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HomeMy WebLinkAboutcoa.lu.sr.300 Puppy Smith St.A51-86 ~. CASELOAD SOHHARY SHEET City of Aspen /' PAT't>:"'RECEIVED: /.;2./;/8'b DATE RECEIVED COMPLETE:__ ( PROJECl' NAME: A,<;n f'n NOl.lnfo."n .sol~ds I J APPLICANT: Roh.f'_r+ (.i.ru e..f~.,.- Applicant Addeess/Phone: REPRES ENTATlV E: "Bo b (.;.ru e.. t.e.......- Repeesentative Addeess/Phone: ~/,.,S, ( ;2 73 7-()73-5/-(}O/ 1""'\ 0..,; E NO. $~i -J'.6 STAFF: _ /) se. S~ (..tare. rDofCL(j e. l)a.rl~llc. ~ l'1on.a~A5r.1l ,,,-- ~O.;/ Type of Application: 1. GMP/Subdiv ision/PUD I. Conceptual Submission 2. Peel imi na ey Plat 3. Final Plat 20 12 6 $2,730.00 1 , 6 40 . 0 0 820 .00 II. Subdivision/PUD 1 '; Conce pt ual Su bmi s'sio'rf'--- 2. Preliminary Plat 3. Final Plat l"4 -- 9 6 S1.900 .00 1,220.00 820.00 S1.490.00 S -fY8Cl .00 350- 00 III. All "Two Step" Applications IV. All "One Step" Appl ications ( Ref er ral Fees - Env ieonmental Heal t h, Housing Office 11 ....s-- c2 ' s- 1. Minoe Appl ications 2 S 50.00 2. Majoe Applications Referral Fees- Engineering MLnor Applications Major Applications 5 S 125.00 80.00 200.00 "::Z;.:...;=..:::-~'== ::=~.~~.:::":;;,;;.~~~I~::;;!~~':'~.~~~:~u;~=.,;= ~ =;"~ -..:::"'= = ==== ::::::========::::: === ==:::= ====.;;:::: =:.:;:::;=:: @CC MEETING DATE: -:SA.r'^-1. PUBLIC HEl)IffING: DATE REFERRED: (JQ.f J/, !1fiv INITIALS:/~ 1::.0 YES ~ ---------------------~----------------------------------------------- --------------------------------------------------------------------- ( REFERRALS: \~ity Atty Aspen Consolo S.D. ____ School Oisteict City Engineer Mtn. Bell ____ Rocky l1tn. Nat. Gas Housing Die. Paeks Dept. _ StateHwy Dept (Glenwd) Aspen ~iater Holy Ceoss Electcic _ Statellwy Dept (Gc.Jtn) City Electric Fiee Marshall _ Bldg: Zoning/Inspectn Envie. Hlth. Fiee Chief _ Other: __ Roaring Fork Transit _ Roaring Fork Energy Center ;;;;~::::~::::~~~~~~~~::::~::::::::~;~7~~:::;~1C~~~ Oth e e : Othee: PILE STA'l'US AND LOCATION: ~ ~E DISPOSITION: A~e.'" MCh^-0~;^ <;i?;r~S 'JI"""" ~.R..,.<rfe\~ed by: C- I',~!,'",n P&z' ~, Ci ty CouncJ..L \h.e -\0 -\,--.-L 0,'jlo ('<.A...",,,,,J V, ~(A""; \y'\o~ c'-. . e_"',:e ( '.::.. feq v, e. :, "'- \ U c"-. 'C ~ u... Y\C.. e. 'tor G'- '-^-~.~ \:::,- r "r:t":) \.~\'C.LC'"--\' c:;:... -.) \ \h -€.- "e.\..0 ; q 0c..I.. ( N - -, "l. \ ~ 0(\ ~ Me '-\ ..:>T(e <::-'.- ~/\<A_T ,0" .ll...>-< ' ,^v0 '\h <:.- ~ i a \clD 'I -~OC> B-l ().....leJ o..nJ.. CLbO,jC?- '] , OOc.-' t::::' ( S ; L-e \ \ ~ ,..,- c. _.:> c:{ ',-^-, c\... ...: -e- ~r c:.' ,,~ p-I r (be, <;'Tu{e \ " -r-t-' E::_ G C 'Ae....n: r S', -\- c~) (e.. 'T\,-., RevielVcd By: Aspen P&Z Ci ty Council ,-.., ,-, ! MEMORANDUM TO: Aspen Planning and Zoning Commission Glenn Horn, Planning Office FROM: RE: Aspen Mountain Spirits: variance from Use Square Footage Limitations DATE: January 6, 1986 ---------------------------------------------------------------- ---------------------------------------------------------------- APPLICANT: Robert P. Grueter, Aspen Mountain Spirits. LOCATION: North Mill Street Station, 300 Puppy smith Street. ZONING: NC - Neighborhood Commercial. STAFF COMMENTS: sections 24-3.6 of the Aspen Municipal code limits gross floor area of liquor stores to three thousand (3,000) square feet. However, Section 24-3.6(g) of the Code enables the Planning and Zoning Commission (P&Z) to grant variances from the square footage limitation when it is "satis- fied that there are practical difficulties or unnecessary hardships created by their strict application, or that public need and demand require an increased floor area for a particular proposed use." Aspen Mountain Spirits is requesting a square footage variance which will enable the liquor store to utilize 3,300 square feet rather than the 3,000 square feet suggested by the Code. Approximately 1,000 square feet of the total 3,300 square feet will be used for storage of merchandise. The applicant suggests that the storage of liquor in the basement of the building which is permitted by Code would be difficult due to the requirements of the Colorado Liquor Code. Furthermore, the North Mill Street Station landlord will not rent space in the basement to Aspen Mountain Spirits because he or she does not want alcoholic beverages moved through the public interior of the building. The applicant has demonstrated some practical hardships with meeting the 3,000 square footage limitation of the Code. A variance for 300 square feet or ten (10) percent of the Gross Floor Area permitted by Code does not appear to be unreasonable, nor would we expect unusual parking or similar impacts to result from the store which could not otherwise be accomplished within the North Mill Street station complex. PLANNING OFFICE RECOMMENDATION The Planning Office recommends that the P&Z approve without conditions Aspen Mountain Spirits request for a 300 square foot variance from the use square footage limitations of Section 24- 3.6 of the Aspen Municipal Code. GH.003 ~ ~ December 29, 1986 Planning Department City of Aspen 130 S. Galena Aspen, CO 81611 ATTENTION: Glen Horn RE: Aspen Mountain Spirits, InC., d/b/a The Aspen Wine and Spirit Company Gentlemen: Enclosed, please find two copies of a revised drawing of space to be included with the Aspen Wine and Spirit Company (the "Company"l. As you are aware, Aspen Municipal Code Section 24.3.6 allows for only 3,000 square feet of retail area to be occupied by a liquor store unless a variance is granted by the planning and zoning commission. Please note that at the current time, there is 2,000 square feet of retail sales area, and 1,000 square feet of storage area including the walk-in coolers now existing in the premises. With the planning and zoning commission's permission, the Company would like to add an additional 300 square feet of retail sales area. That area is outlined in double red on the attached drawing. The existing 2,000 square feet of retail area is outlined in single red lines on the attached drawing, and the existing 1,000 square feet of storage space is outlined in black on the attached drawing. The Aspen Code Section 24.3.6 limits the gross square area of a liquor store to 3,000 square feet; however, the same section of the code excludes any basement area used exclusively for storage. At the current time, there is no storage space available in the basement of the North Mill Station building. Even in the event that storage space became available, it would not be possible to delete any of our existing storage space and transfer it to the basement. It would also be very difficult to use basement storage space in view of the Colorado liquor code which requires special handling of alcoholic beverages. The North Mill Station landlord informs us that it will not rent storage space in the basement to us because it does not want alcoholic beverages to be moved through the public interior mall of the building. To the best of my knowledge, the only other ,- .~. \, Planning Department City of Aspen December 29, 1986 Page Two liquor store in the City of Aspen which has basement storage is the Grape & Grain. In that operation, the storage is directly accessible from within the store. In other words, Grape & Grain has access to their downstairs storage without having to go through public spaces as we would have to in these premises. Two of the alternative criteria for approval are the unnecessary hardship or practical difficulties created by the inability to have more than the limited number of square feet. As demonstrated above, there exist practical difficulties if the 1,000 square feet of storage space must be moved to the basement. Additionally, it would be unfair and would create unnecessary hardship. The public need and demand for a liquor store was shown by the number of signatures on our petitions for a liquor license. We have a number of small liquor stores in Aspen, but the North Mill Station has the space and parking facility to accommodate a truly complete liquor store where the people and visitors of Aspen can purchase their liquor needs. Thank you. Sincerely, ASPEN WINE AND SPIRIT COMPANY by: p~ f!~ ROBERT P. GRUETER Jur? RPG:gin wine.ltr r-,. ."-"" ASPEN MOUNTAIN SPIRITS, INC. 300 Puppy Smith Street Aspen, Colorado 81611 December I, 1986 Planning and Zoning Commission City of Aspen 130 S. Galena Street Aspen, Colorado 81611 Re: Aspen Mountain Spirits, Inc. d/b/a The Aspen Wine and Spirit Co. Dear Commissioners: Please consider this letter as my application for a variance from the square footage limitations contained in the Municipal Code of the City of Aspen, Colorado, Sec. 24-3.6. Enclosed with this letter you will find the lease under which Aspen Mountain Spirits will operate, designated as Exhibit A; and, the plan for the utilization of the space designated as Exhibit B. As you will see, the lease calls for the use of 3,800 square feet for liquor store purposes. Under Sec. 24-3.6(a), liquor stores in the zoning category are limited to 3,000 square feet. Originally, we had planned to only occupy 2,800 square feet on the main floor and 1,000 square feet for storage in the basement, which would have been allowable under the Code. However, it was determined by the landlord that the confusion of moving the inventory from the basement to the retail shop made such a plan undesirable. The submitted plan was then formulated to still allow 2,800 square feet of retail space and 1,000 square feet of cooler and storage space not open to the public, on the same level. The wine and spirit business is unique in that the primary method of making a profit is to take advantage of discounts offered by suppliers. To do so requires space to store the items bought in bulk at discount. It would be a severe disadvantage to Aspen Mountain Spirits, and as a result, to the consumers in the County, to not be able to buy and store items to take advantage of the discounts available. ~ ~. Planning and Zoning Commission December 1, 1986 Page Two It should also be noted that the other liquor store in a similar zoning category, The Grog Shop, occupies considerably more than 3,000 square feet. In this regard, it should also be noted that there is considerably more parking available on the subject site than there is available to patrons of The Grog Shop. In view of the foregoing, I would respectfully request that you set this matter for your consideration at your earliest convenience, whereupon I will submit evidence of the practical difficulties, the unnecessary hardship and the public need and demand for the requested increased floor area. Truly yours, By: nt ASPEN RPG:bsr Enclosures P&Z.ltr - , 1"""\ .,-.,. ~p~..J AGENDA ASPEN PLANNING AND ZONING COMMISSION January 6, 1987 - Tuesday 5:00 P.M. City Council Chambers 1st Floor Ci ty Hall REGULAR MEETING I. COMMENTS Commissioners Planning Staff II. MINUTES December 2, 1986 III. PUBLIC HEARING A. Proposed Revisions to Historic Preservation Regs. (To be tabled to February 3) IV. NEW BUSINESS A. Aspen Mtn. Spirits Use Square Footage Variance V. DISCUSSION ITEM A. 1987 Planning Office Work Program VI. ADJOURN MEETING A.Coo A .,-" "0 .-- .. , BOARD OF' COUNTY COMMISSIONERS WORK SESSIONS WEEK OF 5 JANUARY MONDAY. 5 JANUARY 9:00 a.m. Downvalley Plan Discussion/Update, Glen Horn & Cindy Houben 10:00 a.m. Executive Session, Personnel, John Eldert 11:30 There is a staff meeting with City Council to discuss tax increment district proposed by th~ city. It would be helpful to have one or two Board members in attendance. At City Council Chambers. 12:00 Adjourn for the day TUESDAY. . 6 JANUARY 12:00 BOARD SITS AS PROCUREMENT APPEALS BOARD (Appeal Hearing) Adjourn for the day 9:00 a.m. 1"'. 1'"\ MEMORANDUM TO: City Attorney FROM: Glenn Horn, Planning Office RE: Aspen Mountain Spirits Use Square Footage Variance December 4, 1986 DATE: -------------------------------------------------------------- -------------------------------------------------------------- Attached for your review and comments is an application submitted by Robert Grueter requesting approval for a variance from the square footage limitations which restricts liquor stores to no more than 3,000 s.f. The applicant would like to occupy 2,800 square feet on the main floor and 1,000 square feet for storage in the basement that woul d not be open to the publ ic. The property is located at 300 Puppy smith Road in the City of Aspen. Please return your referral comments to the Planning Office no later than December 23, 1986 so this office has adequate time to prepare for its presentation before P&Z on January 6, 1987. Thank you. , r--' .....; EXHIBIT "A" - ,.-.. '~ -' LEASE THIS LEASE is made and entered into as of th~ 1st day of November, 1986, by and between TRUEMAN ASPEN co., an Ohio Limited Partnership (hereinafter referred to as "Landlord") and ASPEN MOUNTAIN SPIRITS, INC., DBA THE ASPEN WINE & SPIRIT CO., a Colorado Corporation (hereinafter referred to as "Tenant"). IN CONSIDERATION of the mutual promises and covenants herein contained, the parties hereto agree as follows: 1. PREMISES. Landlord hereby leases to Tenant approximately 3,800 square feet of space in the neighborhood shopping center located at 300 Puppy Smith Street in the City of Aspen, County of Pitkin and State of Colorado known as the North Mill Station (hereinafter referred to as "Shopping Center"). Said space (hereinafter referred to as "Premises") is shown and delineated on the plan attached hereto as "Exhibit A" and incorporated herein by this reference, said Premises being identified on the plan and known as #211, 212, 213 and 214. The Premises are leased together with the appurtenances, including the non-exclusive right to use in common with others all malls, courtyards, recreation areas, public bathrooms, sidewalks, walkways, stairways, elevators, vehicle parking areas, loading and unloading areas, driveways, accessways and other public portions and facilities of the Shopping Center. 2. TERM. The term of the Lease shall be for five (5) years and two (2) months commencing on November 1, 1986, (hereinafter referred to as "Commencement Date") and terminating, without further notice or act, on December 31, 1991, unless sooner terminated as herein provided. 3. RENT. (a) Annual Base Rent. For each 12-month period from January 1 through the following December 31 (each "Lease Year") , Tenant shall pay to Landlord as "Annual Base Rent," without ,1"""\ "'" -../ setoff or deduction and without previous demand therefor, an amount equal to the greater of $72,200.00 or a fixed percentage per annum (to be determined as hereinafter set forth) of all gross sales made by Tenant during said Lease Year in connection with any and all business activities conducted by Tenant in and on the Premises. The fixed percentage ("Fixed Percentage") per annum will be determined by dividing $72,200.00 by the amount of all gross sales made by Tenant during the first Lease Year (i.e. January 1, 1987 through December 31, 1987) in connection with any and all business activities conducted by Tenant in and on the Premises. (By way of example, if the gross sales made by Tenant during the first Lease Year are $lOOqOOO.OO, the Fixed Percentage ) dividing $72,200.00 by $100,000.00). will be 7.22% determined by However, notwithstanding anything herein to the contrary, the Annual Base Rent for the period November 1, 1986 through December 31, 1987 shall be $84,233.33, payable $6,016.67 per month. (b) Financial Information. Within 45 days after the end of each calendar month during the term of this Lease, Tenant shall provide to Landlord a copy of Tenant's Colorado state sales tax report for such month. The chief executive officer of Tenant shall certify as to the accuracy of the gross sales figures of Tenant as set forth on the monthly state sales tax reports. Within 45 days after the end of each Lease Year, Tenant shall provide Landlord with a statement of gross sales for Tenant's lease year with respect to its operations in and on the Premises, which statement shall be prepared and certified to by the chief executive officer of Tenant, or by such other individual acceptable to Landlord. (c) Estimated Rent. For the second Lease Year the parties agree that the estimated Annual Base Rent shall be $72,200.00, which estimated Annual Base Rent shall be due and payable in equal monthly installments of $6,016.67 each. For each -2- r-- . '-' ,-, subsequent Lease Year, the monthly payments of estimated Annual Base Rent shall, until such time as the total actual Annual Base Rent for the preceding Lease Year has been determined, be the same amount as had been due and payable as monthly installments of estimated Annual Base Rent for said preceding Lease Year, and shall, following the determination of the total actual Annual Base Rent for the preceding Lease Year, be an amount equal to one-twelfth of the total actual Annual Base Rent so determined for said preceding Lease Year. (d) Adjustment Payments. The total actual Annual Base Rent for a given Lease Year shall be determined in accordance with Section 3(a) hereof based upon the gross sales reflected in the statement of gross sales and state sales tax reports delivered by Tenant to Landlord for said Lease Year, as described above in Section 3(b). The total actual Annual Base Rent so determined for said Lease Year shall be compared to the total estimated payments of Annual Base Rent actually made by Tenant to Landlord with respect to said Lease Year, and an amount equal to the difference between said total amounts shall be paid, on or before February 15 of the current Lease Year, by Tenant to Landlord (if the total actual Annual Base Rent, as so determined, exceeds the total of the estimated payments of Annual Base Rent actually made for said Lease Year) or by Landlord to Tenant (if the total actual Annual Base Rent, as so determined, is less than the total of the estimated payments of Annual Base Rent actually made for said Lease Year). In addition, on or before February 15 of the current Lease Year, an appropriate adjustment payment shall be made by Tenant to Landlord or by Landlord to Tenant in order to reconcile any differences between the amount of the monthly installments of estimated Annual Base Rent determined to be due for the current Lease Year based upon the determination of total actual Annual Base Rent for the preceding Lease Year and -3- ,-, '-" "~ the amount of the monthly installments of estimated Annual Base Rent actually paid by Tenant for the current Lease Year prior to date of the making of such adjustment payment. The acceptance by either party of any adjustment payment made pursuant to this Section 3(d) shall not estop said party from thereafter disputing the accuracy of the financial information upon which such payment was based and/or from making any subsequent claims that additional amounts or lesser amounts are due with respect to the adjustment involved. (e) Lease Payments. The estimated Annual Base Rent shall be due and payable in monthly installments, in advance, on the first day of each month during the term of this Lease. If the first day of any month is a Saturday, Sunday or legal holiday recognized by the State of Colorado, the rent shall be due and payable on the first day of that month that is not a Saturday, Sunday or legal holiday. A prorated monthly installment based on a thirty-day month shall be paid for any fraction of a month if the term shall begin on any day except for the first day, or shall terminate on any day except the last day of the month. All payments of rent and other amounts due to Landlord hereunder shall be paid to Trueman Aspen Co. at 300 ,Puppy Smith Street, Aspen, Colorado, or to such other person and at such other place as Landlord may designate in a written notice to Tenant. 4. ADDITIONAL RENT. Tenant shall also pay to Landlord, in addition to the Annual Base Rent, a proportionate share of any increase in the operating expenses of the Shopping Center. The following definitions shall be applicable to words and terms used in the calculation of the Additional Rent: (a) "Tenant's Proportionate Expense Share" shall mean a fraction, the numerator of which shall be the square-foot rentable area of the Premises, and the denominator of which shall be thirty-seven thousand (37,000), -4- ("'"\ '-" .~ '---' (b) "Base Year" shall mean a twelve month period designated by Landlord for accounting purposes in determining the operating expenses of the Shopping Center. For this Lease, the Base Year shall mean the period commencing January 1, 1986 and ending December 31, 1986. (c) "Lease Year" shall mean the period of twelve months or less commencing with January 1 and ending on the following December 31, and each successive period of twelve months thereafter during the term, and the final period of twelve months or less commencing with the January 1st immediately preceding the expiration of the term. (d) "Operating Expenses" shall mean the costs and expenses incurred by Landlord with respect to the maintenance and operation of the Shopping Center, such expenses including, but not limited to, the following: insurance premiums, real estate taxes assessed against the Shopping Center; personal property taxes; governmental assessments for local improvements assessed against the Shopping Center; the cost of labor, materials and services for the operation and maintenance of the Shopping Center, including but not limited to the cost of providing heat, , lights, power, water, gas, sewage removal, rubbish disposal and ventilation; normal repairs and maintenance; security guards and equipment; snow and ice removal; landscaping, planting and replanting; and janitorial and cleaning services for the common areas; and such expenses excluding depreciation and costs of a capital nature. Landlord shall calculate the Operating Expenses in accordance with sound and generally accepted accounting principles consistently and uniformly applied for the Base Year and for each of the Lease Years. If the Operating Expenses for any Lease Year (or during any calendar year of which a Lease Year of less than twelve months shall be a part) shall be greater than the -5- 1"'"".. '-'" .,..-, '-...-- Operating Expenses for the Base Year, Tenant shall pay to Landlord as additional rent for the Lease Year in question an amount equal to Tenant's Proportionate Expense Share of the increase. with reasonable promptness after the expiration of any Lease Year, Landlord shall furnish Tenant with a comparative statement setting forth in reasonable detail the Operating Expenses for the Base Year and the Operating Expenses for the appropriate Lease Year (or for the calendar year of which a Lease Year of less than twelve months shall be a part) and shall accompany such comparative statement with a statement for the additional rent due from Tenant. Tenant agrees to pay such additional rent within twenty (20) days after receipt of such statement, and, if such payment is not made within said twenty (20) day period, then the amount due and payable shall bear interest at a per annum rate equal to the prime rate of interest charged by The Chase Manhattan Bank, N.A. plus one percentage point. Landlord agrees to make available to Tenant for its examination and inspection all books and records that relate to or have any bearing on the Operating Expenses for the Base Year or any Lease Year (or for the calendar year of which a Lease Year Of less than twelve months shall be a part). If the first or the final Lease Year shall contain less than twelve months, the additional rent payable under this Section for such Lease Year shall be prorated. Tenant's obligation to pay additional rent for the final Lease Year shall survive the expiration of the term of this Lease. 5. DEPOSIT. Tenant shall deposit with Landlord, at the time of the signing of this Lease, a sum of $6,016.67 as security for performance of its duties and obligations hereunder. Within sixty (60) days after termination of this Lease, or surrender and acceptance of the Premises, whichever is later, Landlord either shall return the entire deposit to Tenant at its -6- I"""'- -- ~ '- address listed herein or shall submit to Tenant a written statement detailing what amount of the deposit has been retained by Landlord and for what reasons, together with a return of the remainder of the deposit, if any. 6. ACCEPTANCE. Tenant accepts the Premises in its existing condition and acknowledges that no representation, statement or warranty, express or implied, has been made by Landlord as to the condition of the Premises. 7. DELAY IN DELIVERING POSSESSION. If the Landlord cannot deliver possession of the Premises to Tenant upon the Commencement Date of this Lease on account of reasons beyond the control of Landlord, this Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for any loss or damages therefrom, but there shall be an abatement of rent for the period between the Commencement Date and the date when Landlord does deliver possession. 8. USE OF PREMISES. Tenant shall occupy and use Premises only as a retail liquor sales outlet and Tenant shall have the exclusive right to sell vinous and spiritous liquors in sealed containers within the confines of the Shopping Center. Tenant shall keep the Premises in a clean and wholesome condition, shall comply with all laws, ordinances, orders, regulations and lawful directions of all governmental authorities having jurisdiction over the Premises (or the use or occupation thereof) and shall procure and maintain in full force and effect all licenses and permits needed by Tenant to occupy and use the Premises, including without limitation all applicable liquor licenses. Tenant shall not use or permit the Premises to be used for any purpose other than as specified herein, except with the express written approval of Landlord, and shall not use, or permit the Premises to be used, for any illegal purpose and will do nothing, or permit nothing to be done, upon the Premises in -7- 1"'"',. , .. \,./ .-, any way tending to create a nuisance or to disturb, annoy or interfere with the right of any other tenants in the Shopping Center or to injure the commercial or legal reputation of the Shopping Center. Tenant shall not use, or permit the Premises to be used, for any purpose which would jeopardize or invalidate any insurance coverage on the Shopping Center or which would increase the premiums of any such insurance coverage. If the premiums for fire insurance, liability insurance and/or comprehensive or extended coverage insurance on the Shopping Center are increased by acts or omissions of Tenant, including failure to comply with the provisions of this section, Tenant shall reimburse Landlord for the full amount of the increase upon demand to Tenant and submission to Tenant of proper written evidence of such increase in the premiums. 9. REPAIRS. Landlord shall repair, if necessary, and maintain in good order and condition the structure, exterior, common areas and other public portions of the Shopping Center, including without limitation, the outside walls, foundations, roof, doorways, walkways, stairways, elevators, malls, courtyards, parking areas, loading areas, utility fixtures, machinery, equipment and all wiring, plumbing, pipes, shafts, ca~les and conduits serving the Shopping Center as a whole. However, Tenant shall be liable for such repairs to any part of the Shopping Center whatsoever if said repairs are necessitated by the act or negligence of Tenant, or its employees, agents, licensees or contractors, but such repairs shall be made by Tenant only after written permission by Landlord. Landlord may elect to permit Tenant to make said repairs and have the Tenant pay the costs directly to the repairmen, or Landlord may make the repairs itself, or through its contractors, and bill the cost to Tenant, which cost shall be due and payable upon demand to Tenant and Tenant's receipt of a statement of costs from Landlord. -8- -- '-" .,-., '-.-. Tenant shall repair and maintain the Premises and its interior in good order and condition to the satisfaction of Landlord, including without limitation the doors, doorways, security grilles, entryways, glass, plumbing, heating, cooling, lighting, electrical and other utility systems, building fixtures, trade fixtures, floors, walls, ceilings and displays, of and within the Premises and not used in common with other tenants. Tenant shall be solely responsible to repair damage done to the Premises by vandalism and to replace any and all glass damaged or broken with glass of the same quality. Landlord shall replace worn out utility systems or equipment within the premises provided that Tenant has properly operated and maintained such utility systems or equipment. Landlord shall make all alterations, repairs and additions to the Shopping Center required by law, ordinance, regulation, order or lawful directive of governmental authorities relating to the health and safety of the public. All repair or replacement work in or about the Premises that is the responsibility of Landlord shall be done, so far as practicable, in a manner to avoid interference with . Tenant's use of the premises, but Landlord shall not' be liable to Tenant for any loss, damage or inconvenience caused to Tenant by such work. Landlord shall use due diligence to make such repairs promptly, but if failure to repair is caused by reasons beyond its control, such failure shall not be construed as an eviction of Tenant or cause an abatement of rent, nor shall Landlord be liable to Tenant for any loss or damage therefrom. 10. ALTERATIONS. Tenant shall have the right, at its expense, to alter, rearrange or redecorate the Premises, provided that Tenant shall first obtain Landlord's written consent. Before such consent is given, Landlord must be satisfied that (i) such alteration, rearrangement or -9- f""', '-" ~. redecoration will not impair the structural soundness, safety, value, reputation or aesthetics of the Shopping Center, (ii) the work will be done by competent, duly-licensed persons in a first-class manner with first-class materials and (iii) the work will be completed free and clear of all liens. Such consent may also include an agreement between Landlord and Tenant as to the disposition, at termination of the term ot this Lease, of fixtures or decorations added as part of the alteration scheme and/or the exact condition of the Premises the Tenant is responsible for delivering at the termination of the term of this Lease and/or the disposition of any fixtures or improvements on the Premises. Written consent from Landlord also is required before Tenant moves any heavy or large items (e.g., machinery or safes) into the Premises. Tenant is responsible for procuring and paying for all required municipal and other governmental permits, authorizations and approvals before beginning any alteration, rearrangement or redecoration of the Premises. Alterations of any sort whatsoever that are not to the satisfaction of Landlord must be removed, at Tenant's expense, within three (3) days after written demand for removal is served on Tenant by Landlord. 11. FIXTURES. All fixtures located upon the Premises at the commencement of the term of this Lease, or affixed thereto during the term, shall be deemed to be a part of the Premises and Landlord's property (unless,otherwise agreed to in writing by the parties), and shall remain upon the Premises at the termination of the term of this Lease without compensation to Tenant; provided, however, that upon Landlord's demand, Tenant shall. at its expense, remove any or all fixtures from the Premises at the termination of this Lease and repair any damage to the Premises arising therefrom and return the Premises to its former condition. Trade fixtures, business property, and personal property of Tenant added to the Premises -10- 1"'. . . . y' ,-, during the term shall remain the property of Tenant, except upon Tenant's default as provided hereinbelow, and shall be removed from the Premises upon termination of this Lease and any damage caused by such removal shall be repaired at Tenant's expense and the Premises returned to its former condition. 12. MECHANIC'S LIENS. Tenant shall save harmless and indemnify Landlord from any lien, obligation, mortgage, security agreement or other encumbrance against the Premises or the Shopping Center arising from acts by Tenant or of anyone claiming through Tenant. Tenant shall obtain a Waiver of Mechanic's Lien in favor of the Landlord and the Premises from any contractor, materialman, mechanic, engineer or architect who performs work or furnishes materials to Tenant. If any mechanic's lien or other lien, charge, claim, order for payment or other encumbrance shall be filed against Landlord or the Premises, based upon any act or interest of Tenant or of anyone claiming through the Tenant, or if any security agreement shall have been filed for or affecting any fixtures, machinery, equipment or materials used in the operation, repair or alteration of the Premises or Tenant's business, Tenant shall immediately take such action by bonding off, deposit, settlement or payment as will remove or discharge the lien or security agreement. If Tenant fails to remove the lien or other encumbrance within thirty (30) days after a written notice of the lien is given to Tenant, this failure shall constitute a default of this Lease. After such default, Landlord may pursue tpe default remedies herein or may remove the lien itself and charge the amount thereof, plus costs, attorney's fees and interest to Tenant as additional rent, which shall be due and payable upon demand. 13. SERVICES FURNISHED BY LANDLORD. Landlord will furnish to Tenant at the Premises the following; water; sewage removal; rubbish disposal; heated air at such times as Landlord normally furnishes heat to the other tenants and at such -11- -., ~ v ~ temperatures, amounts and hours as are considered by Landlord to be standard or as regulated by government agencies! and electric lighting in the common and public areas in a manner and amount considered by Landlord to be sufficient. Failure of Landlord to furnish the above services for reasons beyond its control shall not be construed as an eviction of Tenant or work an abatement of rent, nor shall Landlord be liable to Tenant for loss or damage therefrom. Landlord will keep and maintain the common and public areas in clean and good condition and will keep the public parking areas properly marked. 14. RULES AND REGULATIONS. Tenant agrees to comply with the list of rules and regulations for the Shopping Center known as the "Merchant Handbook," attached hereto as "Exhibit Bn and incorporated herein by this reference, and acknowledges and agrees that said handbook may be amended from time to time by Landlord without prior notice to Tenant. 15. ASSIGNMENT AND SUBLETTING. Without the prior written consent of Landlord, which consent may be withheld by Landlord in its sole discretion, Tenant may not assign, mortgage or encumber this Lease or any interest therein, or sublet the Premises, or any part thereof, or permit the use of the Premises by any party other than Tenant. No assignment or subletting consented to by Landlord shall relieve Tenant from primary liability hereunder, and each and every assignee or sublessee shall be charged with all the provisions hereof. Any consent by Landlord to any assignment or subletting shall not constitute the waiver of the necessity for such consent to any subsequent assignment or subletting. 16. FIRE AND EXTENDED COVERAGE INSURANCE. At all times during the term of this Lease, Landlord, at its expense, shall keep and maintain on the Shopping Center fire and extended coverage insurance insuring against loss by fire and the risk covered by what is commonly known as extended -12- ,"""" ,./ .~ coverage, in an amount not less than 80\ of the full insurable value thereof, exclusive of the foundations. Landlord and Tenant hereby release the other from any and all liability or responsibility (to the other or anyone Claiming through or under them by way of subrogation or otherwise) for any loss or damage to property caused by fire or any of the extended coverage or supplementary contract casualties, even if such fire or other casualty shall have been caused by the fault or negligence of the other party, or anyone for whom such party may be responsible; provided, however, that this release shall be applicable and in force and effect only with respect to loss or damage occurring during such time as the releasor's policies shall contain a clause or endorsement to the effect that any such release shall not adversely affect or impair said policies or prejudice the right of the releasor to recover thereunder. Landlord and Tenant agree that their policies will include such a clause or endorsement so long as the same shall be obtainable without extra cost, or if extra shall be charged therefor, so long as the other party pays such extra cost. If extra costs shall be chargeable, each party shall advise the other of the amount of the extra cost, and the other party, at its election, may pay the same. 17. PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE. At all times during the term of this Lease, Landlord shall keep and maintain for the mutual benefit of Landlord and Tenant and all tenants within the Shopping Center, general public liability insurance against personal injury and property damage in or about the common areas of the Shopping Center, such insurance to afford protection to the limit of not less than Five Hundred Thousand Dollars ($500,000) in respect to anyone occurrence causing bodily injury, death or property damage. At all times during the term of this Lease, Tenant shall keep and maintain for the mutual benefit of Landlord and Tenant, general public liability insurance against -13- ""'" . v ""'" ___.c. claims for personal injury and property damage in or about the Premises, sidewalks adjacent thereto and loading docks, such insurance to afford protection to the limit of not less than Five Hundred Thousand Dollars ($500,000) in respect to anyone occurrence causing bodily injury, death or property damage. Landlord shall be named as an additional insured in such insurance policy and such insurance policy shall provide coverage for Landlord's contingent liability on such claims or losses. Tenant shall furnish Landlord with a duplicate certificate of such insurance policies. All such insurance shall be procured from a responsible insurance company or companies authori~ed to do business in Colorado. All such policies shall provide that the same may not be cancelled or altered, except upon at least ten (10) days written notice to Landlord and Tenant. All personal property of every kind and description that may at any time be put in or upon the Premises shall be at Tenant's sole risk or at the risk of those claiming under Tenant, and Landlord shall not be liable for any damage or injury to persons or property resulting from plumbing, gas, water, steam, sewer or other pipes or tanks, or the bursting or leaking thereof, or from water, or any other cause, resulting from the act or negligence of any person. 18. INDEMNIFICATION. Tenant shall indemnify and save Landlord harmless from any and all demands, claims, judgments, settlements and costs and fees of legal defense and litigation in any action for damages or equitable relief alleging harm to persons or property arising from (a) an act or negligence of Tenant, or any person holding or claiming through or under Tenant, happening upon, on or to the Premises and relating to the use or occupancy of the Premises (including without limitation Tenant's sale of alcoholic beverages), or (b) the violation of any law, statute, ordinance or regulation relating to the use or occupancy of the Premises (including without limitation Tenant's sale of alcoholic beverages). Tenant shall, at its own expense, defend any and all actions that may be brought against Landlord, -14- I"""" .~ \'./ . or in which Landlord may be impleaded with others, upon any above-mentioned actions, and shall pay and discharge any and all judgments against Landlord in any such actions. 19. DAMAGE TO OR DESTRUCTION OF PREMISES. If the Premises is damaged or destroyed by fire or other insured peril during the term of this Lease, Tenant shall give immediate written notice of the extent and nature of damage to Landlord and shall cooperate fully with Landlord in filing all necessary proofs of claim with the relevant insurance companies. Landlord, if so permitted by its lender, will cause the damage to be repaired and the Premises restored to its former condition .as soon as is practicable. During the repair or rebuilding period, this Lease will continue in full force and effect, except as provided hereinbelow. During the repair period, the Annual Base Rent will be abated on a per-day basis in proportion to the amount of floor area of the Premises of which Tenant is actually or constructively deprived, unless the damage was caused by the act or negligence of Tenant or his agents, in which case the rent shall continue unabated. If the Premises has not been restored within one hundred twenty (120) days after receipt of notice of'damage by Landlord, Tenant may, at its option and by written notice to Landlord, terminate this Lease except, that if the delay in restoration is caused by circumstances beyond Landlord's control including, but not limited to, labor strikes or actions, civil commotion, war, sabotage, vandalism, materials or labor shortages, governmental restrictions, inclement weather or act of God, Tenant may not terminate this Lease until one hundred eighty (180) days after Landlord's receipt of notice. If the damage to the Premises amounts to fifty percent (50%) or more of the insurable value of the Premises, Landlord may terminate this Lease if it serves written notice -15- r'- .V i"""\. \.._/ tv that effect upon Tenant within thirty (30) days after the date of the casualty. If the damage or destruction occurs during the last twelve (12) months of this Lease, either Landlord or Tenant may elect to terminate this Lease as of the date of the damage or destruction by giving written notice of such election within thirty (30) days after the date of the casualty. 20. CONDEMNATION. If the entire Premises, or a portion thereof as renders the remainder unsuitable for Tenant's continued use, shall be taken in appropriation proceedings or by any right of eminent domain or the Shopping Center shall be deprived of access to the adjacent highways, then this Lease shall terminate and be void from the time when possession thereof is required for public use. Mere notice of taking shall not operate as or be deemed an eviction of Tenant or breach of Landlord's covenant for quiet enjoyment, but Tenant shall pay all rent due and perform and observe all other covenants hereof, up to the time when possession is taken for public use. If such proceeding results in the taking of only a portion of the Premises and the remainder is suitable for Tenant's continued use, this Lease shall continue in full force and effect for that part of the Premises not taken. In the event of such partial taking, Landlord shall, if permitted by its lender, forthwith repair and restore, at its cost and expense, the Premises and Shopping Center to as nearly as possible its condition immediately prior to such taking. From the date of the vesting of title in such condemnation proceedings to the date of the completion of the repairs and restoration of the Premises, there shall be an abatement of the Annual Base Rent, except for the portion of the Premises, if any, that Tenant shall be able to use for its business. After the repairs and restoration have been completed following the partial taking, the Annual Base Rent for the unexpired term -16- -'- f"""". ...-.. , ,-' . shall be reduced by the proportion that the area so taken bears to the area of the Premises immediately prior to such taking. In such condemnation proceedings, Landlord shall be entitled to receive and retain any award for damages to the Shopping Center or the Premises and Tenant shall have no claim against Landlord for the value of any expired term of this Lease. Notwithstanding the foregoing, Tenant shall be entitled to claim, prove and receive in said condemnation proceedings an award for the taking of its personal property or for damages for business interruption. 21. HOLDING OVER. If Tenant holds over in possession of the Premises at the termination of this Lease, absent an agreement for extension or renewal of this Lease, the holding over shall be deemed a month-to-month tenancy bound by all of the terms and covenants of this Lease. Said month-to-month tenancy then may be terminated by either party upon at least thirty (30) days written notice to the other party. 22. DEFACING PREMISES. Tenant shall not place anything or allow anything to be placed near the glass of any door, partition, wall or window which will be unsightly from outside the Premises, and shall not place or permit to be placed any article of any kind on any window ledge or on the exterior wall. Blinds, shades, awnings or other similar devices or forms may be placed on or about the inside or outside of the windows on the Premises only after the character, shape, color, material and make thereof are first approved by Landlord., which approval Landlord may withhold in its sole discretion. 23. UTILITIES. Tenant shall pay for its own gas, telephone, electricity, and other utility services used or wasted by it on the Premises, including any taxes or other public charges or assessments levied against any of said charges and costs. Tenant shall pay all such utility charges when billed and before delinquent during the term of this -17- 1""". .-, '-" Lease. Tenant shall keep the Premises free of any liens created by Tenant's failure to make such payments. If Landlord is billed for any such utility services used by Tenant, then Tenant shall reimburse Landlord upon demand for the cost of such utility services billed to Landlord. 24. LANDLORD'S RIGHT OF ACCESS TO PREMISES. Tenant shall permit Landlord and its agents to enter upon the Premises at all reasonable times in a reasonable manner and without prior notice to Tenant for the purposes of examining the uses, occupancy and condition of the Premises, to make required inspections and repairs and to conduct prospective Tenants and purchasers through the Premises. 25. SIGNS. Tenant shall have the right, at its expense, and in conformity with applicable law and ordinances, and subject to the prior written approval of Landlord, to erect, if it so elects, an identifying sign on the exterior front wall of the premises. Upon termination of this Lease, Tenant shall remove said sign and repair any damage to the Premises caused by such removal. Landlord shall erect a general sign advertising the Shopping Center as a whole, which shall be clearly visible to the general public from thoroughfares adjacent to the Shopping Center. Landlord agrees that Tenant shall have, unless it waives its entitlement in writing, the right to advertising space on the general sign in proportion to the percentage of rentable area in the Shopping Center that it leases. If Tenant chooses to advertise on the general sign, it will pay the actual cost of producing the advertising on the sign and its proportionate share of the costs of the maintenance of the sign. 26. DEFAULT BY TENANT. In the event of any default on the part of Tenant in the payment of any charges as herein provided, Landlord, at its option, may pay the same. If Tenant shall fail to perform and observe any of the covenants, conditions and agreements of this Lease on its part to be -18- .r"> \___ t'""\ performed and kept, Landlord, at its option, may cause the same to be done, and upon demand by Landlord, Tenant shall forthwith reimburse Landlord for all costs and expenses thereof. All such payments made by Landlord shall bear interest from the date of payment at a per annum rate equal to the prime rate of interest charged by The Chase Manhattan Bank, N.A. plus one percentage point, and rental due to Landlord shall bear interest from the due date at said rate. It is further agreed that if (i) the Annual Base Rent, additional rent and other payments required to be made by Tenant shall at any time be in arrears and unpaid for a period of three (3) days after the same becomes due and payable; or (ii) Tenant shall fail to keep and perform any of the covenants, agreements or conditions of this Lease on its part to be kept and performed, and such default shall continue for ten (10) days after notice thereof in writing to the Tenant; or (iii) Tenant shall abandon or vacate the premises during the term of this Lease; or (iv) Tenant shall make an agreement for the benefit of creditors; or (v) the interest of Tenant in the Premises shall be sold upon execution or other legal process; or (vi) Tenant shall be adjudged bankrupt; or (vii) Tenant shall petition for relief under bankruptcy or similar laws; or (viii) a receiver or custodian shall be appointed for Tenant by any court; or (ix) the controlling interest of Tenant is conveyed or transferred without the prior written consent of Landlord; then Landlord may, at its election, at any time thereafter, terminate this Lease and may re-enter the Premises and again repossess and enjoy the same as if this Lease had not been made, or may elect not to re-enter and may continue to collect rent and enforce the provisions of this Lease. Upon such re-entry, Landlord shall have the option either to treat this Lease as at an end, in which event Tenant shall have no liability thereafter accruing, or to treat the same as still sUbsisting. If Landlord shall elect to treat this Lease as at -19- .'-', '-'. '-" an end, then Tenant shall be liable for the rent and for the performance of other obligations which may have accrued hereunder. However, if Landlord shall elect to treat said Lease as still subsisting, then the entire rent due hereunder shall become immediately due and payable and Landlord shall make efforts to relet the Premises and, as the agent of Tenant, receive the rents therefor, applying the same first to the payment of any reasonable expenses that Landlord may have incurred in reletting the Premises, and then to the payment of the rents and fulfillment of the covenants of Tenant herein contained, and Tenant shall thereupon be liable for any default of rent or other breach of obligation which may arise during the remainder of said term. The commencement of proceedings or suit in forcible entry and detainer or ejectment, or otherwise, shall be equivalent in every respect to actual entry by Landlord, irrespective of its election, and said proceedings may be maintained for such purpose and this Lease shall not bar such action. If Landlord elects to terminate this Lease by such re-entry, this Lease and the estate hereby granted and demised and everything herein contained on the part of the Landlord to be performed, fulfilled and kept, shall 'cease, terminate and be void, and this Lease and all fixtures and improvements upon the Premises shall be forfeited to Landlord without compensation therefor to Tenant. Landlord shall, at its option, be entitled to all of the right, title and interest of Tenant in, to and Under any and all subleases made by it and in and to the rents by the terms of said sublease or subleases, or Landlord may, at its option, reject any such subleases and thenceforth such subleases shall become null and void, except as to any sublease which Landlord shall have theretofore approved in writing. Notwithstanding such forfeiture, Landlord may sue for and collect from Tenant all rents, payments or other -20- ,~ charges which shall have been uncollected up to the time of Landlord's re-entry. Such right to sue and the right to forfeit and re-enter are cumulative and not exclusive of each other or any other lawful right or remedy that Landlord may have, and that fact that Landlord may have brought suit and recovered a judgment for rent or other sums in default hereunder, shall not impair its right to forfeit this Lease and re-enter, upon the terms hereinbefore provided, in case the default upon which suit was based shall continue unsatisfied for the period of time hereinbefore stipulated for such forfeiture and re-entry. 27. NOTICES. All notices or demands upon the Landlord or Tenant desired or required to be given under any of the provisions hereof shall be in writing. Any notices or demands from the Landlord to the Tenant shall be deemed to have been duly and sufficiently given if a copy thereof has been mailed by U.S. Certified Mail in an envelope properly stamped and addressed to the Tenant at P. O. Box 10522, Aspen, CO 81612 or at such other address as Tenant may theretofore have furnished by written notice to the Landlordl and any notices or demands from the Tenant to the Landlord shall be deemed to have been duly and sufficiently given if mailed by U.S. Certified Mail in an envelope properly stamped and addressed to the Landlord at P. O. Box 5081, Aspen, CO 81612 or at such other address as may have been furnished to Tenant by written notice. 28. QUIET ENJOYMENT. Subject to the provisions hereinabove contained, Landlord hereby covenants that Tenant, upon performance of all the obligations on its part to be performed shall and may peaceably and quietly hold and enjoy the Premises for the term hereof without hindrance or molestation by Landlord or anyone claiming by, through or under Landlord. 29. ESTOPPEL CERTIFICATES. Tenant agrees, at any time, and from time to time, upon not less than ten (10) days -21- 1""'. ~ '-/ . prior request by Landlord, to execute, acknowledge and deliver to Landlord a statement in writing certifying, if such be the case, that this Lease is unmodified and in full force and effect (or, if there have been modifications, stating the modifications and that the Lease as modified is in full force and effect), and that there are no defenses or offsets thereto then accrued, or stating those claimed by Tenant, and the dates to which the rent and other charges have been paid, it being intended that any such statement delivered pursuant to this sentence may be relied upon by a prospective purchaser of, or any prospective holder of, a deed of trust upon the Premises, or the Shopping Center or by any other properly interested party. 30. SURRENDER OF PREMISES. Tenant shall, by noon on the last day of the term of this Lease, whether by normal termination or otherwise, peaceably quit and surrender the Premises to Landlord in as good and clean order and condition as the Premises was at commencement of the term, excepting only relevant written agreements between Landlord and Tenant, and reasonable use and natural wear and tear. Personal property, trade fixtures, inventory an? equipment of Tenant left on the Premises and not subject to prior agreement by Landlord and Tenant or other provisions in this Lease, either may be held by Landlord as agent for Tenant and subject to a storage and management fee; or sold by Landlord as agent for Tenant and the proceeds turned over to Tenant minus accrued charges, a storage fee and a ten percent (10\) sales commission; or disposed of by Landlord as unsaleable with disposal costs charged to Tenant. 31. SUBORDINATION. Tenant does hereby agree, upon prior written request by Landlord, to execute and deliver written subordination agreements whereby Tenant's interest in the premises is subordinated to the lien of any deed of trust, or the lien resulting from any other method of financing or refinancing, now or hereafter in force against the Shopping -22- I"", ,-., \..../ ''-"' Center of which the Premises are a part; provided, however, that such subordination agreements shall contain a provision whereby the parties acknowledge that so long as Tenant is not in default of its obligations under this Lease, Tenant's enjoyment, use and possession of the Premises and all of Tenant's rights and privileges under this Lease shall not be diminished or interfered with and this Lease shall remain in full force and effect throughout the term of this Lease. 32. MISCELLANEOUS. (a) This Lease and each and everyone of the agreements, provisions, covenants and conditions hereof shall be for the benefit of and be binding upon the parties hereto and each of them and their respective heirs, executors, administrators, representatives, successors and assigns. (b) This Lease contains all of the agreements, provisions, covenants and conditions made between the parties hereto and may be modified only by an agreement in writing and signed by said parties. Any exhibit attached hereto or required herein to be made a part of this Lease shall have the same force and effect as though contained herein. This Lease and all performance, constructions and interpretations hereof shall be governed by the laws of State of Colorado. 1he fact that this Lease was drawn by either party thereto shall not be held against said party. Whenever herein the singular number is used, the same shall include the plural where appropriate and the words of any gender shall include any other genders where appropriate. The paragraph headings and titles of exhibits are inserted as a matter of convenience and are not a part of this Lease, nor do they affect its terms and conditions. (c) This Lease may be executed in any number of duplicates all of which shall be deemed an original and all of them shall constitute one and the same agreement. (d) In the event that any proceedings are brought for foreclosure, or in the event of the exercise of the -23- r-, .1"'"\ '-" ~ power of sale under any mortgage or deed of trust covering the Premises, Tenant agrees, upon prior written notice by Landlord to Tenant of such foreclosure or sale, to attorn to and recognize the purchaser thereunder as Landlord under this Lease; provided, however, that Tenant shall not be required to assume any additional legal or financial obligations thereby; and provided further that such purchaser shall acknowledge that so long as Tenant is not in default of its obligations under this Lease, Tenant's enjoyment, use and possession of the Premises and all of Tenant's rights and privileges under this Lease shall not be diminished or interfered with and this Lease shall remain in full force and effect throughout the term of this Lease. (e) The waiver of one party of the performance of any agreement, provision, covenant or condition shall not invalidate this Lease, nor shall it be considered a waiver by it of any other agreement, provision, covenant or condition. (f) In the event that either party is required to commence any action or proceeding against the other in order to enforce the provisions hereof, the prevailing party therein shall be entitled to recover all reasonable costs incurred in connection therewith, including reasonable attorney's fees. (g) Time is hereby declared to be of the essence in each and every term, agreement, provision, covenant and condition hereof. (h) If any term, agreement, provision, covenant or condition of this Lease is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Lease, such item shall be fully severable. This Lease shall be construed and enforced as if such illegal, invalid or unenforceable item had never comprised a part of this Lease and the remaining term, agreement, provision, covenant or condition of this Lease shall remain in full force and effect and shall not be affected by the illegal, invalid or -24- I ,,-,, ~ '-" .- unenforceable item or by its severance from this Lease. Furthermore, in lieu of such illegal, invalid or unenforceable item, there shall be added automatically as a part of this Lease an item as similar in terms to such illegal, invalid, or unenforceable item as may he legal, valid and enforceable. (i) If Landlord shall fail to perform any covenant, term or condition of this Lease upon Landlord's part to be performed, and if as a consequence of such default, Tenant shall recover a money judgment against Landlord, such judgment shall be satisfied only out of the proceeds of sale received upon execution of such judgment and levied thereon against the right, title and interest of Landlord in the Shopping Center and out of rents or other income from such property receivable by Landlord, or out of the consideration received by Landlord from the sale or other disposition of all or any part of Landlord's right, title and interest in the Shopping Center and the Landlord, and its partners, shall not be liable for any defiCiency. 33. RENEWAL OPTIONS. Provided that Tenant is not in default hereunder, Tenant shall have successive options to extend the term of this Lease for two (2) periods of five (5) years each (hereinafter referred to as "First Option Period" and "Second Option Period," respectively). The First Option Period shall commence upon the expiration of the initial term and the Second Option Period shall commence upon the expiration of the First Option Period. Tenant must notify Landlord in writing of its exercise of such option(s) at least one hundred twenty (120) days prior to the expiration of the initial term with respect to the First Option Period and at least one hundred twenty (120) days prior to the expiration of the First Option Period with respect to the Second Option Period. If the notice is properly and timely given, the Lease shall be extended, as herein provided, upon the -25- 1"". ___ 1"". same terms and conditions as herein contained, except that the Annual Base Rent for the First Option Period shall be an amount equal to the greater of $92,188.00 or the Fixed Percentage per annum of all gross sales made by Tenant in connection with any and all business activities conducted by Tenant in and on the Premises during each Lease Year occurring within the First Option Period and the Annual Base Rent for the Second Option Period shall be an amount equal to the greater of $117,610.00 or the Fixed Percentage per annum of all gross sales made by Tenant in connection with any and all business activities conducted by Tenant in and on the Premises during each Lease Year occurring within the Second Option Period. IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and year first above written. Signed and acknowledged in the presence of: LANDLORD: I' TRUEMAN ASPEN CO. By: J.R. Trueman & Associates, Inc., an Ohio Corporation, General Partner By:~~11 TENANT: sec.\"'!..~y STATE OF OHIO COUNTY OF FRANKLIN, ss: Before me, a notary public in and for said county and state appeared the above-named Trueman Aspen Co., an Ohio Limited Partnership, by J.R. Trueman & Associates, Inc., an Ohio Corporation, General Partner, by J,J:{J;~ 0p./lt, 1'- , as Vice President of J.R. Trueman & Associates, Inc., being duly authorized in the premises, who acknowledged that he did sign the foregoing instrument and that the same is his free act and deed, is the free act and deed of said J.R. Trueman & Associates, Inc., -26- I'" ...." I'" "'..._, and is the free act and deed of Trueman Aspen Co. IN TESTIMONY WHEREOF, official seal at (~~~O/v. 1986. I hereunto set my hand and , this / Cf~ day of November, ~My conunission expires: ~~~ '7 ~... Notar Public l",'ES E. l\UQl\ES ~noRlIt~ ^' U\W Of ()\\IU llIIl~RV PUBLIC . ~~~iYIAA1IUlI o~lE _..~IOll ~I\:i ,~c. *' -- StC \lUll 141 ,O~ . -, STATE OF COLORADO COUNTY OF PITKIN, ss: Before me, a notary public in and for said county and state appeared the above-named Aspen Mountain Spi~s, Inc., a Colorado Corporation, by Robert P. Grueter, as f/~. . of said Corporation, being duly authorized in the premises, who acknowledged that he did sign the foregoing instrument and that the same is his free act and deed, is the free act and deed of said Corporation. IN TESTIMONY WHEREOF, I hereunto set my hand and official seal at~i ~d..."O, this :2/~day of November, 1:986'.". . ."- >-"-,,,- --, -.. ' , ~.'-' ::::: My -:c'~ni;11'ts~ion expires: ~ -~,J1_ ~y Pu iJ V ~ /fty I~l ....,<. :-:. .-' "0...- - - ..... .-..-,. . _.- ',..- -27- ~. "-' .~ -.~ '~~' ~- i 1-&1 I I I , \ (f9 '. ,... - ll_~ - - a~' 2 P;l I I ; '~,,J. : ... .) I I I l-______.J 2'''' 403 2"~ j'~~s 2tJ7 2". 3l'l 1 II The Drug Company 201-202-203 Pyramid; Travel - 204 }>.-] T.V.' - 205 Clark's Market 206 Aspen 8aking Company 207-208-1)4 209 Robert .P. Grueter 211-212-213 Bank Of Aspen 214 T N "Exhibit A" Page] ,., -\ \ r I I I L __ ,,-..., v /17 121 .J' 11$ ,.J .!+~_111-Ga I 0':\- -- -1 '0 - -IJ .!e~L I!?L/6 '7 ~. \",./ -~ ---1 I I I I I , L__ _ "1 I I I ---jL--l I rl I I I I I I r _-1 I I LJ lll:....l1L l!Q, - - \ ~- - 111. i~ _ _1!2fu _ /f2'- Jf!2,. ELEVAT R Pitkin Appliance - 105 Alpine lIardware ~ 106, 107, 108, ]09 Summit Cleaners 110 A-I, T.V. - 1]1 ~"ea"lve prlnt.ere - 112 Rogers I Lock Repair ~ 113 ~ I lIakcry - 114 1\1 Janitor Room - 101 "Ien - 102 Homen - 103 Elevator Main. - 104 Lobby - 116 Interior Mall - 115 noiler /loom - ]20 l'lechanica1 Room - 119 Electrical Hoom - 121 fJrocery Storage - ]]7 \, \ .\. ---... ..._~- "OIIIOIT A" rAGE 2 I .i "