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HomeMy WebLinkAboutresolution.council.055-07 RESOLUTION NO. 5" b Series of 2007 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A LEASE AT THE CITY PLAZA BUILDING, ASPEN, COLORADO, BETWEEN THE CITY OF ASPEN AND 517 EAST HOPKINS AVENUE LLC, AND AUTHORIZING THE MAYOR OR CITY MANAGER TO EXECUTE SAID LEASE ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a Lease and Summary of Business Terms of the City Plaza Building, between the City of Aspen and 517 East Hopkins Avenue LLC, a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves that Lease and Summary of Business terms of the City Plaza Building, between the City of Aspen and 517 East Hopkins LLC, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the Mayor or 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 ~ay O~07. I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council ofthe City of Aspen, Colorado, at a meeting held on the day h7 einabove stated. ~ G:\tara\RESOS\CityPlaza.lease.doc CITY PLAZA BUILDING LEASE SUMMARY OF BUSINESS TERMS THIS LEASE, is made and entered into as of this !l!: day of August, 2007, between 517 EAST HOPKINS AVENUE LLC owner of the City Plaza Building (hereinafter referred to as "Landlord"), whose address is 517 East Hopkins Avenue, Aspen, Colorado 81611 and THE CITY OF ASPEN (hereinafter referred to as "Tenant"), whose address is 130 South Galena, Aspen, Colorado, 81611. WITNESSETH: Section 1: Leased Premises In consideration of the mutual covenants and agreements set forth herein and in the following full text of the Lease to which this Summary of Business Terms is attached, which Lease is made a part hereof by this reference, Landlord does hereby lease to Tenant and Tenant does hereby rent from Landlord the following described Leased Premises: the entire Lower Level Floor (referred to as "Leased Premises") of the building known as the City Plaza Building which is situated on Lots D, E and F, Block 94, City and Townsite of Aspen, and known as 517 East Hopkins Avenue, Aspen, Colorado (such real property and improvements shall hereinafter be referred to as the "Building"). Section 2: Term The term of this Lease shall commence upon Lease execution, with rent to commence beginning August 15, 2007. Lease term shall be for a period of 60 months from commencement. Section 3: Rent Fixed Rent: Tenant shall pay Landlord at the address of the Landlord or at such other place as Landlord may from time to time designate in writing to Tenant, without any prior demand therefore and without any deduction or setoff whatsoever, a fixed minimum annual rental for the Leased Premises in monthly installments in accordance with the following schedule: Period 8/15/07-8/31107 9/1107-8/31108 9/1108-8/31/09 Monthlv $7,741.94 $15,000.00 $15,000+ CPI* Total Amount $7,741.94 $180,000.00 00. $180k+CPI* lP ~ Section 4: Insurance Included in 2007 Base Year Section 5: Utilities Included in 2007 Base Year Section 6: Common Area Maintenance Included in 2007 Base Year Section 7: Taxes Included in 2007 Base Year Section 8: Securitv Deposit Waived Section 9: Business Use Tenant shall utilize the Leased Premises for office space only as permitted by all applicable zoning rules and regulations and for no other use without Landlord's prior written consent. Section 10: Base Year and Operatine: Costs Tenant's Proportionate Share of the Building's operating costs shall be 41.88%. Tenant shall pay to Landlord Tenant's Proportionate Share of operating costs for each calendar year in excess of the actual operating costs for calendar year 2007. Section 11: Additional Provisions It is understood and agreed that Tenant shall make repairs, modifications and improvements to the Leased Premises and the Building which may not normally be considered tenant obligations (identified below as item (ii)(a) through (k)). Further, Tenant desires to make additonal improvements to the Leased Premises which may normally be associated with and recognized as tenant improvments (collectively, the "Tenant Improvements"). Any such Tenant Improvements shall require Landlord's prior written consent, which shall not be unreasonably withheld or delayed, provided that: (i) Tenant provides Landlord with a written description of the proposed work, together with a bid or bids for the completion of same from a licensed and bonded contractor, together ~ with a copy of architectural floor plans showing such proposed work; and t:ll7 ~~ 2 (ii) Tenant promises to pay and hereby indemnifies Landlord from and against any and all expenses, fees, increased premiums, payments, damages or other costs of whatever nature (including attorneys' fees and expenses) to Landlord, other tenants, the Building or third parties which arise out of or in connection with such Tenant Improvements. Upon completion of the approved Tenant Improvements, Tenant shall promptly provide Landlord with a final accounting showing receipt of lien waivers from all contractors and materialmen who have performed services or provided material to the Building or Leased Premises. Tenant shall make Tenant Improvements only after having obtained all necessary permits from governmental authorities and in strict conformity with all applicable building codes, rules and regulations. If Tenant shall request and receive approval for Tenant Improvements costing more than Seventy Thousand Dollars ($70,000) in total, then Landlord shall agree to finance any such amount which exceeds $70,000 (the "Overage") by loaning the amount of the Overage to Tenant, provided however that the Tenant executes a promissory note in a form satisfactory to Landlord which provides that the amount of the Overage shall be repaid to Landlord in equal monthly installments over the then remaining Term ofthis Lease.Each installment shall be due and payable on the first of every month, and late payments or non-payments shall trigger the same penalties (e.g. late fees, default interest and lease default) as are provided for rent payments hereunder. Tenant currently anticipates the following scope of work: a) Elevator: The elevator must be repaired - or if not feasably repairable - a replacement shall be purchased, installed and maintained for Tenant's use during the Term of the Lease. b) Drywall: The breaches in the floor-ceiling assembly must be repaired to the required I hour FR rating. Holes in drywall patched and repaired. Any sigificant damage from leaks in the premises above should be the building owner's responsibility. c) Sewer: The bathrooms to be repaired to working, City Code compliant condition. The building sewer drains to be cleaned (Roto Rooter) and inspected. d) HV AC: The HV AC system to be evaluated evaluated to ensure that it accommodates the needs of the Tenant as it relates to the finish of the Leased Premises. If system found deficient, Tenant shall install acceptable upgrade. e) Electrical: The electrical system to be evaluated for reliability and sized for demand. f) Floor: Floor area water damage repaired and floors returned to acceptable condition. g) Doors: Front door closer installed and hardware compliant. ~~ .f18 3 h) Fire Sprinklers: The sprinkler system evaluated for reliability and City Code compliance. i) Outdoor Space: Cleaning oflight well and courtyard. j) Water Heaters: The water heaters evaluated for reliability. k) Front & Back Stairs: To be repaired and maintained to City Code compliant conditions. IN WITNESS WHEREOF, the Landlord and Tenant have executed this Lease Summary on the day and year first above written. LANDLORD: 517 EAST HOPKINS AVENUE LLC N~on. LLC ~MJ\~ David Danforth, Manag Date fj - / )AI Date ~ \ \ll:~ 1 4 TENANT: Date f(-!:t-o 7 City Of Aspen Date 9'~'fll City Manager 5 2?1 LEASE THIS LEASE IS MADE AND ENTERED INTO AS OF THIS _ day of August 2007, between 517 EAST HOPKINS AVENUE LLC, owner of the City Plaza Building (hereinafter referred to as "Landlord"), and THE CITY OF ASPEN (hereinafter referred to as "Tenant"). WITNESSETH ARTICLE I Leased Premises Landlord hereby leases to Tenant, and Tenant hereby rents from Landlord, the "Leased Premises" described in Section I of the Lease Summary of Business Terms attached hereto and made a part hereof by this reference. ARTICLE II Term The term of this Lease is stated in Section 2 of the Lease Summary of Business Terms, which is incorporated herein by this reference. ARTICLE III Rent Tenant agrees to pay Landlord a fixed minimum annual rental for each Lease Year during the term of the Lease, which rent is specified in Section 3 of the Lease Summary of Business Terms. This minimum rental is payable in monthly installments due on the first day of each calendar month during the term hereof without prior demand, subject to adjustments as set forth below. (a) Commencing on September 1,2008, and annually thereafter during the term of this Lease, the fixed minimum annual rental shall be adjusted upward as indicated herein. (b) "Price Index" shall mean the Consumer Price Index-All Urban Consumers (CPI-U) - U.S. City Average, - All Items, or a successor or substitute index published or authorized by the United States Department of Labor, Bureau of Labor Statistics. (c) The following formula shall be used for determining the adjustment, ifany, in the fixed minimum annual rent: Current Index Number = Base Index Number "Price Index" for the first month of next Lease Year "Price Index" for the first month of preceding Lease Year ~ rh 6 d) As promptly as practicable after the commencement of the second Lease Year, and thereafter as promptly as practicable after the first day of each succeeding Lease Year, Landlord shall compute the increase, if any, in the CPI-U during the immediately preceding Lease Year. Such computation shall be based on the formula set forth in Paragraph (c) above. (e) In computing increases for each Lease Year, the current index number shall be divided by the base index number. From the quotient thereof, there shall be subtracted the integer I and any resulting positive number shall be deemed to be the increase in the CPI-U. (g) The Landlord shall, within sixty (60) days after obtaining the data necessary for computing such increase, give the Tenant notice of any increase so determined. (h) The fixed minimum rent for each Lease Year, as adjusted in accordance with Paragraph I (b) through (f) of this Article III, shall be due and payable to the Landlord in equal monthly installments due on the first day of each calendar month of such Lease Year. Any payment of retroactive lease increases shall be payable within thirty (30) days after giving notice thereof by Landlord to Tenant. Rent payments shall be delivered to the address set forth in the Lease Summary of Business Terms. (I) If publication of the pertinent Consumer Price Index shall be discontinued, the parties hereto shall thereafter accept comparable statistics on the cost of living for the average of all U.S. cities, all items, as the same shall be computed and published by an agency of the United States or by a responsible fmancial periodical of recognized authority then to be selected by the parties hereto. In the event of (I) use of comparable statistics in place of the Consumer Price Index as above mentioned, or (2) publication of the Index figures at other than bi-monthly intervals, there shall be made in the method of computation above provided revisions as the circumstances may require to carry out the intent of this Article. In no event shall the fixed minimum rent calculated hereunder be less than the previous Lease Year's rental. ARTICLE IV Penalties for Late Payment of Rent 1. If Tenant fails to pay monthly installments by the tenth (lOth) day of the month in which it is due, Tenant shall add five percent (5%) of the combined amount of base rent, additional rent, assessments and all other sums due Landlord, to that monthly installment as additional rent. 2. Landlord need not give any notice to be entitled to this payment, and such additional rentals or penalties shall in no way be construed to limit Landlord's remedies in the event of such default, which remedies shall in all cases hereunder be deemed to be cumulative. 3. In the event all or any part of the sums due as described in paragraph I of this Article is delinquent beyond the 30th day of the month in which it is due, the delinquent amount shall bear interest at the rate of one and one-half percent (1.5%) per month, from and including the day such payment was first due and owing, through and including the day such delinquent amount is paid in full. J)11V\ ro 7 ARTICLE V Insurance 1. Tenant agrees at its own expense to maintain in full force during the lease term policies of comprehensive insurance, including property damage, written by one or more responsible insurance companies licensed to do business in Colorado which will insure Tenant and Landlord against liability for injury to persons and/or property, and death of any person or persons occurring in or about the Premises. Each policy shall be approved as to form and insurance company by Landlord. The liability under such insurance shall not be less than $2,000,000 for anyone person injured or killed, and not less the $2,000,000 for anyone accident, and not less than $2,000,000 for property damage. If in the considered opinion of Landlord's insurance advisor, the amount of such coverage is not adequate, Tenant agrees to increase that coverage to such reasonable amounts that Landlord's advisors shall deem adequate. The policies shall name as insured parties, Tenant and Landlord and any persons, firms or corporations designated by Landlord, and shall contain a clause that the insurer will not cancel or change the insurance without first giving Landlord fifteen (15) days' prior written notice. A copy of the policy or a certificate of insurance shall be delivered, to Landlord. If Tenant fails to comply with this paragraph, Landlord shall have the right to obtain the said insurance and pay the premiums therefore, and in such event the entire amount of such premium shall he immediately paid by Tenant to Landlord. 2. Tenant agrees that it will at all times during the lease term maintain in full force and effect on all its furniture, fixtures and equipment in the Leased Premises a policy or policies of fire insurance with the standard extended coverage endorsement attached to the extent of at least eighty percent (80%) of their insurable value, the proceeds of which will, so long as this Lease is in effect, be used for the repair or replacement of fixtures and equipment so insured. It is understood that Landlord shall have no interest in the insurance upon Tenant's equipment and fixtures, and will sign all documents necessary or proper in connection with the settlement of any claim or loss by Tenant. 3. Landlord shall purchase fire, casualty, liability and extended coverage insurance covering the Leased Premises against loss or damage by fire and by other risks now or, hereafter embraced by "extended coverage," so called, in the amount of the full insurable value of the Leased Premises (both the exclusive and nonexclusive premises.) No insurable interest is conferred upon Tenant under any policies of insurance carried by Landlord, and Tenant shall not be entitled to share or receive proceeds of any insurance policy carried by Landlord. 4. For each Lease Year after calendar year 2007, Tenant shall pay to Landlord Tenant's Proportionate Share of the increase in premiums for the above-described insurance coverage, which share shall be payable in equal monthly installments due on the same day as the fixed minimum monthly rental payments are due. As promptly as possible following receipt by Landlord of its annual insurance premium notice for the Building, a copy of the same shall be sent to Tenant together with a statement of any increase in Tenant's future share which may be necessitated by said premium notice. In case of an increase in premiums in calendar year 2008 or later, Tenant shall commence paying such increased share and the day the next minimum monthly rental payment is ;!)). -' r rI\ due hereunder. .fiJ) 8 ARTICLE VI Utilities 1. Tenant shall pay for all telephone, cable TV, gas and electricity separately supplied or separately metered to the Leased Premise. 2. With regard to all utilities, and all other services, it is mutually agreed that Landlord shall not be liable in damages or otherwise for any interruption or failure thereof when such interruption or failure is not due to the negligence of Landlord. 3. Tenant further agrees that Tenant will not install any equipment which will exceed or overload the capacity of any utility facility, and that if any equipment installed by Tenant shall require additional utility facilities, the same shall he installed and maintained at Tenant's expense in accordance with plans and specifications which have received prior written approval by Landlord. 4. For each Lease Year after calendar year 2007, Tenant shall pay to Landlord Tenant's Proportionate Share of the increase in utility charges for the Building. Such charges shall include, without limitation, all fuel, gas, electricity, water, sewer, telephone, and other services provided to the Building, which are not separately metered to Tenant or any other tenant in the Building. Such amounts shall be paid in equal monthly installments due on the same day as the fixed minimum monthly rental payments are due. In case of an increase in utility costs in calendar year 2008 or later, Tenant shall commence paying its Proportionate Share on the day the next minimum monthly rental payment is due hereunder. ARTICLE VII Common Area Maintenance I. For each Lease Year after calendar year 2007, Tenant shall pay to Landlord Tenant's Proportionate Share of the increase in operating costs (otherwise known as common area maintenance) costs for the Building. "Common Area Maintenance Costs" are all costs of operating, maintaining and repairing the Building, including, without limitation, the following: (a) Salaries, wages and other amounts paid or payable for personnel including the Building manager, superintendent, operation and maintenance staff, and other employees of Landlord involved in the maintenance and operation of the Building, including contributions and premiums towards fringe benefits, unemployment and worker's compensation insurance, pension plan contributions and similar premiums and contributions and the total charges of any independent contractors or managers engaged in the repair, care, maintenance and cleaning of any portion of the Building. (b) Cleaning, including sweeping and snow shoveling of sidewalks in front of the Building. (c) and replacing plants. Landscaping, including irrigating, trimming, mowing, fertilizing, seeding, (d) Maintaining, operating, repairing and replacing equipment. ffiM. UJ 9 (e) Other items of repair or maintenance ofthe Building. (I) Policing and security. (g) The cost of the rental of any equipment and the cost of supplies used in the maintenance and operation of the Building. (h) Audit fees and the cost of accounting services incurred in the preparation of statements referred to in this Lease and financial statements, and in the computation of the rents and charges payable by tenants ofthe Building. (i) Costs, expenses and commissions actually incurred for the leasing of premises in the Building; UJ Costs of capital expenditures incurred for the purpose of reducing operating costs, and costs of improvements, repairs, or replacements that otherwise constitute operating costs under this Article but that are properly charged to capital accounts shall not be included in operating costs in a single year but shall instead be amortized over their useful lives, as determined by the Landlord in accordance with generally accepted accounting principles, and only the annual amortization amount shall be included in monthly payments therefor. (k) A fee for the administration and management of the Building appropriate to the nature of the Building as reasonably determined by the Landlord from time to time. (I) Costs of alterations, improvements or modifications to the Building which are necessary to comply with requirements of applicable law; and (m) Expenses incurred in efforts to reduce taxes or assessments. ARTICLE VIII Taxes 1. For each Lease Year after calendar year 2007, Tenant shall pay to Landlord Tenant's Proportionate Share of the increase in general and special real and personal property taxes and assessments for the Building, which share shall be payable in equal monthly installments due on the same day as the fixed minimum monthly rental payments are due. As promptly as possible following receipt by Landlord of its annual property tax notice for the Building, a copy of the same shall be sent to Tenant together with a statement of any increase in Tenant's future share which may be necessitated by said notice. In case of an increase in such taxes and assessments in calendar year 2008 or later, Tenant shall commence paying such increased share on the day the next minimum monthly rental payment is due hereunder. ~~ ee 10 ARTICLE IX Prohibited Uses 1. Tenant will not use, occupy, or permit the Leased Premises or any part thereofto be used or occupied for any unlawful or illegal business, use, or purposes reasonably deemed by Landlord to be disreputable, or hazardous, nor in such manner as to constitute a nuisance of any kind, nor for any purpose or in any way in violation of any present or future laws, rules, requirements, orders, directions, ordinances or regulations of the United States of America, State of Colorado, County of Pitkin, City of Aspen, or other municipal, governmental, or lawful authority whatsoever. 2. Tenant shall not do or permit anything to be done in or about the Leased Premises or bring or keep anything therein which will in any way increase the rate of property or fire insurance upon the Building wherein the Leased Premises are situated. Tenant shall, at its sole cost and expense, comply with any and all reasonable requirements pertaining to the Leased Premises of any insurance company necessary for the maintenance of reasonable fire and public liability insurance covering the Leased Premises. Tenant shall promptly comply with all laws, ordinances, orders, and regulation affecting the Leased Premises and the cleanliness, safety, and use of the same, including installation of additional facilities as required for the conduct and continuance of Tenant's business on the Leased Premises. No auction for fire or bankruptcy sales may he conducted on the Leased Premises without Landlord's consent. ARTICLE X Nuisance and Cleanliness 1. Tenant covenants that it will exercise a reasonable level of care to maintain the Leased Premises in a clean and sanitary condition and to provide for sufficient trash and garbage service. 2. Tenant shall not permit any noxious or offensive odors or sounds to exist in or around the Leased Premises. A breach of this obligation by Tenant shall constitute a material breach of this Lease. 3. Tenant shall not perform any act or carry on any practices which may injure the Building of which the Leased Premises form a part or be a nuisance or menace to other Tenants in said Building. A breach of any of the terms or conditions contained in this Article shall constitute a material breach of this Lease. ARTICLE XI Repairs. Alterations and Improvements 1. Landlord shall keep in good order. condition, and repair, the foundation, exterior walls (except the interior faces thereof), downspouts, gutters, roof for the Building, electrical systems, and the plumbing and sewage system of the Building of which the Leased Premises form a part (but excluding the exterior and interior of all windows, doors, plate glass, and store fronts, and repairs required by any casualty or acts of God except as otherwise covered by ARTICLE XV hereof), except for reasonable use and wear, and any damage caused by any act or negligence of Tenant, its agents, employees, invitees, lessees or contractors; provided, however, that there shall be no obligation to do pS"" 00 11 so until after the expiration of ten (10) days' written notice to Landlord of the need thereof. The cost of the repairs described above shall be paid through the Common Area Maintenance assessment pursuant to Article VII above. 2. Tenant shall, at all times, keep the Leased Premises in good order, condition, and repair including replacements thereof. Included in Tenant's obligations are maintenance of all entrances, plate glass, partitions, doors, door jams, door closers, door hardware, electrical lighting, heating, plumbing and plumbing fixtures, and any mechanical system under the control of Tenant. Excluded from Tenant's obligations are damage by unavoidable casualties and those items included in Landlord's obligations as set forth in paragraph I above. 3. Tenant shall not have the right to make any alterations, improvements, and/or additions to the Leased Premises which affect the exterior or any structural, mechanical or electrical component without first obtaining Landlord's written consent pursuant to the terms of the Lease Summary attached hereto and made a part hereof. ARTICLE XII Landlord Not Liable for Damae:es Landlord shall not be liable to Tenant or to any other person whatsoever for any damage occasioned by falling plaster, electricity, plumbing, gas, water, steam, sprinkler or other pipe and sewage system or by the bursting, running or leaking of any tank, washstand, closet or waste to other pipes in or about the Leased Premises, or the Building of which they are a part, nor for any damage occasioned by water being upon or coming through the roof, or vent, or otherwise for any damage arising from any acts or neglect of co-tenants or other occupants of the Building or of adjacent property, or the public, nor shall Landlord be liable in damages or otherwise for any failure to furnish, or interruption of service of any water, gas electricity, heated water, steam and/or chilled water, caused by fire, accident, riot, strike, labor disputes, acts of God, or the making of any repairs or improvements or other causes beyond the control of Landlord. ARTICLE XIII Indemnification of Landlord Tenant will to the extent permitted by law indemnify Landlord and save it harmless from and against any and all claims, actions or damages or liability or expense in the 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 occasioned wholly or in part by any act or omission of Tenant, its agents, contractors, servants, lessees, invitees or concessionaires. In case Landlord shall without fault on its part be made a party to any litigation commenced by or against Tenant, then Tenant shall fully protect and hold Landlord harmless and pay all costs, expenses, and reasonable attorney's fees incurred or paid by Landlord in connection with such litigation. Tenant shall also pay all costs, expenses, and reasonable attorney's fees that may be incurred or paid by Landlord in enforcing the covenants and j; 12 agreements in this Lease, so long as Landlord substantially prevails in such litigation as determined by the finder of fact therein. ARTICLE XIV Assie:nment and Sublettine: Tenant shall not assign or in any manner transfer or encumber this Lease or any estate or interest therein, or sublet the Leased Premises or any part thereof, or grant any license, concession or other right to occupy any portion of the Leased Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld. This prohibition includes, without limitation, (i) any subletting or assignment which would otherwise occur by operation of law, merger, consolidation, reorganization, transfer or other change of Tenant's corporate or proprietary structure; (ii) an assignment or subletting to or by a receiver or trustee in any Federal or State bankruptcy, insolvency or other proceedings; (iii) the sale, assignment or transfer of all or substantially all of the assets of Tenant, with or without specific assignment of this Lease; (iv) the sale, encumbrance or other disposition of stock in a corporate Tenant, or ownership in a limited liability company Tenant, which results in the present shareholders or members therein owning or controlling less than 51 percent ofthe stock or ownership thereof; (v) the change in control in a Tenant partnership, directly or through a change or changes in the ownership of 50 percent or more of the stock or ownership of one or more corporate or limited liability company general partners; (vi) the change in control in a Tenant limited liability company through a change or changes in the ownership of 50 percent or more of the stock of one or more corporate members or of a corporate general partner of a partnership member, and (vii) the death of an individual Tenant. Consent by Landlord to one or more assignments or sublettings shall not operate as a waiver of Landlord's rights as to any subsequent assignments and sublettings. Any attempted assignment or subletting by Tenant in violation of the terms and covenants ofthis Article XIV shall he void. Notwithstanding any approved assignment or subletting, Tenant and any guarantor of Tenant's obligations under this Lease shall at all times remain fully responsible and liable for the payment of the rents and assessments herein specified and for compliance with all of Ten ant's other obligations under this Lease. ARTICLE XV Access to Premises 1. Landlord and its authorized representative shall have the right to enter upon the Leased Premises at all reasonable hours (and in emergencies, at all times) to inspect the same and to make repairs to the Premises, which shall be concluded in a manner and at times that will minimize disruption of Tenant's business. Landlord agrees to provide Tenant with reasonable notice whenever it deems necessary to enter upon the Premises. 2. For a period commencing ninety (90) days prior to the end of the lease term, Landlord may have reasonable access to the Leased Premises for the purpose of exhibiting the same to prospective tenants and to post any usual "For Lease" signs upon jSW\ the Leased Premises. tffl 13 ARTICLE XVI Damae:e or Destruction 1. In case the Premises shall be partially or totally destroyed by fire or other casualty insurable under the full standard extended risk insurance as to become partially or totally untenantable, the same shall be repaired as speedily as possible at the expense of Landlord, unless Landlord shall elect not to rebuild as hereinafter provided, and (should that be a substantial. interference with Tenant's business) a just and proportionate part of the fixed rent and all assessments shall be abated from the date of the occurrence until so repaired. 2. If more than fifty percent (50%) of the Building in which the Leased Premises are located shall be destroyed or so damaged by fire, or other casualty insurable under full standard extended risk insurance, as to become wholly untenantable, or if the Building in which the Leased Premises are located is destroyed to the extent of not less than thirty three and one-third percent (33 1/3%) of the replacement cost thereof, or in the event that the Premises shall be partially or totally destroyed by a cause or casualty other than those covered by fire and extended coverage risk insurance, or, for such casualty Landlord shall decide not to rebuild the Building, then in any such event, Landlord may, if it so elects, rebuild or put said Building in good condition and fit for occupancy within a reasonable time after such destruction or damage, or may give notice in writing terminating this Lease as of a date not later than sixty (60) days after any such damage or destruction. If Landlord elects to repair or rebuild said Building, it shall, within sixty (60) days after such damage, give Tenant notice of its intention to repair and then proceed with reasonable speed to make such repairs. Unless Landlord elects to terminate this Lease, this Lease shall remain in full force and effect. 3. In the event that fifty percent (50%) or more of the Building containing the Leased Premises shall be damaged or destroyed, Landlord shall have the right, exercisable within sixty (60) days thereafter, to terminate this Lease, notwithstanding that the Leased Premises may have sustained little or no damage. Any such termination shall be effective ten (10) days following notification to Tenant by Landlord of Landlord's election to terminate. ARTICLE XVII Eminent Domain 1. If title to all of the Leased Premises or so much thereof be taken by any public or quasi-public use under any statute or by right of eminent domain, or by private purchase in lieu thereof, so that a reasonable amount of reconstruction of the Leased Premises will not result in the Premises being a practical improvement and reasonably suitable for Tenant's continued occupancy for the uses and purposes for which the Premises are leased, this Lease shall terminate as of the date that possession of said Premises, or part thereof, be taken. 2. If any part of the Premises shall be so taken, and the remaining part thereof (after reconstruction of the then existing Building in which the Premises are located) is reasonably suitable for Tenant's continued occupancy for the purposes and uses for which the Premises are leased, this Lease shall, as to the part so taken, terminate as of the date 14 /M., ~ that possession of such part of the exclusive Premises be so taken and the fixed rent shall be reduced in the same proportion that the floor area of the portion of the exclusive Premises so taken (less any additions thereto by reason of any reconstruction) bears to the original floor area of the exclusive premises, and Landlord shall, at its own cost and expense, make all necessary repairs or alterations to the Building in which the Premises are located so as to constitute the portion of the Building not taken a complete architectural unit and the remaining exclusive Premises a complete merchandising unit, but such work shall not exceed the scope of the work to be done in originally constructing said building. There shall he no abatement of rent during such restoration except to the extent otherwise provided in this paragraph. 3. All compensation awarded or paid upon such a total or partial taking of the fee of the Premises shall belong to and be the property of Landlord, whether such compensation be awarded or paid as compensation for diminution in value of the leasehold or to the fee; provided, however, that Landlord shall not be entitled to any award made to Tenant for loss of business, depreciation to, and cost of removal of stock and fixtures. 4. Each party agrees to execute and deliver to the other all instruments that may be required to effectuate the provisions hereof. ARTICLE XVIII Default bv Tenant and Landlord's Remedies 1. Event of Default Defined. Anyone or more of the following events shall constitute an "Event of Default" by Tenant under this Lease: a) Failure to Pav Rent. Tenant shall fail to pay when due any installment or other form of rent, assessments or additional rent under this Lease and shall not cure such failure within five (5) days after written notice from Landlord demanding payment of rent or surrender of' possession pursuant to Section 13-40-104 (d) (1973 C.R.S. and as amended) . b) Non-Monetary Default. Tenant shall fail to comply with or shall otherwise violate any term, provision, condition, representation or covenant of this Lease, other than the payment of rent or additional rent due hereunder, and shall not commence to cure any non-monetary default within ten (10) days after written notice thereof to Tenant. c) Bankruptcv. Filing by or against Tenant or any guarantor of Tenant's obligations under this Lease, in any court pursuant to any statue either of the United States or of any state, of a petition of bankruptcy or insolvency, or for reorganization, or for the appointment of a receiver or trustee, of all or a portion of Tenant's or any guarantor's property, if within 60 days after the commencement of any such proceeding involving Tenant or a guarantor such petition shall not have been dismissed. d) Abandonment or Vacation of Premises. Tenant shall abandon, desert, vacate or not open for business any substantial portion of the Leased Premises, for a total of more than Thirty (30) days in any twelve month period, or Tenant shall inform Landlord that it intends to abandon the Leased Premises. e) Removal of Personal Property. Tenant's removal or attempted removal from the Leased Premises of any inventory, equipment, fixtures, or improvements other "1lI\, than in the ordinary course of business. ~ 15 f) Government Closure. The business operated by Tenant shall be closed by governmental authority for failure to pay any sales or other tax as required or for any other reason. g) Transfer of Tenant's Estate. This Lease or the estate of Tenant hereunder or any beneficial interest in Tenant shall be transferred to or shall pass to or devolve upon any other person except in the manner herein provided. h) Levv on Tenant's Interest. With regards to any default described above, any cure period provided by statute shall be deemed to run concurrently (rather than sequentially) with any cure period provided for herein. 2. Remedies. Upon the occurrence of any such Event of Default, Landlord shall have the option to pursue anyone or more of the remedies available at law, in equity, or under this Lease, without any notice or demand whatsoever, including without limitation the following: a) Termination of Tenant's Rie:hts. Upon the termination of Tenant's possessory rights, Tenant shall immediately and peacefully surrender the Leased Premises to Landlord, and if Tenant fails to do so, Landlord, without prejudice to any other right or remedy which Landlord may have for possession, damages, or arrearages in rental, may enter upon and take possession of the Leased Premises through legal process or, if breach of the peace can reasonably be avoided, without use of legal process. Thereafter Landlord may have, hold and enjoy the Leased Premises and the right to receive all rental income therefrom, and may alter all locks and other security devices at the Leased Premises. b) Landlord's Rights. At any time after such termination of Tenant's possessory rights, Landlord may relet the Leased Premises or any part thereof, in the name of Landlord or otherwise for such term (which may be greater or less than the balance of the term of this Lease) and on such conditions as Landlord, in Landlord's absolute discretion, may determine, and may collect and receive the rents therefor. c) Non-Termination of Lease. Unless Landlord so elects as below provided, no such termination of Tenant's possessory rights shall cause a termination of this Lease or otherwise relieve Tenant's liability and obligations under this Lease, and such liability and obligations shall survive any such termination. d) Termination of Lease. In the alternative, at any time within the 90 day period following the termination of Tenant's possessory rights, Landlord may elect to terminate this Lease by written notice to Tenant. e) Propertv Left on Leased Premises. Any property of Tenant, or of anyone claiming under, by or through Tenant, which is left on the Leased Premises more than 15 days after expiration of the term of the Lease or termination of possessory rights (whichever occurs first) shall be conclusively deemed abandoned, and Landlord may keep, use, remove, store, sell, destroy, discard, or otherwise deal with it in Landlord's absolute discretion without liability of any sort to Tenant or anyone claiming under, by or through Tenant. f) Additional Costs of Default bv Tenant In case of any Event of Default, Tenant shall also be liable for and shall pay to Landlord, in addition to any sum provided to be paid above, broker's fees incurred by Landlord in connection with reletting the whole or any part of the Leased Premises; the reasonable costs of removing and storing or otherwise disposing of Tenant's or other occupant's property; the reasonable costs of ~ repairing, altering, remodeling or otherwise putting the Leased Premises into condition YOtJ 16 acceptable to a new tenant or tenants; and all reasonable expenses incurred by Landlord in enforcing or defending Landlord's rights and/or remedies, including without limitation reasonable attorneys' fees. g) No Dutv to Relet. In the event oftermination of possessory rights or repossession of the Leased Premises for an Event of Default, Landlord shall not have any greater obligation to relet or attempt to relet the Leased Premises, or any portion thereof, or to collect rental on the Leased Premises after reletting, than is required by applicable law with respect to mitigation of damages; and in the event of reletting, Landlord may relet the whole or any portion of the Leased Premises for any period, to any tenant, and for any use and purpose. h) Landlord's Right to Cure. If Tenant should fail to make any payment or cure any default hereunder within the time herein permitted, Landlord, without being under any obligation to do so and without thereby waiving such default, may make such payment and/or remedy such other default for the account of Tenant (and enter the Leased Premises for such purpose), and thereupon Tenant shall be obligated, and hereby agrees, to pay as additional rental, all reasonable costs, expenses and disbursements (including reasonable attorneys ' fees) incurred by Landlord in taking such remedial action. Such action taken by Landlord may include commencing, appearing in, defending, or otherwise participating in any actions or proceedings, and paying, purchasing, contesting, or compromising any claim, right, encumbrance, charge or lien with respect to the Leased Premises or the Building. i) Landlord's Right to Use Furniture. Fixtures and Equipment. In the event that Landlord shall have taken possession of the Leased Premises pursuant to the authority herein granted, then Landlord shall have the right to keep in place and use all of the furniture, fixtures and equipment of the Leased Premises, including that which is owned by or leased to Tenant, at all times prior to any foreclosure thereon by Landlord or repossession thereof by a lessor thereof, or third party having a lien thereon. Landlord shall also have the right to remove from the Leased Premises (without the necessity of obtaining a distress warrant, writ of sequestration or other legal process) all or any portion of such furniture, fixtures, equipment and other property located thereon and place same in storage at any premises within Pitkin County, and in such event, Tenant shall be liable to Landlord for reasonable costs incurred by Landlord in connection with such removal and storage and shall indemnify and hold Landlord harmless from all loss, damage, cost, expense and liability in connection with such removal and storage. j) Landlord's Lien. To secure the payment of all rental and other sums of money due and to become due hereunder and the faithful performance of this Lease by Tenant, Tenant hereby grants to Landlord an express fust and prior contract lien and security interest on all tangible property belonging to Tenant (including fixtures, equipment, inventory, furniture, furnishings, chattels, and merchandise) which may be placed in the Leased Premises, and also upon all proceeds of any insurance which may accrue to Tenant' by reason of destruction of or damage to any such property. Such property shall not he removed from the Leased Premises, except for merchandise sold in the ordinary course of business, without the written consent of Landlord until all arrearages in rental and other sums of money then due to Landlord hereunder shall first have been paid. All exemption laws are hereby waived in favor of said lien and security interest. The 111. i\/\. provisions of this subparagraph (j) shall constitute a security agreement under the ti) 17 Uniform Commercial Code. This lien and security interest is given in addition to any statutory lien to which Landlord is entitled and shall be cumulative thereto upon the occurrence of an Event of Default. This lien may be foreclosed with or without court proceedings by public or private sale, provided Landlord gives Tenant at least 10 days constructive notice of the time and place of said sale, and Landlord shall have the right to become the purchaser, upon being the highest bidder at such sale. Contemporaneous with the execution of this Lease (and if requested hereafter by Landlord), Tenant shall execute and deliver to Landlord Uniform Commercial Code Financing Statements in sufficient form to reflect this grant and/or any proper amendment or modification in or continuation of the aforesaid contract lien and security interest hereby granted. Tenant hereby irrevocably appoints Landlord as Tenant's attorney-in-fact to execute on Tenant's behalf any such Financing Statements. Tenant agrees to pay the reasonable attorneys' fees incurred by Landlord in the event Landlord must foreclose upon the security interest and lien granted by Tenant herein. Notwithstanding the preceding, Landlord agrees to subordinate its security interest and lien granted hereunder to any purchaser money mortgage, in an amount reasonably acceptable to Landlord, covering any personal property or fixtures of Tenant in the Leased Premises. ARTICLE XIX Covenant of Ouiet Eniovment So long as Tenant is not in default hereunder during the base term hereof and any renewal or extension hereof, Landlord covenants that Tenant shall peaceably and quietly occupy and enjoy the Leased Premises subject to the terms hereof. Landlord warrants and agrees to defend the title to the Leased Premises, and further warrants that it has full authority to execute this Lease. ARTICLE XX Accord and Satisfaction No payment by Tenant or receipt by Landlord of a lesser amount than the rent herein provided shall he deemed to be other than on account of the earliest rent due and payable hereunder, nor shall the endorsement or statement accompanying any check or payment as rent be deemed an accord and satisfaction, and Landlord may accept any such check or payment without any prejudice to Landlord in trying to recover the balance of such rent or pursue any other remedy provided in this Lease, in law or equity. ARTICLE XXI Subordination Tenant accepts this Lease subject and subordinate to any mortgage, deed of trust or other lien presently existing or hereafter created upon the Leased Premises or the Building, and to any renewals or extensions thereof. Landlord is hereby irrevocably vested with full power and authority, on behalf of Tenant, to subordinate this Lease to ;1)~ any mortgage, deed of trust or other lien hereafter placed upon the Leased Premises or 'l\)u 18 the Building, and Tenant agrees upon demand to execute such further instruments subordinating this Lease as Landlord may reasonably request. At the request of any mortgagee or deed of trust beneficiary, Tenant shall attorn to the purchaser at a foreclosure sale on that mortgage or deed of trust. Notwithstanding the foregoing, if this Lease is hereafter subordinated to any mortgage, deed of trust, other lien to which this Lease would not be subordinate but for this Article XXI, or actions taken pursuant to this Article XXI, Tenant shall then and thereafter be entitled to demand and obtain a non-disturbance 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 non-disturbance agreement. ARTICLE XXII Estoppel Certificates Tenant agrees at any time and from to time, upon no less than ten (10) days prior request by Landlord, to execute, acknowledge and deliver to Landlord a statement in writing certifying that this Lease is unmodified and in full force and effect (or, if there have been modifications that the same is in full force and effect as modified and stating the modifications), and the dates to which the fixed rent and other charges have been paid in advance, if any, and confirming Tenant's acceptance of the Leased Premises, the commencement of the lease term, and the rent provided under the Lease, it being intended that such statement delivered pursuant to this paragraph may be relied upon by any prospective purchaser, mortgagee, or assignee of any mortgagee of the Leased Premises or the Building. ARTICLE XXIII Waiver 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 or any other 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 he deemed to waive or render unnecessary Landlord's consent or approval to or of any subsequent similar act by Tenant. The subsequent acceptance of rent hereunder by Landlord shall not constitute 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 rental so accepted, regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such rent. No waiver of any provision of this Lease shall be effective unless it is in writing and signed by Landlord. ARTICLE XXIV Holdine: Over If Tenant should remain in possession of the Leased Premises after the expiration of the lease term and without executing a new lease, then such holding over shall be Jf" ~ 19 construed as a tenancy from month to month, subject to all the conditions, provisions and obligations of this Lease insofar as the same are applicable to a month to month tenancy, at a monthly rental rate equal to Two Hundred Percent (200%) of the last month's rental rate prior to such expiration. ARTICLE XXV Surrender of Premises: Treatment of Tenant's Alterations at Expiration of Lease All alterations, additions, improvements, partitions, flooring, carpeting or fixtures, including, but not limited to light fixtures, electrical fixtures, and plumbing fixtures, which may be made or installed by either of the parties hereto upon the Leased Premises and which in any manner are attached to the floors, walls, windows, or ceiling are to be the property of Landlord upon installation of any part thereof, without disturbance or injury at the termination of this Lease, unless Landlord shall elect otherwise. Landlord shall make such election by giving notice in writing to Tenant prior to the expiration or other_termination of this Lease, or any renewal or extension thereof. In the event Landlord shall so elect, such alterations, installations, additions or improvements made by Tenant upon the Leased Premises as Landlord shall so elect shall be removed by Tenant and Tenant shall restore the Premises to its original condition at the commencement hereof, normal wear and tear excepted, at its own cost and expense prior to the expiration or termination of the term hereof; or if Tenant fails to do so at Tenant's expense. Also, at the expiration of the lease term, Tenant shall remove all of his movable trade fixtures, which shall not be the property of Landlord under the foregoing provisions of this paragraph Tenant's obligations to perform the covenants contained in this Paragraph of this Lease shall survive the expiration or other termination of this Lease. ARTICLE XXVI Sie:ns. Displavs and Other Advertisine: Media Tenant shall not erect or install any exterior or interior window or door signs, advertising media, window or door lettering, or place cards without Landlord's written consent, which shall not be unreasonably withheld or delayed. Tenant agrees to install an exterior sign which must conform to City of Aspen Building Code and any other municipal regulations having jurisdiction over signage in the commercial core of Aspen as it pertains to allocation of size and any other limitations or restrictions. The cost of such sign shall be Tenant's sole expense. Tenant agrees not to use an advertising media or other media that shall be deemed objectionable to Landlord or other tenants, such as loudspeakers, phonographs, or radio broadcasts in a manner to be heard outside the Premises. Tenant shall not install any exterior lighting, decoration, painting, or awning, or make any changes to the exterior of the Leased Premises without Landlord's written consent. 20 ~ ARTICLE XXVII Mechanic's Liens 1. Tenant's Responsibilities. Tenant shall payor cause to be paid all costs and charges for work done by it or caused to be done by it, in or to the Leased Premises and for all materials furnished for or in connection with such work. Tenant shall indemnify Landlord against and hold Landlord, the Leased Premises and the Building, clear and harmless of and from all mechanics' liens and claims of liens, and all other liabilities, liens, claims and demands on account of such work. 2. Posting of Notices. Landlord hereby designates Tenant as its agent for the sole purpose of posting prior to any erection, construction, alteration, removal, addition, repair or other improvements, in a conspicuous place upon the Leased Premises, a notice containing substantially the following language which Tenant shall post prior to commencement of any work which will or may result in liens: "NOTICE. THE PREMISES UPON WHICH THESE IMPROVEMENTS ARE BEING CONSTRUCTED IS LEASED BY 517 EAST HOPKINS AVENUE LLC d/b/a CITY PLAZA BUILDING, AS LANDLORD TO the City of Aspen, AS TENANT. THE INTEREST OF LANDLORD IN THE PREMISES AND THE BUILDING AND LANDS UPON WHICH IT IS SITUATED SHALL NOT BE SUBJECT TO ANY LIEN BY VIRTUE OF WORK DONE OR MATERIALS OR EQUIPMENT SUPPLIED BY ANY CONTRACTOR OR OTHER PERSON. THIS NOTICE IS GIVEN PURSUANT TO 1973 COLORADO REVISED STATUES 38-22-105(2), AS AMENDED." ARTICLE XXIII Notices 1. All notices to be given with respect to this Lease shall be in writing. Each notice shall be sent by registered or certified mail, postage prepaid and return receipt requested, to the party to be notified at the address set forth herein (or at such other address as either party may from time to time designate in writing. All notices to Landlord shall require a copy be sent in the same way and at the same time to Daniel J. Martineau, 10292 E Sierra Pinta Drive, Scottsdale, Arizona 85255. 2. Every notice shall be deemed to have been given at the time it shall be deposited in the United States mail in the manner prescribed herein. Nothing contained herein shall he construed to preclude personal service of any notice in the manner prescribed for personal service of a summons or other legal process. ARTICLE.XXIX Attornev's Fees In the event of any litigation or other action or proceeding between the parties hereto arising out of the performance or nonperformance of this Lease, or enforcement of 'JJr' ttl 21 any rights or remedies hereunder, including any indemnities herein contained, the prevailing party shall be entitled in such litigation, action or proceeding to also recover as part of any judgment, award or other relief, its reasonable attorneys' fees and costs incurred. ARTICLE XXX Personal Guarantv Tenant shall not execute a Personal Guaranty. ARTICLE XXXI Miscellaneous Provisions 1. Relationship of Landlord and Tenant. Nothing herein contained 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 parties hereto, it being understood and agreed that neither the method of computation of rental, nor any other provisions contained herein, nor any acts of the parties hereto, 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 words of any gender shall include each gender. 2. Captions. The captions used herein are for convenience only and do not limit or amplify the provisions hereof. 3. Waiver. One or more waivers of any covenant, term or condition of this Lease by either party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval by either party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval by either party to or of any act by the other party requiring such consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act. 4. Entire Agreement and Execution. This Lease contains the entire agreement between the parties and no agreement shall be effective to change, modify or terminate this Lease in whole or in part unless such agreement is in writing and duly signed by the party against whom enforcement of such change, modification or termination is sought. This Lease shall not be effective or binding on Landlord or Tenant until fully executed by both and delivered by each to the other. This Lease may be executed in counterparts. Each counterpart shall be deemed to be an original hereof. 5. Governing Law and Jurisdiction. The laws of the State of Colorado shall govern the interpretation, validity, performance and enforcement of this Lease. Tenant understands and agrees that the Federal and State courts located in the State of Colorado shall have subject matter jurisdiction to entertain any action brought to enforce this Lease j'S~ and, by execution hereof, voluntarily submits to the personal jurisdiction of such courts. ()V 22 6. Successors and Assigns. The terms, provisions and covenants contained in this Lease shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors in interest, assigns and legal representatives except as otherwise herein expressly provided. 7. Attornevs' Fees. In the event of any action or proceeding brought by Landlord or Tenant against the other under this Lease, the prevailing party shall be entitled to recover all reasonable costs and expenses, including the fees and expenses of its attorneys. The finder of fact in such action or proceeding shall determine the "prevailing party". 8. Invalid Provisions. If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective during the term of the Lease, then and in that event, it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby; and it is also the intention of the parties that in lieu of each clause or provision of this Lease that is illegal, invalid or unenforceable, there shall be substitute a legal, valid and enforceable clause or provision as similar to such illegal, invalid or unenforceable clause or provision as may be possible. 9. Authoritv to Enter into Lease. Tenant and the party or parties executing this Lease on behalf of Tenant represent to Landlord that such party or parties are authorized to do so by the requisite vote of the officer(s), manager(s), member(s), or partners, as the case may be, and agree to deliver to Landlord a resolution or similar document to that effect. Landlord or any party or parties executing this Lease on behalf of Landlord represent to Tenant that such party or parties are authorized to do so. 10. Corporate and Limited Liability Companv Tenants. If Tenant is a corporation or limited liability company, the persons executing this Lease on its behalf hereby covenant and warrant that Tenant is a duly constituted corporation or limited liability company qualified to do business in the state of Colorado; all of Tenant's franchise and corporate or limited liability company taxes have been paid to date; and all future forms, reports, fees and other documents necessary for Tenant to comply with applicable laws will be filed by Tenant when due. 11. Joint and Several Liabilitv. If two or more individuals, corporations, partnerships, limited liability companies or other business associations (or any combination thereof) shall sign this Lease as Tenant, the liability of each such individual, corporation, partnership, limited liability company or other business association to pay rent and perform all other obligations hereunder shall be deemed to be joint and several and all notices, payments and agreements given or made by, with or to anyone of such individuals, corporations, partnerships, limited liability companies or other business associations shall be deemed to have been given or made by, with or to all of them, in like manner. If Tenant shall be a partnership or other business association, the members of which are, by virtue of state or federal law, subject to personal liability, the liability of each such member shall be joint and several. Each person or entity jointly and severally liable on this Lease hereby waives its rights under Colorado Revised Statues, Sections 13-50-102 and-103 (or any comparable law which may apply), in the event that any other such person or entity is released from any of its obligations hereunder. 12. Time is of the Essence. Time is of the essence with respect to the performance of every provision of this Lease in which time of performance is or may be a factor. -&' i.Pe~ 23 IN WITNESS WHEREOF, the parties have executed this Lease on the day and year first above written. LANDLORD: TENANT: 517 EAST HOPKINS A VENUE LLC By: N~ By: Dave Danforth'~ Date AND G1adwyne I Date 24 g-O-67 ~ ~C) '\' 1 t 9 ,,~- t!J7 1-j--~?