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HomeMy WebLinkAboutcoa.lu.tu.101 Founders Pl.0100.2017.aslu0100,2011 .ASLU 100 FOUNDERS PLACE TEMPORARY USE 273707305010 U PATH: G/DRIVE /ARMINISTRATIVE/ADMIN/LANDUSE CASE DOCS THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0100.2017.ASLU PROJECT ADDRESS 101 FOUNDERS PLACE PARCEL ID 2737 073 05 010 &011 PLANNER JUSTIN BARKER CASE DESCRIPTION TEMPORARY USE/OBERMEYER REPRESENTATIVE JEFF PENDARVIS DATE OF FINAL ACTION 12/11/2017 CLOSED BY ANGIE SCOREY 1.4.18 Permit_ 2. 7 -2,--7o-7 b$61 O O (C� Zn! �S (�(� ❑ X File Edit Record Navigate Form Rep rts Format Tab Help VX V V-', j t� Jump 1 ti Clear f�tain Custom Fields Routing Status Fee Summary I Actions Routing Listory C Permit b,pe Aspen Lan-- Use Permit 00.�017.ASW N Address 1C1 FOUNDERS PL Al: Su, 104E:105 City ASPEN Staff r-IIIIINW8111 0 " PermitInfbrmation c. z 0 cn N Master permit Routing queue aslu 1 Project Status pending Description APPLICATION FOR TEI.IPORARY USE - PLANNING FEES I AIVEDAT `C°4 TOTAL FEES DUE S 487.SC PAID VlA INTERNAL FUNDS TRANSFER (CORE; Submitted JEFF PENCARVIS Clock Runninc Days Submitted via 11 Applied 1 12 1 2 C 17 Approved) I Issued Closed/Final Expires 12;07;2C18 Owner Lastname OBERGIEYERASSET .I.Ar,.At First name 501 RIO GRANDE PL Phone 197C) 925-8747 Address ASPEN CO 81811 Applicant Fvol Owner is applicant? ❑ Contractor is applicant? Last name OBERNIEYERASSET L1.ANA( First name S01 RIO GRANGE PL. ASPEN CO P1811 Phone r970;92E-8747 Cust 4;r 2C8.88 Address Email Lender Last name First name Phone ( - Address AspenGold5 (server) angelas - 1 of 1 RESOLUTION NO. 171 (SERIES OF 2017) A RESOLUTION OF THE ASPEN CITY COUNCIL GRANTING A TEMPORARY USE PERMIT EXTENSION AT 101 FOUNDERS PLACE, UNITS 104 & 105, ASPEN, COLORADO. ParcellDs: 2 73 7-0 73-05-010; 2 73 7-0 73-05-011 WHEREAS, pursuant to Section 26.450 of the Aspen Municipal Code, the Applicant, The City of Aspen, a municipal corporation, has submitted an application for a Temporary Use Permit extension to operate a portion of the Police Department and other City department functions at 101 Founders Place, Units 104 & 105; and, WHEREAS, the location is a commercial condominium partially located in the Service Commercial Industrial Zone District and partially located in the Neighborhood Commercial Zone District; and, WHEREAS, the Aspen City Council previously granted a temporary use permit via Resolution No. 103, Series of 2014 for a period of three years, of which annual extensions may be granted by motion of City Council; and, WHEREAS, the Community Development Department has reviewed the temporary use application, finds it to be in compliance with the review criteria of Chapter 26.450, and recommends that the City Council approve the temporary use permit extension; and, WHEREAS, the Aspen City Council has reviewed and considered the temporary use extension request under the applicable provisions of the Municipal, Code as identified herein, has reviewed and considered the recommendation of the Community Development Director, and has taken and considered public comment at a public hearing; and, WHEREAS, City Council finds that the proposed temporary use is consistent with the character and existing land uses of the surrounding parcels and neighborhood and that granting an extension of the temporary use permit will not adversely impact the community or the neighborhood; and, WHEREAS, the City Council finds that the temporary use extension request meets or exceeds all applicable development standards; and, WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ASPEN, COLORADO, AS FOLLOWS: Aspen City Council Resolution No. 171, Series 2017 Page] of 2 Section 1 • Temporary Use Extension In accordance with Section 26.450.020 of the Aspen Municipal Code, the City Council of the City of Aspen, Colorado, does hereby grant a temporary use permit extension to operate a portion of the City of Aspen Police Department, or other City of Aspen departments at 101 Founders Place, Units 104 and 105 through March 31, 2020. Section 2: Auproval Conditions I. Signage allowance shall be in accordance with City of Aspen Signage regulations and applicable regulations of the Obermeyer Place Condominium Association. 2. Upon conclusion of the approved temporary use time period, annual extensions of the temporary use may be granted by motion of City Council, not to extend beyond September 8, 2024. Extensions shall not require additional public hearing unless so determined by the City Council. Section 3: Severability This Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. FINALLY, Adopted, Passed, and Approved on this 1 1 `h day of December, 2017. APPROVED AS TO FORM: APPROVED AS TO CO;]TENT: Jeif;es R. True, City Attorney Steve cad on, Wyor ATTEST: Linda Manning, City Clerk Aspen City Council Resolution No. 171, Series 2017 Page 2 of 2 Reaular Meetin! Aspen City Council December 11, 2017 Councilman Hauenstein said as policy, once we sign off on an HOA the irrigation costs should go to them. We should have a policy that applies to all. Mr. Crook stated he thinks they are asking for the difference between the raw water bill and potable bill until the raw water comes on line. Councilman Frisch said it's a shame there is a lack of clarity in the handoff from the city. Not sure why this one has become a problem. Not sure why the policy should be different. Mayor Skadron said to schedule a work session. BOARD REPORTS Councilwoman Mullins said the covenant enforcement meeting for the Rio Grand Trail is held once a year and they concluded all is well with the trail. CML met and talked about a broad range of policy. She gathers input from the departments on proposed policy to take to the meetings. The Board of Health heard from the State on suggestions for putting the board together in January. Dr. Kim Levin spoke about the opioid crisis. There was also a presentation about grey water regulations. Both would be worthwhile for Council to hear. CONSENT CALENDAR Reso 167 — Wheeler fund transfer to Water fund Councilman Frisch said he is fully supportive of using the Wheeler fund on limited times for inter department lending. Reso 166 — Financial Policy Update Councilman Frisch asked about the metrics around lending. Pete Strecker, finance, replied the loan was structured on proposed financial policies. The policies include a new section called inter fund advances. They will be for 10 years or less. it ties yields based on treasury rates. It would be a fixed rate and there are no pre -payment penalties. The most ambiguous item is the maximum principle amount for borrowing. It will be based on the funds involved. If you want a defined number we can do that. Councilman Frisch said he is supportive of where we are now. Councilman Myrin said he will vote no on this one to be consistent with what he has said about purchasing the property. He appreciates there is a policy now. Reso 168 — Wheeler booking broker Councilman Hauenstein asked if the pilot program went through the RFP process. Gena Buhler, Wheeler, replied it did not because of a lower threshold. Councilman Hauenstein asked if this RFP went through the normal city policies. Ms. Buhler stated yes, and we sent it out to an industry list to get it out as much as possible. Councilman Hauenstein asked who on the Wheeler board participated in the RFP process. Ms. Buhler replied Chip Fuller. Councilman Hauenstein said he has received some comments that people don't want to see the money leave the valley. As long as it went through the normal process and there were only two submittals he is ok. Ms. Buhler said it was a five person committee, Craig Bulman the Wheeler publicist, two members of staff, Chip and herself participated. We are looking for a very specific niche and did not have the option to spend the money locally. Councilman Hauenstein asked do you and Belly Up have a good working relationship. Ms. Buhler replied yes. Councilwoman Mullins said she had similar comments. She was hoping there would be more responses. What is the relationship with the Wheeler and Belly Up. Ms. Buhler stated since she arrived the direction has been to collaborate with them as much as possible. Michael and I are in constant contact to work collaboratively for the benefit of the community. Councilwoman Mullins asked if this changes the programming. Ms. Buhler said it will grow what we are able to do with the Belly Up at the Wheeler. Councilman Myrin said it was a five person committee with two staff from the Wheeler. Three of the five are under your influence. Ms. Buhler replied everyone brings their specific rankings then the results are 3 Regular Meeting Aspen City Council December 11, 2017 revealed. Councilman Myrin said he will also vote against this as he would like to see it go to Belly Up. Ms. Buhler said it is not a matter of did we go with the proposed or Belly Up. We are looking for someone that brings a full service including family programming and theatre. Councilman Frisch said the Wheeler is here to compliment not compete with the private sector. The agreement is for one year with the ability to extend. PFM also works with the Valar. How do we not get suckered by playing off of each other. Norbert Mongeon, vice president, stated they have worked with the Valar for many years and there are many events that are co -booked. He believes the arrangement will bring more value to the table. Councilman Frisch said he looks at this as a package deal with the Wheeler and Belly Up. To me it is a one year trial. He will support staff in their direction and having a relationship with the Belly Up. He has no interest to go beyond the one year. Mayor Skadron asked what is the threshold for success. Ms. Buhler replied the criteria is we are able to book the amount of shows need to fill a curated season, year round. There is a minimum base of programming we are looking for. PFM brings five people that work on this. Mayor Skadron asked how does a Connecticut firm understand the local market. Mr. Mongeon stated that with working with the local representatives. We are a boutique firm and have the ability to work with the local marketing team and management. Mayor Skadron asked Michael if he wanted to add anything. Michael Goldberg, Belly Up, said to Ward's question, we do have a good relationship with the Wheeler. Ideally, from a business point of view he would have preferred we be tasked with the music aspect of this. It is hard to compete with my local knowledge and someone who has put in their own money. I don't bring the experience that PFM does with the non music element. There is a way of doing this without it being competitive. I have faith in Gena in terms of honoring what we have informally come to understand are the Wheelers and Belly Ups place. The challenge is to continue the collaboration not just with Gena but PFM. We are booking more not less. It can work to the whole benefit of the community and for both of us. Reso 171 temp use Councilman Myrin said you are asking to allow office use where it is not allowed. Justin Barker, community development, said office is not an allowed use in that zone. Council granted a 3 year temporary use to allow office. Councilman Myrin asked if we can pay more somewhere else where office is allowed. Saul Abrahams, project manager, said we can look at that. This is where the police is currently located. We can look at other options but it would be tough to find another location with this amount of space. Councilman Myrin said in general it would be his preference to not change the use of something so we can use it ourselves. A location reason is a different reason. Reso 159 — pump station Councilman Myrin asked is this connected to the treatment facility and where does the water come from. Andy Rosello, utilities, said it is a stand alone station. The water is a blend from Maroon and Castle then pumped to highlands. Currently there is a station at Meadowood that serves all of highlands. This would provide a second route if that station goes down. Councilman Myrin asked when will it be on line. Mr. Rosello replied February or March. Reso 169 and 170 — Cozy Point lease extensions Councilman Frisch asked is two months all we'll need. This has been going on for a while. Austin Weiss, parks, replied we thought we were closer than we were. Our next opportunity for a work session is January 91 and we feel we can get it hammered out there. 4 Regular Meetine Aspen City Council December 11, 2017 • Resolution #167, Series of 2017 — Wheeler Fund Advance to Water Utility Fund • Resolution #166, Series of 2017 — Updated Financial & Investment Policies • Resolution #168, Series of 2017 — Wheeler Booking Broker • Resolution #171, Series of 2017 — Temporary Use Extension — 101 Founders Place Units 104 & 105 • Resolution #172, Series of 2017 — BLM Lease for Hunter Creek Communications Site • Resolution #159, Series of 2017 — Contract with Holy Cross Energy — Highlands Pump Station Electric Service/Supply • Resolution #169 & 170, Series of 2017 — Cozy Point Ranch Lease Extension • Resolution #162, Series of 2017 — 2018 Mill Levy • Minutes — December 11, 2017 Councilman Frisch moved to adopt the Consent Calendar without Resolutions 167 and 168; seconded by Councilwoman Mullins. All in favor, motion carried. Councilwoman Mullins moved to adopt Resolutions 167 and 168; seconded by Councilman Frisch. All in favor except Councilman Myrin. Motion carried. ORDINANCE #34, SERIES OF 2017 — S. Aspen Street PUD/Subdivision - PD Amendment Jennifer Phelan, community development, said this is a PD amendment to the subdivision. The property is owned by ASV Townhomes LLC and represented by Chris Bendon. The request is to amend yard setbacks approved in the PUD at three points for two structures on Lot 1. The property is bounded by Juan and Aspen streets and located in the Lodge zone. It was approved for 20 dwelling units, 15 affordable housing and 5 free market. The approvals had a setback plan that called out certain points for structures on the lot in relation to the property lines. The underlying zoning requires a minimum 5 foot set back. Building C, western building, noted that the entry facade was called out at 66 feet 3 inches. When we confirmed, it is 9 inches closer that what was approved. The retaining wall along Juan street had call outs and in two places the approved condition was greater than what is built, 13 and 6 inches. How did we get here. There were multiple consultants working on the project. The landscape architects designed setback plans where the architects did the floor plans. The building was built off the architecturals. Staff is recommending approval since all three points are still greater than the underlying requirement of 5 feet. With approval, we would be able to get the COs issued and the 20 units online. Chris Bendon and Todd Anderson, representing the applicant. Mr. Bendon said there are three requests as Jen said, there was a bit of misunderstanding within the applicant team. The building is essentially done. The bump out is 9 inches closer to Juan street than it should be. It still complies with the covenant on the lot. Another part of the request is the wall that is further back is 10 inches closer to the street than it should be. On the other side it is 6 inches closer. We met with Mary Barbe, owner of the house on the corner, to go over these requests. We left understanding they are not bothered by these requests but are concerned with parking in front of their home. Her request is that there is parking signed for no parking and would like the ability for a future driveway. He showed pictures of the affordable housing units. They are really nice units that will be added to the inventory. Councilman Myrin said on page 104, 5 feet is the requirement and both exceed that. Why do you have to come to Council. Ms. Phelan said it is a site specific approval and they do not meet the plans. Councilman Myrin aske did you receive any neighbor letters. Ms. Phelan replied no. It was published, posted and there was a mailing. Councilman Hauenstein asked are they for sale or rental. Mr. Anderson replied the affordable housing are all for sale. • VIA MEMORANDUM TO: Mayor and City Council FROM: Justin Barker, Senior Planner THRU: Jessica Garrow, Community Development Director RE: Resolution #171, Series of 2017 - Temporary Use Extension Obermeyer Place, 101 Founders Place Units 104 & 105 MEETING DATE: December 11, 2017 SUMMARY: The City of Aspen Capital Asset Department is requesting an extension of a temporary use approval granted by City Council in 2014 via Resolution No. 103, Series of 2014. A condition of the approval allows annual extensions to be granted by motion of City Council. DISCUSSION: In September 2014, City Council approved a Temporary Use Review to allow the Aspen Police Department offices in two of the units at Obermeyer Place (Units 104 & 105). Office uses are not a permitted use in these spaces under the current zoning and Planned Development, requiring a temporary use approval. The original approval was granted for three years, and upon conclusion of the three years, annual extensions may be granted by motion of City Council. Extensions shall not require additional public hearings unless so determined by City Council. It is anticipated that the new police station will be completed by summer of 2018. The Asset Department is requesting to extend the temporary use until March 2020 to allow for continued use by the police department through construction and to allow use of that space by other City departments during the duration of construction for the new City offices at Galena Plaza. It is anticipated that once the new City offices are complete that this space will no longer be needed for city operations. RECOMMENDATION: City use of the space as an office has been ongoing for approximately 3 years. The use has not resulted in any complaints and has operated in conformance with the applicable temporary use review criteria. Staff recommends approval of the request, as the continued use as offices is consistent with the original temporary use approval. 210 W. Main Street Staff memo 12.5.2017 M RESOLUTION NO. 171 (SERIES OF 2017) VIA A RESOLUTION OF THE ASPEN CITY COUNCIL GRANTING A TEMPORARY USE PERMIT EXTENSION AT 101 FOUNDERS PLACE, UNITS 104 & 105, ASPEN, COLORADO. ParcelIDs: 2737-073-05-010; 2737-073-05-011 WHEREAS, pursuant to Section 26.450 of the Aspen Municipal Code, the Applicant, The City of Aspen, a municipal corporation, has submitted an application for a Temporary Use Permit extension to operate a portion of the Police Department and other City department functions at 101 Founders Place, Units 104 & 105; and, WHEREAS, the location is a commercial condominium partially located in the Service Commercial Industrial Zone District and partially located in the Neighborhood Commercial Zone District; and, WHEREAS, the Aspen City Council previously granted a temporary use permit via Resolution No. 103, Series of 2014 for a period of three years, of which annual extensions may be granted by motion of City Council; and, WHEREAS, the Community Development Department has reviewed the temporary use application, finds it to be in compliance with the review criteria of Chapter 26.450, and recommends that the City Council approve the temporary use permit extension; and, WHEREAS, the Aspen City Council has reviewed and considered the temporary use extension request under the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Community Development Director, and has taken and considered public comment at a public hearing; and, WHEREAS, City Council finds that the proposed temporary use is consistent with the character and existing land uses of the surrounding parcels and neighborhood and that granting an extension of the temporary use permit will not adversely impact the community or the neighborhood; and, WHEREAS, the City Council finds that the temporary use extension request meets or exceeds all applicable development standards; and, WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ASPEN, COLORADO, AS FOLLOWS: Aspen City Council Resolution No. 171, Series 2017 Page 1 of 2 • P50 111.d Section 1: Temporary Use Extension In accordance with Section 26.450.020 of the Aspen Municipal Code, the City Council of the City of Aspen, Colorado, does hereby grant a temporary use permit extension to operate a portion of the City of Aspen Police Department, or other City of Aspen departments at 101 Founders Place, Units 104 and 105 through March 31, 2020. Section 2: Approval Conditions 1. Signage allowance shall be in accordance with City of Aspen Signage regulations and applicable regulations of the Obermeyer Place Condominium Association. 2. Upon conclusion of the approved temporary use time period, annual extensions of the temporary use may be granted by motion of City Council, not to extend beyond September 8, 2024. Extensions shall not require additional public hearing unless so determined by the City Council. Section 3: Severability This Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. FINALLY, Adopted, Passed, and Approved on this I Ith day of December, 2017. APPROVED AS TO FORM: James R. True, City Attorney ATTEST: Linda Manning, City Clerk APPROVED AS TO CONTENT: Steven Skadron, Mayor Aspen City Council Resolution No. 171, Series 2017 Page 2 of 2 RECEIVEi) MAID -MUM DEC 0 8 2017 C1 i Y OF r-,SPEN THE CITY OF ASf En Community Development Department Internal Funds Transfer Date: 12/08/2017 Department: Asset Amount Requested Account Number: Permit Number: Permit Address: Permit Description $487.50 100.119.81200.54920.50257 Task:10.13 o 100. 201q, 4-S- 3 Z 101 Founders Place, Ste 104,105 _ease extension for COA office use Requested By: Evan Pletcher Received By: Angela Scorey, Sophie Varga DEC 0 8 2017 CITY OF ASPEN COMMUNITY DEVELOPMENT Dili CfrY of A-sPFN • • tw 7)9S renc"it'v-1 E,;PC,_ Fee W aver Request Form City of Aspen O 1 OD ' 7J5 ` - J Community Development Department This form must be submitted to the Community Development Director. You will be notified when a decision has been made For what fees are you requesting waiver? ❑ BUILDING 0 PLANNING Applicant Name: Jeff Pendarvis Contact Ph.# (970) 309-7638 Department or Mailing address: Asset Department E-mail address: jeff.pendarvis@cityofaspen.com Project address: 101 Founders Place, Suites 104 & 105, Aspen CO Project description: Lease extension for CoA office use. Fee Breakdown: Fee Description Fee Amount Requested Waiver Fee Description Fee Amount Requested Waiver Energy Code Fee REMP Fee Excavation Foundation Fee Zoning Review Fee Inspection Fee Planning Application Fee $075.00 $467.50 Permit Fee HPC Application Fee Plan Check Other: Total of Request: $ $487.50. Reason for Waiver: ❑City General Fund Department —100%waiver City Capital or Other Department — 50% waiver ❑ Waived or decreased by City Council (please provide documentation) ❑ Other — Please explain with attached letter of request ature For office use only: APPROVED ❑ DISAPPROVED 9M& 0 mAZtA__", Co munity Develop�jt Director 11/9/17 Date Total fees waived: $ 3'. 111701 Date 0 0 C� THE CITY of ASPEN Land Use Application Determination of Completeness Date: November 20, 2017 Dear City of Aspen Land Use Review Applicant, RF NOV 2 0 CIT ; � r �1LLvt ri &�cNT We have received your land use application for 101 Founders Place, Temporary Use Extension and have reviewed it for completeness. ❑ Your Land Use Application is complete: Please submit the following to begin the land use review process. ❑ Review deposit of $487.50. ❑ Digital PDF of the entire application. Other submission items may be requested throughout the review process as deemed necessary by the Community Development Department. Please contact me at 429-2797 if you have any questions. Thank You, J to Barker, Senior Planner City of Aspen, Community Development Department For Office Use Only: Qualifying Applications: Mineral Rights Not' a Required New PD Yes No Subdivision, or PD (creating more than 1 additional lot) GMQS Allotments Residential Affordable Housing Yes _ No ✓ Commercial E.P.F. Lodging COMMUNITY DEVELOPMENT DEPARTMENT GENERAL LAND USE PACKET ON RECF1xF*_T% Ti.L CLr, of A-i, NOV 2 0 HN? CITY OF COMIMIfTY Devu.tirf&bv Attached is an Application for review of Development that requires Land Use Review pursuant to The City of Aspen Land Use Code: Included in this package are the following attachments: Development Application Fee Policy, Fee Schedule and Agreement for Payment Form Land Use Application Form 3. Dimensional Requirements Form 4. Matrix of Land Use Application Requirements/Submittal Requirements Key S. General Summary of Your Application Process 6. Public Hearing Notice Requirements 7. Affidavit of Notice All Application are reviewed based on the criteria established in Title 26 of the Aspen Municipal Code. Title 26 of the Aspen Municipal Code is available at the City Clerk's Office on the second floor of City Hall and on the internet at www.cityofaspen.com, City Departments, City Clerk, Municipal Code, and search Title 26. We strongly encourage all applicants to hold a pre -application conference with a Planner in the Community Development Department so that the requirements for submitting a complete application can be fully described. Also, depending upon the complexity of the development proposed, submitting one copy of the development application to the Case Planner to determine accuracy, inefficiencies, or redundancies can reduce the overall cost of materials and Staff time. Please recognize that review of these materials does not substitute for a complete review of the Aspen Land Use Regulations. While this application package attempts to summarize the key provisions of the Code as they apply to your type of development, it cannot possibly replicate the detail or the scope of the Code. If you have questions which are not answered by the materials in this package, we suggest that you contact the staff member assigned to your case or consult the applicable sections of the Aspen Use Regulations. Land Use Review Fee Policy The City of Aspen has established a review fee policy for the processing of land use applications. A flat fee or deposit is collected for land use applications based on the type of application submitted. A flat fee is collected by Community Development for applications which normally take a minimal and predictable amount of staff time to process. Review fees for other City Departments reviewing the application (referral departments) will also be collected when necessary. Flat fees are cumulative — meaning an application with multiple flat fees must be pay the sum of those flat fee. Flat fees are not refundable. A review fee deposit is collected by Community Development when more extensive staff time is required. Actual staff time spent will be charged against the deposit. Various City staff may also charge their time spent on the case in addition to the case planner. Deposit amount may be reduces if, in the opinion of the Community Development Director, the project is expected to take significantly less time to process than the deposit indicates. A determination on the deposit amount shall be made during the pre -application conference by the case planner. Hourly billing shall still apply. All applications must include an Agreement to Pay Application Fees. One payment including the deposit for Planning and referral agency fees must be submitted with each land use application, made payable to the City of Aspen. Applications will not be accepted for processing without the required fee. The Community Development Department shall keep an accurate record of the actual time required for the processing of a land use application requiring a deposit. The City can provide a summary report of fees due at the applicant's request. The applicant will be billed for the additional costs incurred by the City when the processing of an application by the Community Development Department takes more time or expense than is covered by the deposit. Any direct costs attributable to a project review shall be billed to the applicant with no additional administrative charge. In the event the processing of an application takes less time than provided for by the deposit, the department shall refund the unused portion of the deposited fee to the applicant. Fees shall be due regardless of whether an applicant receives approval. Unless otherwise combined by the Director for simplicity of billing, all applications for conceptual, final and recordation of approval documents shall be handled as individual cases for the purpose of billing. Upon conceptual approval all billing shall be reconciled and past due invoices shall be paid prior to the Director accepting an application for final review. Final review shall require a new deposit at the rate in effect at the time of final submission. Upon final approval all billing shall be again reconciled prior to the Director accepting an application for review of technical documents for recordation. The Community Development Director may cease processing of a land use application for which an unpaid invoice is 30 or more days past due. Unpaid invoices of 90 days or more past due may be assessed a late fee of 1.7% per month. An unpaid invoice of 120 days or more may be subject to additional actions as may be assigned by the Municipal Court Judge. All payment information is public domain. All invoices shall be paid prior to issuance of a Development Order or recordation of development agreements and plats. The City will not accept a building permit for a property until all invoices are paid in full. For permits already accepted, and unpaid invoice of 90 days or more days may result in cessation of building permit processing or issuance of a stop work order until full payment is made. The property owner of record is the party responsible for payment of all costs associated with a land use application for the property. Any secondary agreement between a property owner and an applicant representing the owner (e.g. a contract purchaser) regarding payment of fees is solely between those private parties. RETAIN FOR PERMANENT RELOAD Agreement to Pay Application Fees Nov 2 u PW An agreement between the City of Aspen ("City") and 0 �w ' ZxD i IL CITY OF ASP E^' Property Jeff Pendarvis Phone No.: (970) 309-7638 Owner ("I"): City of Aspen Email: jeff . pendarvis@cityofaspen . com Address of Obermeyer Place Billing Jeff Pendarvis Property: The Crescent Building Address: City of Aspen (Subject of 101 Founders Place (send bills here) 130 S . Galena Street application) Suites 104 & 105 Aspen, Co Aspen, CO I understand that the City has adopted, via Ordinance No., Series of 2011, review fees for Land Use applications and payment of these fees is a condition precedent to determining application completeness. I understand that as the property owner that I am responsible for paying all fees for this development application. For flat fees and referral fees: I agree to pay the following fees for the services indicated. I understand that these flat fees are non-refundable. $. flat fee for $. flat fee for $. flat fee for $. flat fee for For Deposit cases only: The City and I understand that because of the size, nature or scope of the proposed project, it is not possible at this time to know the full extent or total costs involved in processing the application. I understand that additional costs over and above the deposit may accrue. 1 understand and agree that it is impracticable for City staff to complete processing, review and presentation of sufficient information to enable legally required findings to be made for project consideration, unless invoices are paid in full. The City and I understand and agree that invoices mailed by the City to the above listed billing address and not returned to the City shall be considered by the City as being received by me. I agree to remit payment within 30 days of presentation of an invoice by the City for such services. I have read, understood, and agree to the Land Use Review Fee Policy including consequences for no -payment. I agree to pay the following initial deposit amounts for the specified hours of staff time. I understand that payment of a deposit does not render and application complete or compliant with approval criteria. If actual recorded costs exceed the initial deposit, I agree to pay additional monthly billings to the City to reimburse the City for the processing of my application at the hourly rates hereinafter stated. $ deposit for hours of Community Development Department staff time. Additional time above the deposit amount will be billed at $325.00 per hour. $ deposit for hours of Engineering Department staff time. Additional time above the deposit amount will be billed at $325.00 per hour. City of Aspen: Jessica Garrow, AICP Community Development Director City Use: Fees Due: $ Received $h Property Owner: Name: Jeff Pendarvis Title: Project Manager Name: ATTACHMENT 2 - LAND USE APPLICATION PROJECT: Jeff Pendarvis: Obermeyer Place, The Crescent Building, 101 Founders Place, Suites 104 & 105 Location: Aspen, CO Parcel ID # (REQUIRED) APPLICANT: Name: Jeff Pendarvis Address: 130 S . Galena Street, Aspen CO RECE� J..D Phone#: (970) 309-7638 NOV 20 2017 REPRESENTIVATIVE: CITY f)f AS Name: Saul Abrahams Address: 130 S . Galena Street, Aspen CO Phone#: (303) 548-1929 0 GMQS Exemption GMQS Allotment Special Review ESA - 8040 Greenline, Stream Margin, Hallam Lake Bluff, Mountain View Plane Commercial Design Review Residential Design Variance Conditional Use Conceptual PUD Temporary Use Final PUD (& PUD Amendment) Subdivision = Conceptual SPA 0 Subdivision Exemption (includes Condominiumization) Lot Split CI Lot Line Adjustment Final SPA (&SPA Amendment) Small Lodge Conversion/ Expansion Other: EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) The units in the Crescent building in the Obermeyer Plaza is currently being utilized by the Aspen Police department as office space. )IROPOSAL: (Description of proposed buildings, uses, modifications, etc.) Utilize the same units (104 & 105) as office space for City staff during the constructio of the Galena offices Have you attached the following? FEES DUE: $ S48 i . SU M Pre -Application Conference Summary EE Attachment #1, Signed Fee Agreement 0 Response to Attachment 43, Dimensional Requirements Form 0 Response to Attachment #4, Submittal Requirements — including Written Responses to Review Standards 3-D Model for large project All plans that are larger than 8.5" X 11" must be folded. A disk with an electric copy of all written text (Microsoft Word Format) must be submitted as part of the application. Large scale projects should include an electronic 3-D model. Your pre -application conference summary will indicate if you must submit a 3-D model. Project: Applicant: Location: Zone District: Lot Size: Lot Area: ATTACHMENT 3 DIMENSIONAL REQUIREMENTS FORM (For the purpose of calculating Floor Area, Lot Area may be reduced for areas within the high-water mark, easement, and steep slopes. Please refer to the definition of Lot Area in the Municipal Code.) Commercial net leasable: Existing: Proposed: Number of residential units: Existing: Proposed: Number of bedrooms: Existing: Proposed: Proposed % of demolition (Historic properties only): DIMENSIONS: Floor Area: Existing: Allowable: Proposed Principal bldg. height: Existing: Allowable: Proposed Access. Bldg. height: Existing: Allowable: Proposed On -Site parking: Existing: Required: Proposed % Site coverage: Existing: Required: Proposed % Open Space: Existing: Required: Proposed Front Setback: Existing: Required Proposed Rear Setback: Existing: Required: Proposed Combined F/F: Existing: Required Proposed Side Setback: Existing: Required: Proposed Side Setback: Existing: Required Proposed Combined Sides: Existing: Required Proposed Distance between Bldgs. Existing: Required: Proposed Existing: Required: Proposed: Existing non -conformities or encroachments: Variations requested: ATTACHMENT 4 - MATRIX OF LAND USE APPLICATION REQUIREMENTS For application requirements, refer to the numbers in the second column. These numbers correspond to the key on page 9. For multiple reviews, do not duplicate information. All application materials must be complete and submitted in collected packets. All drawings must include an accurate graphic scale Type of Review App Submission Process Type (See Process Number of Required Requirements Description in Att.S) Submittal Packets (See key on page 9.) 8040 GREENLINE REVIEW 1-7, 8-10, 35 P & Z 10 8040 GREENLIN EXEMPTION 1-7, 8-10, 35 ADMINISTRATIVE REVIEW 2 STREAM MARGIN REVIEW 1-7, 8, 10, 11, 12, 35 P & Z OR ADMINISTRATIVE 2 FOR 0 ADMIN., 10 FOR (based on location) P & Z STREAM MARGIN 1-7, 8, 10, 11, 12, 35 ADMINISTRATIVE REVIEW 2 EXEMPTION HALLAM LAKE BLUFF 1-7, 13, 14, 35 P & Z 10 REVIEW MOUNTAIN VIEW PLANE 1-7, 15, 16, 35 P & Z 10 CONDITIONAL USE 1-7, 9, 17 P & Z 10 SPECIAL REVIEW* 1-7, Additional Submission Req. P & Z 10 depend on nature of the Special Review Requested. SUBDIVISION 1-7, 18, 19, 20, 21, 21, 35 P & Z, AND CITY COUNCIL 20 EXEMPT SUBDIVISION 1-7, 18, 19, 20, 21, 35 CIITY COUNCIL 10 LOT LINE ADJUSTMENT 1-7, 22 ADMINISTRATIVE REVIEW 2 LOT SPLIT 1-7, 22 CITY COUNCIL 10 CODE AMENDMENT 1-4, 7, 23 P & Z, AND CITY COUNCIL 20 WIRELESS TELECOM. 1-7, 16, 24, 25, 26, 27, 35 ADMIN, OR P & Z 2 FOR ADMIN., 10 FOR P&Z SATELITE DISH OVER 24" IN 1-7 ADMIN, OR P & Z 2 FOR ADMIN., 10 FOR DIAMETER P & Z RES. DESIGN STANDARDS 1-7, 9, 28, 29, 30 P & Z OR DRAC 10 VARIANCE GMQS EXEMPTION* 1-7, Additional submission Req. ADMIN., OR P & Z AND/OR 2 FOR ADMIN., 10 FOR depend on nature of the Exemption CC (BASED ON EXEMPTION P & Z, 20 FOR P & Z AND CC Request. TYPE) CONDOMINIUMIZATION 1,31 ADMINISTRATIVE 2 PUD 1-7, 32, 33, 35 CONCEPTUAL - P & Z, AND 20 FOR P & Z AND CC CC FINAL - P & Z, AND CC (Submit Separately for Final PUD Review) LODGE PRESERVATION PUD 1-7, 35 P & Z, AND CC 20 March, 2016 City of Aspen 1 130 S. Galena St. 1 (970) 920 505( CITY OF ASPEN PRE -APPLICATION CONFERENCE SUMMARY PLANNER: Justin Barker, 429.2797 DATE: November 2, 2017 PROJECT: Obermeyer Temporary Use REPRESENTATIVE: City of Aspen Asset Department - Jeff Pendarvis DESCRIPTION: As part of the City's facilities plan and ongoing operational space conflicts, City Council granted a temporary use approval to the City of Aspen Police Department to locate a portion of the operations to commercial space within the Obermeyer Place property. The temporary use was granted by Council Resolution No, 103, Series of 2014 for a period of three years starting on the commencement date of the lease for the space, which was September 8, 2014. The applicant would like to extend this temporary use until completion of the new City Police Station, potentially longer to accommodate other City departments during ongoing development of the facilities plan. Resolution No. 103 allows for extensions of the temporary use to be granted by motion of City Council. This would occur during a regular Council meeting on the consent calendar. Review by: • Staff for complete application • City Council Public Hearing: None, may be granted by motion of City Council Planning Fees: $975 Flat fee Referral Fees: none Total Deposit: $975 As a City project, this application is eligible for a fee waiver as outlined below: General Fund, with the exception of Capital Projects = 100% waiver ($0) Non -General Fund and Capital Projects = 50% waiver ($487.50) To apply, please submit one copy of the completed of the following information: Completed Land Use Application and signed fee agreement. f EY Completed and signed fee waiver request form. —) 60F .0 S i� D' Pre -application Conference Summary (this document). © Street address and legal description of the parcel on which development is proposed to occur, consisting of a current (no older than 6 months) certificate from a title insurance company, an ownership and encumbrance report, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. ASLU Temporary Use 101 Founders PI, Crescent Building Parcel ID: 273707305010 1 l Applicant's name, address and telephone number in a letter signed by the applicant that states the name, address and telephone number of the representative authorized to act on behalf of the applicant. 540A Compliance form (Attached). SaC�I� 12/A letter from the City Manager detailing the length of the request and if the extension request includes other city departments. 0 An 8 1/2" by 11" vicinity map locating the parcel within the City of Aspen. If the copy is deemed complete by staff, the following items will then need to be submitted: ❑ Total deposit for review of the application. ❑ A digital copy of all application materials provided in pdf file format. Disclaimer: The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. 7Lj THE CITY OF ASPEN November 10, 2017 Jessica Garrow 130 S. Galena St. Aspen, CO 81611 RE: Obermeyer Place Temporary Use Extension Dear Ms. Garrow: Please find the attached application to extend the temporary use of the Obermeyer space until March of 2020. This lease was initially approved by Council Resolution No. 103, Series of 2014 for a period of three years starting on the commencement date of the lease for the space, which was September 8, 2014. The Capital Asset department wishes to extend the option to use the space until March 2019. This timeframe will allow ample time to build the City Offices at Galena and relocate departments as necessary during construction. It is the intent to relocate city departments into this location so the Rio Grande Building may be renovated. The asset depart would like the leeway to utilize this space for various departments as necessary. Once the City Offices are complete, the Parking Department will be moved into their final office location in the Galena building and this space will no longer be needed. If there are any questions or concerns, please feel free to call or email me and we can discuss. Sincerely, ,/& /'e '�a �( Steve Barwick City of Aspen cc: Justin Barker, Planning Department Jack Wheeler, CoA Asset Jeff Pendarvis, CoA Asset Saul Abrahams, NV5 130 SOUTH GALENA STREET • ASPEN, COLORADO 81611-1975 • PHONE 970.920.5199 • FAX 970.920.5119 - WEB www.aspenpitkin.coni • November 9, 2017 Ms. Jessica Garrow 130 S. Galena St. Aspen, CO 81611 RE: Obermeyer Place Temporary Use Extension Dear Ms. Garrow: n U 13 THE CITY OF ASPEN The City of Aspen Asset Department is the applicant for the for the Obermeyer temporary use extension. The point of contact is: Jeff Pendarvis Capital Asset Department City of Aspen 130 S. Galena Street Aspen, CO 81611 Jeff.pendarvis(u-)cityofaspen.com (970) 309-7638 If there are any questions or concerns, please feel free to call or email me and we can discuss. Sincerely, J Pendarvis cc: Jack Wheeler, CoA Asset Saul Abrahams, NV5 130 SOUTH GALENA STREET • ASPEN, COLORADO 81611-1975 • PHONE 970.920.5199 • FAx 970.920.5119 • WEB www.aspenpitkin.com • Homeowner Association Compliance Policy All land use applications within the City of Aspen are required to include a Homeowner Association Compliance Form (this form) certifying the scope of work included in the land use application complies with all applicable covenants and homeowner association policies. The certification must be signed by the property owner or Attomey representing the property owner. Name: Michael Sailor (Manager) Property Owner ("I"): Email: michael@sailorinsurance.com Phone No.: (970) 920-9500 Address of Obermeyer Place Property: The Crescent Building (subject of 101 Founders Place, Suites 104 & 105 application) Aspen, CO certify as follows: (pick one) ❑ This property is not subject to a homeowners association or other form of private covenant. ❑ This property is subject to a homeowners association or private covenant and the improvements proposed in this land use application do not require approval by the homeowners association or covenant beneficiary. This property is subject to a homeowners association or private covenant and the improvements proposed in this land use application have been approved by the homeowners association or covenant beneficiary. understand this policy and I understand the City of Aspen does not interpret, enforce, or manage the applicability, meaning efft of private covenants or homeowner association rules or bylaws. I understand that this i rc nen�t is a pi.Pplic dcVument. Owner signature-—.�.-A0a�� • - Owner printed name: 6 14a or, Attorney signature: date: Attorney printed name: Vicinity Ma s G- r • Approximate location +4 ,/ of office • _ o. i O Ant "+a-s • • Page 1 of 23 Current lease COMMERCIAL LEASE AGREEMENT CITY OF ASPEN, ASPEN POLICE DEPARTMENT TENANT OBP, LLC LANDLORD Obermeyer Place The Crescent Building 101 Founders Place, Suites 104 & 105 ASPEN, COLORADO PRENIISES Landlord Initials fK� Tenant Initials Tenant Initials • 0 Page 2 of 23 COMMERCUL LEASE AGREEMENT THIS COMMERCIAL LEASE AGREEMENT made as of this I` day. of September, 2014, by and between OBP, LLC, a Colorado limited liability company ("Landlord"), and City of Aspen, the address of which is 130 S. Galena St, Aspen, CO 81611 ("Tenant"). All of the provisions of the Lease, including the Data Sheet, the standard provisions commencing with Article I and continuing through Article XXII of the Lease (hereinafter at times referred to as the "text of the Lease" or the "Standard Form"), and all exhibits are incorporated in full in this preamble as if fully set forth at this point. ` DATA SHEET The following references furnish data to be incorporated in the specified Sections of the Lease and shall be construed to incorporate all of the terms of the entire Section as stated in the said Lease: (1) Section 1.01: Leased Premises: The parcel of real property, including any building or improvements thereon, described as: Obermeyer Place The Crescent Building 101 Founders Place, Suites 104 & 105 ASPEN, COLORADO (2) Section 1.02: Commencement Date of Term: September 8, 2014, 1 PM Section 1.02: Length of Term: Forty-two (42) months Section 1.02: Ending Day of Lease Term: February 28, 2018, 11:00 AM Section 1.03: Extension Option(s): Three (3) Options (3) Early Termination Right of Landlord: None (4) Section 2.01 and Section 2.02: Name and Address for Rent Payments: Payments from Tenant shall be made payable to Landlord; OBP, LLC, 117 S. Spring Street, Suite 202, Aspen, Colorado 81611, and shall be payable directly to Landlord utilizing electronic funds transfer to an account of Landlord. All payments are due on the first day on each month. (5) Section 2.01: Minimum Rent: Minimum rent shall commence at $4328.00 per month, with such amount increasing as provided in Article I & II of the Lease. Building Fee: Building Fee shall commence at $649.00 per month, with such amount increasing as provided in Article I & 11 of the Lease. Thivinonthly fee will cover the estimated charges provided for in Section 5.01(b): Additional Charges. This estimated amount will be reconciled and updated annually based on the actual taxes, association dues and other additional charges incurred by Landlord. Upon notice to Tenant, which notice shall include an updated accounting, Tenant shall pay to Landlord any reconciled sum due within ten (10) days of notice; should any sum be due to Tenant, an adjustment to the following quarter assessments shall be made or if the lease term has ended, refund such sum. Furniture: Tenant shall lease from Landlord as part of this lease the furniture set forth in Exhibit "B" attached hereto at the initial rate of $150 per month. Total Rent: Total rent shall commence at $5,127.00 per month, with such amount increasing as provided in Article I & H of the Lease. (6) Section 3.01 and Section 3.02: Alterations, Changes and Additions: Landlord hereby grants Tenant ermission to remove one wall between the two offices circled on Exhibit A and remodel those two circled offices. Landlord Initials W Tenant Initials Tenant Initials Page 3 of 23 Tenant will submit to Landlord a wre remodel plan, with flooring samples for*dlord to approve. Upon execution of this lease, Tenant will pay Landlord a onetime $2500.00 non-refundable Alterations fee. use. (7) Section 4.01: Permitted Use: Professional business offices, such as police department and no other (8) Section 5.01(b): Additional Charges: All additional rents stated below shall be payable based on a rentable square footage formula equaling 100% of the total expenses, which will be billed upon receipt by the Landlord and payable to the Landlord within 10 days of notification to the tenant. 1) Tenant shall pay the Landlord's annual Real Estate Taxes for the premises or shall arrange an abatement of real property taxes during any period of the Lease. Under no circumstances shall Landlord be responsible for any real estate taxes during the period of this Lease, or any extension thereof. If Tenant receives an abatement of real estate taxes, proof of such abatement shall be provided to Landlord. If for any reason, any governmental taxing authority does not accept such abatement, Tenant shall be responsible to resolve the issue or pay the tax. 2) Tenant shall pay the Landlord's quarterly Obermeyer Place Condominium Association dues for the premises. 3) Tenant shall pay the Landlord's property insurance for the premises. (9) Section 21.01: Security Deposit: $5000.00 (10) Parldng: None ( G�// [End of text of Data Sheet] I nnAinvi Initink /(1 f Tenant initials TPnnnt initials Page 4 of 23 STANDARD FORM LEASE ARTICLE I. GRANT AND TERM SECTION 1.01. LEASED PREMISES. Landlord, in consideration of the amounts to be paid and the covenants to be performed by Tenant, does hereby demise and lease unto Tenant, and Tenant hereby rents and hires from Landlord, those certain premises described in Section 1.01 of the Data Sheet portion of this Lease ("the leased premises" or "premises"). The leased premises are located in Suites 104 & 105 of the development known as Obermeyer Place, Crescent Building with a street address of 101 Founders Place, Suite 104, Aspen, Colorado 81611, County of Pitkin, State of Colorado (the "subdivision"). This Lease is subject to any covenants, restrictions and easements of record for the subdivision. SECTION 1.02. COMMENCEMENT AND ENDING DAY OF TERM. The term of this Lease shall commence upon the commencement date set forth in the Data Sheet, and shall end on the final day of the last lease year of the term or other specified date as set forth in the Data Sheet, unless sooner terminated as hereinafter provided For the purpose of this Lease, a "lease year" shall be a year of twelve (12) consecutive calendar months. Notwithstanding anything to the contrary contained herein, Landlord shall have any termination rights described on the Data Sheet and Tenant understands and agrees that such right of Landlord is a material provision of this Lease on which Landlord has relied. SECTION 1.03. EXTENSION OPTION(S). Extension Option 1: Tenant shall give the Landlord notice in writing of its intention to exercise the option to renew the lease for the additional one (1) year period on or before December 1, 2017. Extension Option 2: Tenant shall give the Landlord notice in writing of its intention to exercise the option to renew the lease for the additional one (1) year period on or before December 1, 2018. Extension Option 3: Tenant shall give the Landlord notice in writing of its intention to exercise the option to renew the lease for the additional one (1) year period on or before December 1, 2019. If the Tenant does not exercise its option to renew the lease for the first one (1) year extension option, the Tenant waives its right to exercise its extension options for both of the subsequent one (1) year lease extension options. If the Landlord does not receive from the Tenant such written notice and the payment required with such notice, then the Tenant waives its option to exercise its right to renew the lease. ARTICLE H. RENT SECTION 2.01. MWI MUM & TOTAL RENT. (a) The Minimum and Total rent during the term of this Lease shall be the amount set forth in the Data Sheet attached hereto as adjusted pursuant to other provisions of this Lease, which sum shall be payable by Tenant in equal consecutive monthly installments in the sum set forth in the Data Sheet attached hereto, on or before the fast day of each month, in advance, payable as set forth, and at the address set forth or designated bank account, in the Data Sheet attached hereto under "Name and Address for Rent Payments," or such other place as the Landlord may designate in writing, such payments to be without any prior demand therefor and without any deductions or setoff whatsoever. Payments from Tenant shall be made payable to Landlord, and shall be automatically deducted from the Tenant's approved business checking account on the first day on each month. (b) The Building Fee is a fee the tenant will pay the Landlord during the term of the lease as set forth in the Data Sheet, of which that stated amount is included in the Total Rent and is subject to and governed by Section 5.01 (b) Additional Charges. The Building Fee shall be adjusted to conform per Section 2.02 Rent Adjustment (c) Should the term of this Lease commence on a day other than the first day of a calendar month, then the rent for such month shall be prorated on a daily basis based upon a thirty (30) day calendar month. Should any lease year contain less than twelve (12) calendar months, said annual rent shall be prorated. \,a T.sntllnrd Tnitialc fl 11( Tenant Tnitialc Tenant initislc • . Page 5 of 23 Deposit. (d) Upon signing the Lease the Tenant shall pay the Landlord the first month's rent and $5000.00 Security SECTION 2.02. RENT ADJUSTMENT. Notwithstanding any provisions to the contrary contained in this Lease, on September 1, 2015, and on September 1, each successive year of the term of this Lease, the total rent figure(s) in Section 2.01 of the Data Sheet as amended by previous increases, shall each be increased by Three percent (3%). After each such adjustment in the total rent figures in Section 2.01, the adjusted total rent shall become the total rent for the lease year. SECTION 2.03. PAYMENTS. (a) Rent shall be defined in this Lease as (i) minimum rent; and (ii) all other charges of whatever nature required to be paid by Tenant under this Lease, including Additional Charges and Additional Rent. The rent charges described in item (ii) of the preceding sentence shall, unless otherwise specified, be due and payable five (5) days after demand, without any deductions or setoff whatsoever, in the manner and at the place where minimum rent is payable and Tenant's failure to pay rent shall carry with it the consequences set forth under Article XIV hereof. Landlord's rights and remedies pursuant to this Section shall be in addition to any and all other rights and remedies provided under this Lease or at law. Notwithstanding anything to the contrary contained in this Lease, Landlord's invoices for rent may be sent to Tenant by regular mail. Rent is specifically agreed by Tenant to be a minimum reasonable use and occupancy charge for the leased premises. In the event any sums required hereunder to be paid are not received on or before the fifth (5th) day after the same are due, then, for each and every such payment, Tenant shall immediately pay, as additional rent, a service charge of ten percent (10%) of the outstanding amount due, which service charge again shall be imposed for each month that such amount shall remain unpaid. In the event of Tenant's failure to pay the foregoing service charge, Landlord may deduct said charge from the deposit set forth in Section 26.01 hereof. The provisions of this Section shall not be construed to extend the date for payment of any sums required to be paid by Tenant under this Lease or to relieve Tenant of its obligation to pay all such sums at the time or times herein stipulated, and neither the demand for, nor collection by Landlord of, late payment service charges pursuant to this Section shall be construed as a cure of any default in payment by Tenant. It is agreed that the said service charge is a fair and reasonable charge under the circumstances and shall not be construed as interest on a debt payment. In the event any charge imposed hereunder or under any other section of this Lease is either stated to be or construed as interest, then no such interest charge shall be calculated at a rate which is higher than the maximum rate which is allowed under the usury laws of the State, which maximum rate of interest shall be substituted for the rate in excess thereof, if any, computed pursuant to this Lease. In the event that any payment required hereunder fails to clear the bank on which it is drawn or is deemed to be non -sufficient funds, a NSF charge in the amount of one hundred ($100.00) dollars ("NSF Fee") shall be paid by Tenant to Landlord. Upon receipt of notice of the NSF check, Tenant shall immediately pay to Landlord in certified funds, the payment due, the NSF Fee, together with any applicable late charges as set forth herein. (b) Unless Tenant receives a real estate tax abatement satisfactory to both Landlord and any governmental taxing authority, Tenant shall be responsible for and agrees to pay, before delinquency, any sales tax on rents, and any tax or assessment that may be assessed, charged or imposed by law now in effect, or which is hereafter enacted or may go into effect, in connection with the use, occupancy, possession or tenancy of the leased premises for each month or portion thereof during the term of this Lease (all of the foregoing are hereinafter referred to as "rent taxes"). Tenant agrees to pay any applicable taxes in the manner and in accordance with the requirements of applicable law, rule and regulation, as the same may be amended from time to time. In the event that any taxes are due and the applicable taxing authority shall require (or permit and Landlord shall elect to do so) Landlord or Landlord's agent to collect any rent taxes for or on behalf of the applicable taxing authority then such rent taxes shall be paid by Tenant to Landlord or Landlord's agent monthly with the rent payments required hereunder, in accordance with the requirements of the applicable taxing authority and in no event later than monthly within twenty (20) days notice from Landlord to the Tenant, with the burden of the tax calculation to be the responsibility of the Landlord. ARTICLE M. ALTERATIONS, CHANGES AND ADDITIONS SECTION 3.01. INSTALLATION BY TENANT. Tenant shall not make or cause to be made any alterations, 1W Landlord Tnitialc Sl 15 Tenant initials Tenant Initials Page 6 of 23 additions or improvements of any sow the leased premises without the prior An approval of Landlord. In the event Landlord approves any proposed alterations, additions or improvements by Tenant, Landlord may require any reasonable rules, regulations or restrictions in connection with the constriction of such alterations, additions or improvements. SECTION 3.02. REMOVAL BY TENANT. All alterations, additions, fixtures and improvements made by Tenant shall be deemed to have attached to the leasehold and to have become the property of Landlord upon such attachment. Upon expiration or earlier termination of the term of this Lease, Tenant shall not remove any of such alterations, decorations, additions, fixtures or improvements. Landlord may, however, designate by written notice to Tenant those alterations, decorations, additions, improvements, or fixtures which shall be removed by Tenant at the expiration or earlier termination of the Lease, and Tenant shall promptly remove the same and repair any damage to the leased premises caused by such removal. Landlord shall have the right to padlock or otherwise secure the leased premises upon the expiration or earlier termination of the term of the Lease. Landlord shall also have the right, at any time during the term of this Lease, and upon expiration or earlier termination of the term of this Lease, to immediately enter the leased premises in order to remove any items which shall be determined to be a violation of existing health, safety, security or other similar codes or regulations affecting or applicable to the leased premises or the development. Landlord shall provide prior notification to Tenant of such removal, subject to the then existing circumstances. Unless otherwise agreed in writing, all trade fixtures will be removed by Tenant and Tenant will repair any damage to the leased premises caused by such removal. SECTION 3.03 LANDLORD'S LIEN. T o t h e e x t e n t a 11 o w e d b y l a w, Tenant agrees to indemnify and hold Landlord harmless from and against any and all other liens, claims and encumbrances whatsoever, including reasonable attorney's fees, related to or incurred by Tenant, or any agent or employee of Tenant, by counsel satisfactory to Landlord. Tenant acknowledges and agrees that any and all equipment, fixtures, furniture, or other personal or real property located on the Premises not otherwise owned by the Landlord is owned by the Tenant and is subject to Landlord's first priority lien interest unless Tenant notifies Landlord in writing that such property, identified with reasonable specificity, is not owned by the Tenant. Prior to taking possession of the Premises, Tenant hereby authorizes Landlord to execute and deliver to the Colorado Secretary of State or other applicable authorities, a UCC-1 Financing Statement evidencing its grant to Landlord of a security interest in and to such property. Tenant represents and warrants that any personal property, trade fixtures, furniture and equipment shall be the sole and exclusive assets of Tenant free and clear of any and all adverse claims, liens and encumbrances whatsoever. N4T nnrllnril Tnitin1c S�%'S' Tenant Tnitinlc Tenant Tnitialc • 0 Page 7 of 23 ARTICLE IV. CONDUCT OF BUSINESS BY TENANT SECTION 4.01. USE OF PREMISES. Tenant shall continuously use and occupy the entire leased premises during the term of this Lease, which use and occupancy shall be solely for the purpose of conducting the business specifically set forth in the Data Sheet and for no other purpose or purposes. If any governmental license or permit shall be required for the proper and lawful conduct of Tenant's business or other activity carried on in the leased premises or if a failure to procure such a license or permit might or would in any way affect Landlord, then Tenant, at Tenant's expense, shall duly procure and thereafter maintain such license or permit and submit the same for inspection by Landlord. Tenant, at Tenant's expense, shall, at all times, comply with the requirements of each such license or permit. SECTION 4.02. OPERATION OF BUSINESS. Tenant shall conduct its business at all times in a first class and reputable manner. Tenant, at Tenant's expense, shall promptly comply with all present and future laws, ordinances, orders, rules, regulations and requirements of all governmental authorities having jurisdiction, affecting or applicable to the leased premises or the cleanliness, safety, occupancy and use of the same, whether or not any such law, ordinance, order, rule, regulation or requirement is substantial, or foreseen or unforeseen, or ordinary or extraordinary, or shall necessitate structural changes or improvements or interfere with the use and enjoyment of the leased premises. Tenant shall not do or permit anything to be done in or about the leased premises, or bring anything therein, which will in any way conflict with any such law, ordinance, order, rule, regulation or requirement affecting the occupancy or use of the leased premises or the development which is or may hereafter be enacted or promulgated by governmental authorities, or in any way obstruct or interfere with the rights of others, nor shall Tenant use or allow the premises to be used for any improper, immoral or objectionable purposes as determined by Landlord. Tenant shall not cause or permit the use, generation, release, storage or disposal in or about the leased premises or the development of any substances, materials or wastes subject to regulation under any federal or state or local laws from time to time in effect concerning hazardous, toxic or radioactive materials unless Tenant shall have received Landlord's prior written consent, which Landlord may withhold or at any time revoke in its sole discretion. The covenants of Tenant regarding hazardous, toxic or radioactive materials, as set forth in this Lease, shall survive the expiration or earlier termination of the term of this Lease. Tenant shall comply with all federal, state and local laws in effect from time to time prohibiting discrimination or segregation by reason of race, color, creed, age, religion, sex or national origin. No auction, liquidation, going out of business, fire or bankruptcy sales may be conducted or advertised by sign or otherwise in the leased premises, without written authorization by Landlord. Tenant shall not permit noise or odors in the leased premises which are objected to by Landlord and, upon written notice from Landlord, Tenant shall immediately cease and desist from causing such noise or odor, and failing of which Landlord may deem the same a material breach of this Lease. Tenant shall not use or permit the use of any portion of the leased premises as sleeping quarters, lodging rooms, or for any unlawful purposes. Tenant shall not install any radio or television or other similar device exterior to the leased premises and shall not erect any aerial on the roof or exterior walls of any building within the subdivision. ARTICLE V. ADDITIONAL EXPENSES OF THE LEASED PREMISES SECTION 5.01. UTILITY CHARGES. (a) Tenant shall be solely responsible for and shall promptly pay all charges for telephone, cable, intemet, air conditioning, electricity, water, sewer, gas, heat and any other utility used upon or furnished to the leased premises. Tenant shall contract directly with and shall be solely responsible to the public utility companies for the installation of service and the payment of all charges for Tenant's usage of such utility services. If Landlord shall elect to supply any of the foregoing utilities used upon or furnished to the leased premises, Tenant agrees to purchase and pay for same as additional rent, within ten (10) days of the presentation by Landlord to Tenant of bills therefor. Landlord shall also have the right to periodically estimate the monthly amount required to be paid by Tenant to Landlord with respect to any or all of such services provided by Landlord and such estimated monthly amount or amounts shall be paid by Tenant on the first day of each calendar month, in advance, at the place and in the manner specified for payments of minimum rent hereunder. Landlord shall have the right to change such estimated amount or amounts at any time and from time to time, by notice to Tenant. If the total of the estimated monthly payments made by Tenant for any lease year or calendar year shall be less than the actual amount due from Tenant pursuant to the provisions of this Section, Tenant shall pay to Landlord the difference between the amount paid by Tenant and the actual amount due within ten (10) days after submission to Tenant of Landlord's statement and invoice therefor, and if the total of the estimated payments made by Tenant for any such year shall exceed the actual amount due from Tenant, the excess amount paid shall be NT .....11..-A T-4:..l.. J l-?1� To.+...++ T«:4:-1, T........� T«:�:..1 .. 0 • Page 8 of 23 credited against the next payment due from Tenant to Landlord under this Section. The obligation of Tenant to pay for such utilities shall commence as of the date on which possession of the premises is delivered to Tenant. (b) ADDITIONAL CHARGES. Tenant shall be solely responsible for and shall promptly pay all charges, estimated or exact when presented to the tenant; 1) Unless an abatement of takes is obtained by Tenant, the annual Real Estate Taxes for the premises. 2) The quarterly Obermeyer Place Condominium Association dues for the premises. 3) Landlord's property insurance for the premises. Tenant agrees to pay for same as additional rent, within ten (10) days of the presentation by Landlord to Tenant of bills therefor. Landlord shall also have the right to periodically estimate the monthly amount required to be paid by Tenant to Landlord, with respect to any or all of such services provided by Landlord and such estimated monthly amount or amounts shall be paid by Tenant on the first day of each calendar month, in advance, at the place and in the manner specified for payments of minimum rent hereunder. Landlord shall have the right to change such estimated amount or amounts at any time and from time to time, by notice to Tenant. If the total of the estimated monthly payments made by Tenant for any lease year or calendar year shall be less than the actual amount due from Tenant pursuant to the provisions of this Section, Tenant shall pay to Landlord the difference between the amount paid by Tenant and the actual amount due within ten (10) days after submission to Tenant of Landlord's statement and invoice therefor; and if the total of the estimated payments made by Tenant for any such year shall exceed the actual amount due from Tenant, the excess amount paid shall be credited against the next payment due from Tenant to Landlord under this Section or if the lease term has ended, refund such sum. The obligation of Tenant to pay for such utilities shall commence as of the date on which possession of the premises is delivered to Tenant. These charges will be estimated under Building Fee and paid monthly as part of the total rent. (c) Landlord shall not be liable to Tenant for any loss, damage or expense which Tenant may sustain if the quality or character of utilities used upon or furnished to the leased premises are no longer available or suitable for Tenant's requirements, or if said utilities are interrupted as a result of actions by the public utility companies or any other cause and no such change, interruption, or cessation of service shall constitute an eviction of Tenant. (d) Any obligation of Landlord to furnish light, heat, conditioned air, or power or any utility service shall be conditioned upon the availability of adequate energy sources. Landlord shall have the right to reduce heat, lighting, air conditioning or other utility services within the development, including without limitation, the leased premises and the common areas, as required by any energy saving allocation, or any similar statute, regulation, order or program without such action diminishing Tenant's obligations hereunder. Tenant shall cooperate with any of Landlord's directives designed to conserve energy consumption. The minimum temperature during the winter will be 60 Degrees. SECTION 5.02. SNOW REMOVAL AND TRASH COLLECTION. This is provided for by the Obermeyer Place Condominium Association. ARTICLE VI. SIGNS SECTION 6.01. SIGNS. Tenant may not erect or display any signage or other materials visible from beyond the leased premises without the written consent of Landlord and The Obermeyer Place Condominium Association. The size, content, design and location of any signage shall be subject to the prior written approval of Landlord and The Obermeyer Place Condominium Association and subject to any applicable restrictions. 4 T andlnrd Tnitinlc 5//-/ TPnnnt Tnitinlc Tenant Tnitinlc • • Page 9 of 23 ARTICLE VH. MAINTENANCE SECTION 7.01. TENANT'S OBLIGATIONS FOR MAINTENANCE. (a) Except as otherwise provided herein, Tenant, at Tenant's expense, shall keep and maintain in first-class appearance, in a condition at least equal to that which existed when Tenant initially opened the leased premises for business, and in good order, condition and repair as determined by Landlord (including replacement of parts and equipment, if necessary) the leased premises and all common elements appurtenant there to and every part thereof and any and all improvements thereon, including, but without limitation, the interior walls and ceilings, (stud to stud), the interior portion of all doors, door frames, door checks, interior, ordinary and all improvements made by the Tenant. (b) Tenant shall keep and maintain the leased premises and all common elements appurtenant there to in a clean, sanitary and safe condition in accordance with the laws of the State of Colorado and in accordance with all directions, rules and regulations of the health officer, Fire Marshall, building inspector, or other proper officials of the governmental agencies having jurisdiction, and Tenant shall comply with all requirements of law, ordinances and otherwise, affecting the leased premises and the subdivision, all at the sole cost and expense of Tenant. At the time of the expiration or sooner termination of the tenancy created herein, Tenant shall surrender the leased premises in good order, condition and repair. (c) Tenant shall keep the leased premises and all common elements appurtenant there to and all other parts of the development free from any and all liens arising out of any work performed, materials furnished or obligations incurred by or for Tenant, and agrees to bond against or discharge any such lien (including, without limitation, any construction, mechanic's or materialman's lien) within twenty (20) days after written request therefor by Landlord. Tenant shall give Landlord at least five (5) days' notice prior to commencing or causing to be commenced any work on the leased premises (previously approved by Landlord under Section 3.01 hereof). Tenant shall reimburse Landlord for any and all costs and expenses which may be incurred by Landlord by reason of the filing of any such liens and/or the removal of same, plus an administrative fee to Landlord of Two Thousand Five Hundred Dollars ($2,500.00), such reimbursement to be made within ten (10) days after written notice from Landlord to Tenant setting forth the amount of such costs and expenses. Tenant shall provide the following written notice to any contractor performing work in the Leased Premises and shall post the same in a conspicuous place within the Leased Premises while work is being performed: LANDLORD'S INTEREST IN THE LEASED PREMISES SHALL NOT BE SUBJECT TO ANY LIENS FOR LABOR OR MATERIALS FURNISHED OR DELIVERED IN CONNECTION WITH IMPROVEMENTS MADE IN OR TO THE LEASED PREMISES BY OR ON BEHALF OF TENANT OR AT ITS REQUEST. TENANT SHALL HAVE NO AUTHORITY OR POWER, EXPRESS OR IMPLIED, TO CREATE OR CAUSE ANY OTHER TYPE OF LIEN, OR TO CREATE OR CAUSE ANY CHARGE OR ENCUMBRANCE OF ANY HIND AGAINST THE LEASED PREMISES OR ALL OR ANY PART OF THE COMMON AREA. (d) Tenant, at its own expense, shall install and maintain portable handheld fire extinguishers. (e) Tenant agrees to operate any heating and air conditioning system(s) serving the leased premises in a reasonable manner and shall be responsible and shall promptly pay Tenant's proportional share of any repairs, annual maintenance or replacement charges for the Leased Premises. Landlord may invoice Tenant for any repairs, annual maintenance or replacement charges; provided, however, that Tenant shall be responsible for such charges whether or not an invoice is sent to Tenant for the same. The Landlord may maintain the system(s) per Section 16.01. (f) Tenant expressly waives all rights to make repairs at the expense of Landlord except as provided for by Colorado State Statutes. (g) In the event that Tenant fails, refuses or neglects to commence and. complete repairs promptly and adequately, to remove any lien, to pay any cost or expense, to reimburse Landlord, or otherwise to perform any act or fulfill any obligation required of Tenant pursuant to this Section 7.01, Landlord may, upon three (3) days' prior written notice to Tenant (except in the event of an emergency in which event no notice shall be required), but shall not be T anrilnrrl Tnitiale SA/W Tenant Tnitialc Tenant Tnitialc . Page 10 of.23 required to, make or complete any such repairs, remove such lien (without inquiring into the validity thereof), pay such cost or perform such act or the like, but at the sole cost and expense of, Tenant, and Tenant shall reimburse Landlord for costs and expenses of Landlord thereby incurred within ten (10) days after receipt by Tenant from Landlord of a statement setting forth the amount of such costs and expenses. Landlord's rights and remedies pursuant to this subsection (g) shall be in addition to any and all other rights and remedies provided under this Lease or at law. ARTICLE VM. INSURANCE AND INDEMNITY SECTION 8.01. TENANT'S INSURANCE. (a) Tenant, at its sole cost and expense, shall, at all times, commencing with the date upon which the leased premises shall be made available for Tenant's Work, procure, pay for and keep in full force and effect: (i) a commercial general liability policy, including insurance against assumed or contractual liability under this Lease with respect to the leased premises and the operations of Tenant and any subtenants of Tenant in, on or about the leased premises in which the limits with respect to personal liability and property damage shall be not less than One Million Dollars ($1,000,000) per occurrence naming Landlord as an additional insured; (ii) all risk property insurance, including theft and, if applicable, boiler and machinery coverage, and windstorm insurance, written at replacement cost value in an adequate amount to avoid coinsurance and a replacement cost endorsement insuring Tenant's leasehold improvements, merchandise, trade fixtures, furnishings, equipment and all items of personal property of Tenant and including property of Tenants customers located on or in the leased premises; (iii) workers' compensation coverage as required by law; (iv) with respect to alterations, improvements and the like required or permitted to be made by Tenant hereunder, contingent liability and builder's risk insurance, in amounts satisfactory to Landlord; and (v) such insurance as may from time to time be required by city, county, state or federal laws, codes, regulations or authorities, together with such other insurance as is reasonably necessary or appropriate under the circumstances. The minimum limits of coverage as set forth in this paragraph may from time to time, at Landlord's option, be increased by not more than five percent (5%) per annum, on a cumulative basis, with such increase to occur not more often than once during each lease year during the term hereof. (b) All policies of insurance required to be carried by Tenant pursuant to this Section 8.01 shall be written by responsible insurance companies authorized to do business in the State of Colorado or by the insurance pool to which the City of Aspen is a member and participant. A copy of each paid -up policy evidencing such insurance (appropriately authenticated by the insurer) or a certificate of the insurer, certifying that such policy has been issued, providing the coverage required by this Section and containing provisions specified herein, shall be delivered to Landlord prior to Tenant's entry into the leased premises and, upon renewals, not less than thirty (30) days prior to the expiration of such coverage. Landlord may, at any time, and from time to time, inspect and/or copy any and all insurance policies required to be procured by Tenant hereunder. (c) Each policy evidencing insurance required to be carried by Tenant pursuant to this Section 8.01 shall provide coverage on an occurrence basis (and not on a "claims -made" basis) and shall contain the following provisions and/or clauses: (i) a provision that such policy and the coverage evidenced thereby shall be primary and non-contributing with respect to any policies carried by Landlord, and that any coverage carried by Landlord shall be excess insurance; (ii) a provision including Landlord and any other parties in interest designated by Landlord or such beneficial ownership entity (if any), as additional insured (except with respect to workers' compensation insurance); (iii) with respect to property insurance, a waiver by the insurer of any right of subrogation against Landlord, the underlying lessor, if any, and their respective agents, employees and representatives which arises or might arise by reason of any payment under such policy or by reason of any act or omission of Landlord, its agents, employees or representatives; (iv) a provision that the insurer will not cancel, materially change or fail to renew the coverage provided by such policy without first giving Landlord thirty (30) days' prior written notice; and (v) a provision (to the extent available) that no act or omission of Landlord shall affect or limit the obligation of the insurer to pay the amount of any loss sustained. (d) In the event that Tenant fails to procure, maintain and/or pay for, at the times and for the durations specified in this Section 8.01, any insurance required by this Section, or fails to carry insurance required by law or governmental regulation, Landlord may (but without obligation to do so) at any time or from time to time, and with five (5) days' prior written notice to Tenant, procure such insurance and pay the premiums therefor, in which event Tenant shall repay to Landlord all sums so paid by Landlord together with interest thereon as provided elsewhere herein and any costs or expenses incurred by Landlord in connection therewith, within ten (10) days following Landlord's written demand to Tenant for such payment. i .and1nrd Initials S.CG/% Tenant Initials Tenant Initials • 0 Page 11 of 23 (e) Tenant shall not carry any stock of goods, manufacture any product or do anything else in or about the leased premises which will in any way tend to increase the insurance rates of Landlord, the leased premises and/or the building of which they are a part and/or the contents thereof. If Tenant installs any electrical equipment that overloads the lines in the leased premises, Tenant shall at its own expense make whatever changes are necessary to comply with the requirements of the insurance underwriters and governmental authorities having jurisdiction: (f) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this lease, the monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protection provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. SECTION 8.02. LANDLORD'S INSURANCE. Landlord may maintain commercial general liability insurance for the subdivision; provided, however, Tenant shall be obligated to maintain Tenant's insurance in accordance with Section 8.01 above whether or not Landlord maintains insurance coverages. Any insurance required of Landlord hereunder may be furnished by or for Landlord under any blanket or umbrella policy carried by or for Landlord or under a separate policy therefor. SECTION 8.03. COVENANT TO HOLD HARMLESS. To the extent allowed by law, Tenant covenants to indemnify Landlord, and its respective officers, directors, stockholders, beneficiaries, partners, principals, members, representatives, agents and employees, and save them harmless (except to the extent of loss or damage resulting from the negligence of Landlord and not required to be insured against by Tenant pursuant to this Article V" from and against any and all claims, actions, damages, liability, cost and expense, including attorneys' fees, in connection with all losses, including loss of life, personal injury and/or damage to property, arising from or out of any occurrence in, upon or at the leased premises or the occupancy or use by Tenant of the leased premises or any part thereof, or arising from or out of Tenant's failure to comply with any provision of this Lease or occasioned wholly or in part by any act or omission of Tenant, its concessionaires, agents, contractors, suppliers, employees, servants, customers or licensees. Landlord shall have the right to engage its own attorneys in connection with any of the provisions of this Section 8.03 or any other provision of this Lease, including, without limitation, any defense of Landlord or intervention by Landlord, notwithstanding any contrary provisions or court decisions of the State of Colorado. The • foregoing provisions of this Section shall survive the expiration or earlier termination of the term of this Lease. ARTICLE IX. ESTOPPEL STATEMENT, ATTORNMENT AND SUBORDINATION SECTION 9.01. ESTOPPEL STATEMENT. Tenant shall, without charge, at any time and from time to time, within ten (10) days after receipt by Tenant of written request therefor from Landlord or from any mortgagee under any mortgage or any beneficiary under any deed of trust on the real property on which the building containing the leased premises is located or of which the leased premises are a part, deliver, a duly executed and acknowledged certificate or statement to the party requesting said certificate or statement or to any other person, firm or corporation designated by Landlord, certifying: (a) that this Lease is unmodified and in full force and effect, or, if there has been any modification, that the same is in full force and effect as modified, and stating any such modification; (b) the date of commencement of the term of this Lease; (c) that rent is paid currently without any off -set or defense thereto; (d) the dates to which the rent and other charges payable hereunder by Tenant have been paid, and the amount of rent and other charges, if any, paid in advance; (e) whether or not there is then existing any claim of Landlord's default hereunder and, if so, specifying the nature thereof; and (f) any other matters relating to the status of such Lease as shall be requested by Landlord or any such mortgagee or beneficiary from time to time; provided that, in fact, such facts are accurate and ascertainable. Any such certificate or statement by Tenant may, at the election of the requesting party, include Tenant's undertaking not to pay rents or other charges for more than a specified period in advance of the due dates therefor set forth herein. SECTION 9.02. ATTORNIVIENT. In the event any proceedings are brought for the foreclosure of, or in the event of the conveyance by deed in lieu of foreclosure of, or in the event of exercise of the power of sale under, any mortgage and/or deed of trust made by Landlord covering the leased premises, or in the event Landlord sells, conveys or otherwise transfers its interest in the Leased Premise or any portion thereof containing the leased premises, this Lease shall remain in full force and effect and Tenant hereby attorns to, and covenants and agrees to execute an instrument in w�rj.. g reasonably satisfactory to the new owner whereby Tenant attorns to such successor in interest and recognizes r T.anrllnrd Tnitiale Ci /a Tenant Tnitialc Tenant Tnitial.c Page 12 of 23 such successor as the Landlord undlWis Lease. Payment by or performance 10his Lease by any person, firm or corporation claiming an interest in this Lease or the leased premises by, through or under Tenant without Landlord's consent in writing shall not constitute an attornment or create any interest in this Lease or the leased premises. T —Al—A 1n;t;ale S 6//'Tannnt Tnitialc Tenant Initials 0 • Page 13 of 23 SECTION 9.03. SUBORDINATION. Tenant agrees that this Lease shall, at the request of Landlord, be subordinate to any mortgages or deeds of trust that are now, or may hereafter be, placed upon the leased premises and to any and all advances to be made thereunder, and to the interest thereon, and all renewals, replacements and extensions thereof, provided that the lessor under any such underlying or ground lease or the mortgagees or beneficiaries named in said mortgages or trust deeds shall agree to recognize the interest of Tenant under this Lease in the event of foreclosure, if Tenant is not then in default. Tenant also agrees that any mortgagee or beneficiary may elect to have this Lease constitute a prior lien to its mortgage or deed of trust, and in the event of such election and upon notification by such mortgagee or beneficiary to Tenant to that effect, this Lease shall be deemed prior in lien to such mortgage or deed of trust, whether this Lease is dated prior to or subsequent to the date of said mortgage or deed of trust. Tenant agrees that upon the request of Landlord, or any mortgagee or beneficiary, Tenant shall execute whatever instruments may be required by Landlord or by any mortgagee or beneficiary to carry out the intent of this Section. Notwithstanding the foregoing, if this Lease is hereafter subordinated to any ground lease, mortgage, deed of trust, or other lien to which this Lease would not be subordinate but for this Section or actions taken pursuant to this Section, Tenant shall then and thereafter be entitled to demand and obtain a nondisturbance agreement from the holder of such interest on such terms as said holder may reasonably specify, which terms shall not require modification of this Lease or expenditure of funds by Tenant other than for Tenant's own review and negotiation of the nondisturbance agreement. SECTION 9.04. REMEDIES. Failure of Tenant to execute any statements or instruments necessary or desirable to effectuate the foregoing provisions of this Article, within ten (10) days after written request so to do by Landlord, shall constitute a breach of this Lease. For each day beyond the referenced ten (10) day period that Tenant shall fail to execute said statements or instruments, Tenant shall pay to Landlord Five Hundred and 00/100ths Dollars ($500.00) in order to partially compensate Landlord for the administrative costs and other damages arising from Tenant's failure. Such per diem amount shall be immediately due and payable as additional rent under this Lease ARTICLE X. ASSIGNMENT AND SUBLETTING SECTION 10.01. NO ASSIGNMENT OR SUBLETTING. Tenant agrees not to assign or in any manner transfer this Lease or any estate or interest therein, and not to lease or sublet the leased premises or any part or parts thereof or any right or privilege appurtenant thereto, and not to allow anyone to conduct business at, upon or from the leased premises, or to come in, by, through or under it, in all cases either by voluntary or involuntary act of Tenant or by operation of law or otherwise, without the written consent of Landlord, which consent shall be made at Landlord's sole discretion. The sale, issuance or transfer of any voting capital stock or interest of Tenant or Tenant's Guarantor which results in a change in the direct or indirect voting control (or a change in the identity of any person, persons, entity or entities with the power to vote or control at least fifty percent (50%) of the voting shares of any class of stock) of Tenant, or Tenant's Guarantor, shall be deemed to be an assignment of this Lease within the meaning of this Section 10.01. Any such prohibited act by Tenant or Tenant's Guarantor (or any attempt at same), either voluntarily or involuntarily or by operation of law or otherwise, shall, at Landlord's option, terminate this Lease without relieving Tenant of any of its obligations hereunder for the balance of the stated term, and any such act shall be null and void. ARTICLE XI. WASTE SECTION 11.01. WASTE OR NUISANCE. Tenant shall not commit or suffer to be committed any waste upon the leased premises and shall not place a load upon any floor of any improvement upon the leased premises which exceeds the floor load per square foot which such floor was designed to carry. Tenant shall not commit or suffer to be committed any nuisance or other act or thing which may disturb the quiet enjoyment of any other occupant or tenant of the subdivision. Tenant shall take such action as Landlord reasonably deems necessary to prevent or terminate any such nuisance or waste arising out of Tenant's business, including, without limitation, any nuisance created by employees, agents, contractors, invitees or licensees of Tenant. ARTICLE X I. DESTRUCTION OF LEASED PREMISES I�A T anAlnrrl Tnitiale J/7// TPnant Initialc Tenant Initials • � Page 14 of 23 SECTION 12.01. RECONSTRUCTION OF DAMAGED PREMISES. If the leased premises are destroyed, the lease shall terminate. In the event of a partial destruction of the leased premises, and it is not economically feasible to restore the premises in the determination of either the Landlord or the insurance company, then this lease shall terminate. If there is a partial destruction of the leased premises, and a government authority condemns the building, this lease shall terminate. In the event there is partial destruction of the premise, and the Landlord repairs and restores the leased premises, it will be to the condition which existed at the commencement of the lease, then the lease will remain in full force and effect, and the rent shall abate from the time of the casualty to the completion of the Landlords repairs. The Tenant agrees to use their own insurance to restore the Tenant improvements. SECTION 12.02. WAIVER OF SUBROGATION. Each party hereto does hereby waive, remise, release and discharge the other party hereto and any officer, director, shareholder, beneficiary, partner, agent, employee or representative of such other party, of and from any liability whatsoever hereafter arising from loss, damage or injury caused by fire or other casualty for which insurance containing a waiver of subrogation is carried by the injured party at the time of such loss, damage or injury to the extent of any recovery by the injured party under such insurance. ARTICLE XIII. EMINENT DOMAIN SECTION 13.01. TOTAL CONDEMNATION OF LEASED PREMISES. If the whole of the leased premises shall be taken by any public authority under the power of eminent domain or sold to public authority under threat or in lieu of such a taking, then the term of this Lease shall cease as of the day possession shall be taken by such public authority, and the rent shall be paid up to that day with a proportionate refund by Landlord of such rent and other charges as may have been paid in advance for a period subsequent to the date of the taking. SECTION 13.02. PARTIAL CONDEMNATION. (a)(i) If less than the whole but more than twenty percent (20%) of the leased premises (or any portion of the leased premises the taking of which renders the entire leased premises untenantable) shall be so taken under eminent domain, or sold to public authority under threat or in lieu of such a taking, Tenant shall have the right either to terminate this Lease and declare the same null and void as of the day possession is taken by public authority, or, subject to Landlord's right of termination as set forth in Section 13.02(b) of this Article, to continue in the possession of the remainder of the leased premises, upon notifying Landlord in writing within ten (10) days after such taking of Tenant's intention. In the event Tenant elects to remain in possession, all of the terms herein provided shall continue in effect, except that, as of the day possession of such percentage of the leased premises is taken by public authority, the minimum rent and other charges payable by Tenant to Landlord (to the extent that such charges are based upon the square foot area of the leased premises) shall be reduced in proportion to the floor area of the leased premises taken; thereafter, Landlord shall, at its own cost and expense, make all necessary repairs or alterations to the basic building and Tenant, at Tenant's sole cost, shall similarly act with respect to Tenant's improvements, trade fixtures, furnishings and equipment. (ii) If this Lease is not terminated under subsections 13.02(a) (i) or (b), the lease term shall cease only on the part so taken, as of the day possession shall be taken by such public authority, and Tenant shall pay rent and other charges up to that day, with appropriate credit by Landlord (toward the next installment of such rent or charges due from Tenant) of such rent or charges as may have been paid in advance for a period subsequent to the date of the taking; thereafter, the minimum rent and other charges payable to Landlord (to the extent that such charges are based upon the square foot area of the leased premises) shall be reduced in proportion to the amount of the leased premises taken. Landlord shall, at its expense, make all necessary repairs or alterations to the basic building and Tenant, at Tenant's sole cost, shall similarly act with respect to Tenant's improvements, trade fixtures, furnishings and equipment. (b) If more than fifty percent (50%) of the leased premises are located shall be taken under power of eminent domain, or sold to public authority under the threat or in lieu of such a taking, Landlord may, by written notice to Tenant delivered on or before the tenth (10th) day following the date of surrendering possession to the public authority, terminate this Lease as of the day possession is taken by public authority. The rent and other charges shall be paid up to the day possession is taken by public authority, with an appropriate refund by Landlord of such rent as may have been paid in advance for a period subsequent to that date. ?9 Landlord Initialsf�,/f Tenant Initials Tenant Initials • 0 Page 15 of 23 SECTION 13.03. LANDLORD'S AND TENANT'S DAMAGES. All damages awarded for such taking under the power of eminent domain or sale under threat or in lieu of such a taking, whether for the whole or a part of the leased premises, shall belong to and be the property of Landlord, irrespective of whether such damages shall be awarded as compensation for diminution in value to the leasehold or to the fee of the leased premises, and Tenant shall have no claim against either Landlord or the condemning authority with respect thereto; provided, however, that Landlord shall not be entitled to any award specifically designated as compensation for, depreciation to, and cost of removal of, Tenant's stock and trade fixtures, nor (subject to the rights of Landlord's mortgagee[s]) to any award specifically designated as compensation to Tenant for relocation expenses (to the extent the award for relocation expenses would not reduce the award which would otherwise have been received by Landlord in the absence of any award to Tenant for relocation expenses). ARTICLE X1V. DEFAULT SECTION 14.01. RIGHT TO RE-ENTER (a) In the event of (1) any failure of Tenant to pay any rent or other charges due hereunder when due, or (2) any failure to perform any other of the terms, conditions or covenants of this Lease to be observed or performed by Tenant for more than thirty (30) days after written notice of such default shall have been mailed to Tenant (provided, however, such period shall be extended for an additional reasonable period if the default is of such a nature that it cannot be cured within thirty (30) days and Tenant has diligently commenced the curing of such default and is diligently pursuing the same to completion); then Landlord, besides other rights or remedies it may have, shall have the right to declare this Lease terminated and the term ended (in which event, this Lease and the term hereof shall expire, cease and terminate with the same force and effect as though the date set forth in any required notice were the date originally set forth herein and fixed for the expiration of the term and Tenant shall vacate and surrender the premises but shall remain liable for all obligations arising during the balance of the original stated term as hereafter provided as if this Lease had remained in full force and effect) and Landlord shall have the right, without further notice, (except as otherwise required by Colorado law) to brig a special proceeding to recover possession from Tenant holding over and/or Landlord may, in any of such events, re-enter the leased premises, and dispossess, Tenant and the legal representative of Tenant or other occupant of the leased premises and remove their effects and hold the premises as if this Lease had not been made. (b) Notwithstanding the foregoing provisions of this Section, in the event Tenant shall fail to perform or shall default in the performance of any term, covenant or condition of this Lease on two (2) or more separate occasions during any twelve-month period, then, even though such failures or defaults may have been cured by Tenant, any further failure or default of the same kind by Tenant during such twelve-month period shall be deemed a default without the ability for cure by Tenant. During the continuance of any failure of performance or any default by Tenant in the performance of any term, covenant or condition of this Lease, Tenant shall not be entitled to exercise any rights or options, or to receive any funds or proceeds being held under or pursuant to this Lease, notwithstanding any contrary provisions contained herein. In the event of re-entry by Landlord exercised per this clause, Landlord may remove all property from the leased premises and such property may be stored in a public warehouse or elsewhere at the cost of, and for the account of Tenant, without notice or resort to legal process and without Landlord being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. In addition, and to the extent permitted by law, in the event of re-entry by Landlord, Landlord may, but shall not be required to, padlock or otherwise secure the entrances to the leased premises without prior notice or resort to legal process and without being deemed guilty of trespass or becoming liable for any loss or damage; all costs and expenses incurred by Landlord in securing the entrances to the leased premises shall be borne by Tenant and shall be payable to Landlord on ten (10) days' written notice; and any such padlocking or securing of the premises shall not constitute or be deemed as an election on Landlord's part to terminate this Lease unless a written notice of such intention shall be given to Tenant or unless the termination of this Lease is decreed by a court of competent jurisdiction. In the event Tenant shall not remove its property from the leased premises within ten (10) days after Tenant has vacated the premises, then such property shall be deemed abandoned by Tenant and Landlord may dispose of the same without liability to Tenant. At any time that Tenant has failed to pay rent or other charges within ten (10) days after the same shall be due, thereafter Landlord shall not be obligated to accept any payment from Tenant unless such payment is made in certified funds. SECTION 14.02. RIGHT TO RELET. Should Landlord elect to re-enter, as herein provided, or should it take possession pursuant to legal proceedings or pursuant to any notice provided for by law, it may either terminate this Lease aLandlord Initials Tenant Initials Tenant Initials • Page 16 of 23 or it may from time to time, without terminating this Lease, make such alterations and repairs as may be necessary in order to relet the premises, and relet said premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rent and upon such other terms and conditions as Landlord in its sole discretion may deem advisable. Upon each such reletting all rents and other sums received by Landlord from such reletting shall be applied, first, to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting, including reasonable brokerage fees and attorneys' fees and the costs of any alterations and repairs; third, to the payment of rent and other charges due and unpaid hereunder with respect to the period of the reletting, and the excess, if any, shall be held by Landlord without credit to Tenant. If such rents and other sums received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, Tenant shall pay such deficiency to Landlord; if such rents and the sums shall be more, Tenant shall have no right to, and shall receive no credit for, the excess. Such deficiency shall be calculated and paid monthly. No re-entry or taking possession of the leased premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time elect to terminate this Lease for such previous breach. Should Landlord at any time terminate this Lease for any breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the leased premises, reasonable attorneys' fees, and including the amount of rent and charges reserved in this Lease for the remainder of the stated term over, all of which amounts shall be immediately due and payable from Tenant to Landlord. Nothing contained in this Lease shall be construed to limit or prejudice the right of Landlord to prove for and obtain as damages by reason of the termination of this Lease or re-entry of the leased premises for the default of Tenant under this Lease an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved, whether or not such amount shall be greater than any of the sums referred to in this Section. SECTION 14.03. EXPENSES. In case suit shall be brought for recovery of possession of the leased premises, for the recovery of rent or any other amount due under the provisions of this Lease, or because of the breach of any other covenant herein contained on the part of Tenant to be kept and performed, and a breach shall be established, Tenant shall pay to Landlord all expenses incurred therefor, including reasonable attorneys' fees. SECTION 14.04. WAIVER OF TRIAL BY JURY. Landlord and Tenant waive their right to trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other (except for personal injury or property damage) on any matters whatsoever arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant, Tenant's use of or occupancy of said premises, and any emergency statutory or any other statutory remedy. ARTICLE XV. BANKRUPTCY OR INSOLVENCY SECTION 15.01. TENANT'S INTEREST NOT TRANSFERABLE. Neither Tenant's interest in this Lease, nor any estate hereby created in Tenant nor any interest herein or therein, shall pass to any trustee, except as may specifically be provided pursuant to the Bankruptcy Code (I I USC § 101 et. seq.), or to any receiver or assignee for the benefit of creditors or otherwise by operation of law. SECTION 15.02. TERMINATION. In the event the interest or estate created in Tenant hereby shall be taken in execution or by other process of law, or if Tenant or Tenant's Guarantor, if any, or Tenant's executors, administrators, or assigns, if any, shall be adjudicated insolvent or bankrupt pursuant to the provisions of any state law or an order for the relief of such entity shall be entered pursuant to the Bankruptcy Code, or if a receiver or trustee of the property of Tenant or Tenant's Guarantor, if any, shall be appointed by reason of the insolvency or inability of Tenant or Tenant's Guarantor, if any, to pay its debts, or if any assignment shall be made of the property of Tenant or Tenant's Guarantor, if any, for the benefit of creditors, then and in any such events, this Lease and all rights of Tenant hereunder shall automatically cease and terminate with the same force and effect as though the date of such event were the date originally established herein and fixed for the expiration of the term, and Tenant shall vacate and surrender the leased premises but shall remain liable as herein provided. Notwithstanding the foregoing provisions of this Section, in the event that such termination shall result solely from the bankruptcy or insolvency of, or such other described event relating to, Tenant's Guarantor, Landlord shall have the option to reinstate all of the provisions of this Lease upon written notice to Tenant. 4 Landlord Initialsf� Tenant Initials Tenant Initials . 0 Page 17 of 23 ARTICLE XVI. ACCESS BY LANDLORD SECTION 16.01. RIGHT OF ENTRY. Upon delivering a minimum of 24 hour notice to Tenant Landlord or Landlord's agents shall have the right to enter the leased premises at all reasonable times to examine the same and to show them to prospective purchasers or mortgagees. Upon delivering reasonable notice to Tenant Landlord or Landlord's agents shall have the further right to enter the leased premises to make such repairs, alterations, improvements or additions as Landlord may deem necessary or desirable, irrespective of whether the work shall be for the leased premises or for other premises or facilities, and Landlord shall be allowed to take all material into and upon the leased premises that may be required therefor without the same constituting an eviction of Tenant in whole or in part, and the rent and other charges reserved shall in no wise abate while said repairs, alterations, improvements, or additions are being made, by reason of loss or interruption of business of Tenant, or otherwise. If an additional specifically written temporary agreement between the Landlord and Tenant exists, and a repair commenced by the Landlord causes an interruption of Tenant's business, an abatement of rent may be provided for based on the untenable square footage. Upon delivering a minimum of 24 hour notice to Tenant and at a time mutually agreeable, Landlord may exhibit the leased premises to prospective tenants or other parties. At any time that access is requested, Landlord or Landlord's agent shall be accompanied at all times by the Tenant or a designated agent of the Tenant. Landlord shall not have independent access to the units that are the subject of this Lease and shall not retain any keys or key codes to the property. Locks and codes may be changed by the Tenant at any time and Tenant's sole discretion. ARTICLE XVI1. TENANT'S PROPERTY SECTION 17.01. TAXES ON TENANT'S PROPERTY. Tenant shall be responsible for, and shall pay, prior to delinquency, any and all taxes, assessments, levies, fees and other governmental charges of every kind or nature (for all purposes under this Lease, collectively called "taxes") levied or assessed by municipal, county, state, federal or other taxing or assessing authority upon, against or with respect to (i) the leased premises or any leasehold interest, (ii) all furniture, fixtures, equipment and any personal property of any kind owned by Tenant or any previous tenant and occupant, and which is placed, installed or located in, within, upon or about the leased premises, (iii) all alterations, additions or improvements of whatsoever kind or nature, if any, made to and contained within the leased premises, by Tenant or any previous tenant or occupant, and (iv) rents or other charges payable by Tenant to Landlord, irrespective of whether any of the terms described in clauses (i) through (iv) above are assessed against real or personal property, and irrespective of whether any of such items are assessed to or against Landlord or Tenant. If at any time during the term of this Lease any of such taxes are not levied and assessed separately and directly to Tenant (for example, if the same are levied or assessed to Landlord, or upon or against the building containing the leased premises and/or the land underlying said building), Tenant shall pay to Landlord Tenant's share thereof as reasonably determined by Landlord. Landlord shall supply Tenant with a copy of any Taxes levied, due or paid. SECTION 17.02. LOSS AND DAMAGE. Landlord shall not be responsible or liable to Tenant for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying adjoining premises or any part of the premises adjacent to or connected with the premises hereby leased or any part of the building of which the leased premises are a part, or any other area in the development, or for any loss or damage resulting to Tenant or its property from bursting, stoppage or leaking of water, gas, sewer or steam pipes, or (without limiting the foregoing) for any damages or loss of property within the leased premises from any cause whatsoever. SECTION 17.03. NOTICE BY TENANT. Tenant shall give prompt notice to Landlord in case of any damage to or destruction of all or any part of, or accidents in, the leased premises or of defects therein or in alterations, decorations, additions or improvements, including, without limitation, any fixtures or equipment. 4 1 andinrd lnitiale (-,4iW Tenant lnitink Tenant Tnitinlc 0 • Page 18 of 23 ARTICLE XVIII. HOLDING OVER SECTION 18.01. HOLDING OVER Tenant shall have no right to remain in possession of all or any portion of the leased premises after the expiration of the lease term, or option period, if applicable. Any holding over after the expiration of the term hereof with the consent of the Landlord, shall be construed to be a tenancy from month to month at a monthly minimum rent of not less than one hundred fifty percent (150%) of the Minimum Rent at the time of the Holding Over, together with an amount estimated by Landlord for the monthly additional charges payable pursuant to this Lease, and shall otherwise be on the same terms and conditions as herein specified so far as applicable, subject to any changes in any of the foregoing terms or conditions as may be submitted by Landlord to Tenant upon at least thirty (30) days' prior written notice. Any holding over without Landlord's consent shall entitle Landlord to re-enter the leased premises as provided in Section 14.01 of this Lease. SECTION 18.02. SUCCESSORS. All rights and liabilities herein given to, or imposed upon, the respective parties hereto shall extend to and bind the several respective heirs, executors, administrators, successors, and assigns of the said parties; and if there shall be more than one person or entity comprising Tenant, they shall all be bound jointly and severally by the terms, covenants and agreements herein. No rights, however, shall inure to the benefit of any assignee of Tenant unless the assignment shall be permitted under this Lease. ARTICLE M. RULES AND REGULATIONS SECTION 19.01. RULES AND REGULATIONS. Tenant agrees to comply with and observe all rules and regulations established by Landlord and The Obermeyer Place Condominium Association from time to time. Tenant's failure to keep and observe said rules and regulations shall constitute a breach of the terms of this Lease in the same manner as if the rules and regulations were contained herein as covenants. In the case of any conflict between said rules and regulations and this Lease, this Lease shall be controlling. ARTICLE XX. QUIET ENJOYMENT SECTION 20.01. LANDLORD'S COVENANT. Upon payment by Tenant of the rents herein provided, and upon the observance and performance of all covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall peaceably and quietly hold and enjoy the leased premises for the term hereby demised without hindrance or interruption by Landlord or any other person or persons lawfully or equitably claiming by, through or under Landlord, subject, nevertheless, to the terms and conditions of this Lease and any mortgage, deed of trust or underlying lease to which this Lease is subordinate. Landlord shall not be responsible for any alterations, renovations, remodeling, or construction caused by any neighboring property owners. Tenant shall have no claim as against Landlord for any damage, disruption of services, disruption of Tenant's activities or for any cause arising out of any work performed by such third parties. Tenant and Landlord acknowledge and agree that there will be no pro -ration of rent for disturbances caused by the aforementioned activities. ARTICLE Y.M. SECURITY PROVISION SECTION 21.01. SECURITY. The amount set forth in the Data Sheet as a security deposit is payable by Tenant, upon the execution of this Lease by Tenant, in the manner and at the place where minimum rent is payable. Landlord is to retain said amount as security for the faithful performance of all covenants, conditions and agreements of this Lease. Such amount is occasionally referred to herein as the "security." Landlord may, at its option, apply the security to remedy defaults in the payment of any rent or other charge hereunder, to repair damages to the leased premises caused by Tenant, or to clean the leased premises upon the expiration or termination of this Lease, or if the Tenant failed to clean to a satisfactory standard know as "broom clean" as inspected by the Landlord or Landlords agents. In no event however, shall Landlord be obligated to apply the security. Landlord's right to bring a special proceeding to recover or otherwise to obtain possession of the leased premises before or after Landlord's declaration of the termination of this Lease for nonpayment of rent or for any other reason shall not in any event be affected by reason of the fact that Landlord holds such security. Such security, if not applied toward the payment of rent in arrears or toward the payment of damages suffered by Landlord by reason of Tenant's breach of the covenants, conditions and agreements of this Lease, is to be returned to Tenant without interest, except as provided by law, when this Lease is terminated according to its terms, but in Landlord InitialsMf11' Tenant Initials Tenant Initials • • Page 19 of 23 no event is such security to be returned until Tenant has vacated the leased premises and delivered possession thereof to Landlord. In the event that Landlord repossesses itself of the leased premises, whether by special proceeding or re-entry or otherwise, because of Tenant's default or failure to carry out the covenants, conditions and agreements of this Lease, Landlord may apply such security upon all damages suffered to the date of said repossession and may retain the security to apply upon such damages as may be suffered or shall accrue thereafter by reason of Tenant's default or breach. In the event any bankruptcy, insolvency, reorganization or other creditor -debtor proceedings shall be instituted by or against Tenant, or its successors or assigns, or any guarantor of Tenant hereunder, such security shall be deemed to be applied first to the payment of any rents and/or other charges due Landlord for all periods prior to the institution of such proceedings, and the balance, if any, of such security may be retained by Landlord in partial liquidation of Landlord's damages. Landlord shall be obligated to keep such security as a separate fund and may not commingle the security with its own funds. The Landlord is entitled to all interest on the Security Deposit account. In the event Landlord applies the security in whole or in part, Tenant shall, upon demand by Landlord, deposit sufficient funds to maintain the security in the initial amount. Failure of Tenant to deposit such additional security shall entitle Landlord to avail itself of the remedies provided in this Lease for nonpayment of rent by Tenant. The acceptance by Landlord of the security deposit submitted by Tenant shall not render this Lease effective unless and until Landlord shall have executed and actually delivered to Tenant a fully -executed copy of this Lease. ARTICLE XXIEL MISCELLANEOUS SECTION 22.01. WAIVER; ELECTION OF REMEDIES. The subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to pay the particular rent so accepted, regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such rent. In particular, but without limitation, if Tenant assigns or transfers its interest in this Lease contrary to the terms of this Lease, any acceptance by Landlord of such assignee's or transferee's payment shall not be deemed to be a waiver of the restrictions set forth herein. In the event that Tenant shall be at any time in default of both monetary and nonmonetary terms, covenants or conditions of this Lease, any acceptance by Landlord of any payment rendered by Tenant shall not have the effect of curing Tenants nonmonetary defaults and shall not have the effect of curing any monetary default other than the particular amount owing for which such payment is specifically accepted by Landlord. Following notice of termination or any other remedy exercised by Landlord with respect to any monetary default of Tenant, such default shall not be deemed cured by the payment of rent owing by Tenant for the current period only, and Landlord may apply such payments to current rent only without any effect upon Tenants existing indebtedness and continuing monetary default, notwithstanding any contrary instructions by or on behalf of Tenant, which instructions shall be null and void and of no effect. In addition, after the service of notice or the commencement of a suit, or after final judgment for the possession of the leased premises, Landlord may receive and collect rent due from Tenant, and the payment of rent by Tenant shall not waive or affect said notice or suit or judgment. One or more waivers of any covenant or condition by Landlord shall not be construed as a waiver of a subsequent breach of the same covenant or condition, and the consent or approval by Landlord to or of any act by Tenant requiring Landlord's consent or approval shall not be deemed to render unnecessary Landlord's consent or approval to or of any subsequent similar act by Tenant. The failure of Landlord to insist upon a strict performance of any term, condition or covenant contained in this Lease shall not be deemed a waiver of any rights or remedies that Landlord may have and shall not be deemed a waiver of any subsequent breach or default in the terms, conditions or covenants herein contained, and any such failure shall not be construed as creating a custom of Landlord's accepting other than strict performance or as modifying in any way the terms, covenants or conditions of this Lease. No breach by Tenant of a covenant or condition of this Lease shall be deemed to have been waived by Landlord unless such waiver is in writing signed by Landlord. No act or thing done by Landlord or Landlord's agents shall be deemed an acceptance of surrender of the leased premises and no agreement to accept such surrender shall be valid unless in writing signed by Landlord. In addition to any and all other remedies available to Landlord, Landlord may obtain an injunction to restrain any breach or threatened breach of any term, covenant or condition of this Lease. The rights and remedies of Landlord under this Lease or under any specific section, subsection or clause hereof shall be cumulative and in addition to any and all other rights and remedies which Landlord has or may have elsewhere under this Lease or at law or equity, whether or not such section, subsection or clause expressly so states. Nothing contained in this Lease shall be construed to confer upon any person or entity other than Landlord or Tenant any rights, benefits or causes of action, except to the extent specifically otherwise provided in this Lease and except to the extent provided for the benefit of any mortgagee or deed -of -trust beneficiary. Landlord Initials f1W Tenant Initials Tenant Initials • • Page 20 of 23 SECTION 22.02. ENTIRE AGREEMENT. The exhibits attached hereto form a part of this Lease and shall be given full force and effect, as fully as if set forth at length herein. This Lease and said exhibits so attached hereto and forming a part hereof, set forth all the covenants, promises, agreements, conditions and understandings between Landlord and Tenant concerning the leased premises, and there are no covenants, promises, agreements, conditions or understandings, either oral or written, between them other than as are herein set forth. Tenant has not relied upon any representation of Landlord or its agents, other than any items contained in this Lease, as an inducement to enter into this Lease. No alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing and signed by each party. SECTION 22.03. INTERPRETATION AND USE OF PRONOUNS. Nothing contained herein shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and agreed that neither the method of computation of rent, nor any other provision contained herein, nor any acts of the parties herein shall be deemed to create any relationship between the parties hereto other than the relationship of Landlord and Tenant. Whenever herein the singular number is used the same shall include the plural, and the masculine gender shall include the feminine and neuter genders. SECTION 22.04. NOTICES. Unless specifically stated to the contrary in this Lease, all notices to or demands upon the Landlord or Tenant desired or required to be given under any of the provisions hereof shall be deemed to have been duly and sufficiently given if a copy thereof shall have been transmitted via facsimile, hand -delivered or mailed by United States first class mail, in an envelope properly stamped and addressed to the Tenant at 130 S. Galena St., Aspen, CO 81611, (Fax: 970-920-5119 ), or at such other address as Tenant may theretofore have furnished by written notice to Landlord; and any notices or demands from the Tenant to the Landlord shall be deemed to have been duly and sufficiently given if a copy thereof shall have been transmitted via facsimile, hand - delivered or mailed by United States first class mail in an envelope properly stamped and addressed to the Landlord at OBP, LLC, 117 S. Spring Street, Suite 202, Aspen, Colorado 81611 (Telephone: 970/920-9500; Fax: 970/920- 2363), or at such other address as Landlord may have furnished by written notice to Tenant. SECTION 22.05. CAPTIONS AND SECTION NUMBERS. The captions, section numbers, article numbers, and index appearing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or intent of such sections or articles of this Lease, nor in any way affect this Lease. SECTION 22.06. BROKER'S COMMISSION. The City of Aspen agrees to pay any broker's commissions or fmder's fees directly to any broker, agency, consultant or representative listed below, who was used by The City of Aspen in procurement of this lease. Each party represents and warrants to the other party that the warrantor has dealt with no brokers, unless listed below, and that there are no claims for brokerage commissions or finder's fees, unless stated below, nor will there be any such claim, arising from any act or omission of the warrantor in connection with this Lease, and the warrantor agrees to indemnify the other party and hold it harmless from all liabilities arising from any such claim, including, without limitation, the cost of attorneys' fees in connection therewith. Such agreement shall survive the termination of this Lease. Tenant's broker: Andrew Ernemann, any and all commissions due are payable by Tenant. SECTION 22.07. RECORDING. Tenant shall not record this Lease or any memorandum, affidavit or other notice of this Lease. SECTION 22.08. TRANSFER OF LANDLORD'S INTEREST. In the event of any transfer or transfers of Landlord's interest in the premises, including a so-called sale -leaseback, the transferor shall be automatically relieved of any and all obligations on the part of Landlord accruing from and after the date of such transfer, provided that (a) the interest of the transferor, as Landlord, in any funds then in the hands of Landlord in which Tenant has an interest shall be turned over, subject to such interest, to the then transferee; and (b) notice of such sale, transfer or lease shall be delivered to Tenant as required by law; and (c) provided however, that the transferee shall assume all of the unperformed terms, covenants and conditions of Landlord under this Lease arising after the date of such transfer. Upon the termination of any such lease in a sale -leaseback transaction prior to termination of this Lease, the former lessee thereunder shall Nj0T.and1nrd Initials %194Y' Tenant Initials, Tenant Initials Page 21 of 23 become and remain liable as Landlord hereunder until a further transfer. No holder of a mortgage or deed of trust, or underlying lessor on an underlying lease, to which this Lease is or may be subordinate, and no lessor under a so-called sale -leaseback shall be responsible in connection with the security deposited hereunder, unless such mortgagee, holder of such deed of trust, underlying lessor or lessor shall have actually received the security deposited hereunder. SECTION 22.09. FLOOR AREA. The term "floor area" as used in this Lease means, with respect to any leasable area in the Leased Premise or in the subdivision, the aggregate number of square feet of floor space of all floor levels therein. No deduction or exclusion from floor area shall be made by reason of columns, ducts, stairs, elevators, escalators, shafts, or other interior construction or equipment. In the event Landlord determines that the square foot area of the leased premises is at variance with the square foot area stated in this Lease, Landlord may, at its option, adjust the floor area of the leased premises and make proportional adjustments in minimum rent, additional rent and other charges to Tenant under this Lease. SECTION 22.10. INTEREST ON PAST DUE OBLIGATIONS. Any amount due from Tenant to Landlord hereunder which is not paid when due (including, without limitation, amounts due as reimbursement to Landlord for costs incurred by Landlord in performing obligations of Tenant hereunder upon Tenant's failure to so perform) shall bear interest at the rate of four (4) percentage points over the prime rate of interest as published in the Money Rates column of The Wall Street Journal (but only up to and not to exceed the rate then allowed under the usury laws of the State) from the date due until paid, unless otherwise specifically provided herein, but the payment of such interest shall not excuse or cure any default by Tenant under this Lease. SECTION 22.11. ACCORD AND SATISFACTION. Payment by Tenant or receipt by Landlord of a lesser amount than the rent or other charges herein stipulated may be, at Landlord's sole option, deemed to be on account of the earliest due stipulated rent or other charges, or deemed to be on account of rent owing for the current period only, notwithstanding any instructions by or on behalf of Tenant to the contrary, which instructions shall be null and void, and no endorsement or statement on any check or any letter accompanying any check payment as rent or other charges shall be deemed an accord and satisfaction, and Landlord shall accept such check or payment without prejudice to Landlord's right to recover the balance of such rent or other charges or pursue any other remedy in this Lease or in law or in equity against Tenant. SECTION 22.12. GOVERNING LAW. This Lease shall be governed by and construed in accordance with the laws of the State of Colorado. If any provision of this Lease or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease shall not be affected thereby and each remaining provision of the Lease shall be valid and enforceable to the full extent permitted by the law. Tenant appoints the following persons at the following locations as agent to receive service of process, writs, notices, summonses, or other legal documents in any suit, action or proceeding which Landlord may commence against Tenant: any officer, partner or other principal of Tenant, or any person in charge, at the Tenant's address as set forth on Page DI of this Lease. Where permitted by law or local court rule, Tenant consents to service of such process by United States mail, in the manner specified in the applicable law or court rule. SECTION 22.13. SPECIFIC PERFORMANCE OF LANDLORD'S RIGHTS. Landlord shall have the right to obtain specific performance of any and all of the covenants or obligations of Tenant under this Lease, and nothing contained in this Lease shall be construed as or shall have the effect of abridging such right. SECTION 22.14. CERTAIN RULES OF CONSTRUCTION. Time is of the essence in this Lease. Notwithstanding the fact that certain references elsewhere in this Lease to acts required to be performed by Tenant hereunder omit to state that such acts shall be performed at Tenant's sole cost and expense, unless the context clearly implies to the contrary, each and every act to be performed or obligations to be fulfilled by Tenant pursuant to this Lease shall be performed or fulfilled at Tenant's sole cost and expense. Any breach or default by Tenant of its obligations under this Lease which continues beyond any applicable grace or cure period in this Lease shall be deemed material. Tenant shall be fully responsible and liable for the observance and compliance by concessionaires with all the terms and conditions of this Lease, which terms and conditions shall be applicable to concessionaires as fully as if such concessionaires were the Tenant hereunder; any failure by a concessionaire fully to observe and comply with the terms and conditions of this Lease shall constitute a default hereunder by Tenant. Nothing contained in the preceding sentence V Landlord Initialss� Tenant Initials Tenant Initials Page 22 of 23 shall constitute a consent by Landlord to any concession, subletting or other arrangement proscribed by the terms of this Lease. All provisions of this Lease have been freely negotiated by and between the parties. SECTION 22.15. SURVIVAL; NONDISCLOSURE; FREE ACT. Except as otherwise s e t f o r t h i n t h i s I e a s e, t he obligations of Tenant for payment of rent and charges under this Lease shall survive the expiration or earlier termination of the term of this Lease. By its execution of this Lease, Tenant acknowledges and agrees that it has read this Lease, understands the contents hereof, and is signing this Lease as its own free act and deed, and as the free act and deed of the representatives signing on Tenant's behalf, without any persuasion or coercion by any person or entity, and with full advice of counsel. Section 22.16. Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. In confirmation of their agreement to enter into this Lease (including the Data Sheet, Standard Form, Rules & Regulations, Guaranty and all exhibits attached hereto), and intending to be bound hereby, Landlord and Tenant have signed and sealed this Lease as of the day and year first above written on the Data Sheet above. By: Nam_ Title: Address: TENANT Manager OBP, LLC C/o Michael Sailor 117 S. Spring Street, Suite 202 Aspen, CO 81611 THE CITY OF PEN By: Print Name Steve Barwick Print Title City Manager Tenant's Federal Tax Identification Number: 84 6000563 CPC Landlord Tnitials ff/� Tenant Initials Tenant Initials PRINT DATE: July 27, 2014 F%�btr' At • 5Ullt 104 L222 50 A. 10711A L.nJaiJ 1 /'11i-J.. — — — I f.,t ojz TRUE DIMENSIONS P.O. BOX 10431 nc=hj rni npnnn alai,) • • Exhibit B Sailor's office; large desk and wall units to remain Right of Sailor's office; Desk and 4 drawer file cabinet to remain Back conference room, 2 drawer lateral file to remain Desk and 4 drawer lateral file Handicap desk top Reception workstation desk top plus 2 2 drawer lateral file cabinets and 12 drawer standard file cabinet All blinds/shades/window treatments. All light fixtures