure in all respects within 45 days following delivery of written notice
of the failure to Lessee.
8.3 Lessors' Rights. Should Lessee at any time be in default in the performance of
any of its covenants herein and fail to cure such default within the time periods allowed by
Paragraph 8.2 above, Lessee's right to possession of the Premises shall automatically terminate.
Upon the termination of Lessee's possessory rights in the leased Premises pursuant to the
preceding sentence, the Lessee shall peacefully surrender the Premises to the Lessors. Lessors, at
its option, upon the occurrence of any event of default and at any time thereafter while such event
of default continues, shall have the right to declare by written notice to Lessee the term of this
lease ended on the date of such notice or any later date specified therein, to take possession of the
Premises, to exclude Lessee from the Premises, and to remove all persons from the Premises.
1111111111111111111111 ~~~~~r0~f 0;~44
JANICE < VOS CAUDILL PITKIN COUNTY CO R 0.00 00.00
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After Lessors declare the term ended as provided herein, Lessee shall have no further claim or
right to possession of the Premises.
8.4 Remedies: Damal!es. In the event Lessors terminate Lessee's right to possession of
the Premises pursuant to Paragraph 8.3 above, Lessors shall be entitled to payment from Lessee,
as its sole remedy hereunder, Lessors' direct and reasonable (i) repossession expenses, (ii)
broker's commissions, and (iii) repair costs, it being acknowledged that ordinary wear and tear
will be excepted.
8.5 Lessors' Lien. To secure the payment of all Rent and other sums of money due
and to become due hereunder and the faithful performance of this lease by Lessee, Lessee hereby
grants to Lessors an express first and prior contract lien and security interest on all tangible
property belonging to Lessee (including fixtures, equipment, furniture, furnishings, and other
chattels, but excluding inventory and merchandise) which may be placed in the Premises and also
upon all proceeds of any insurance which may accrue to Lessee by reason of destruction of or
damage to any such property. Such property shall not be removed from the Premises by Lessee,
its agents or assigns, without the prior written consent of Lessors until all arrearages in Rent and
other sums of money then due to Lessors hereunder shall first have been paid. All exemption laws
are hereby waived in favor of said lien and security interest. The provisions of this Paragraph
shall constitute a security agreement under the Uniform Commercial Code. This lien and security
interest is given in addition to any statutory lien to which Lessors is entitled and shall be
cumulative thereto upon the occurrence of am event of default. This lien may be foreclosed with
or without court proceedings by public or private sale provided Lessors gives Lessee at least ten
days' notice of the time and place of said sale; and Lessors shall have the right to become the
purchaser, upon being the highest bidder at such sale.
8.6 ProPerty Left on Premises. Any property of Lessee or of anyone claiming under,
by or through Lessee which is left on the Premises more than 15 days after expiration of the term
of the lease or termination of possessory rights shall be conclusively deemed abandoned; and
Lessors may keep, use, remove, store, sell, destroy, discard, or otherwise deal with it in Lessors'
absolute discretion without liability of any sort to Lessee or anyone claiming under, by or through
Lessee.
ARTICLE IX
ASSIGNMENT OR SUBLETTING
9.1 Lessors' Consent to Assignmtlnt Reouired. Lessee shall not transfer, assign,
sublet, mortgage, encumber, or hypothecate this lease or Lessee's interest in and to the Premises,
or any part thereof without first procuring the written consent of Lessors which shall not be
unreasonably withheld or delayed (within 45 business days of written request from Lessee). Any
assignment or sublet applicant shall be equally or more qualified financially to perform the
obligations of this lease. Any attempted transfer, without required consent, shall be void and shall
constitute a default by Lessee under this lease. In the event of an approved assignment, such
transferee, assignee, sublessee or mortgagee shall agree in writing for the benefit of the Lessors to
assume, to be bound by and to perform Lessee's obligations under the terms, covenants and
conditions of this lease upon any such assignment. Lessee shall remain liable to Lessors as a
principal and not merely as a surety for the full performance of the obligations of the Lessee
hereunder. The granting of a management contract, concession or license to any person, firm or
corporation to operate in or u.se in any manner, any portion of the Premises shall be deemed a
subletting. Prohibition on assignment and subletting of this lease, except as specifically excepted
herein, includes a prohibition on any assignment which would otherwise occur by operation of
law, merger, consolidation, reorganization, transfer or other change of Lessee's capital structure
111111111111111111111111 ~~~~L~f 0;~ 44
JANICE K VOS ~ILL PITKIN COUNTY CO R 0. 01l 0 0.00
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or ownership, in whole or in part, and to an assignment to or by a receiver or trustee in any
federal or state bankruptcy, insolvency, or similar proceeding
9.2 Sub1easinl! to businesses within Premises. The parties hereto acknowledge that
Lessee's business plan requires that a certain portion of the Premises may be sublet to businesses
that are compatible to the operation of an animal shelter. The parties hereto further acknowledge
that Lessee may charge those third party businesses for rent or for other services rendered by
Lessee. Lessee shall obtain the prior written approval of Lessors prior to entering into any sublet
with third party businesses to operate within the Premises. The approval of Lessors shall not be
unreasonably withheld and Lessors approval or disapproval shall not be delayed by more than 10
business days. All revenues recei ved by Lessee from such third party business relationships
operating out of the Premises shall be included in Net Profit as that term is defmed in this Lease
Agreement.
9.3 No Waiver. Consent by Lessee to anyone assignment or sublease shall not
constitute a waiver with respect to any further assignments or subleases. Lessors, in approving
any assignment or sublease, shall be entitle to consider among other things the financial
capability of the assignee or sublessee and compatibility of the proposed use with other uses in
the building. If Lessee shall purport in violation hereof to assign this lease or sublet all or any
portion of the Premises or permit any person or persons other than Lessee to occupy the premises,
Lessors may collect rent from the person or persons then occupying the premises and apply the
net amount collected to any damages or the rent reserved herein, but no such collection shall be
deemed a waiver of this Article or the acceptance by Lessors of such purported assignees or
subleases of Lessee or occupant or the release of Lessee of the further performance by Lessee of
covenants of Lessee herein.
ARTICLE X
GENERAL PROVISIONS
10.1 Successors to Lessors. The term "Lessors" herein shall be limited to mean and
include only the owner or owners at the time in question of the fee interest in the building; and, in
the event of any transfers of the title to such fee, Lessors herein named (and, in the case of any
subsequent transfers or conveyances, grantor) shall be automatically freed and relieved, from and
after the date of such transfer or conveyance, of all liability as respects the performance of any
covenants or obligations on the part of Lessors contained in this lease thereafter to be performed,
provided transferee shall in such assignment agree to assume and perform Lessors' obligations
hereunder and provided that any funds in the hands of Lessors or the then grantor at the time of
such transfer, in which Lessee has an interest, shall be delivered to the grantee, it being intended
hereby that the covenants and obligations contained in this lease on the part of Lessors shall be
binding on Lessors, its successors and assigns, only during and in respect to their respective
successive periods of ownership of the fee.
10.2 Subordination to Mortgage. This lease and all right of title Lessee hereunder are
and shall be subject and subordinate to the lien of any and all mortgages or consolidated mortgage
or mortgages which may now or hereafter affect the Premises or building or any part thereof and
to all renewals, modifications, consolidations, replacements and extensions thereof, provided that
any such mortgage placed upon the Premises shall provide that, as long as there shall be no event
of default outstanding in any of the terms, conditions, covenants or agreements of this lease on
the part of the Lessee to be performed, the leasehold estate of the Lessee created hereby shall be
undisturbed by any foreclosure of such mortgage. Lessee agrees to execute such instruments as
may reasonably be requested by any beneficiary or mortgagee to evidence and make a record of
the fact that this lease is to be inferior to any such deed of trust or mortgage as well as provide
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copies of any financial statements which may be requested from time to time by any such
beneficiary or mortgagee.
10.3 Subdivision. Lessors reserves the right, without the consent of the Lessee, to
execute and record such declarations, restrictive covenants, maps or other documents or
amendments or supplements thereto for the purpose of subdividing or re-subdividing the building
containing the Premises into separate units and common elements pursuant to the Colorado
Common Interest Ownership Act, provided that the Lessors' right as declarant and owner thereof
shall be subject and subordinate to the possessory and other rights of the Lessee to the Premises
under this lease.
10.4 Accord and Satisfaction. No payment by Lessee or receipt by Lessors of a lesser
amount than the Rent due hereunder shall be deemed to be other than on account of the earliest
rent due and payable hereunder. Any endorsement or statement accompanying or inserted upon
any check or payment as rent shall not be deemed an accord and satisfaction, and Lessors may
accept any such check or payment without prejudice to Lessors' rights to recover the balance of
such rent or pursue any other remedy provided in this Lease or at law or in equity.
10.5 Non-Waiver. Failure of Lessors to require strict performance of any covenant or
condition shall not be deemed a waiver of such covenant or condition as to that or any subsequent
failure. One or more waivers of any breach of any covenant or condition by Lessors shall not be
construed as a waiver of a subsequent breach of the same or any other covenant or condition, and
the consent or approval by Lessors to or of any act by Lessee requiring Lessors' consent or
approval shall not be deemed to waive or render unnecessary Lessors' consent or approval to or
of any subsequent similar or dissimilar act by Lessee. The acceptance of rent hereunder by
Lessors shall not constitute a waiver of any preceding breach by Lessee of any term, covenant, or
condition of this lease other than the failure of Lessee to pay the particular rental so accepted,
regardless of Lessors' knowledge of such preceding breach at the time of acceptance of such rent.
No waiver of any provision of this lease shall be effective unless it is in writing and signed by
Lessors.
10.6 Estoppel Certificates. Lessee agrees at any time and from time to time, upon ten
days' prior request by Lessors, to execute, acknowledge, and deliver to Lessors a statement in
writing certifying that this lease is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating the modifications),
and the dates to which the Rent and other charges have been paid in advance, if any, and
confirming Lessee's acceptance of the Premises, the commencement of the lease term, and the
Rent provided under the lease, and any ether affirmations or certifications reasonably requested
by Lessors with the intent that the statement delivered, may be relied upon by any prospective
purchaser, mortgagee, or assignee of any mortgagee of the building or the Premises.
10.7 Attornev Fees. Reasonable costs and attorney fees and other expenses incurred
by the Lessors in obtaining legal advice, preparing notices or demands or otherwise enforcing any
provision of this lease by reason of a default by the Lessee or by anyone holding under Lessee in
complying with any requirement of this lease shall be paid by Lessee as Additional Rent within
three days of notice of the amount thereof. All attorney fees incurred by the Lessors by reason of
any action which Lessors shall institute or be made a party because of this Lease (unless Lessors
is joined because of acts of Lessors determined by such litigation to be wrongful) shall be
awarded to Lessors.
10.8 Interest. Without affecting any of Lessors' rights hereunder, any sum provided
for herein accruing to Lessors under the provisions of this Lease other than monthly rent which
shall not be paid when due shall bear interest at the rate of 7% per armum from the date of an
let
event of default until paid in full.
10.9 Recordinll:. Lessee shall not record or permit the recordation of this Lease or any
assignment, sublease, license, grant of concession, mortgage or any other document evidencing
the transfer or hypothecation of all or any part of this Lease or Lessee's interest in the Premises
without in each instance having received the prior written consent of Lessors. Lessors may file or
record this Lease or any of the documents related to this Lease or a summary of some or all of the
provisions hereof at any time without Lessee's consent.
10.10 Notices. Wherever in this lease it shall be required or permitted that notice or
demand be given or served by either party to this lease on the other, such notice or demand shall
be given or served in writing and either personally served at or forwarded by certified mail to the
following addresses and shall be deemed effective upon personal service or deposit as certified
mail.
To Lessors:
For City:
Aspen City Manager
130 South Galena Street
Aspen, Colorado 816 I I
Pitkin County Manager
530 East Main Street
Aspen, Colorado 81611
For County:
With a Copy To:
John M. Ely, Esq.
Pitkin County Attorney's Office
530 East Main, Suite 302
Aspen, Colorado 81611
To Lessee:
Sachson Inc, Lessee
Aspen Pitkin County Animal Shelter and
Boarding Kennel
101 Animal Shelter Road
Aspen, Colorado 81611
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With a Copy To:
Michael H. Newman, Esq.
Gardere Wynne Sewell LLP
160 I Elm S1reet Suite 3000
Dallas, TX 75201-2761
Either party may change such address from time to time by written notice given as herein
above provided.
10.! 1 Additional. In addition to the other remedies in this lease provided, Lessors shall
be entitled to the restraint by injunction of the violation or attempted or threatened violation of
any of the covenants, conditions or provisions of this lease.
10.12 Holding Over. Any holding over after the expiration of the term hereof shall be
construed to be a tenancy from month to month with the Fixed Monthly Rent at 150% of the rent
herein provided for the last month of the term or any extension of the term hereof and which
tenancy shall otherwise be on the conditions herein specified except that Lessors shall have the
right to terminate such tenancy at the end of any calendar month upon ten days' advance written
notice.
10.13 Covenant of Quiet Eniovment. So long as the Lessee is not in default or breach
hereunder, the Lessors covenants that the Lessee shall peaceably and quietly occupy and enjoy
the leased Premises subject to the terms hereof. The Lessors warrants and agrees to defend the
title to the Premises and further warrants that it has full authority to execute this lease.
10.14 Severability. The terms, conditions, covenants, and provisions of this lease shall
be deemed to be severable. If any provision contained herein shall be determined to be invalid 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.
10.15 Entry-bv Lessors. Lessors and his authorized agents, employees, attorneys and
contractors shall be entitled, at all posted business hours (and in emergencies at all times), to enter
the Premises to inspect the same or determine compliance herewith and shall have all such rights
as may enable Lessors promptly, efficiently and economically to carry On any work or repair,
reconstruction, or restoration, to which Lessors is obligated hereunder. Lessee waives any claims
for damages for business interference, inconvenience or loss of quiet enjoyment or other loss
occasioned by such entry and repairs unless such repairs were occasioned by the negligence or
intentional acts of Lessors. Lessors and his authorized representatives shall have the right to enter
the Premises at times other than Lessee's business hours to exhibit the Premises to perspective
purchasers, lenders, or Lessees. Lessors agrees to provide Lessee with reasonable prior notice,
whenever he deems it necessary to enter. Lessors shall at all times have and retain a key with
which to unlock all of the doors in, on, or about the Premises. Lessee may not change the locks on
the Premises without Lessors' prior written approval; and, upon such approval Lessors shall be
provided a key to any changed locks. Lessors shall have the right to use any and all means which
Lessors may deem proper to open doors in and to the Premises in an emergency in order to obtain
entry to the Premises. Any entry to the Premises obtained by Lessors by any means shall not
under any circumstances be construed or deemed to be a forcible or unlawful entry into or a
detainer of the Premises, or an eviction, actual or constructive of Lessee from the Premises, or
any portion thereof, nor shall any such entry entitle Lessee to damages or an abatement of rent or
other charges, which this lease rcquires Lessee to pay.
10.16 Binding Effect. This lease and all agreements herein containcd shall bind the
parties hereto. Each term and each provision of this lease shall be construed as and shall have the
same force and effect as though made in the form of a covenant. The parties covenant that the
111111111111111111111111111 ~~;~~;0~f 0~~ 4L
JANICE K VOS Cj:lUDILL PITKIN COUNT\( CO R 0.00 0 0.00
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signatory to this lease has the authority to sign on behalf of the principal.
10.17 Counterparts. This lease may be executed in counterparts and with facsimile
signatures which taken together shall be one document. The parties shall deliver original signed
copies within seven days of facsimile transmission of their signatures.
10.18 Goveming Law. This lease shall be construed in accordance with the laws of the
State of Colorado. The parties agree to submit to the personal Jurisdiction of the State of
Colorado in connection with any action or proceeding relating to this lease or the Premises. The
parties expressly acknowledge and agree that venue of any action shall be in Pitkin County,
Colorado.
10.19 Time of Essence. Time is of the essence for all obligations in this lease.
10.20 Lessee's Authority. Lessee shall not be construed as or have any authority to act
as the agent of Lessors concerning the Premises. Lessee shall have no authority to surrender,
waive, compromise, alter or convey any of Lessors' rights in the Premises.
10.21 Headings. The headings and captions contained in this lease are inserted for
convenience of reference only and are not to be deemed part of, or to be used as an aid in
construing, this lease.
10.22 Survival. All of the representations, warranties, and covenants in this lease shall
survive the expiration or termination of this lease.
10.23 Entire agreement. This lease covers in full each and every agreement of every
kind and nature whatsoever between the parties hereto concerning the Premises, and all
preliminary negotiations and agreements of whatever kind or nature are merged herein. Lessors
has made no representations or promises whatsoever with respect to the Premises and/or the
building except those contained herein; and no other person, firm or corporation has, at any time,
had any authority from Lessors to make any representations or promises on behalf of Lessors; and
Lessee expressly agrees that, if any such representations or promises have been made by others,
Lessee hereby waives all right to rely thereon. No verbal agreement or implied covenant shall be
held to vary the provisions hereof, any statute, law or custom to the contrary notwithstanding.
10.24 Waiver of Jurv Trial. Lessors and Lessee waive any right to a trial by a jury of
any dispute related to this lease.
10.25 Force Maieure. In the event that the Lessors or the Lessee shall be delayed or
hindered or prevented from the performance of any act required hereunder, by reason of
governmental restrictions, scarcity of labor or materials, strikes, or for reasons beyond such
party's control, the performance of such act shall be excused for the period ofOdelay; and the
period for the performance of any such act shall be extended for the period necessary to complete
performance after the end of the period of such delay.
10.26 Amendment or Modification. Except as otherwise provided herein, this
agreement and all of these terms and conditions may not be amended or modified absent a written
agreement duly executed by the parties.
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IN WITNESS WHEREOF, the Lessors and Lessee have duly executed this lease on the
day and year first above written.
LESSORS:
BOARD OF COUNTY COMMISSIONERS CITY OF ASPEN
",p.~<1,:!~'/..J B,
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Chair
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Dc:puty Clerk
LESSEE
By
Sachson, Inc. /a
The Aspen Pitkin County Animal
Shelter and Boarding Kennel
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Kathryn S. Koch,
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EXHIBIT B
ASPEN/PITKIN COUNTY ANIMAL SHELTER
AND CARE SERVICES
POLIClBS AND PROCEDURES MANUAL
This manual has been prepared as a guide for the opcralion of the AspenlPitlcin County Animal shelter
and the provisions as contained herein shall govern those activities and procedures as specifically provided for.
TERMS
"City" shall mean the City of Aspen, its officen and employees.
"County" shall mean the County of Pitkin. Colorado, its officers and employees.
"Operator" shall mean that person or entity cIuuged with the opcralional responsibility for the
Aspeo/Pitkin County Animal shelter.
"Shelter" shall mean that portion of the building at Aspen, Colorado, tIuu houses the AspenlPitkin County
Animal shelter.
POUCIES AND PROCEDURES
1. Operator shall w;ept for impoundmen~ boarding and care, without fee or charge, all animals brought to the
Shelter by the City and/or County, and/or any dog or cat abandoned, found at large, or to be sum:ndered for adoption, as
presented by any citizen, except that Operator may charge a fee for Fifty Dollars ($50.00) for every animal presented by a
citizen for surrender and adoption contingent upon the fact that the animal is from the City of Aspen and/or Pitlcin County.
2. The Shelter may be open to the public not I... than seven (7) hours per day Monday through Friday, and not
1... than two (2) hours per day on weekends, holidays excluded.
3. Operator shall secure and maintain at all times all necessary federal, state and/or local licenses required to
operate a boarding kennel.
4. Animal enclosures shall be maintained in a sanitary and structurally sound condition and provide enough
space to allow nonnal postural movements for all animals housed therein.
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5. Animals housed in the same enclosure shall be maintained in compatible groups. Females in season (eslruS)
shall not be enclosed with or in near proximity to males. Animals exlnbiting a vicious disposition shall be physically
segregated from other animals. Puppies and leinens shall be segregated fiom adults when deemed necessary. Dogs shall not
be enclosed with cats. Any animal displaying symptoms of dis..... or injury, Or subject to quarantine, shall be physically
segregated from other animals until such time as the animals' condition is diagnosed and it is determined that the animal
may be maintained in the genentl shelter population. The health and condition of all animals shall be regularly monitored
and written records shall be maintained of sick or injured animals.
6. No privatety boarded animal shall be housed in that part of the Shelter utilized by the opernor for
City/County shelter purposes.
7. All dogs shall be provided reasonable and regular outside exercise on a daily basis.
8. Animal wastes shall be removed from kennel enclosures as often as is necosslll)' to prevent contamination
and to reduce disease hllZlllds and odors. All enclosures shall be washed at least daily, or at such more frequent intervals so
as to maintain a disinfected and sanitary environment Animals shall be removed from their enclosures during cleaning and
shall remain clean and dry. Water and food contain.,.. and other utensils and equipment shall be washed daily to maintain
them in a sanitary and clean condition utilizing generally accepted cleaning methods. Anirnal wastes shall be stored and
disposed of in a timely and sanitary fashion. Conununity Safety Officers and County Animal Safety Officers shall be
notified immediately of all deceased animals, who shall thereafter arrange for the necropsy and disposal of the remains.
9. Animals shall be fed no lesS than once a day and shall be provided clean drinking water at all times, unless
when otherwise directed by a veterinarian. Food shall be of . sufficient nutritive quality and quantity to meet the daily
requirements for the condition and size of animal. Refrigeration shall be provided for perishable food and all food shall be
appropriately stored.
10. All indoor enclosures shall be adequately heated when necessary to protect animals from the cold and to
provide for their health and eomfort All enclosures shall be adequately and regularly ventilated with fresh air.
11. City and/or County shall, at its costs and expense, provide for visits and inspection of the Shelter and housed
animals by a duly licensed veterinarian as needed. Veterinarian services and medical expenses required for the animals
housed by the City and the County in the shelter shall be the responsibility of the City and/or County, unless caused by
negligence of the Shelter Operator.
The County must fim consent to veterinarian or medical cost in excess of two hundred dollaJS ($200.00) prior
to the County being responsible for such charges. Operator shall faithfully perform and adhere to all1realment, care and
medical dircctiDn provided by a veterinarian in the care and housing of sick or injured animals. Operator shall immediately
report to the City and/or County any ill or injured animal so that appropriate examination and treatment may be arranged.
12. Operat<>r shall not euthanize any animal. All animals to be euthanized shall be the responsibility of the City and/or
County, including all costs associated therewith, and shall be performed by . veterinarian. All animal remains shall be bumanely
handled and disposed o[ The Sbelter Operator shall maintain a written record identifying the animal and physical condition
prior to death and date of euthaniza for every animal euthanized.
13. OpernIOT shall adhere to the following adoption and redemption polices for all animals brought to and released from
the sbelter:
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Animals found ronning at IllIge and impounded at the Shelt.. shall be available for adoption five (5) days of its
admission to the Shelter if the animal originated in the City and aft.. eight (8) days if the animal originated in the
County.
b.
Animals surrendered to the Shelter by their owner shall be available for adoption immediately unless the animal is
deemed 10 be unadoptable. in which case the owner of the animal shall be advised at the time of surrender that the
animal will he euthanized. Euthaniza will be the responsibility of a City or County animal 53fety officer. Any animal
available for adoption, that becomes unadoptable while being housed at the Shelter shall be euthaniud and is the
responsibility of a City or County animal 53fety officer.
c_
No animal shall be released for adoption without having received standard vaccinations, to include a rabies vaccine.
Any dog adopted by a citizen residing in unincmporated Pitkin County shall obtain a Pitkin County dog license from
the Pitkin County Sheriffs Office. Shelter Operator shall distribute mail-in licensing information to Pitkin County
residents adopting dogs from the Shelter.
d.
Operator shall insure that all animals adopted from the Shelter have been spayedlneutered prior to adoption. No animal
will be adopted witbout being spayedlneutered with the exception to the Shelter Operators' detenninalion of whether or
not the animal is too young or 100 old to be spayedlneutered. If too young. the Shelter operator will arrange tlte
spaylneuter of the animal at the appropriate age.
e.
All owners residing in lbe City of Aspen seelcing to redeem their animals shall first be referred to the Aspen Police
Department for issuance and receipt of any animal control violation citation. Owners shall not be permitted to redeem
their animal with out first providing operator with written authorization from the Aspen Police DepartmenL
For owners residing in Pitkin County, the Shelter Operator shall not permit an animal to be redeemed without first
obtaining and retaining information needed by the Pitkin County Animal Safety Officer for issuance of a citation,
including. but not limited to, the date, time, and location when: the animal was picked up. The Animal Safety Officer
shall provide to the Shelter Operator the forms that request the necessary information and the Shelter Operator shall
retain completed forms for each animal released. The Pitkin County Animal Safety Officer shall collect the completed
forms from the Shelter.
g.
Operator shall charge. collect and retain the following fees from owners for the housing and adoption of animals:
Inmound Fees:
City:
County:
$50.00 plus $10.00 a day
$50.00 plus $10.00 a day
Sunender Fee:
$50.00
Adontion Fee:
$95.00
These fees may be amended at any time by the City or County upon written notice to the Operator.
25
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These fees may be increased yearly by the Operator upon approval by the City and County.
14. Operator shall maintain up to date and complete records of the impOlDldment, surrend.... adoption. release and death of
all animals housed in lbe Shelt.... Every animal shall be documented as to brccdlspecies, color, size. weight and sex; evidence of
ownership; approximate age and physical conditionlhcallb of animal upon admission. adoption and release/death; date of
admission. adoption, release/death; name, address and telephone number of any own... and/or the person who may have
presented the animal for impoundmentlhousing at the Shelter; nome, address and telephone numb... of all persons claiming
ownership anellor redeeming or adopting any animal; and such oth... information as may be requested by the City/County.
Operator shall utilize such fonns as nnrtually agreed to with City/County in recording and maintaining the above-described
information.
15. Operator shall maintain up to date and complete records documenting all monies collected from fees charged in the
operation of the Shelter, and any funds, food or suppties contributed or donated for Sheller operations. Complete and up to date
records shall also be maintained illustrating all expenditures for food, supplies and equipment expended in Shelter operations.
Food, supplies and equipment may b. subject to inventol)' inspection by City/County at any time. Operator shall utilize such
forms as twtually agreed to with City/County in JCCOrding and maintaining the above-described information.
16. Operator shall provide City/County a regular written monthly report showing the number of animals impounded and
housed at the Shelter; the number of animals adopted, released and euthanized; the total amount of fees collected. and the total
monthly Shelter .xpenses for food and direct animaJ car..
17. City/County may at any time seek and obtain = to all accounts, records or books maintained by or on behalf of
Operator in th. adminiSlIOtion and the operation of the Shelter. Additionally, City/County shall have access to any and all parts
of the Sh.lter premises at any time to as to inspect same for pwposes of insuring compliance by Operator with all terms of this
manual.
18. Operator agrees to utilize, when off.red and mad. available, the volunteer services of the Pitkin Animal Welfare
Society ("PAWS") in the operation of the Shelter and in the care and placement ofth. animals housed therein. Operator shall
retain final supervisol)' control over any volunteer and may dismiss Dr refuse any volunteer which Operator, within its sole
discretion, deems injurious to the efficient and proper operation of the Sh.lt....
19. Operalllr acknowledges that the City/County shall form a citizen board known as the AspenIPitkin County Animal
Shelter Advisol)' Board to provide recommendations and advice to the Operator and the City/County in th. operation of the
Sh.lter. Operator agrees to cooperate with the Advisol)' Board.
20. Th. above and foregoing policies and procedures may b. amended from time to time as deemed necessary. No
amendment shall be eff.ctive until it has been reduced to writing and inCOlJlOrated into this manual. Lik.wise, no amendment
shall become .ffectiv. absent of the City of Aspen and Pitkin County.
21. Operators charged with the administration and or the operation of the Shelter shall have input on all proposed
amendments to this manual. Failure on the part of an Operator to adhen: to the terms of this manual may result in the termination
of any service Dr oth... agreement between operator and th. City of Aspen and Pitkin County.
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EXHIBIT C
COST OF LIVING INCREASE CALCULATION
a) "Price Index n shalI mean the Consumer Price Index - All Urban
Consumers (CPI-V) - 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:
"Price Index" for the first month
Current Index Number
Base Index Number
= of next Lease Year
"Price Index for first month of
of preceding Lease Year
c) As promptly as practicable after the commencement of the fIrSt
adjustment year, and thereafter as promptly as pI1Icticable 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 preced,ing 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) above.
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 shabe deemed to be the percentage
of increase of cost of living.
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.
1) 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 any adjustment of the index figures upon which the computation was based and
Tenant shall, within 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.
27
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g) Minimum annual rent for each adjustment year, together wi1h
increases calculated in accordance with Paragraphs b) through f) of this Section 11, shall be due
and payable to Landlord in equal monthly installments due on 1he 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).
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 1he 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 fmancial 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.
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EXHIBIT B
ASPENIPITKIN COUNTY ANIMAL SHELTER
AND CARE SERVICES
POLICIES A}ID PROCEDURES MANUAL
This manual has been prepared as a guide for the opention of the Aspen/Pitkin County Animal shelter
and the provisions as contained herein shall govern those activities and procedures as specifically provided for.
TERMS
''City'' shall mean the City of Aspen, its officers and employees.
"County" shall mean the County of Pitkin, Colonulo, its officers and employees.
"Operator" shall mean that person or entity charged with the operational responsibility for the
AspenIPitkin County Animal shelter.
8 "Shelter" shall mean that portion of the huilding at Aspen, Colorado, thai houses the AspenIPitkin County
Animal shelter.
POLICIES AND PROCEDURES
1. Operator shall accept for impoundment, boarding and care, without fee or charge, all animals brought to the
Shelter by the City and/or County, andlor any dog or cat abandooed, found at large, or to be surrendered for adoption, as
presented by any citizen, except that Operator may charge a fee for Filly Doll... (S50.00) for every animal presented hy a
citizen for surrender and adoption contingent upon the fact that the animal is from the City of Aspen and/or Pitkin County.
2. The Shelter may be open to the public not less than seven (7) hours per day Monday through Friday, and not
less than two (2) hours per day on weekends, holidays excluded.
3. Operator shall SectlTe and maintain at all times all necessary federal, state and/or local licenses required to
operate a boarding kennel.
4. Animal enclosures shall be maintained in a sanitary and structurally sound condition and provide enough
space to allow nonna! postural movements for all animals housed therein.
23
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5. Animals housed in the same enclosure shall be maintained in compatible groups. Females in season (estrus)
shall not be enclosed with or in near proximity to males. Animals exhibiting a vicious disposition shall be physically
segregated from other animals. Puppies and kittCDS shall be segregated from adults whCD deemed necessary. Dogs shall not
be ClJClosed with cats. Any animal displaying symptoms of disease or injury, or subject to qullTlUltine, shall be physically
segregated from other animals until such time as the animals' condition is diagnosed and it is determined that the animal
may be maintained in the general shelter population. The health and condition of all animals shall be regularly monitored
and written records shall be maintained of sick or injured animals.
6. No privately boarded animal shall be housed in that part of the Shelter utilized by the operator for
City/County shelter purposes.
7. All dogs shall be provided reasonable and regular outside exercise on a daily basis.
8. Animal wastes shall be removed from kennel enclosures as often as is necessary to prevent contamination
and to reduce disease hazards and odo... All enclosures shall be washed at least daily, or at such more freqUCDt intervals so
as to maintain a disinfected and sanitary environment Animals shall be removed from their enclosures during cleaning and
shall remain clean and dry. Water and food containers and olb... utensils and equipment shall be washed daily to maintain
them in a sanitary and clean condition utilizing generally accepted cleaning methods. Animal wastes shall be stored and
disposed of in a timely and sanitary fashion. Conununity Safety Officers and Cowlty AnirnaI Safety Officers shall be
notified inunediately of all deceased animals, who shall thereafter arrange for the n=opsy and disposal of the remains.
9. Animals shall be fed no lesS than once a day and shall be provided clean drinking water at all times, unless
when otherwise directed by a veterinarian. Food shall be of a sufficient nutritive quality and quantity to meet the daily
requirements for the condition and size of animal. Refrigenllion shalJ be provided for perishable food and all food shall be
appropriately stored.
10. All indoor enclosures shall be adequately healed whCD necessary to protect animals from the cold and to
provide for their health and comfort. All enclosures shall be adequately and regularly ventilated with fresh air.
II. City and/or County shall, at its costs and expense, provide for visits and inspection of the Shelter and housed
animals by a duly licensed veterinarian as needed. Veterinarian services and medical expenses required for the anirna.Js
housed by the City and the County in the shelter shall be the responsibility of the City and/or County, unless caused by
negligence of the Shelter Operator.
The County must first consent to veterinarian or medical cost in excess of two hundred dollars ($200.00) prior
to the County being responsible for such charges. Operator shall faithfully perfonn and adhere to all treatment, can: and
medical direction provided by a veterinarian in the care and housing of sick or injured animals. Operator shall irmnediately
report to the City and/or County any ill or injured animal so that appropriate examination and treatment may be arranged.
12. Operator shall not euthanize any animal. All animals to be eutbanized shall be the responSlbility of the City and/or
County, including all costs associated therewith, and shall be perl'onned by a veterinarian. All animal remains shall be humanely
handled and disposed of. The Shelter Operator shall maintain a written record identifying the animal and physical condition
prior to death and date of eutbaniza for overy animal euthanized.
13. Operator shall adhere to the following adoption and redemption polices for all animals brought to and released from
the shelter:
III \ 111111111111111111111111 11\ II ~~~~~I0~r 0;~44
Jl=lNICE K vas C~UO]LL PITKIN COUNTY CO R 0.0e D 0.00
24
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a. Animals found rwming at large and impounded at the Shelter shall be available for adoption five (5) days of its
admission to the Shelter if the animal originated in the City and after eight (8) days if the animal originated in the
County.
b. Animals surrendCYCd to the Shelter by their owner shall be available fur adoption immediately unless the animal is
deemed to be unadoptable, in which case the owner of the anima1 shall be advised at the time of surrender that the
animal will be cvth.ni..n Euthaniza will be the responsibility of a City or County animal safety officer. Any animal
available for adoption, that becomes unadoptable while being housed at the Shelter shall be euthanized and is the
respollSlbility of a City or County animal safety officer.
c. No animal shall be rcleased for adoption without having received standard vaccinations, to include a rabies vaccine.
Any dog adopted by a citizen residing in unincorporated Pitkin County shall ohtain a Pitkin County dog license from
the Pitkin CoWlty Sheriffs Office. Shelter Operator shall distribute mail-in licensing information to Pitkin County
residents adopting dogs from the Shelter.
d. Operator shall insure that all animals adopted from the Shelter have been spayed/neutered prior to adoption. No animal
will be adopted without being sp.yedlncutcrcd with the exception to the Shelter Operators' determination ofwhcther or
not the animal is too yoWlg or too old to be sp.yedlneutercd. IT too young, the Shelter operator will arrange the
spay/neuter of the animal at the appropriate age.
e. All owners residing in the City of Aspen seeking to redeem their animals shall first be rcferred to the Aspen Police
Department for issuance and receipt of any animal control violation citation. Owners shall not be permitted to redeem
their anima1 with out first providing operator with written authorization from the Aspen Police DcpartmcnL
f
For owners residing in Pitkin County, the Shelter Operator shaD not pennit an animal to be redeemed without first
obtaining and retaining infonnation nceded by the Pitkin ColDlty Animal Safety Officer for issuance of a citation,
including, but nollimited to, the date, time, and location where the animal was picked up. The Animal Safety Officer
shall provide to the Shelter Operator the forms that request the necessary infonnation and the Shelter Operator shall
retain completed forms for each animal released. The Pitkin County Animal Safety Officer shall collect the completed
forms from the Sbelter.
g.
Operator shall charge, collect and retain the following fees from owners for the housing and adoption of animals:
Imoound Fees:
City:
County:
$50.00 plus SIO.OO. day
$50.00 plus $10.00. day
Surrender Fcc:
$50.00
Adontion Fcc:
$95.00
These fees may be amended at any time by the City or County upon written notice to the Operator.
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These fees may be increased yearly by the Opentor upon approval by the City and County.
14. Operator shall maintain up to date and complete records of the irnpoundmen~ surrender, adoption, release and death of
all animals housed in the Shelter. Every animal shall be documented as to breedlspecies, color, size, weight and sex; evidence of
ownership; approximate age and physical condition/bealth of animal upon admission, adoption and release/death; date of
admission, adoption, release/death; name, address and telephone number of any owner and/or the person who may have
presented the animal for impoundmentlbousing at the Shelter, name, address and telephone number of all persons claiming
ownership and/or redeeming or adopting any animal; and such other infonnation as may be requested by the City/County.
Operlltor shall utilize such fonns as mutually agreed to with City/County in recording and maintaining the above-<lescribed
infonnation.
15. Operator shall maintain up to date and complete records doeumenting all monies collected from fees charged in the
operation of the Shelter, and any funds, food or supplies contributed or donated for Shelter operations. Complete and up to date
records shall also be maintained illustrating all expenditures for food, supplies and equipment expended in Sheller operations.
Food, supplies and equipment may be subject to inventory inspection by City/County at any time. Operator shall utilize such
forms as mutually agreed to with City/County in recording and maintaining the above-descnbed information.
16. Operator shall provide City/County a regular written monthly report showing the number of animals impounded and
housed at the Shelter; the number of animals adopted, released and euthanized: the total amount of fees collected, and the total
monthly Shelter expenses for food and direct animal care.
17. City/County may at any time seek and obtain access to all accounts, records or books maiotained by or on behalf of
Operator in the administration and the operation of the Shelter. Additionally, City/County shall have access to any and all parts
oC the Shelter premises at any time to as to inspect same (or PU1'}X)ses of insuring compliance by Operator with all terms of this
manual.
18. Operator agrees to utilize, when offered and made available, the volunteer services of the Pitkin Animal Welfare
Society ("P A WS") in the operation of the Shelter and in the care and placement of the animals housed therein. Opellltor shall
retain final supervisory control over any volunteer and may dismiss or refuse any volunteer which Operator, within its sole
discretion, deems injurious to the efficient and proper operation ofth. Shelter.
19. Operator acknowledges that the City/County shall form a citizen bolUd known as the AspenIPilkin County Animal
Shelter Advisory Board to provide recommendations and advice to the Operator and the City/County in the operation of the
Shelter. Operator agrees to cooperate with the Advisory Board.
20. The above and foregoing policies and procedures may be amended wm time to time as deemed necessary. No
amendment shall be effective until it has been reduced to writing and incorporated into this manual. likewise, no amendment
shall become effective absent of the City of Aspen and Pitkin County.
21. Operators charged with the administtation and or the operation of the Shelter shall have input on all proposed
amendments to this manual. Failure on the part of an Operator to adhere to the temJs of this manual may result in the termination
of any service or other agreement between operator and the City of Aspen and Pitkin County.
11111 ~1II11111111111111l11 :;~~~:0~f 0~~ 44
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EXHIBIT C
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:
''Price Index" for the first month
Current Index Number
Base Index Number
= of next Lease Year
"Price Index for first month of
of preceding Lease Year
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) above.
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 I and any resulting positive number shabe deemed to be the percentage
of increase of cost of living.
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.
f) 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 any adjustment of the index figures upon which the computation was based and
Tenant shall, within 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.
27
31
g) Minimum annual rent for each adjustment year, together with
increases calculated in accordance with Paragrapha b) through f) of this Section II, 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).
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 (I) 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.
\ \"\11 "\1\ "II" 1\1'" 11'1 'Ill '111"1 III III II \\11 1"1 ~~~:~l~: 0;~ 44
JANICE K VOS CRUD ILL PITKIN COUNT" co R 0.00
28
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1,
Amendment to Lease
This amendment to that certain lease dated February 6, 2006 by and between the City of Aspen
and the Boazd of County Commissioners of Pitkin County, Colorado (Lessor), on the one hand,
and Sachson, Inc., a Colorado corporation d.b.a. The Aspen Pitkin County Animal Shelter and
Boazding Kennel (Lessee), on the other hand.
WHEREAS, the parties wish to amend certain terms of the original lease; and
THEREFORE, the parties agree as follows:
1. In accordance with Article 9.2 Subleasing to businesses within Premises, the Lessors
approve for Lessee to sublease space to Aspen Wags to Riches, LLC., demonstrated in
Exhibit A.
By:
2. Furthermore, in accordance with Articles 4.1 and 4.2, Lessors approve for Lessee to
remove the existing walls between Room A, Room B, and Room C, as demonstrated in
Exhibit A. This alteration is limited to the wall that is located directly under the existing
windows between the three rooms; the window frame and wall are to be removed. Also
the new opening shall not be greater in width or height than the existing windows. All
finishes shall match existing texture, paint and trim. Also any modifications to the
electrical system require a permit.
G..
Date: ~, ~ I ~ r~
By:
Seth Sachson
City of Aspen, Asset Manager
Date: ~-~-C°`
Sachson, Inc., President
roof or outside of the Premises without first obtaining 1-essors' written consent.
i- Simon. Lessee may maintain one acceptable sign on the Premises which
conforms to requiiemepts of any applicable County zoning and building codes.
j Li tin .Lessee shall not install in, on, of about the Premises any
exterior lighting or use in, on or about the Premises any advertising medium or other
device which maybe heard or experienced outside the Premises, including but not limited
., _ ___ .:,.,.... a.,~t,Fut,ts loudspeakers, tapes, td's or phonograph records or radio
than a to the extenor or me ouuuu,g w,,,,.,.....•,. ••-•---o
broadcasts awnings, or any g
obtained Lessors' written consent.
k. Surface- s an~~s• Lessee shall not deface, gouge, mark, paint, stain,
drill or otherwise alter the surfaces and walls inside or outside of the Premises or any of
the support columns without the prior specific written approval of Lessors. Lessee shall
repair any damage to the surfaces or support columns caused by Lessee.
1, Notice. In the event Lessee is in violation of any of the foregoing
restrictions on use or is in violation or breach of any other provision of this Article III,
Lessors shall provide Lessee with written notice to Lessee specifying the nature of such
of violation or breach. Lessee shall have thirty (30) days following such written notice to
cure, adjust or correct the violation or breach. If Lessee fails to cure the breach or default
within such time period, Lessor shall have the right to assess a penalty of $SOO.OD plus all
costs of correcting such violation against Lessee as Additional Rent to be paid the first of
the month following notice of such assessment. Lessors shall not be liable to Lessee for
any claim of damages for correcting such violation.
ARTICLE IV
CONSTRUCTION-ALTERATIONS-REPAIRS
4.1 Alteration at Lcssa's Expense. Following the issuance of a certificate of
occup and inspection of Premises by Lessee that is to its reasonable satisfaction, Lessee
agrees to accept the property in its present condition, as is, without calling upon Lessors to make
any other expenditures or to perform any work for the preparation of the Premises for Lessee's
use, provided that it will be delivered clean with the existing plumbing, heating and electrical
systems functioning and in good repair and in substantial conformity with the plans and
specifications set forth on Exhibit C attached hereto. Lessee shall, at its own cost and expense,
make any necessary alterations and installations in the Premises required for Lessee's business,
using a contractor or contractors who shall have been approved in writing by Lessors, which
approval shall not to be unreasonably withheld.
4,2 Preconditions. Prior to commencing any work or installing any fixtures or
equipme ssee shall comply with the following preconditions.
a. ApDrova_ 1_ of Plans• Lessee shall submit the plans and specifications for
such alterations to Lessors for written approval. Such approval will not be unreasonably
withheld and the request for approval shall be responded to within five business days
afrer receipt by Lessors of such plans. All work to be done by Lessee shall be performed
in a workmanlike manner in strict accordance with the approved plans and specifications
without any deviation therefrom, unless such deviation is also first approved in writing by
Lessors. In the event of any construction which is a material deviation from any approved
plans in violation hereof, Lessors shall have the right to demand constnuction be
immediately stopped, and, if construction continues 24 hours after such notice, Lessors
may dispossess Lessee, lock and secure the Premises and cause all work to cease until
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there is compliance with this provision.
Permits. Lessee shall obtain (and Lessors shall provide reasonable
assistance in obtaining) the necessary consents, authorizations and licenses from federal,
state and municipal authorities having jurisdiction over the work to be done; and no work
shall be started or equipment installed unless and until all such necessary consents,
authorizations and licenses shall have first been duly obtained by the Lessee or its
contractor or other persons doing the work or installing the equipment on behalf of
Lessee. Lessee shall reimburse Lessors for any ex nses incurred on account of e
ar are y essce [o comp y with any such requirements; and any expenses so incurred by
Lessors as aforesaid shall be deemed Additional Rent under this lease and due and
payable by Lessee to Lessors on the first day of the month immediately following the
payment of the same by Lessors.
Contract -Copy to Lessors. Lessee shall enter into contracts with
contrac ors and persons who will do the work and instal] the equipment referred to, which
contract will provide that the work shall be done in a good workmanlike manner in
accordance with the approved plans and specifications and permits and licenses
previously obtained and which contract shall provide that the contractor or other persons
above refered to will look solely to Lessee for payment and will hold Lessors and the
property free from all liens and claims of al] persons famishing labor or materials
therefor, or both, and will also require that similaz waivers of the right to file liens shall
be obtained from subcontractors or material men. A copy of the contract and evidence of
its recording with the county clerk together with a duly executed waiver of the right to
file liens executed by the contractor or other persons above referred to shall be famished
to Lessors prior to beginning work.
Insurance - Coov to Lessors. Lessee or any contractor or subcontractors
employed by Lessee or any other persons who will do the work or install the equipment
as aforesaid shall be fully covered by workers' compensation insurance, and a copy of the
certificate thereof shall be furnished to Lessors before commencement of any work by
any such contractor or persons as aforesaid. Lessee covenants and agrees to indemnify
and hold Lessor; harmless from any and all claims for personal injury, death or property
damage occasioned during the progress or as a result of any or all of the work done as
aforesaid in or about the Premises or the building
4.3 Mechanics Lien: Notice. Lessee shall keep the Premises and the building free and
clear of all mechanics, material men's and other liens on account of work done for Lessee. Lessee
shall indemnify Lessors against liability, loss, damage, costs or expenses, including attorney fees,
on account of claims of lien of laborers or material men or others for work performed for or
materials or supplies famished to Lessee. If Lessee shall desire to contest any claim or lien,
Lessee shall famish to Lessors security of a cash deposit with Lessors of 20% of the amount of
the claim, plus estimated costs and interest, conditioned on the dischazge of the lien or a corporate
surety bond meeting requirements of the applicable statutes sufficient to dischazge any lien. if a
final judgment establishing the validity of a lien is entered, Lessce shall pay and satisfy the same
at once. If Lessec shall be in dcfault in paying any chazge for which a mechanic's lien claim or
suit to foreclose the lien has been recorded or filed and shall not have given Lessors security as
aforesaid, Lessors may (but without being required to do so) pay said licn or claim and any costs,
and the amount so paid, together with reasonable attorney fees and costs and cxpenses incured
by Lessors in connection therewith shall be immediately due and owing from Lessee to Lessors
with interest at the rate of 5% per annum from the dates of Lessors' payments. Should any claims
of lien be filed against the Premises or the building or any action affecting the title thereto be
commenced, Lessee shall give Lessors written notice thereof as soon as possible. During any such
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or ownership, in whole or in part, and to an assignment to or by a receiver or trustee in any
federal or state banla uptcy, insolvency, or similaz proceeding
9.2 Subleasine to businesses within Premises. The parties hereto acknowledgc that
Lessee's usiness plan requires that a certain portion of the Premises may be sublet to businesses
that aze compatible to the operation of an animal shelter. The parties hereto further acknowledge
that Lessee may chargc those third party businesses for rent or for other services rendered by
Lessee. Lessee shall obtain the prior written approval of Lessors prior to entering into any sublet
unreasonably withheld and Lessors approval or disapproval shall not be delayed by more than 10
business days. All revenues received by Lessee from such third party business relationships
operating out of the Premises shall be included in Net Profit as that term is defined in this Lease
Agreement.
9.3 No Waiver. Consent by Lessee to any one assignment or sublease shall not
constitute a waiver with respect to any further assignments or subleases. Lessors, in approving
any assignment or sublease, shall be entitle to .consider among other things the financial
capability of the assignee or sublessee and compatibility of the proposed use with other uses in
the building. If Lessee shall purport in violation hereof to assign this lease or sublet all or any
portion of the Premises or permit any person or persons other than Lessee to occupy the premises,
Lessors may collect rent from the person or persons then occupying the premises and apply the
net amount collected to any damages or the rent reserved herein, but no such collection shall be
deemed a waiver of this Article or the acceptance by Lessors of such purported assignees or
subleases of Lessee or occupant or the release of Lessee of the further performance by Lessee of
covenants of Lessee herein.
ARTICLE X
GENERAL PROVISIONS
10.1 Successors to Lessors. The tens "Lessors" herein shall be limited to mean and
include only the owner or owners at the time in question of the fee interest in the building; and, in
the event of any transfers of the title to such fee, Lessors herein named (and, in the case of any
subsequent transfers or conveyances, grantor) shall be automatically freed and relieved, from and
after the date of such transfer or conveyance, of all liability as respects the performance of any
covenants or obligations on the part of Lessors contained in this ]ease thereafter to be performed,
provided transferee shall in such assignment agree to assume and perform Lessors' obligations
hereunder and provided that any funds in the hands of Lessors or the then grantor at the time of
such transfer, in which Lessee has an interest, shall be delivered to the grantee, it being intended
hereby that the covenants and obligations contained in this ]ease on the part of Lessors shall be
binding on Lessors, its successors and assigns, only during and in respect to their respective
successive periods of ownership of the fee.
10.2 Subordination to Morieaee. This lease and all right of title Lessee hereunder are
and shat] be subject and subordinate to the lien of any and all mortgages or consolidated mortgage
or mortgages which may now or hereafter affect the Premises or building or any part thereof and
to all renewals, modifications, consolidations, replacements and extensions thereof, provided that
any such mortgage placed upon the Premises shall provide that, as long as there shall be no event
of default outstanding in~any of the terms, conditions, covenants or agreements of this lease on
the part of the Lessee to be performed, the leasehold estate of the Lessee created hereby shall be
undisturbed by any foreclosure of such mortgage. Lessee agrees to execute such instruments as
may reasonably be requested by any beneficiary or mortgagee to evidence and make a record of
the fact that this lease is to be inferior to any such deed of trust or mortgage as well as provide
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beneficiary or mortgagee-
10.3 Subdivision. Lessors reserves the right, without the consent of the Lessee, to
execute and record such declarations, restrictive covenants, maps or other documents or
amendments or supplements thereto For the purpose of subdividing or re-subdividing the building
containing the Premises into separate units and common elements pursuant to the Colorado
Common Interest Ownership Act, provided that the Lessors' right as declarant and owner thereof
shall be subject and subordinate to the possessory and other rights of the Lessee to the Premises
under this lease.
10.4 Accord and Satisfaction. No payment by Lessee or receipt by Lessors of a lesser
amount than the Rent due hereunder shall be deemed to be other than on account of the earliest
rent due and payable hereunder. Any endorsement or statement accompanying or inserted upon
any check or payment as rent shall not be deemed an accord and satisfaction, and Lessors may
accept any such check or payment without prejudice to Lessors' rights to recover the balance of
such rent or pursue any other remedy provided in this Lease or at law or in equity.
10.5 Non-Waiver. Failure of Lessors to require strict performance of any covenant or
condition shall not be deemed a waiver of such covenant or condition as to that or any subsequent
failure. One or more waivers of any breach of any covenant or condition by Lessors shall not be
construed as a waiver of a subsequent breach of the same or any other covenant or condition, and
the consent or approval by Lessors to or of any act by Lessee requiring Lessors' consent or
approval shall not be deemed to waive or render unnecessary Lessors' consent or approval to or
of any subsequent similaz or dissimilar act by Lessee- The acceptance of rent hereunder by
Lessors shall not constitute a waiver of any preceding breach by Lessee of any term, covenant, or
condition of this ]ease other than the failure of Lessee to pay the particulaz rental so accepted,
regazdless of Lessors' knowledge of such preceding breach at the time of acceptance of such rent.
No waiver of any provision of this ]ease shall be effective unless it is in writing and signed by
Lessors.
10.6 Estoppel Certificates. Lessee agrees at any time and from time to time, upon ten
days' prior request by Lessors, to execute, acknowledge, and deliver to Lessors a statement in
writing certifying that this lease is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating the modifications),
and the dates to which the Rent and other chazges have been paid in advance, if any, and
confirming Lessee's acceptance of the Prenuses, the commencement of the lease term, and the
Rent provided under the lease, and any ether affirmations or certifications reasonably requested
by Lessors with the intent that the statcment delivered, may be relied upon by any prospective
purchaser, mortgagee, or assignee of any mortgagee of the building or the Premises.
10.7 Attorney Fees. Reasonable costs and attorney fees and other expenses incurred
by the Lessors in obtaining legal advice, preparing notices or demands or otherwise enforcing any
provision of this lease by reason of a default by the Lessee or by anyone holding under Lessee in
complying with any requirement of this lease shall be paid by Lessee as Additional Rent within
three days of notice of the amount thereof. All attorney fees incurred by the Lessors by reason of
any action which Lessors shall institute or be made a party because of this Lease (unless Lessors
is joined because of acts of Lessors determined by such litigation to be wrongful) shall be
awazded to Lessors.
10.8 Interest. Without affecting any of Lessors' rights hereunder, any sum provided
for herein accruing to Lessors under the provisions of this Lease other than monthly rent which
shall not be paid when due shall beaz interest at the rate of 7% per annum from the date of an
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