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HomeMy WebLinkAboutresolution.council.056-18 RESOLUTION # 056 (Series of 2018) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A LEASE BETWEEN THE CITY OF ASPEN AND THE ASPEN CHAMBER RESORT ASSOCIATION, INC., AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a lease for office space, between the City of Aspen and the Aspen Chamber Resort Association, INC., a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE.CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that lease for office space, between the City of Aspen and the Aspen Chamber Resort Association, INC., a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 26th day of March 2018. 1 Steven Skadro , Mayor 1, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held, March 26, 2018. Linda Manning, City Cl k Lease Agreement THIS LEASE AGREEMENT ("Lease") is made between the CITY OF ASPEN, _ COLORADO, a political subdivision and body corporate ("Lessor"), and the ASPEN CHAMBER RESORT ASSOCIATION, INC., a Colorado non-profit corporation ("Lessee"), and executed on the date(s) as indicated below. Recitals Lessor is the owner of a facility known as the Aspen Power Plant located at 590 N. Mill Street that includes within it certain floor area and space on the first floor suitable and zoned for non-profit offices and Lessee's intended business purposes, as more fully described below. Lessee desires to lease that portion of the first floor space described below for the purpose of conducting its non-profit business activities as a chamber of commerce and destination resort and marketing association. Premises and Term 1. Lessor hereby leases to Lessee a portion of the first floor of the Aspen Power Plant consisting of approximately 2475 square feet of finished space and which is more fully depicted on Exhibit "A" attached hereto and incorporated herein (the "Premises"). In addition, Lessee shall have the use and enjoyment of shared areas at the Aspen Power Plant property, including the first floor entry way, first floor hallway, and first floor common bathroom, the parking areas, and the decks and lawn around the building ("Common Areas"). Lessee shall have the exclusive use of ten (10),parking spaces in the parking area. The remaining six (6) spaces shall be reserved for other occupants of the property. 2. The term of this Lease shall be five (5) years commencing November 1, 2017 and terminating October 31, 20.22. 3. Lessee may extend the term of this Lease for one (1) additional term of five (5) years upon giving the Lessor written notice of its intent to do so six(6)months prior to the expiration of the initial five(5),year term, to wit, on or before April 30, 2022. 4. In the event Lessee chooses to extend the term of this Lease by providing Lessor timely notice as provided above, Lessor and Lessee shall use their best good faith efforts to determine and agree upon a monthly rent. All other terms and conditions shall remain as provided herein. In the event the parties cannot mutually negotiate and agree upon a new monthly rent prior to the commencement of a new lease term, then each party shall appoint an appraiser knowledgeable in the Aspen market. The two appraisers so employed shall 1 agree upon the new monthly rent, which shall be an amount that is determined • by starting with the premise that the annual rent for the initial term starting on November 1, 2017 was $19.72 per square foot, then increasing that amount by a percentage that reflects the percentage increase in moderately priced, non- commercial core, commercial leases over the same period. The appraiser may adjust such figure upwards if, in accordance with paragraph 16, the City has relocated ACRA to new premises and the new premises are not "moderately priced,non-commercial core, commercial leases. The parties acknowledge and agree that the purpose of the rent adjustment is not to align the rent with rates in the free market, and that the rent being charged under this Lease is intentionally below market due to ACRA's status as a non-profit organization. If the two appraisers shall be unable to agree upon the new monthly rent, the new monthly rent shall be the average of the monthly rents the two appraisers have proposed. Lessee shall continue to pay that rent as then in effect for the prior lease term until the new rent has been fixed, at which time the difference between the rent so paid and that payable under the new rate from the beginning of the new lease term shall be paid. Rent and Utilities 5. Lessee shall pay Lessor at the offices of the City of Aspen Finance Director, rent for the Premises in the sum of$4,067.25 payable and due on the first (I") day of each month commencing November 1, 2017. The monthly rent shall be • increased on each anniversary date of the term of the renewal period by the percentage increase in the Urban Index during the twelve months ending on December 31 of each calendar year. (Urban Index and a description of calculating index changes is attached hereto as Exhibit `B".) 6. In addition to the rent payments as specified in Paragraph 5 above, Lessee shall pay to Lessor forty percent (47%) of the following utilities and operating expenses for the building: supplies for the shared bathroom;high speed internet and television (Century Link), gas (Black Hills Energy; electricity (Holy Cross), Aspen Sanitation, trash and recycling, and fire alarm monitoring (collectively referred to as "Common Expense"). Such payment shall be made in monthly installments based on the estimated average monthly operating expenses on the first (I") day of each month commencing November I, 2017. The initial monthly payment shall be $656.16. The payments made shall be reconciled against actual expenditures at least once annually, and any overpayment credited to the Lessee or any underpayment paid to the Lessor. Lessee shall be entitled to review the supporting documentation upon reasonable notice to Lessor. Lessor reserves the option to separately meter the utilities serving the Premises, at Lessor's sole expense. In the event separate meters are installed, the Lessee shall set up an account or accounts with the utility provider and shall be directly responsible to the provider for all utility services provided to the Premises. Cleaning expenses will be by the Lessee • direct to the vendor at the agreed upon rate established through negotiations 2 • between said parties. The Lessor will contract separately for cleaning services for their assigned space and will pay the vendor directly with no contribution from the Lessee. 7. To secure payment of rent here agreed to be paid, Lessee grants to Lessor a lien on all of Lessee's equipment, furniture and other personal property that is placed on the Premises by Lessee, such lien to be subordinate to all previously existing liens asserted against said property as of the date of this agreement. 8. Upon Lessee's failure to pay monthly rent or the Common Expense installments on the dates specified above, Lessor may, after written notice and an opportunity to cure as set forth in Paragraph 33, terminate this Lease by written notice to the Lessee and recover from Lessee all damages Lessor may incur by reason of Lessee's breach, including the cost of recovering the Premises, reasonable attorney's fees, and the amount of rent and other charges reserved in this Lease for the remainder of the stated term subject to the Lessor's obligation to mitigate damages. 9. Lessee may cure a default in making timely rent or Common Expense payments by tendering the full past due amount(s) along with an additional payment equal to one percent(I%) of the past due amount(s) for each day beyond the date any payment was due within 10 days of the written notice of default delivered in • accordance with Paragraph 33. Nothing in this paragraph shall be construed as limiting the right of the Lessee to cure a default within the time frames provided by C.R.S. § 13-40-104. Use of the Premises 10. The Premises shall be used only by Lessee and only for purposes consistent with conducting its business as a chamber of commerce and destination resort marketing association. 11. Lessee shall not assign, transfer, pledge, surrender or otherwise encumber or dispose of this Lease or any interest or estate created herein, or permit any other person, persons, company, corporation, or organization to occupy or use the Premises without first obtaining the written consent of the Lessor. Such consent may or may not be given at Lessor's sole discretion. 12. Lessee shall be entitled to install signage on the exterior of the Premises and/or the parking area to direct visitors and guests to the Premises. Other signage and advertising shall not be erected or installed on the exterior of the leased Premises without having obtained the written consent of the City Manager for the City of Aspen, which consent may not be unreasonably withheld. All signage shall comply with the City of Aspen's sign codes as may be amended • from time to time. 3 13. The parties agree that the Common Areas shall not be licensed to or permitted • to third parties without Lessee's express written consent. Lessee may withhold consent if the proposed license would disrupt Lessee's business operations, in Lessee's good faith reasonable judgment. Lessor agrees that Lessee shall be entitled to erect tents on the lawns for the annual Food &Wine Classic. Lessor agrees that the spaces in the building that are occupied by the Lessor shall not be used during business hours in such a way as to cause a nuisance or otherwise disrupt Lessee's business operations. Services 14. Lessor, at the request, advice and approval of Lessee, and at Lessor's cost and expense Lessor will deliver the Premises to Lessee with finished flooring, carpet, partitions, painted walls, cabling, and interior office walls as shown on Exhibit A. The Premises shall be freshly painted. The Premises will be delivered with electrical lines, plumbing, heating and cooling systems, sufficient to meet Lessee's needs. 15. Lessor shall, prior to the commencement of the Lease at Lessor's cost and expense, renovate the common bathroom in the lobby. Lessor shall be solely responsible for obtaining any permits and meeting any permit requirements that are necessitated by the work required of the Lessor under this Lease, and any work or permit requirements that arise by reason of Lessor's ownership or • occupancy of the building in which the Premises are located. Such responsibility shall include any cost, expense,or improvement required to make the Premises, the building, or the Common Areas handicap accessible. Lessor shall install signs reserving for Lessee the parking spaces assigned pursuant to this Lease, and shall be responsible for updating public way-finding signs on the streets and on the building directing traffic and visitors to the Premises. Subject to the charges set forth in paragraph 6, above, Lessor shall provide or cause to be provided to the Premises throughout the term of the Lease reasonable amounts of gas and electricity, internet and television, hot and cold running water, and heat and air conditioning In the event Lessee desires or is required by business necessity to add new equipment or expand existing equipment, thus creating an increased demand for electrical, water, heating or air-cooling services or systems, Lessor shall be entitled to review any such proposal of Lessee for purposes of determining the need to increase the charge for utilities as set forth in Paragraph 6, above, and impose an increased charge if Lessor deems same to be necessary based upon actual billing statements as provided by the utility service provider. Transfer to other City Facilities 16. Lessee understands that Lessor is in the process of evaluating the redevelopment of City Hall and a new City facility on Rio Grande Place ("City • Facilities"). Lessee further understands that such redevelopment plan may 4 • include a plan to locate Lessee in the old City'Hall building or in the Rio Grande facility. In the event that the City provides ACRA with at least 2500 square feet of finished office space and 400 square feet of visitor center space in the City Facilities, which locations and spaces are reasonably acceptable to Lessee, Lessee agrees to cooperate in vacating the Aspen Power Plant and moving into the new City Facilities. In such case, the City shall allow ACRA to vacate the Premises only between the dates of April 30-June 1 and October 1 —December 1 of any year and with no less than six (6) months advance notice. The new facilities shall be fully finished, with flooring, lighting, painted walls, wiring, plumbing and utilities installed at the request, advice and approval of the Lessee. Lessee shall be entitled to lease the new facility on the same terms and conditions as this Lease, except that the rent shall be re-prorated as necessary on a square foot basis. Maintenance of Premises 17. Lessor shall be responsible for cleaning, repairing, and supplying (as applicable)the first floor entry way, first floor hallway, and first floor common bathroom. Lessor shall, be responsible for, and shall, at its own expense, maintain and keep in good repair and order the roof, finished floor, the walls, heating and air conditioning systems, ventilation systems, cabling, wiring, lighting, plumbing, utility systems and connections, fagade, all exterior • surfaces, all structural elements of the building in which the Premises are located, and all structural parts of the Premises, and any other improvements in the building that were not installed by the Lessee. Lessor shall make necessary repairs promptly upon written notice by Lessee. Additionally, Lessor shall maintain at its own expense, to the satisfaction of Lessee, heating, plumbing, electrical, ventilation and air-conditioning systems servicing the Premises in good and sufficient operating condition. Lessor shall, at its own expense, maintain in a good, clean, safe condition, the lawn, parking area, decks, and sidewalks, including snow removal, shoveling, de-icing, mowing, raking, etc., including but not limited to providing adequate lighting in the parking lot. All repairs to the Premises and any repairs or damage caused by the negligence of the Lessee or the failure of the Lessee to maintain the Premises as required in Paragraph 18 below, shall be made by Lessee at its cost and expense. 18. Lessee shall, at its own expense, keep the Premises in good and safe condition and from deteriorating, with the exception of normal wear and tear and aging consistent with normal office usage and time. Lessee shall also maintain the Premises consistent with all applicable laws, ordinances, or governmental safety regulations applicable to the Premises. In these respects, Lessee shall permit Lessor, through its officers and agents, to make inspection of the Premises at any time on reasonable advance notice for purposes of managing the condition of the property. 5 19. Lessor shall in no way, nor under any circumstances, be responsible for any • property of the Lessee, its employees or agents, customers, or invitees that may be stolen, destroyed or in any way damaged while on the Premises, and Lessee agrees to indemnify and hold harmless Lessor from any such claim. Insurance and Liabilitv 20. It is expressly agreed that Lessee shall occupy and operate the Premises as an independent contractor and not as an agent, representative or employee of Lessor. Lessee shall be solely responsible for the acts and omissions of its employees and agents and nothing herein shall be construed as creating a partnership or joint enterprise between Lessor and Lessee. 21. Lessee agrees.to indemnify Lessor, its employees,officers and agents, from any and all claims, causes,judgments, or liability for any losses or damage to any property of, or any injury or death to, any persons in or about the Premises during the term of this Lease, including, but not limited to Lessee, Lessee's family, agents, servants, guests, licensees, or invitees, except claims or losses that are the result of Lessor's negligent or willful misconduct. 22. Lessee agrees to furnish Lessor with certificate(s) of insurance as proof that it has secured and paid for a policy of public liability insurance covering all public risks related to the leasing, use, occupancy, maintenance, operation or location • of the Premises. The insurance shall be procured from a company authorized to do business in the State of Colorado and be satisfactory to Lessor. The amount of this insurance, without co-insurance clauses, shall not be less than the maximum liability that can be imposed upon the City of Aspen under the laws of the State of Colorado found at C.R.S. Section 24-10-101 et sea., as amended. At present, such amounts shall be as follows: i. $150,000.00 for any injury to one person in any single occurrence; ii. $600,000.00 for any injury to two or more persons in any single occurrence. These insurance amounts may be revised upward at Lessor's option and Lessee shall do so within ninety (90) days following notice to Lessee of such new required insurance amounts. In no event shall such insurance amounts fall below those maximum liability limits as set forth at C.R.S. Section 24-10-114, as amended. 23. During the full term of this Lease, Lessee, at its sole cost and expense, shall also cause all the Premises and improvements on the Premises to be kept insured, without co-insurance clauses, to the full insurable value against the perils of wind storm, hail, lightening, explosion, fire and like perils. "Full insurance value"means the actual replacement value less physical depreciation. 6 The insurance shall be procured from a company authorized to do business in . P P Y the State of Colorado and be satisfactory to the Lessor. 24. Both the Lessor and the Lessee waive any right of subrogation which their respective insurers may acquire against either of them. Both of these waivers shall automatically terminate at such time as either party's insurer requires that an additional premium be paid as a consequence of this waiver provision. 25. If, absent negligence or fault on the part of Lessee, the Premises shall be damaged by fire or other catastrophe so as to render said Premises wholly untenantable, and if such damage is so great that a competent licensed architect in good standing in Pitkin County, Colorado, as selected by the Lessor, shall certify in writing to the Lessor and Lessee that the Premises, with reasonable diligence, cannot be made fit for occupancy within ninety (90) days from the happening of the occurrence of the damage, then the Lease shall terminate and Lessor may re-enter and take possession. Lessee shall pay rent, duly apportioned, up to the time the Lease shall be terminated as herein provided. Such a termination of the Lease shall not forgive Lessee's obligations to return the Premises to Lessor in as good repair as when Lessee originally assumed possession thereof,regular and ordinary wear and tear excepting. Alternatively, Lessee shall subordinate its rights and interests in any insurance proceeds as provided for in Paragraph 26 below. If, however, the damage is not such as to • prevent reoccupation and use of the Premises within ninety (90) days, then repairs thereto shall be undertaken by Lessee with all reasonable speed to restore the Premises to its former condition and rent shall only be abated for that period of time during which Lessee shall be deprived of actual use of the Premises as a result of the damage and repairs undertaken thereto. 26. Lessee shall name Lessor as co-insured on all insurance policies and such policies shall include a provision that written notice of any non-renewal, cancellation or material change in a policy by the insurer shall be delivered to Lessor thirty (30) days in advance of the effective date. In the event the Premises is destroyed by fire or other insured casualty, Lessor shall, at a minimum, be entitled to so much of the insurance proceeds representing its actual costs in finishing and improving the Premises as described in this Lease and in restoring the Premises to its condition at the beginning of the Lease. Should insurance proceeds be insufficient to restore the Premises to its original condition, Lessor shall make up and satisfy such deficiency. Alterations to Premises 27. Lessee, upon Lessor's written consent, may, at its own expense, make reasonable and necessary alteration or improvements to the Premises. All alterations, additions and improvements shall be performed in a workmanlike • manner, in accordance with all applicable building and safety codes, and shall not weaken or impair the structural strength or lessen the value of the Premises. 7 All alterations, additions and improvements made in or to the Premises shall be • the property of Lessor and remain and be surrendered with the Premises upon termination of this Lease. Lessee agrees that prior to any construction or installation of alterations, additions or improvements, Lessee shall post on the Premises in a conspicuous place a notice of non-liability for mechanic's lien as specified at C.R.S. § 38-22-105 on behalf of Lessor and shall notify Lessor of such posting and the exact location of same. Perfection of a mechanic's lien against the Premises as a result of Lessee's acts or omissions that Lessee has not escrowed or bonded over within sixty (60) days may be treated by Lessor as a material breach of this Lease. 28. Lessor reserves the right, from time to time, at its own expense and by its officials, employees and contractors, to make such alterations, renovations or repairs in and about the Premises, other than those noted above as required by Lessee, as Lessor deems necessary or desirable and Lessee covenants to make no claim against Lessor for any interference with its interests as herein provided in the Premises. Lessor shall provide reasonable notice to Lessee in advance of any intent to undertake alterations or repairs as authorized in this paragraph. Quiet Enloyment 29. Lessor agrees that Lessee, upon timely payment of rent and observing and keeping those terms and conditions of this Lease to be observed and kept by • Lessee, shall lawfully and quietly hold, occupy and enjoy the Premises during the term of the Lease. Taxes 30. In the event any taxes are levied upon the improvements, fixtures or personal property of the Lessee located on the Premises, or upon the leasehold or possessory interests as created through this Lease, Lessee shall be solely responsible to satisfy and pay all such taxes or assessments, except that Lessee may permit such taxes or assessments to remain unpaid while pursuing any good faith contest or appeal of same. Condemnation 31. If during the term of this Lease, or any renewal of it, the whole or part of the Premises or such portion as will make the Premises unusable for the purpose leased, or the leasehold interest, be condemned by public authority, including Lessor, for public use, then the lease term granted herein shall cease as of the date of the vesting of title in the Premises in such condemning authority, or when possession is given to such authority, whichever event occurs first. Upon such occurrence, the rent as due hereunder shall be apportioned as of that date and any prepaid rent shall be returned to Lessee. Lessee shall not be entitled to • any part of any condemnation award for the value of the un-expired term of this 8 • Lease or for any other estate or interest in the Premises, such amount belonging entirely to Lessor. Default/Termination 32. If Lessee shall fail to timely comply with any of the terms or conditions of this Lease or any notice given under it, or if it shall remove or manifest an intention of removing its furniture, business equipment, or fixtures from the Premises while in arrears as to the payment of rent, or shall become insolvent, or shall have or attempt to make an assignment for the benefit of creditors, or if any of its property be attached and such attachment is not promptly released, or if an execution be issued against it, or, if a petition be filed by or against it, to have it adjudicated a bankrupt,or if a trustee or receiver shall be created or appointed to take charge of its assets, or if it shall abandon the Premises for a period of more than seventy-two (72) hours, then at any time afterwards Lessor may at its option enter into the Premises and remove all persons and take and retain possession thereof either with or without process of law. 33. Any breach, default or failure by Lessee to perform any of the duties or obligations assumed by Lessee, or to faithfully keep and perform any of the terms herein,shall be cause for termination of the Lease by Lessor in the manner set forth in this paragraph. Lessor shall deliver to Lessee ten (10) days prior • written notice of its intention to terminate this Lease, including in the notice a reasonable description of the breach, default or failure. If within that ten (10) days Lessee shall fail or refuse to cure, adjust or correct it to the satisfaction of Lessor, then Lessor shall have the right to declare the Lease terminated and all rights, powers and privileges of Lessee as provided through this Lease shall cease and Lessee shall immediately vacate the Premises and shall make no claim of any kind against Lessor by reason of the termination. 34. The ten (10) days' prior written notice shall be conclusively determined to have been delivered to Lessee upon posting of same upon the main business entrance to the Premises or at the time it is deposited in the U.S. Mail, certified, postage prepaid, addressed to President, Aspen Chamber Resort Association, 590 N. Mill Street, Aspen, Colorado 81611, or such other address as otherwise designated in writing by Lessee. 35. Any failure by Lessor to so terminate this Lease as herein provided or the acceptance by Lessor of rent for any period after the breach, default or.failure by Lessee to adhere to the terms of the Lease shall not be determined or construed to be a waiver or continuing waiver by Lessor of any rights to terminate the Lease for any present or subsequent breach, default or failure. 36. Lessee agrees that it will, at the end of the term of the Lease, peaceably deliver • to Lessor the Premises and all fixtures and improvements on it in a good state of repair, and vacant, unencumbered, and in good and tenantable condition. 9 37. In the event that the City of Aspen terminates the City of Aspen and ACRA • Tourism Promotion Fund Agreement dated January 1, 2018, ACRA may be entitled to surrender up to half of the office space to the City of Aspen with rent being reduced proportionally. Compliance with Laws/No Discrimination 38. Lessee agrees to comply with all laws, ordinances, rules and regulations that may pertain or apply to the Premises and its use. In performing under the Lease, Lessee shall not discriminate against any worker, employee or job applicant, or any member of the public, because of race, color, creed, religion, ancestry, national origin, sex, age, marital status, physical handicap, affectional or sexual orientation, family responsibility or political affiliation, nor otherwise commit an unfair employment practice. Notices 39. Whenever this Lease calls for or provides for notice and notice is not otherwise specified, the same shall be provided in writing and shall be served on the person(s) as designated by the parties below, either in person or by certified mail, postage prepaid and return receipt requested: For Lessor: Aspen City Manager • 130 South Galena Street Aspen, Colorado 81611 For Lessee: President and CEO Aspen Chamber Resort Association 590 North Mill Street Aspen, Colorado 81611 The parties may change or add such designated person(s) or addresses as may be necessary from time to time in writing. Successors and Assigns 40. All of the terms and conditions as contained in this Lease shall inure to the benefit of and be binding upon the successors and assigns of the parties. Headings 41. Headings contained herein are for convenience of reference only and are not intended to define, limit or describe the scope or intent of any provision of this Lease. • 10 Governing Law 42. This Lease shall be enforced and interpreted in accordance with the laws of the State of Colorado. Any action brought to enforce or interpret this Lease shall be brought in the District Court for Pitkin County, Colorado. In the event of litigation between the parties concerning this Lease or matters arising there from, the prevailing party shall be awarded its costs and reasonable attorney's fees. Modifications 43. This instrument constitutes the entire agreement by the parties concerning the Premises and any prior or contemporaneous oral or written agreement that purports to vary from the terms as set forth herein shall be void and of no effect. 44. The Lease and all of its terms and conditions maynot'be amended orlmodified. absent a written agreement duly executed by Lessor and Lessee. Counterparts 45. This Lease has been executed in counterparts, each of which shall be deemed • an original. • 11 WHEREFORE, the parties, through their duly authorized representatives, have executed this Lease upon the dates as set forth herein. CITY OF ASPEN, COLORADO Date: 7 2 7-l� By: /fes• ST � &/bUICL, 6Ty Ha�q�e� ATTEST: I Linda Manning, City Clerk ASPEN CHAMBER AND RESORT ASSOCIATION, INC. r\ ^�� l • Date: Debbie Braun, President and CEO 12 EXHIBIT A . Old Powerhouse Area Space SQFT % City of Aspen 2475 47% ACRA 2785 53% Common 1120 18% TOTAL 6380 100% • • • EXHIBIT"B" CALCULATION OF CHANGES IN URBAN INDEX The term "Urban Index" used herein shall refer to the consumer Price Index - All Urban Consumers (CPI-U), U.S. City Average, All Items (1967 = 100) compiled by the United States Department of Labor, Bureau of Labor Statistics. By way of identification, the parties agree that the CPI-U index number for July 1993 = 432.6. If at the time of computation of rental increases as provided below the Urban Index as defined is not then being currently published,the parties shall mutually select a substitute index which has historically approximated the Urban Index as defined. The parties further agree that the methodology they will use for calculating index changes in the Urban Index is that described in the instruction sheet from the Bureau of Labor Statistics, U.S. Department of Labor,which reads as follows: CALCULATING INDEX CHANGES Movements of the indexes from one month to another are usually expressed as percent changes rather than changes in index points, because index point changes are affected by the level of the index in relation to its base period while percent changes are not. The example in the accompanying box illustrates the computation of index point and percent changes. Percent changes for 3-month and 6-month period are expressed as annual rates and are computed according to the standard formula for compound growth rates. These data indicate what the percent change would be if the current rate were maintained for a 12-month period. INDEX POINT CHANGE CPI 315.5 Less previous index 303.5 Equals index point change 12.0 PERCENT CHANGE Index Point difference 12.0 Divided by the previous index 303.5 Equals 0.040 Results multiplied by one hundred 0.040 x 100 Equals percent change 4.0 Old Powerhouse Average Monthly Uper5yne Expenses • Item Total COA(53%). ACRA(476%) $ $ Century Link $ 52.50 $ 27.83 $ 24.68 Black Hills $ 428.42 $ 227.06 $ 201.36 Aspen Sanitation $ 83.33 $ 44.17 $ 39.17 Bathroom Supplies $ 100.00 $ 53.00 $ 47.00 COA Water $ 66.67 $ 35.33 $ 31.33 Holy Cross $ 325.00 $ 172.25 $ 152.75 Trash & Recycling $ 165.00 $ 87.45 $ 77.55 Fire Alarm Monitoring $ 175.17 $ 92.84 $ 82.33 VUTAL ($ 1196!09675M6[$ 656.16 Y,early Total [$ 16,753.04 [$ 8, 7. 89.13 [$ 7,873.93 • between said parties. The Lessor will contract separately for cleaning services for their assigned space and will pay the vendor directly with no contribution from the Lessee. 7. To secure payment of rent here agreed to be paid, Lessee grants to Lessor a lien on all of Lessee's equipment, furniture and other personal property that is placed on the Premises by Lessee, such lien to be subordinate to all previously existing liens asserted against said property as of the date of this agreement. 8. Upon Lessee's failure to pay monthly rent or the Common Expense installments on the dates specified above, Lessor may, after written notice and an opportunity to cure as set forth in Paragraph 33, terminate this Lease by written notice to the Lessee and recover from Lessee all damages Lessor may incur by reason of Lessee's breach, including the cost of recovering the Premises, reasonable attorney's fees, and the amount of rent and other charges reserved in this Lease for the remainder of the stated term subject to the Lessor's obligation to mitigate damages. 9. Lessee may cure a default in making timely rent or Common Expense payments by tendering the full past due amount(s)along with an additional payment equal to one percent(1%) of the past due amount(s) for each day beyond the date any payment was due within 10 days of the written notice of default delivered in accordance with Paragraph 33. Nothing in this paragraph shall be construed as limiting the right of the Lessee to cure a default within the time frames provided by C.R.S. § 13-40-104. Use of the Premises 10. The Premises shall be used only by Lessee and only for purposes consistent with conducting its business as a chamber of commerce and destination resort marketing association. 11. Lessee shall not assign, transfer, pledge, surrender or otherwise encumber or dispose of this Lease or any interest or estate created herein, or permit any other person, persons, company, corporation, or organization to occupy or use the Premises without first obtaining the written consent of the Lessor. Such consent may or may not be given at Lessor's sole discretion. 12. Lessee shall be entitled to install signage on the exterior of the Premises and/or the parking area to direct visitors and guests to the Premises. Other signage and advertising shall not be erected or installed on the exterior of the leased Premises without having obtained the written consent of the City Manager for the City of Aspen, which consent may not be unreasonably withheld. All signage shall comply with the City of Aspen's sign codes as may be amended • from time to time. 3 13. The parties agree that the Common Areas shall not be licensed to or permitted to third parties without Lessee's express written consent. Lessee may withhold consent if the proposed license would disrupt Lessee's business operations, in Lessee's good faith reasonable judgment. Lessor agrees that Lessee shall be entitled to erect tents on the lawns for the annual Food&Wine Classic. Lessor agrees that the spaces in the building that are occupied by the Lessor shall not be used during business hours in such a way as to cause a nuisance or otherwise disrupt Lessee's business operations. Services 14. Lessor, at the request, advice and approval of Lessee, and at Lessor's cost and expense Lessor will deliver the Premises to Lessee with finished flooring, carpet, partitions, painted walls, cabling, and interior office walls as shown on Exhibit A. The Premises shall be freshly painted. The Premises will be delivered with electrical lines, plumbing, heating and cooling systems, sufficient to meet Lessee's needs. 15. Lessor shall, prior to the commencement of the Lease at Lessor's cost and expense, renovate the common bathroom in the lobby. Lessor shall be solely responsible for obtaining any permits and meeting any permit requirements that are necessitated by the work required of the Lessor under this Lease, and any work or permit requirements that .arise by reason of Lessor's ownership or . occupancy of the building in which the Premises are located. Such responsibility shall include any cost, expense,or improvement required to make the Premises, the building, or the Common Areas handicap accessible. Lessor shall install signs reserving for Lessee the parking spaces assigned pursuant to this Lease, and shall be responsible for updating public way-finding signs on the streets and on the building directing traffic and visitors to the Premises. Subject to the charges set forth in paragraph 6, above, Lessor shall provide or cause to be provided to the Premises throughout the term of the Lease reasonable amounts of gas and electricity, internet and television, hot and cold running water, and heat and air conditioning In the event Lessee desires or is required by business necessity to add new equipment or expand existing equipment, thus creating an increased demand for electrical, water, heating or air-cooling services or systems, Lessor shall be entitled to review any such proposal of Lessee for purposes of determining the need to increase the charge for utilities as set forth in Paragraph 6, above, and impose an increased charge if Lessor deems same to be necessary based upon actual billing statements as provided by the utility service provider. Transfer to other City Facilities 16. Lessee understands that Lessor is in the process of evaluating the redevelopment of City Hall and a new City facility on Rio Grande Place("City • Facilities"). Lessee further understands that such redevelopment plan may 4 • include a plan to locate Lessee in the old City Hall building or in the Rio Grande facility. In the event that the City provides ACRA with at least 2500 square feet of finished office space and 400 square feet of visitor center space in the City Facilities, which locations and spaces are reasonably acceptable to Lessee, Lessee agrees to cooperate in vacating the Aspen Power Plant and moving into the new City Facilities. In such case, the City shall allow ACRA to vacate the Premises only between the dates of April 30-June 1 and October 1 —December 1 of any year and with no less than six (6) months advance notice. The new facilities shall be fully finished, with flooring, lighting, painted walls, wiring, plumbing and utilities installed at the request, advice and approval of the Lessee. Lessee shall be entitled to lease the new facility on the same terms and conditions as this Lease, except that the rent shall be re-prorated as necessary on a square foot basis. Maintenance of Premises 17. Lessor shall be responsible for cleaning, repairing, and supplying (as applicable) the first floor entry way, first floor hallway, and first floor common bathroom. Lessor shall, be responsible for, and shall, at its own expense, maintain and keep in good repair and order the roof, finished floor, the walls, heating and air conditioning systems, ventilation systems, cabling, wiring, lighting, plumbing, utility systems and connections, faoade, all exterior surfaces, all structural elements of the building in which the Premises are located, and all structural parts of the Premises, and any other improvements in the building that were not installed by the Lessee. Lessor shall make necessary repairs promptly upon written notice by Lessee. Additionally, Lessor shall maintain at its own expense, to the satisfaction of Lessee, heating, plumbing, electrical, ventilation and air-conditioning systems servicing the Premises in good and sufficient operating condition. Lessor shall, at its own expense, maintain in a good, clean, safe condition, the lawn, parking area, decks, and sidewalks, including snow removal, shoveling, de-icing, mowing, raking, etc., including but not limited to providing adequate lighting in the parking lot. All repairs to the Premises and any repairs or damage caused by the negligence of the Lessee or the failure of the Lessee to maintain the Premises as required in Paragraph 18 below, shall be made by Lessee at its cost and expense. 18. Lessee shall, at its own expense, keep the Premises in good and safe condition and from-deteriorating, with the exception of normal wear and tear and aging consistent with normal office usage and time. Lessee shall also maintain the Premises consistent with all applicable laws, ordinances, or governmental safety regulations applicable to the Premises. In these respects, Lessee shall permit Lessor, through its officers and agents, to make inspection of the Premises at any time on reasonable advance notice for purposes of managing the condition of the property. 5 19. Lessor shall in no way, nor under any circumstances, be responsible for any • property of the Lessee, its employees or agents, customers, or invitees that may be stolen, destroyed or in any way damaged while on the Premises, and Lessee agrees to indemnify and hold harmless Lessor from any such claim. Insurance and Liability 20: It is expressly agreed that Lessee shall occupy and operate the Premises as an independent contractor and not as an agent, representative or employee of Lessor. Lessee shall be solely responsible for the acts and omissions of its employees and agents and nothing herein shall be construed as creating a partnership or joint enterprise between Lessor and Lessee. 21. Lessee agrees to indemnify Lessor, its employees,officers and agents,from any and all claims, causes,judgments, or liability for any losses or damage to any property of, or any injury or death to, any persons in or about the Premises during the term of this Lease, including, but not limited to Lessee, Lessee's family, agents, servants, guests, licensees, or invitees, except claims or losses that are the result of Lessor's negligent or willful misconduct. 22. Lessee agrees to furnish Lessor with certificate(s) of insurance as proof that it has secured and paid for a policy of public liability insurance covering all public risks related to the leasing, use, occupancy, maintenance, operation or location of the Premises. The insurance shall be procured from a company authorized to do business in the State of Colorado and be satisfactory to Lessor. The amount of this insurance, without co-insurance clauses, shall not be less than the maximum liability that can be imposed upon the City of Aspen under the laws of the State of Colorado found at C.R.S. Section 24-10-101 et sea., as amended. At present, such amounts shall be as follows: i. $150,000.00 for any injury to one person in any single occurrence; ii. $600,000.00 for any injury to two or more persons in any single occurrence. These insurance amounts may be revised upward at Lessor's option and Lessee shall do so within ninety (90) days following notice to Lessee of such new required insurance amounts. In no event shall such insurance amounts fall below those maximum liability limits as set forth at C.R.S. Section 24-10-114, as amended. 23. During the full term of this Lease, Lessee, at its sole cost and expense, shall also cause all the Premises and improvements on the Premises to be kept insured, without co-insurance clauses, to the full insurable value against the perils of wind storm, hail, lightening, explosion, fire and like perils. "Full insurance value"means the actual replacement value less physical depreciation. 6 • The insurance shall be procured from a company authorized to do business in the State of Colorado and be satisfactory to the Lessor. 24. Both the Lessor and the Lessee waive any right of subrogation which their respective insurers may acquire against either of them. Both of these waivers shall automatically terminate at such time as either party's insurer requires that an additional premium be paid as a consequence of this waiver provision. 25. If, absent negligence or fault on the part of Lessee, the Premises shall be damaged by fire or other catastrophe so as to render said Premises wholly untenantable, and if such damage is so great that a competent licensed architect in good standing in Pitkin County, Colorado, as selected by the Lessor, shall certify in writing to the Lessor and Lessee that the Premises, with reasonable " diligence, cannot be made fit for occupancy within ninety (90) days from the happening of the occurrence of the damage,then the Lease shall terminate and Lessor may re-enter and take possession. Lessee shall pay rent, duly Apportioned, up to the time the Lease shall be terminated as herein provided.. Such a termination of the Lease shall not forgive.Lessee's obligations to return the Premises to Lessor in as good repair as when Lessee originally assumed possession thereof,regular and ordinary wear andlear excepting. Alternatively, Lessee shall subordinate its rights and interests in any insurance proceeds as provided for in Paragraph 26 below. If, however, the damage is not such as to • prevent reoccupation and use of the Premises within ninety (90) days, then repairs thereto shall be undertaken by Lessee with all reasonable speed to restore the Premises to its former condition and rent shall only be abated for that period of time during which Lessee shall be deprived of actual use of the Premises as a result of the damage and repairs undertaken thereto. 26. Lessee shall name Lessor as co-insured on all insurance policies and such policies shall include a provision that written notice of any non-renewal, cancellation or material change in a policy by the insurer shall be delivered to Lessor thirty (30) days in advance of,the effective date. In the event the Premises is destroyed by fire or other insured casualty, Lessor shall, at a -minimum, be entitled to so much of the insurance proceeds representing its actual costs in finishing and improving the Premises as described in this Lease and in restoring the Premises to its condition at the beginning of the Lease. Should insurance proceeds be insufficient to restore the Premises to its original condition, Lessor shall make up and satisfy such deficiency. Alterations to Premises 27. Lessee, upon Lessor's written consent, may, at its own expense, make reasonable and necessary alteration or improvements to the Premises. All alterations, additions and improvements shall be performed in a workmanlike • manner, in accordance with all applicable building and safety codes, and shall not weaken or impair the structural strength or lessen the value of the Premises. 7 All alterations, additions and improvements made in or to the Premises shall be . the property of Lessor and remain and be surrendered with the Premises upon termination of this Lease. Lessee agrees that prior to any construction or installation of alterations, additions or improvements, Lessee shall post on the Premises in a conspicuous place a notice of non-liability for mechanic's lien as specified at C.R.S. § 38-22-105 on behalf of Lessor and shall notify Lessor of such posting and the exact location of same. Perfection of a mechanic's lien against the Premises as a result of Lessee's acts or omissions that Lessee has not escrowed or bonded over within sixty (60) days may be treated by Lessor as a material breach of this Lease. 28. Lessor reserves the right, from time to time, at its own expense and by its officials, employees and contractors, to make such alterations, renovations or repairs in and about the Premises, other than those noted above as required by Lessee, as Lessor deems necessary or desirable and Lessee covenants to make no claim against Lessor for any interference with its interests as herein provided in the Premises. Lessor shall provide reasonable notice to Lessee in advance of any intent to undertake alterations or repairs as authorized in this paragraph. Ouiet Enio to 29. Lessor agrees that Lessee, upon timely payment of rent and observing and keeping those terms and conditions of this Lease to be observed and kept by • Lessee, shall lawfully and quietly hold, occupy and enjoy the Premises during the term of the Lease. Taxes 30. In the event any taxes are levied upon the improvements, fixtures or personal property of the Lessee located on the Premises, or upon the leasehold or possessory interests as created through this Lease, Lessee shall be solely responsible to satisfy and pay all such taxes or assessments, except that Lessee may permit such taxes or assessments to remain unpaid while pursuing any good faith contest or appeal of same. Condemnation 31. If during the term of this Lease, or any renewal of it, the whole or part of the Premises or such portion as will make the Premises unusable for the purpose leased, or the leasehold interest, be condemned by public authority, including Lessor, for public use, then the lease term granted herein shall cease as of the date of the vesting of title in the Premises in such condemning authority, or when possession is given to such authority, whichever event occurs first. Upon such occurrence, the rent as due hereunder shall be apportioned as of that date and any prepaid rent shall be returned to Lessee. Lessee shall not be entitled to • any part of any condemnation award for the value of the un-expired term of this 8 • Lease or for any other estate or interest in the Premises, such amount belonging entirely to Lessor. Default/Termination 32. If Lessee shall fail to timely comply with any of the terms or conditions of this Lease or any notice given under it, or if it shall remove or manifest an intention of removing its furniture, business equipment, or fixtures from the Premises while in arrears as to the payment of rent, or shall become insolvent, or shall have or attempt to make an assignment for the benefit of creditors, or if any of its property be attached and such attachment is not promptly released, or if an. execution be issued against it, or, if a petition be filed by or against it, to have it adjudicated a bankrupt,or if a trustee or receiver shall be created or appointed to take charge of its.assets, or if it shall abandon the Premises for a period of more than seventy-two (72) hours, then at any time afterwards Lessor may at its option enter into the Premises and remove all persons and take and retain possession thereof either with or without process of law. 33. Any breach, default or failure by Lessee to perform any of the duties or obligations assumed by Lessee, or to faithfully keep and perform any of the terms herein,shall be cause for termination of the Lease by Lessor in the manner set forth in this paragraph. Lessor shall deliver to Lessee ten (10) days prior written notice of its intention to terminate this Lease, including in the notice a reasonable description of the'breach, default or failure. If within that ten (10) days Lessee shall fail or refuse to cure, adjust or correct it to the satisfaction of Lessor, then Lessor shall have the right to declare the Lease terminated and all rights, powers and privileges of Lessee as provided through this Lease shall cease and Lessee shall immediately vacate the Premises and shall make no claim of any kind against Lessor by reason of the termination. 34. The ten(10)days' prior written notice shall be conclusively determined to have been delivered to Lessee upon posting of same upon the main business entrance to the Premises or at the time it is deposited in the U.S. Mail, certified, postage prepaid, addressed to President, Aspen Chamber Resort Association, 590 N. Mill Street, Aspen, Colorado 81611, or such other address as otherwise designated in writing by Lessee. 35.. Any failure by Lessor to so terminate this Lease as herein provided or the acceptance by Lessor of rent for any period after the breach, default onfailure by Lessee to adhere to the terms of the Lease shall not be determined or construed to be a waiver or continuing waiver by Lessor of any rights to terminate the Lease for any present or subsequent breach, default or failure. 36. Lessee agrees that it will, at the end of the term of the Lease, peaceably deliver to Lessor the Premises and all fixtures and improvements on it in a good state of repair, and vacant, unencumbered, and in good and tenantable condition. 9 � r 1 37. In the event that the City of Aspen terminates the City of Aspen and ACRA • Tourism Promotion Fund Agreement dated January 1, 2018, ACRA may be entitled to surrender up to half of the office space to the City of Aspen with rent being reduced proportionally. Compliance with Laws/No Discrimination 38. Lessee agrees to comply with all laws, ordinances, rules and regulations that may pertain or apply to the Premises and its use. In performing under the Lease, Lessee shall not discriminate against any worker, employee or job applicant, or any member of the public, because of race, color, creed, religion, ancestry, national origin, sex, age,marital status,physical handicap, affectional or sexual orientation, family responsibility or political affiliation, nor otherwise commit an unfair employment practice. Notices 39. Whenever this Lease calls for or provides for notice and notice is not otherwise specified, the same shall be provided in writing and shall be served on the person(s) as designated by the parties below, either in person or by certified mail, postage prepaid and return receipt requested: For Lessor: Aspen City Manager 130 South Galena Street Aspen, Colorado 81611 For Lessee: President and CEO Aspen Chamber Resort Association 590 North Mill Street Aspen, Colorado 81611 The parties may change or add such designated person(s) or addresses as may be necessary from time to time in writing. Successors and Assigns 40. All of the terms and conditions as contained in this Lease shall inure to the benefit of and be binding upon the successors and assigns of the parties. Headings 41. Headings contained herein are for convenience of reference only and are not intended to define, limit or describe the scope or intent of any provision of this Lease. 10 • Governing Law 42. This Lease shall be enforced and interpreted in accordance with the laws of the State of Colorado. Any action brought to enforce or interpret this Lease shall be brought in the District Court for Pitkin County, Colorado. In the event of litigation between the parties concerning this Lease or matters arising there from, the prevailing party shall be awarded its costs and reasonable attorney's fees. Modifications 43. This instrument constitutes the entire agreement by the parties concerning the Premises and any prior or contemporaneous oral or written agreement that purports to vary from the terms as set forth herein shall be void and of no effect. 44. The Lease and all of its terms and conditions may not.be amended or modified absent a written agreement duly executed by Lessor and Lessee. Counterparts 45. This Lease has been executed in counterparts, each of which shall be deemed an original. • 11 WHEREFORE, the parties, through their duly authorized representatives, have • executed this Lease upon the dates as set forth herein. CITY OF ASPEN, COLORADO Date: 7—� By: liC STc�hc� ATTEST: I Linda Manning, City Clerk ASPEN CHAMBER AND RESORT ASSOCIATION, INC. Date: / I I By: Debbie Braun, President and CEO • 12 EXHIBIT A • Old Powerhouse Area Space SQFT % City of Aspen 2475 47% ACRA 2785 53% Common 1120 18% TOTAL 6380 100% • • EXHIBIT"B" CALCULATION OF CHANGES IN URBAN INDEX The term "Urban Index" used herein shall refer to the consumer Price Index - All Urban Consumers (CPI-U), U.S. City Average, All Items (1967 = 100) compiled by the United States Department of Labor, Bureau of Labor Statistics. By way of identification, the parties agree that the CPI-U index number for July 1993 = 432.6. If at the time of computation of rental increases as provided below the Urban Index as defined is not then being currently published,the parties shall mutually select a substitute index which has historically approximated the Urban Index as defined. The parties further agree that the methodology they will use for calculating index changes in the Urban Index is that described in the instruction sheet from the Bureau of Labor Statistics, U.S. Department of Labor,which reads as follows: CALCULATING INDEX CHANGES Movements of the indexes from one month to another are usually expressed as percent changes rather than changes in index points, because index point changes are affected by the level of the index in relation to its base period while percent changes are not. The example in the accompanying box illustrates the computation of index point and percent changes. Percent changes for 3-month and 6-month period are expressed as annual rates and are computed according to the standard formula for compound growth rates. These data indicate what the percent change would be if the current rate were maintained for a 12-month period. • INDEX POINT CHANGE CPI 315.5 Less previous index 303.5 Equals index point change 12.0 PERCENT CHANGE Index Point difference12.0 Divided by the previous index 303.5 Equals 0.040 Results multiplied by one hundred 0.040 x 100 Equals percent change 4.0