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HomeMy WebLinkAboutbocc.con.274.2015 CONTRACT# 1 --24/6- ;7.5.-_;7.5.-- EMERGENCY ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS (- ,, d) OF PITKIN COUNTY, COLORADO APPROVING TWO-YEAR COMMERCIAL LEASE AGREEMENTS WITH VECTRA BANK COLORADO,NA AND JAMES E. COX LIVING TRUST FOR THE PURPOSE OF HOUSING THE OFFICE OF THE PITKIN COUNTY CLERK& RECORDER DURING THE COURTHOUSE PLAZA RENOVATION PROJECT ORDINANCE NO.0%-2015 1. The Courthouse Plaza Building, which currently houses the Office of the Pitkin County Clerk& Recorder ("Clerk& Recorder's Office"), will undergo a major renovation project("Project") commencing in early 2016. 2. The Clerk&Recorder's Office, including the Elections Department will be required to vacate the building for the duration of the Project. 3. The Board of County Commissioners (" the County") has determined that there is a need for leased space to continue the day to day business operations of the Clerk& Recorder's Office and Elections Department without interruption in Aspen. '4. The County and Vectra Bank Colorado NA and the James E. Cox Living Trust (collectively the "Landlords") desire to enter into commercial Lease Agreements for an initial term of two years to house the Clerk&Recorder's Office, including the Elections Department, for the duration of the Project. The Leased Space and base terms are as follows; with terms more specifically described in the Lease Agreements: • Vectra Bank Aspen, Lower Level, 534 E. Hyman Avenue Aspen, CO 81611: i) 2,591 square feet ii) Initial base rent $5,400/month iii) 4% escalation to base rent on 10/1/16 and annually thereafter iv) Additional rent of$2,807/month for pro rata share of Common Area maintenance and Landlord insurance costs v) Security Deposit: $16,500 • Ute City Building, Suite 205, 501 E. Hyman Avenue, Aspen, CO 81611: i) 935 square feet ii) Initial base rent$3,117/month iii) 4% escalation to base rent on 10/1/16 and annually thereafter iv) Additional rent of$1,097/month for Common Area maintenance and insurance escrow v) Security Deposit: $8,700 • Ute City Building, Suite 106, 501 E. Hyman Avenue, Aspen, CO 81611: i) 1047 square feet ii) Initial base rent $5,235 iii) 4% escalation to base rent on 10/1/16 and annually thereafter iv) Additional rent $1,229/month for Common Area maintenance and insurance escrow v) Security Deposit: $15,200 5. The terms of the Lease Agreements shall incorporate language approved by the County Manager and County Attorney and the Chair (or Chair's designee) shall be authorized to sign the Lease Agreements in the form approved. 6. This action is being taken by the County as an emergency in order to occupy the Leased Space immediately to install and establish the infrastructure and technical components required for the Clerk&Recorder's Office. 7. The BOCC finds that adoption of this ordinance is necessary for the immediate preservation of the public health, safety and welfare of the citizens of Pitkin County and therefore declares this ordinance and legislation to be effective immediately pursuant to Pitkin County Home Rule Charter Section 2.8.2. NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado that the Chair(or Chair's designee) is authorized to execute two- year commercial Lease Agreements with Vectra Bank Colorado, NA and the James E. Cox Living Trust in a form approved by the County Manager and County Attorney for the purpose of housing the Office of the Pitkin County Clerk and Recorder, including the Elections Department, for the duration of the Courthouse Plaza renovation project. INTRODUCED, READ AND ADOPTED AS AN EMERGENCY ORDINANCE ON OCTOBER 14, 2015 AND SET FOR CONFIRMATORY PUBLIC HEARING ON OCTOBER 28, 2015. NOTICE OF CONFIRMATORY PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE EMERGENCY ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON i /2 ' o.2 Y , ( 2015. NOTICE OF CONFIRMATORY PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED ON TIE OFFICIAL PITKIN COUNTY WEBSITE www.aspenpitkin.com ON cf0 r l 2015. CONFIRMED AT A PUBLIC HEARING OCTOBER 28, 2015. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER CONFIRMATORY PUBLIC HEARING, IN THE ASPEN TIMES WEEKLY.0Y- ()GJoh-e r' 9.V 2`G/5 POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY WEBSITE www.aspenpitkin.com ON i rt&r j�/ - _, 2015. 2 THIS ORDINANCE IS EFFECTIVE ON OCTOBER 14, 2015. ATT _ T: BOARD OF COUNTY COMMISSIONERS Li: ,. By 1 ./ IA Li: /i(10 By: Sm F. al) Jet ette Jones / Steven F. Child, Chair Di County Clef IDate: (o i 1 2.o(5 APPROVED AS TO FORM: MANAGER APPROVAL John E , ounty • - .rney Jon eacoc , County Manager 3 CONTRACTcaV( "� TABLE OF CONTENTS Page Lease Summary 1 Paragraph 1 Leased Premises • 2 Paragraph 2 Term 2 Paragraph 3 Minimum Rent 3 Paragraph 4 Construction and Acceptance of Premises 3 Paragraph 5 • Parking and Common Areas 3 Paragraph 6 Maintenance of the Building and Repairs 4 Paragraph 7 Utilities 5 Paragraph 8 Maintenance Obligations of Landlord 5 Paragraph 9 Common Area Maintenance 6 Paragraph 10 Tenant's Share of Landlord Insurance 7 Paragraph 11 Taxes 7 Paragraph 12 Care of Leased Premises 8 Paragraph 13 Signs and Advertising 8 Paragraph 14 Use of Leased Premises 8 Paragraph 15 Alterations and Additions 8 Paragraph 16 Insurance - 9 Paragraph 17 . Waver of Subrogation 12 Paragraph 18 Destruction of or Damage to Leased Premises 12 Paragraph 19 Eminent Domain 13 Paragraph 20 Indemnification 14 Paragraph 21 Assignment and Subletting 15 Paragraph 22 Landlord's Sale 16 Paragraph 23 Default 16 - Paragraph 24 Late Rent Payment 18 Paragraph 25 Lien of Personalty and Forfeiture of Personalty 18 Paragraph 26 Non-Disturbance and Subordination • 19 Paragraph 27 Notices 20 Paragraph 28 Deposit 20 Paragraph 29 Miscellaneous 20 Paragraph 30 Additional Provisions 24 • Signature Page 25 Exhibit "A" Space plan 26 Exhibit "B Personal Guarantee 27 LEASE SUMMARY 1. Landlord: Vectra Bank Colorado. NA 2. Tenant: Pitkin County 3. Business Description: Business office for County Clerk and Recorder 4. Current Business Address: 530 East Main Street 3rd Floor, Aspen, CO 81611 5. Premises: • As noted on Exhibit A. 6. Rentable Square Feet: Approximately 2,591 SF • 7. Tenant Pro Rata Share of Building: 27.25% 8. Commencement Date: October 1, 2015 9. Expiration Date: September 30, 2017 10. Option to Extend: Tenant shall have right to renew on a month to month basis until February 1, 2018 11. Initial Base Rent per rentable square foot: Approximately$25 per SF • 12. Initial Base Rent: $5,400 per month 13. Escalation Anniversary: October 1, 2016 14. Escalation to Base Rent 4% 15. NNN Estimated Expense Charge: Approximately$13 per SF 16. Security Deposit: $16.500.00 17. Tenant Improvements: TBD 18. Additional Provisions: As provided in Paragraph 30 of Lease 19. Amendment(s): TBD 20. Tenant's Insurance Company: TBD 1 OFFICE LEASE • g¢, fx+otoer THIS LEASE is entered into as of the Q'-'day of gerAefilber 2015,in Aspen,Colorado, by and between Vectra Bank Colorado.NA (hereinafter referred to as"Landlord"),whose_address is 2000 South Colorado Boulevard, Suite 2-1200. Denver. CO 80222. and Pitkin County Board of County Commissioners (hereafter referred to as"Tenant"),whose address is currently 530 East Main Street, 3rd floor,Aspen,CO 81611 _ Capitalized terms not specifically defined herein shall have the meanings attributed to them in the Lease Summary. WITNESSETH: In consideration of the premises,the mutual covenants hereafter contained,and each and every act to be performed hereunder by them, Landlord and Tenant hereby enter into the following Lease pertaining to the hereinafter-described premises: PARAGRAPH 1 - LEASED PREMISES Landlord hereby lets and demises to Tenant and Tenant hereby leases from Landlord for the term and upon the terms and conditions set forth in this Lease, approximately 2,591 rentable square feet of floor space known as Aspen Vectra Bank Building Lower Level_as shown oil the floor plan attached hereto, marked as Exhibit "A" and made a part hereof. • PARAGRAPH 2—TERM A. Initial Term. The term of this Lease (the "Lease Term") shall-be for a period of twenty four(24) months. beginning October 1. 201 5 . and ending on September 30,2017. provided, however,if the Lease Commencement Date occurs on any day prior to the first day of the month, the Minimum Rent, at the rate hereinafter provided,shall be prorated for any partial month,on a per diem basis,and shall be due and payable on the Lease Commencement Date. • B. Option To Renew Upon full and complete performance of all the terms,covenants and conditions herein contained by Tenant and payment of all rental due under the terms hereof,Tenant shall have an option to renew on a month to month basis until_February 1, 2018. Tenant shall provide, in writing, ninety(90) days prior to the expiration of the then-existing lease term its intent to renew. The failure of Tenant to exercise its option for the first additional period shall conclusively-waive its option. for subsequent additional periods, if any. PARAGRAPH 3 - BASE AND ADDITONAL RENT The minimum rent as set forth under this Lease shall be as follows: Oct 1, 2015 through Sept 30, 2016: Base Rent $5,400 per month plus additional rent based upon costs described in 2 Paragraphs 9 and 10. herein, of estimated Pro Rata Costs $2,807 per month Oct 1. 2016 through Sept 30, 2017: Base Rent $5,616 per month plus additional rent based upon costs described in Paragraphs 9.and 10,_herein. of estimated Pro Rata Costs to be determined based-on-actual first year pro-rata costs PARAGRAPH 4 - CONSTRUCTION AND ACCEPTANCE OF PREMISES Tenant represents it has inspected the Leased Premises prior to occupancy and accepts them in their current condition. Landlord's responsibility to Tenant for physical loss and non-habitability of Leased Premises shall be limited to the value of Tenant's rent obligation with the exception of loss of Leased Premises or damage to Tenant's property if such loss or damage is caused by Landlord's negligence. Any occupancy by Tenant prior to the Lease Commencement Date,even though rent-free, shall in all respects be the same as that of a Tenant under this Lease..By occupying the Leased Premises as a Tenant or to complete Tenant's Work and install fixtures. facilities or equipment. Tenant shall be deemed conclusively to have accepted the same and to have acknowledged that the Leased Premises are in the condition required by Landlord's covenants described herein above, except as to incomplete or defective items of Landlord's Work then specified in writing by Tenant. As to any such defects, Landlord shall have a reasonable time following such notification within which to correct the same. In no event shall landlord be liable to Tenant for latent defects more than one (1) year after the Lease Commencement Date. In the event of any dispute, the certificate of Landlord's architect or engineer shall be conclusive that the Leased Premises are in the condition required by this Lease and are Ready for Occupancy. PARAGRAPH 5 - COMMON AREAS Landlord shall provide "Common Areas" for the non-exclusive use of Tenant, its employees. agents, servants, customers and other invitees; in common with Landlord, other tenants of the Vectra Bank Office Building,and their respective employees,agents,servants,customers,and invitees,except when such are being repaired, altered or reconstructed, and except as provided hereinafter. Common Areas provided include: Exterior grounds including sidewalks and landscaping: vestibule, stairwell. mechanical and electrical rooms and ADA lift. Tenant shall not at any time interfere with the rights of Landlord and others entitled to similar use of Common Areas. All Common Areas furnished by Landlord shall be subject to the reasonable control and management of Landlord who shall have the right,but not the obligation,from time-to-time to establish, modify and enforce reasonable rules and regulations with respect thereto. Landlord will maintain Common Areas. Tenant agrees to abide by all such rules and regulations. Landlord further reserves the right to change the area,to rearrange the area,and to restrict or eliminate the use of any Common Areas, and do such other acts in and to Common Areas to change the location of building areas in the Vectra Bank Office Building as Landlord shall determine. Landlord shall not substantively reduce the Tenants beneficial use of the building for intended purposes by such change to Common Areas., All such actions, including such action or inaction as to rules and regulations for the Common Areas,shall not be deemed an eviction of Tenant or a disturbance of Tenant's use of the Leased Premises. PARAGRAPH 6 - MAINTENANCE OF THE BUILDING AND REPAIRS • Landlord shall keep essential elements of the Building the roof,foundation,the four outer walls (excluding all glass windows and window frames and doors),gutters-and downspouts,Common Area, ADA lift,central HVAC systems in good repair and usable for the Tenant's intended purpose;provided, however;that if Landlord shall be called upon to make any such repairs occasioned by the negligent act or omission of Tenant, its employees,agents, servants,customers and other invitees. the total cost and expenses of such repairs shall be borne by Tenant, and such costs shall not be prorated among other tenants of the Vectra Bank Office Building. Tenant shall maintain, replace, repair and keep all parts of the interior of the Leased Premises (which includes but are not limited to. interior wall surfaces, doors, door hardware, plumbing. light bulbs, and electrical equipment, within the Leased Premises). in good order, operating condition and repair. Tenant shall also keep the Leased Premises in a clean,sanitary and safe condition in accordance with all directions, rules and regulations of any health officers. building inspectors or other proper officers of the governmental agencies having jurisdiction, and shall dispose of all trash and waste materials in outside trash containers. Tenant shall flatten all boxes for dumping of trash. Tenant shall comply with all requirements of law, ordinances and other rules and regulations that affect the leased Premises. Tenant shall permit no injury or waste to the Building or the Leased Premises, and shall, at its own cost and expense, replace the glass with exactly the same as any damaged or broken glass. including plate glass or other breakable materials used in structural portions of any interior or exterior windows and doors on the Leased Premises. In addition. Tenant shall. at its own cost and expense, replace any light bulbs,frames, ballasts, and accessory parts thereof on the Leased Premises that may be broken or damaged during the term hereof. At the expiration of the term, Tenant shall surrender the Leased Premises in as good order as the same was on the day Tenant first opened for business to the public, reasonable wear and tear excepted. • PARAGRAPH 7 - UTILITIES Landlord does not warrant or guarantee the continued availability of any or all of the utility services necessary or.desirable for the use of the Leased Premises by Tenant. In no event shall the interruption,diminution or cessation of such availability shall be construed as an actual or constructive eviction of Tenant, nor shall Tenant be entitled to any abatement of its rent obligations under this Lease on account thereof. Landlord shall not take any action or forbear from any action that would cause the loss of any utility service. In the event that a deposit is required by a public or quasi-public organization in order to furnish or agree to furnish any service to the Leased Premises, Tenant agrees and covenants to pay such charge or deposit or its pro rata share thereof Any money so paid shall not entitle Tenant to an offset or reduction of its rent liability under this Lease. nor shall Landlord be obligated to return, repay or credit Tenant for any money so paid. • Landlord reserves the right to stop the service of any or all of the utilities herein above described when, in Landlord's sole discretion, such stoppage is necessitated by reason of accident, repairs, inspections, alterations or improvements, until any of the same have been completed*. In such event. Landlord shall not be deemed guilty of a breach of this Lease, nor shall Tenant be entitled to any abatement of its rent obligations under this Lease on account thereof. *Such repair. inspection, alteration.or improvement shall be made with prior notice to the Tenant and completed within thirty(30) days, notwithstanding acts of God. • 4 PARAGRAPH 8 - MAINTENANCE OBLIGATIONS OF LANDLORD Except as herein otherwise specifically provided for, Landlord shall keep and maintain the roof and exterior of the Building Common Area. ADA lift, central HVAC systems of which the Leased Premises are a part, in good repair and condition. Tenant shall repair and pay for any damage to roof. foundation and external walls caused by Tenant's action. negligence or fault. Landlord shall perform and construct, and Tenant shall have no responsibility to perform or construct,any repair,maintenance or improvement: (i) necessitated by the acts or omissions of Landlord or any other occupant of the Building or Area, or their respective agents, employees or contractors: (ii) required as a consequence of any violation of Law or construction defect in the Leased Premises or the Building as of the Commencement Date; (iii) which would be treated as a"capital expenditure"under generally accepted accounting principles; (iv) to the structural portions of the Building. Tenant's obligation, if any.to reimburse Landlord for the costs of such repairs,maintenance and improvements shall be governed by the other provisions of this Lease. • Upon notice from Tenant,and within a reasonable time thereafter,not to exceed thirty(30)days. Landlord shall make any repair, maintenance or improvement that Landlord is obligated to make pursuant to this Paragraph. PARAGRAPH 9 - COMMON AREA MAINTENANCE Tenant shall be responsible for Tenant's pro rata share of the total costs incurred for the operation, maintenance and repair of the Common Areas. including, but not limited to, removal of snow; utilities for common lighting and signs; and normal HVAC maintenance; Tenant shall be responsible for the cost of any HVAC replacement as required to accomplish modifications to meet their space needs. Tenant will not be required to pay for any capital equipment replacement unless it can be demonstrated such replacement is required due to actions of Tenant.Tenant shall pay their proportionate share of trash and snow removal; ADA lift maintenance. security to protect and secure the Area; common entrances,exits,and lobbies of the Building;all common utilities,including water to maintain landscaping; replanting in order to maintain a smart appearance of landscape areas: supplies. maintenance and repair; the cost of personnel to implement such services: the cost of maintaining in good working condition the HVAC system(s) for the Leased Premises;and property management costs for similar properties. These costs shall be estimated on an annual basis by the Landlord and shall be adjusted upwards or downwards on the actual costs for the preceding twelve months. Tenant shall pay monthly, commencing with the first month of the Lease Term, as additional rent due under the terms hereof: a sum equal to Tenant's Pro Rata Share of the estimated costs for said twelve-month period, divided by twelve(12). The estimated initial monthly costs are included in the estimate in Paragraph 3. 5 Once each year the Landlord shall determine the actual costs of the foregoing-expenses for the prior year and if the actual costs are greater than the estimated costs, the Tenant shall pay its Tenant's Pro Rata Share of the difference between the estimated costs and the actual costs to the Landlord with the next payment of Base Monthly Rent, or, if.the actual_costsare less than the estimated costs, the Landlord shall forthwith refund the amount of the Tenant's excess payment to the Tenant. The Tenant's Pro Rata Share is determined to be 27.25% (2.591/9.504). Notwithstanding anything to the contrary in the Lease. Tenant shall not have any obligation to perform or to pay for the following liabilities, charges. costs and expenses (collectively. "Costs"): (i) Costs occasioned by the act, omission or violation of Law by Landlord, any other occupant of the Building, or their respective agents. employees or contractors; (ii) Costs relating to repairs, alterations. improvements, equipment and tools which would properly be capitalized under generally accepted accounting principles,except to the extent that,(a)the foregoing reduces the expenses otherwise payable by Tenant under the Lease,and(b)Tenant's share of such Cost during any twelve-month period of the Lease is equitably determined based on Tenant's usage and amortized over the useful life of the capital item in question; (iii) Costs to correct any construction defect in the Leased Premises or the Building or to comply with any CC&R's, underwriter's requirement or Law applicable to the Leased Premises or the Building on the Commencement Date; (iv) Costs arising from the disproportionate use of any utility or service supplied by Landlord to any other occupant of the Building: and (v) Costs incurred to investigate the presence of any Hazardous Material,Costs to respond to any claim of Hazardous Material contamination or damage. Costs to remove any Hazardous Material from the Area or Building and any judgments or other Costs incurred in connection with any Hazardous Material exposure or releases, except to the extent caused by the release or disposal of the Hazardous Material in question by Tenant. • PARAGRAPH 1() - TENANT'S SHARE OF LANDLORD INSURANCE Tenant shall pay the Landlord as additional rent Tenant's Pro Rata Share of the insurance secured by the Landlord. A fixed rate of$47.06 will be charged for insurance during term of the lease. Payment shall be made on the first day of each month as additional rent. The monthly payments for such insurance shall be the lesser of: (i) the actual cost of the premiums therefor. or (ii) Until changed by Landlord as a result of an increase or decrease in the cost of such insurance. Tenant shall not be required to pay for insurance costs for coverage not customarily paid by tenants of similar projects in the vicinity of the Leased Premises,increases in insurance costs caused by the activities of another occupant of the area and insurance deductibles. • 6 PARAGRAPH 12 - CARE OF LEASED PREMISES Tenant agrees: (i) to abide by all reasonable rules and regulations adopted by Landlord with regard to its occupancy of the Leased Premises and its use of the Common Areas: not to commit any waste upon the Leased Premises or overload the floors thereof; (ii)to keep the Leased Premises well- lighted, and in a neat and clean condition; not to conduct any auction, fire, bankruptcy, liquidation or going-out-of-business sales thereon without the prior written consent of Landlord;and(iii)to operate its business thereon continuously during the term hereof at substantially the same hours as the other tenants of the Building unless prevented from doing so by governmental regulations or acts of God,provided, however, that Tenant may fluctuate its business hours according to the season of the year. PARAGRAPH 13 - SIGNS AND ADVERTISING Tenant shall not erect or install any type of store front, any exterior or interior window or door signs, or other types of signs, placards, or window blinds. or place or utilize in the store front area any trade fixtures, displays. merchandise and equipment without first having obtained the prior written consent and approval of the Landlord. All signs. placards. fixtures, displays, merchandise and equipment shall conform to the criteria set forth in Exhibit"B." Tenant shall pay all costs of causing its sign insert or any other signage to be erected and maintained. PARAGRAPH 14 - USE OF LEASED PREMISES The Leased Premises shall be used and occupied by Tenant(and any subtenants and assignees of Tenant) for the public offices of the Pitkin County Clerk and Recorder and will specifically be used for motor vehicle registration, issuance of marriage and other licenses, filing of public documents pertaining to real property in Pitkin County and other functions of the Office of Clerk and Recorder. Tenant's use of the Leased Premises shall not violate any applicable laws,ordinances, or regulations of any applicable government authority. Tenant's use of the Leased Premises shall not exceed any load limits which Landlord may reasonably establish from time to time. PARAGRAPH 15 - ALTERATIONS AND ADDITIONS Tenant shall not, under any circumstances, make alterations or additions to the exterior of the Leased Premises. Tenant shall make no alterations or additions to the interior of the Leased Premises. including equipment or appliances installed in connection with the transmission or delivery of the utilities, without first procuring Landlord's written consent, after delivering to Landlord the plans and specifications therefor. Tenant shall promptly pay for the costs of all Tenant Work regardless of the cost, and shall indemnify Landlord against liens,costs,damages and expenses incurred by Landlord in connection therewith,including attorney's fees incurred by Landlord,if Landlord shall be joined in any action or proceeding involving such work. Under no circumstances shall Tenant commence any such work until Landlord has been provided with certificates evidencing that all the contractors and subcontractors performing such work have in full force and effect adequate workers compensation insurance as required by the laws of the State of Colorado, public liability and builders risk insurance in such amounts and according to terms satisfactory to Landlord. Within five(5)days after notifying Landlord of any planned erection,construction. alterations. 7 removal, addition, repair or other improvements (the "Tenant's Work"), Tenant shall post and keep posted until completion of Tenant's Work,in a conspicuous place upon the doors providing entrance to the Leased Premises,and shall personally serve upon such contractors or subcontractors performing the Tenant's Work, a notice stating that Landlord's interest in the Vectra Bank Office Building shall not be subject to any lien for Tenant's Work. o All alterations,additions, improvements and fixtures, including but not by way of limitation, lighting fixtures, ducts, controls, diffusers, filters or other equipment for distribution of heating and cooling, which in any manner are attached to the floors, walls, or ceilings shall become the property of Landlord at the time of installation and shall remain upon and be surrendered with the Leased Premises at the time of installation as a part thereof,without disturbance, molestation or injury. Any tile, linoleum or floor covering of similar character which may be cemented or otherwise adhesively-affixed to the floor of the Leased Premises shall be and become the property of Landlord absolutely upon installation. During the term of this Lease, Tenant shall not remove or damage the above-described Tenant's Work and fixtures without the written consent of Landlord. Tenant may remove all modifications and equipment critical to the Tenant's continued business operations. Types of such modifications and equipment include wireless,security,phone equipment and/or custom fabrications for clerk office functions and similar items. Any removal by tenant of such modifications and equipment will leave the premises in a condition in those locations that is in good repair without damage to interior finishes, surfaces and features. Notwithstanding the foregoing, upon expiration of the term of this Lease, Tenant shall remove any and all of Tenant's Work, or any other alterations. additions, improvements or fixtures to the Premises made by Tenant. as may be requested by Landlord, in writing. at Tenant's sole cost and expense. in such a manner to return the Leased Premises to the condition of the Leased Premises prior to the commencement of said Tenant's Work. alterations, additions, improvements or fixtures. Landlord will cooperate with tenant to make improvements deemed necessary to premises for intended uses including but not limited to electrical power and lighting, data and phone facilities, security systems. • PARAGRAPH 16 - INSURANCE Tenant shall maintain in full force throughout the Lease Term, public entity general liability insurance providing coverage on an occurrence basis with limits of'not less than One Million Dollars ($1.000,000.00)each occurrence;Two Million Dollars($2,000,000.00)annual general aggregate.Two Million Dollars ($2,000,000.00) products and completed operations annual aggregate, One Million Dollars ($1,000,000) personal and advertising injury per occurrence, and One Hundred Thousand Dollars($100,000)fire damage (any one fire). Tenant's liability insurance policy or policies shall: (1) be on ISO form CG 00 01 12 04 or equivalent, (2) include premises and operations liability coverage. products and completed operations liability coverage.broad form property damage coverage including completed operations, . and personal and advertising injury coverage; (3) provide that the insurance company has the duty to defend all insureds under the policy(separation of insured language will not be modified); and (7) cover liabilities arising out of or incurred in connection with Tenant's use or occupancy of the Premises or the Property. Tenant shall at all times maintain in effect with respect to any alterations.tenant improvements, trade fixtures and tenant's goods, inventory and personal property, commercial property insurance 8 (cause of loss—special form)(formerly"all-risk")providing coverage for one-hundred percent(100%) of the full replacement cost of the covered property. Tenant's commercial property insurance policy or policies shall: (1) be on ISO form CP 10 30 or equivalent,(2) name Landlord as"insured as its interest may appear" Tenant may carry such insurance under a blanket policy, provided that such policy provides equivalent coverage to a separate policy. During the Lease Term,the proceeds from any such policies of insurance shall be used for the repair or replacement of the alterations,improvements,trade fixtures and Tenant's goods, inventory and personal property so insured. Landlord shall be provided coverage under such insurance to the extent of its insurable interest and, i.frequested by Landlord,both Landlord and Tenant shall sign all documents reasonably necessary or proper in connection with the settlement of any claim or loss under such insurance. Landlord will have no obligation to carry insurance on any alterations. improvements, trade fixtures. or Tenant's goods, inventory and personal property. Beginning on the date Tenant is given access to the Premises for any purpose and continuing • until expiration of the Term, Tenant shall procure, pay for and maintain in effect Workers' Compensation Insurance for all of its employees who work at or visit the Premises and Employers Liability insurance with coverage and minimum limits of the greater of: (i) bodily injury by accident ($1,000,000.00 each accident); (ii) bodily injury by disease ($1,000,000 policy limit); and (iii) bodily injury by disease ($1,000,000 each employee). Each policy of insurance required under this Section 17;Insurance, shall: (1)be in a form,and written by an insurer, reasonably acceptable to Landlord. (2) be maintained at Tenant's sole cost and expense, and (3) be endorsed as primary with the policies of Landlord being excess, secondary and noncontributing:(5)require at least thirty(30)days'written notice to Landlord prior to any cancellation, non-renewal or modification of insurance coverage; and(6)be issued by insurance companies that have rating classifications of"A"or better and financial size category ratings of"VIII"or better according to the latest edition of the A.M. Best Key Rating Guide. Tenant shall provide to Landlord, upon request, copies of insurance policies or evidence reasonably satisfactory to Landlord that the insurance required to be carried by Tenant pursuant to this Section, including any endorsement affecting the additional insured status, is in full force and effect and that premiums therefor have been paid. Prior to occupancy of the Premises by Tenant and upon request by Landlord, and not less than thirty(30)days after expiration of any policy thereafter.Tenant shall furnish to Landlord a certificate of insurance in the form of:(a)Certificates of Liability Insurance for liability coverages Each certificate of insurance must: (i) show the Landlord. the Property Manager and any Mortgagee (if requested by Landlord) as certificate holders (with Landlord's mailing address); (ii) show Tenant as the "Named Insured,"(iii)show the insurance companies producing each coverage and the policy number and policy date of each coverage; (iv) name the producer of the certificate (with correct address and telephone number) and have the signature of the authorized representative of the producer; (v) specify the additional insured status (on ACORDTm Form 45) and/or waivers of subrogation; (vi) show the amounts of all deductibles and self-insured retentions; and(vii)show the primary status and aggregate limit per project where required. Tenant shall provide Landlord with thirty (30) days' prior written notice of cancellation of Tenant's insurance policies. During the period of any construction on. in or about Premises by. through or under Tenant, Tenant agrees to obtain. or require its contractor(s) to obtain. and thereafter maintain so long as such construction activity is occurring, at least the following minimum insurance coverage: 9 (a) Workers' compensation; (b) Employer's liability:(i)bodily injury by accident($1,000,000.00 each accident); (ii) bodily injury by disease ($1,000.000 policy limit); and (iii) bodily injury by disease ($1,000,000 each employee); (c) Commercial General Liability policy(CG 00 01 policy)providing coverage on an occurrence basis with limits of not less than One Million Dollars($1,000,000.00)each occurrence;Two Million Dollars ($2.000.000.00) annual general aggregate. Two Million Dollars ($2,000,000.00) products and completed operations annual aggregate, One Million Dollars($1,000,000) personal and advertising injury per occurrence,and Five Hundred Thousand Dollars($500,000)fire damage(any one fire). Prior to commencement of any work.. Tenant or its contractor shall furnish to Landlord a certificate of insurance in the form of ACORDT"r Form 25-S(1/95)(or its replacement)Certificates of Liability Insurance for liability coverages accompanied by the endorsement form CG 20 10 11 85. The certificate of insurance shall comply with the requirements set forth in Subsection 17.8 above; and (d) Commercial Automotive Liability providing coverage on an occurrence basis with not less than a One Million Dollars($1,000,000.00)combined single limit covering"Any Auto." (e) Independent Contractor's Liability with the same coverage as in (c) above: (f) Products/Completed Operations Coverage which shall be kept in effect for two (2)years after completion of work. (g) '`XCU" Hazard coverage, if applicable. in the event of a failure of Tenant to maintain the insurance coverage or comply with any of . the requirements required by this Paragraph 16, such failure shall constitute a default under this Lease and Landlord may, at its sole and absolute discretion. in addition to exercising any other remedies available to it under this Lease, upon the passage of ten (10) days from Landlord's delivery to Tenant of written notice of such failure, procure such insurance on Tenant's behalf and charge Tenant the cost thereof. which amount shall be payable to Landlord upon demand. PARAGRAPH 17 - WAIVER OF SUBROGATION Landlord and Tenant each hereby waive any right of recovery against the other(s) (Tenant's waiver of subrogation shall be in favor of Landlord and the partners, members, shareholders, officers, directors and authorized representatives of the other for any loss or damage that is covered by any policy of property insurance maintained by the waiving party(or required by this Lease to be maintained)with respect to the Premises or the Building or any operation therein. If any such policy of insurance relating to this Lease or to the Premises or the Building does not permit the foregoing waiver or if the coverage under any such policy would be invalidated or affected as to rate or renewal as a result of such waiver, then the waiver is recognized to not have been completed. The waiver of subrogation hereby required shall extend only to the risks insured by the policies required hereby. PARAGRAPH 18- DESTRUCTION OF OR DAMAGE TO LEASED PREMISES In case the Leased Premises or the Building in which the Leased Premises are situated shall be partially or totally destroyed by fire or other peril insurable under standard fire and extended coverage 10 insurance so as to become partially or totally untenantable, the same shall be repaired as speedily as possible at the expense of Landlord,to the extent of insurance proceeds available,unless Landlord shall elect not to rebuild as hereinafter provided; Landlord shall not be required to rebuild if Tenant fails to exercise(within fifteen(1 5)days following notice from Landlord of demand to do so)the next option,if any,to extend the Lease Term which may be available,and if no such option is available,Landlord may terminate this Lease upon the date of the damage or destruction and all obligations of Tenant herein shall terminate. It landlord cannot guarantee repair and habitability within thirty(30)days of the loss than Tenant shall have the option of cancelling the lease and terminating all obligations of the lease. Landlord shall have no interest in the proceeds of any insurance carried by Tenant, and Tenant shall have no interest in the proceeds of any insurance carried by Landlord. Tenant's Minimum Rent shall abate in that same proportion as the number of square feet rendered untenantable bears to the total number of square feet in.the Leased Premises. Tenant agrees during any period of reconstruction, restoration or repair of the Leased Premises and/or of the Building to continue the operation of its business in the Leased Premises to the extent reasonably practicable from the standpoint of good business. In the event there are necessary repairs.made necessary by a casualty,to Tenant's building and Landlord or successors fail or refuse to repair the same after reasonable written notice to Landlord, Tenant may acquire three (3) estimates to repair, notify Landlord, and if Landlord. after a reasonable time,fails to make said repairs, Tenant may select one of the three contractors.have the repairs done at his expense and offset those expenses against rent due. PARAGRAPH 19- EMINENT DOMAIN lithe whole of the Leased Premises shall be acquired or condemned by eminent domain for any public or quasi-public use or purpose, then the Lease Term shall cease and terminate as of the date of title vesting in such proceeding, all rent shall be paid up to that date, and Tenant shall have no claim against Landlord for the value of any unexpired Lease Term. If a part of the Leased Premises shall be acquired or condemned by eminent domain for any public or quasi-public use or purpose.and in the event that such partial taking shall be so extensive that Tenant is unable to operate in the remainder substantially the business being conducted on the Leased Premises immediately prior to such taking,then from the day of such taking and for a period of ten(I 0) days thereafter,Tenant shall have the right either to terminate this Lease and declare the same null and void by giving written notice thereof within said period to Landlord or, alternatively,.to continue in the possession of the remainder of the Leased Premises under the terms herein provided, except that the Minimum Rent shall be reduced in such just proportion as the nature, value and extent of the part so taken bears to the whole of the Leased Premises. • In the event of a partial taking which is not extensive enough to render the Leased Premises unsuitable for the business of Tenant. then Landlord shall promptly-restore the Leased Premises to a condition comparable to its condition at the time of such taking. less the portion lost in the taking,and this Lease shall continue in full force and effect except that the Minimum Rent shall be reduced in the manner provided herein above. 11 As regards any obligation of Landlord described in this Paragraph.in no event shall Landlord be required to spend an amount in excess of the amount available to Landlord from the award for any part • of the Leased Premises or parking area taken. In the event of any condemnation or taking as aforesaid, whether in whole or in part, Tenant shall not be entitled to any part of the award paid for such condemnation,and Landlord shall receive the full amount of such award, Tenant hereby expressly waiving any right or claim to any part thereof, including but not limited to, all damages as compensation for diminution in value of the leasehold, reversion, and fee. Although all damages in the event of any condemnation or taking are to belong to Landlord,Tenant shall have the right to claim and recover from the condemning authority,but not from the Landlord, such compensation as may be separately-awarded or recoverable by Tenant in Tenant's own right on account of any and all damage to Tenant's business by reason of the condemnation and for or on account of any cost or loss which Tenant might incur in removing Tenant's merchandise,furniture, fixtures, leasehold improvements and equipment. PARAGRAPH 20 - INDEMNIFICATION Except as concerns losses paid by insurance for which Landlord has waived the right of subrogation.Tenant shall indemnify and save Landlord harmless from any liability for damages to any person or any property in or upon the Leased Premises,including the personal property of Tenant and its employees, agents. servants, customers or other invitees, and further from any loss, cost damage or expense (including reasonable attorneys' fees) arising out of any accident or other occurrence due directly or indirectly to the negligence or willful misconduct of Tenant,its employees,agents,servants, customers or other invitees. Except as concerns losses paid by insurance for which Tenant has waived the right of subrogation, Landlord shall indemnify and save Tenant harmless from any liability for damages (including reasonable attorneys' fees) arising out of the negligence or willful misconduct of the Landlord. However, Landlord shall not be responsible to Tenant.nor required to save Tenant harmless from any loss or damage which may be occasioned by or through the acts or omissions of persons occupying portions of the Vectra Bank Office Building other than the Leased Premises,and Landlord shall pot be held liable hereunder with respect to the repair or maintenance of any portions of the Leased Premises required to be repaired or maintained by Landlord as aforesaid. unless Landlord shall neglect to make such repairs or perform such maintenance alter due notice in writing and a reasonable opportunity to correct the same. In addition. and notwithstanding any indemnity given hereunder, Tenant shall not hold or attempt to hold Landlord liable for any injury or damage, either proximate or remote, occurring through or caused by fire,water,or any repairs or alterations to the Leased Premises or otherwise;or liable for any injury or damage occasioned by defective wiring or breakage or stoppage of plumbing or sewage upon the Leased Premises. whether said breakage or stoppage results from freezing,or otherwise: or liable for any damage caused directly or indirectly through the negligence or willful misconduct of Tenant, its employees,agents,servants.customers or other invitees. All property kept. stored or maintained in the Leased Premises shall be so kept. stored or maintained at the risk of Tenant only. Landlord acknowledges it is the position of the Tenant that. under Colorado law local governmental jurisdictions cannot agree to indemnify any party for future unspecified losses. 12 PARAGRAPH 21 -ASSIGNMENT AND SUBLETTING • Tenant shall not assign. sell,pledge. mortgage,encumber or in any manner transfer this Lease or any interest therein, nor sublet the Leased Premises or any part or parts thereof,nor permit occupancy by anyone with,through or under it,nor allow the sale or transfer of any of its capital stock(in the case of a corporation)or partnership interests(in the case of a partnership) to the extent that Tenant loses voting control of the entity existing upon execution of this Lease, without the prior written consent of Landlord, which consent shall be allowed only in Landlord's sole discretion. Landlord and Tenant hereby acknowledge that this provision regarding assignment and subletting,and Landlord's discretion thereof, has been fully and freely negotiated. Any sublease of the Leased Premises executed by Tenant shall incorporate this Lease (the "Underlying Lease") in its entirety and be subject to its terms. The sublease shall also require the sublessee to attorn to Landlord, at Landlord's option,in the Event of Default by Tenant under the terms of the Underlying Lease,and Tenant does hereby grant Landlord the irrevocable Power of Attorney to effect the same. Consent by Landlord to one or more assignments of this Lease or to one or more subleases of the Leased Premises shall not operate as a waiver of Landlord's rights under this Paragraph as to any subsequent assignment or subletting, nor release Tenant or any guarantor of Tenant of any of its obligations under this Lease, nor be construed or taken as a waiver of any of Landlord's rights or remedies under this Lease. In the event Landlord allows assignment or subletting hereunder,neither Tenant,the assignee of Tenant, nor the sublessee of Tenant shall have any option to extend the Lease Term, notwithstanding anything contained in Paragraph XXIV to the contrary, and all rights and options to extend granted in said Paragraph shall be deemed terminated and canceled as of the date of such assignment or subletting. • No interest in this Lease shall pass to any trustee or receiver in bankruptcy, to any estate of . Tenant, to any assignee ofTenant for the benefit of creditors.or to any other party by operation of law or otherwise without Landlord's consent. • No consent to assignment or subletting shall be granted if tenant is then in default under this Lease. Landlord shall receive all increases in Minimum Rents paid by an assignee or sublessee. Tenant shall not share to any extent in such rents. PARAGRAPH 22 - LANDLORD'S SALE • In the event of any sale of the Leased Premises, or real property of which the Leased Premises are a part, by Landlord, including sales by foreclosure or a deed in lieu thereof, Landlord shall be,and is,entirely freed and relieved of all liability under any and all of its covenants and obligations contained in or derived from this Lease arising out of any act or omission occurring after the consummation of sale or lease; and the purchaser or lessee shall, during the period of its ownership or lease term, be deemed without any further agreement between the parties to have assumed and agreed to carry out any and all of the covenants and obligations of Landlord under this Lease. All subsequent purchasers or lessors shall similarly be freed and relieved of all liability hereunder subsequent to the date of such sale or lease 13 by them. In the event of any such sale or lease. Tenant agrees to attorn .to and become Tenant of Landlord's successor-in-interest. PARAGRAPH 23 - DEFAULT This Lease is made on the condition also that, if any one or more of the following events (hereinafter referred to as an "Event of Default") shall happen: A. Tenant shall default in the timely payment of the Minimum Rent or any other amounts payable hereunder; and such default shall continue for ten (10) days after the same become due; B. Tenant shall neglect or fail to perform or observe any of the other covenants herein contained on Tenant's part to be performed or observed,and Tenant shall fail to remedy the same within fifteen (15) days after Landlord shall have given to Tenant written notice specifying such neglect or failure(or within such period, i fany, as may be reasonably required to cure such default, if it is of such nature that it cannot be cured within said fifteen-day period. provided that Tenant shall have commenced to effect such cure and shall proceed with due diligence to complete such cure): or C. Tenant shall: (i)be adjudicated a bankrupt or insolvent; or(ii)file, or threaten to file,or have filed against it,bankruptcy or for reorganization or for the adoption of an arrangement under the Bankruptcy Act (as now or in the future amended): or(iii) make an assignment of its property for the benefit of its creditors: or . D. Tenant shall vacate or abandon the Leased Premises; then in any one or more of such events. Landlord shall have the right, at its election,provided Landlord has given prior written notice to Tenant then or at any time thereafter and while such Event of Default shall continue, either; 1. To give Tenant written notice of Landlord's intention to terminate this Lease on the date of such given notice or any later date specified therein,and on such specified.date Tenant's right to possession of the Leased Premises shall cease and this Lease shall thereupon be terminated; or 2. Without further notice, to re-enter and take possession of the Leased Premises,or any part thereof, and repossess the same as of Landlord's former estate, and expel Tenant and those claiming through or under Tenant, and remove the effects of either or both (forcibly, if necessary) without being deemed guilty of any manner o f trespass and without prejudice to any remedies for arrears of rent or preceding breach of covenants. Should Landlord elect to re-enter as provided in this section 2.,or should Landlord take possession pursuant to legal proceedings or any notice provided for by law, Landlord may,from time to time,without terminating this Lease. relet the Leased Premises,or any part thereof. on behalf of Tenant for such term or terms,and at such rent or rents,and upon such other terms and conditions as Landlord may deem advisable(which may include concessions and free rent)with the right to make alterations and repairs to the Leased Premises. No such re-entry or taking of possession of the Leased Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease, unless a written notice of termination, specifically stating Landlord's intention to terminate, be given to Tenant. In the event Landlord does not elect to terminate this Lease, but on the contrary, elects to take possession, then such repossession shall not relieve Tenant of its obligations and liability under this lease. all of which shall survive such repossession. In the event of such repossession,Tenant shall pay 14 • to Landlord as rent: (a) The Minimum Rent and other sums as hereinbefore provided, which would be payable hereunder if such repossession had not occurred, less (b) The net proceeds, if any,of any reletting,or the value of Landlord's use,if any,of the Leased Premises after deducting all of Landlord's expenses in connection with such reletting, including, but without limitation, all repossession costs, brokerage commissions, legal expenses, attorneys'fees,expenses of employees, necessary alteration costs and expenses of preparation for such reletting. Tenant shall pay such rent to Landlord on the days on which the Minimum Rent would have been payable hereunder if possession had not been retaken,and Landlord shall be entitled to receive the same from Tenant on each such day. If Landlord shall be required to commence any action or proceeding to collect the foregoing amounts, or to enforce any other obligation of Tenant under this Lease, Landlord shall be entitled to a reimbursement of all costs and expenses incurred in said matter, including reasonable attorney's fees. After repossession of the Leased Premises,Landlord may procure the appointment o f a receiver to take possession and collect rents and profits of the business of Tenant,and if necessary,to collect the rents and profits. The receiver may carry on the business of Tenant,and take possession of the personal property used in the business of Tenant. including inventory, trade fixtures, and furnishings, and use them in the business without compensating Tenant. Proceedings for appointment of a receiver by Landlord, or the appointment of a receiver and the conduct of the business of Tenant by the receiver, shall not terminate and forfeit this Lease. unless Landlord has given written notice of termination of Tenant as provided herein. If, however, this Lease is terminated by•Landlord, by reason of any default by Tenant, or terminated by a court of lawful jurisdiction, Landlord shall be entitled to recover as damages from Tenant the excess,if any,of the Minimum Rent reserved in this Lease for the balance of the Lease Term over the then reasonable rental value of the Leased Premises for the same period.plus all of Landlord's costs of reletting the Leased Premises including,but not limited to, repair,alteration and preparation of said Leased Prethises for reletting,and any brokerage commission paid or due to any agent of Landlord. which amounts shall be immediately due and payable by Tenant to Landlord. It is agreed that the then "reasonable rental value" shall be the amount of rent. which Landlord may then reasonably obtain as rent for the remaining balance of the term. In addition,all costs incurred in connection with collecting such sum, including reasonable attorney's fees and costs.shall be recoverable by Landlord from Tenant. In the event that Landlord commences summary proceedings in the nature ofa forcible entry and detainer or lawful detention for non-payment of Minimum Rent,additional rent,or for Tenant's failure to perform its other obligations hereunder,Tenant agrees not to file a counterclaim against Landlord in the summary proceedings nor to consolidate claims against Landlord in said proceedings: however. Tenant does not waive its right hereunder to bring any later action against Landlord for damages. The commencement of such proceedings (including but not limited to the delivery of notice and process thereof) regardless of whether such proceedings are actually commenced, shall not be deemed to - terminate the Lease. If Tenant should contest such summary proceedings, it shall post a bond in favor of Landlord for the amount of rent due and for future damages upon termination of this Lease. 15 Notwithstanding anything contained in this Lease or in the Colorado statutes to the contrary, Tenant hereby waives any and all rights it may have to cure any Event of Default more than twice in any calendar year. PARAGRAPH 24 - LATE RENT PAYMENT In the event that Tenant fails to pay when the same are due.and payable any Minimum Rent, additional rent or any obligations hereof which may be satisfied by the payment of money,Tenant shall pay a penalty of One Hundred Dollars($100.00),and such unpaid amounts shall bear interest at the rate of the lesser of (i) twenty-two percent (22%) per annum or (ii) the maximum amount allowed by applicable law. Said interest shall be charged from the due date thereof to the date of Landlord's receipt of payment. The late charge will be in addition to and not a substitute for the legal rate of interest which may be assessed pursuant to any judgment obtained in a court of law for non-payment of rent. The late charge shall not be in derogation of any other right, which Landlord may assert. Additionally, Tenant shall pay a Fifty Dollar($50.00) charge for any checks written to Landlord which are returned due to insufficient funds. The base rents and expenses shall be paid on the first of the month and shall be considered late if not received by the 10°i day of each month. PARAGRAPH 25 - LIEN ON PERSONALTY AND FORFEITURE OF PERSONALTY • Subject to any purchase money security interest on such items. Landlord is hereby given a lien upon any and all furniture, fixtures and equipment belonging to Tenant and used at, in or upon the Leased Premises,whether acquired by Tenant before or after execution of this Lease to secure the due payment of rent and other liabilities of Tenant hereunder. Upon failure of Tenant to pay any part of such rent or other liability and after due notice as required by Paragraph 23, Landlord without further notice or demand. may possess; distrain'and sell such property at public or private sale (and Landlord may be a purchaser at such sale) and otherwise avail itself of all rights and remedies then available under the Uniform Commercial Code as enacted in the State of Colorado. To accomplish the foregoing, Tenant agrees, at the request of Landlord, to execute a satisfactory security agreement and financing statement. Tenant does hereby grant to Landlord its irrevocable Power of Attorney for the purpose of executing such instruments, if Tenant fails to execute the same immediately upon request. Additionally or in the alternative,as the case may be.Tenant agrees that within fifteen(15)days of termination of this Lease or repossession of the Leased Premises by Landlord without termination. whichever first occurs, by way of default or otherwise,it shall remove all personal property for which it has the right to ownership. Any and all such property of Tenant not removed within said fifteen-day period shall irrevocably become the sole property of Landlord. Tenant waives all rights to notice and all common law and statutory claims and causes of action,which it may have against Landlord subsequent to said fifteen-day period as regards the storage, destruction, damage, loss of use and ownership of the personal property affected by the terms of this paragraph. Tenant acknowledges Landlord's need to relet the premises upon termination of this Lease or repossession of the premises, and understands that the forfeitures and waivers provided herein are necessary to aid said relettirig. PARAGRAPH 26 - NON-DISTURBANCE AND SUBORDINATION This Lease shall be subject and subordinate to: (a) any reciprocal easement agreements or any 16 other easements.and(b)the lien of any mortgage,which Landlord may now or hereafter place upon the Leased Premises and the Vectra Bank Office Building, and to all terms, conditions and provisions thereof,to all advances made, and to any renewals.extensions. modifications or replacements thereof Provided, however, that if this Lease is in full force and effect, the right of possession of Tenant to the Leased Premises and Tenant's rights arising out of this Lease shall not be affected or disturbed by the mortgagee in the exercise of any of its rights under the mortgage or the note secured thereby, nor shall Tenant be named as a party defendant to any foreclosure of the lien of mortgagee, nor in any other way be deprived of its rights under this Lease. In the event that the mortgagee shall agree to the sale of the Leased Premises pursuant to the exercise of any rights and remedies under the mortgage,or otherwise, such sale shall be made subject to this Lease and the rights of Tenant hereunder. Tenant agrees to attorn to the mortgagee or such person who may acquire title as its new Landlord,and the Lease shall continue in full force and effect as a direct lease between Tenant and mortgagee or such other person,upon all the terms, covenants and agreements set forth in this Lease. Tenant shall. without further negotiation, execute or obtain execution of such instruments as may be necessary to effectuate said subordination. sale,foreclosure.and attornment;should Tenant fail to execute same.Tenant hereby appoints Landlord as its attorney-in-fact to execute such documents in.Tenant's place. Such instruments may require Tenant to notify the mortgagee of defaults by Landlord hereunder. to make rental payments to the mortgagee upon proper notice.and to allow the mortgagee a reasonable time to cure defaults thereunder. if Landlord has not done so. PARAGRAPH 27- NOTICES All notices to be given hereunder by either of the parties shall be in writing. Any notice may be served by Landlord upon Tenant personally by delivering the same to an employee of Tenant, or to Tenant directly. Any notice shall also be deemed duly-served by either party if mailed by registered or certified mail, return receipt requested with proper postage prepaid. addressed to each party at its address first written above. Either party may change the address to which such notices may be sent by delivering a copy thereof to the other party in the manner aforesaid. If service shall be made by registered or certified mail, such service shall be complete as of the next day following the mailing of such notice in the manner aforesaid. An electronic transmission with a verifiable signature shall be , considered. Notice for Vectra Bank, landlord shall be: James Yankovich (james.yankovich@vectra bank.com). Phone numbers are (office)720- 947-7576 and (cell) is 720-557-2228. Notice for Pitkin County (tenant) shall be: Janice Vos. Pitkin County Clerk and Recorder janice.vossQpitkincounty.com) 970 9205180 .John Ely. Pitkin County Attorney (john.ely@pitkincounty.com) (970) 920-5190 . PARAGRAPH 28 - DEPOSIT Landlord acknowledges the receipt from Tenant of a deposit in the amount of$16,500.00 deposited as security for the payment by Tenant of the rents herein agreed to be paid and for the faithful performance of all the terms, conditions and covenants hereof. if. at any time during the term. Tenant shall be in default in the performance of any provision of this Lease.Landlord shall have the right to use 17 . said deposit, or so much thereof as necessary, in payment of any rent in default as aforesaid. in reimbursement of any expenses incurred by Landlord and in payment of any damages incurred by Landlord, by reason of Tenant's default. or at the option of Landlord, the same may be retained by Landlord. In such event. Tenant shall, on written demand of Landlord, forthwith remit to Landlord a sufficient amount of cash to restore said deposit to its original amount. In the event said deposit has not been utilized as aforesaid, said deposit or as much thereof as has not been utilized for said purposes, shall be refunded to Tenant without interest upon full performance of this Lease by Tenant. Landlord shall have the right to commingle said deposit with other funds of Landlord. Landlord may deliver the funds deposited herein by Tenant to the purchaser of Landlord's interest in the Leased Premises in the event such interest is sold, and thereupon, Landlord shall be discharged from further liability with .respect to such deposit. Said deposit shall not be considered as liquidated damages, and if claims of Landlord exceed such deposit, Tenant shall remain liable for the balance of said claims. PARAGRAPH 29 - MISCELLANEOUS Covenant Dependency. The obligation of Tenant to pay rent hereunder is independent of each • and every other covenant, duty or obligation of the Landlord herein, and is not subject to deduction or offset. Liens. Tenant shall not permit mechanics',materialmen's,or other liens against the Vectra Bank Office Building in connection with any labor,materials,equipment,or services furnished,or claimed to have been•furnished. if any such lien shall be filed against the Vectra Bank Office Building. Tenant shall cause it to be discharged at its sole cost and expense: provided, however, that if Tenant desires to contest any such lien. it may do so,so long as the enforcement thereof is stayed. In the event that a stay is obtained.Tenant shall obtain title insurance in the amount of the lien or liens(including interest and costs)for the benefit of Landlord should Landlord desire the same for any period during which a lien or liens exist on the Vectra Bank Office Building. In such event. Tenant shall, if necessary,pay required title insurer's premiums,post bond sufficient to satisfy the title insurer's requirements,pay escrow costs and fees,pay the attorney's fees of Landlord.and sign indemnity agreements in favor of the title insurer. Relationship of Parties. Nothing contained herein shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or a partnership or a joint venture between the parties hereto, it being agreed that neither the method of computation of rents nor any other provisions set forth herein nor any acts of any parties herein shall be deemed to create any relationship between the parties hereto other than the relationship of Landlord and Tenant. Representations. Tenant acknowledges and agrees that it has not relied upon any statements, representations, agreements or warranties. except as are expressed in this Lease. • Amendments or Modifications. No amendment or modification of this Lease or any approvals or permissions of Landlord required under this Lease shall be valid or binding unless reduced to writing and executed by the parties hereto in the same manner as the execution of this Lease. Grammatical Changes. Wherever the words "Landlord" and "Tenant" are used in this Lease, they shall include "Landlords" and "Tenants" and shall apply to persons, both men and women. companies, partnerships. and corporations. Wherever the words "mortgage" or "mortgages" are used herein,the same shall be deemed to include a deed of trust or trust deed,and word"lender"shall include • 18 a mortgagee of a mortgage or a beneficiary of a Deed of Trust or Trust Deed. All references to the Lease Term shall include any extension of the term, except as otherwise provided. All references to Tenant shall include Tenant's guarantors, assignees or sublessees. All references to the singular shall include the plural. and vice versa. Section I-Ieadinns. The section headings are inserted herein only for convenience of reference and shall in no way define, limit or describe the scope or intent of any provisions of this Lease. • Binding Effect. Subject to the provisions hereof, the benefits of this Lease and the burdens hereunder shall respectively inure to and be binding upon the heirs,successors,personal representatives and assigns of the parties. Force Majeure. Whenever a period of time is herein provided for either party to do or perform any act or thing, except for the payment of monies by Tenant, there shall be excluded from the computation of such period of time, any delays due to strikes, riots, acts of God, shortages of labor or any cause or causes.whether or not similar to those enumerated, beyond the parties'reasonable control or the reasonable control of their agents, servants. employees and any contractor engaged by them to perform work in connection with this Lease. Non-Waiver. No waiver of condition or covenant of this Lease by either party hereto shall be deemed to imply or constitute a further waiver by such party of the same or any other condition or covenant. No act or thing done by Landlord or Landlord's agents during the Lease Term shall be deemed an acceptance of a surrender of the Leased Premises.and no agreement to accept such surrender shall be valid unless signed in writing by Landlord. The delivery of Tenant's keys to any employee or agent of Landlord shall not constitute a termination of this Lease unless a written agreement has been entered into with Landlord to this effect. No payment by Tenant,nor receipt from Landlord,of a lesser amount than the Minimum Rent herein stipulated shall be deemed to be other than on an account of the earliest stipulated rent,nor shall any endorsement or statement on any check or any letter accompanying any check, or payment as rent, be deemed an accord and satisfaction, and Landlord shall accept such check for payment without prejudice to Landlord's right to recover the balance of such rent or pursue any other remedy available to Landlord. If this Lease be assigned,or i f the Leased Premises or any part thereof be sublet or occupied by anyone other than Tenant. Landlord may collect rent from the assignee, sub-tenant or occupant and apply the net amount collected to the rent herein reserved, but no such collection shall be deemed a waiver of the covenant herein against assignment and subletting, or the acceptance of the assignee, sub-tenant or occupant as Tenant,or a release of Tenant from the complete performance by Tenant of the covenants herein contained on the part of Tenant to be performed. Reimbursement of Attorney's Fees and Costs. In the event either party takes legal action against the other in order to enforce the terms of this Lease, the party in whose favor final judgment is entered shall be entitled to recover from the other party its reasonable attorney's fees and costs. • Short Form Lease and Notice to Mortgagee. Landlord and Tenant agree not to place this Lease of record, but upon the request of either party to execute and acknowledge, so the same may be recorded, a short form lease indicating the names and respective addresses of Landlord and Tenant,the Leased Premises. the Lease Term. the dates of commencement and termination of the Lease Term and options for renewal, if any, but omitting rent and other terms of this Lease. Tenant agrees to an 19 assignment by landlord of rents and of Landlord's interest in this Lease to a mortgagee, if the same be made by Landlord. Tenant further agrees that Tenant will give to said mortgagee a copy of any request for performance by Landlord or notice of default by Landlord; and in the event Landlord fails to cure such default, Tenant will give said mortgagee a reasonable period in which to cure the same. Said period shall begin with the last day on which Landlord could cure such default. before Tenant exercises any remedy by reason of such default. Changes in Provisions of Lease: Lender-Insurer Documents. Tenant agrees to make any modifications in the terms and provisions of this Lease, if not relating to amounts of monies to be paid by Tenant, in order to comply with any request of such lender. and to execute such documents as are necessary to obtain financing and insurance. Status Statement of Lease. Tenant agrees, upon request by Landlord to execute, acknowledge and deliver to Landlord a statement in writing certifying. if such is the case: 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).stating the lease Commencement Date,stating that Tenant has not paid rent in advance, that Tenant is not aware of prior assignments of this Lease by Landlord,that Tenant has no offsets against the rent or claims against Landlord,the amount of monthly rent due, and the date to which Minimum Rent and other charges have been paid. Easements. Landlord shall have the right to grant any easements on,over, under and above the Leased Premises for such purposes as Landlord determines, provided that such easements will not materially-interfere with Tenant's business. Holding Over. in the event that Tenant remains in possession after the expiration of this Lease, without execution of a new Lease, Tenant shall be deemed to occupy the Leased Premises as a tenant from month-to-month,subject to all conditions,provisions and obligations set forth herein insofar as the same are applicable to a month-to-month tenancy, except that Minimum Rent shall increase to one hundred fifty percent (150%) of Minimum Rent for the last year of the Lease Term or any extension thereof. hn addition. Tenant shall pay any damages and hold Landlord harmless from any liability incurred in connection with any claims made by any succeeding occupancy based on delay of possession. Time is of the Essence. Time is of the essence hereof, and each party shall perform its obligations and conditions hereunder within the time hereby required. Unenforceability. If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective during the Lease Term, 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 to this Lease that in lieu of each clause or provision of this Lease that is illegal. invalid or unenforceable. there be added as a part of this Lease a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable. Provisions Negotiated and Independent. Each and every provision of this Lease has been independently, separately. and freely-negotiated by the parties as if this Lease was drafted by both Landlord and Tenant. The parties, therefore. waive any statutory or common law presumption, which 20 • would serve to have this document construed in favor of, or against, either party. Rights and Remedies. The remedies of Landlord shall be cumulative,and no one of them shall be construed as exclusive of the other, or any remedy provided by law. The rights and remedies provided hereunder shall survive the termination of this Lease. Financial Statements. Tenant and any guarantors of Tenant's obligations hereunder shall provide their most recent financial statement(s) including statements of income and expense and statements of net worth within fifteen (15) days following the request of the Landlord. Landlord may request said statements once during any year. Said statements shall be verified as being true and correct. Limitation of Landlord Liability. In no event shall Landlord be liable to Tenant for any failure of any other tenant in the Vectra Bank Office Building to operate its business. Notwithstanding anything to the contrary provided in this Lease,it is specifically understood and agreed,such agreement being a primary consideration for the execution of this Lease by Landlord,that there shall be absolutely no personal liability on the part of Landlord, or any owners of an interest in Landlord's business, their successors,assigns, legally-appointed representatives,or any mortgagee in possession(for the purposes of this paragraph collectively referred to as "Landlord")with respect to any of the terms,covenants and conditions of this Lease,and that Tenant shall look solely to the equity of Landlord in the Vectra Bank Office Building of which the Leased Premises are a part for the satisfaction of each and every remedy of Tenant in the event of any breach by Landlord of any of the terms, covenants and conditions of this Lease to be performed by Landlord, such exculpation of liability to be absolute and without any exception whatsoever. Interpretation and Venue. The terms of this Lease shall be interpreted according to the laws of the State of Colorado. Tenant consents to the enforcement by Landlord of Tenant's obligations hereunder in the District Court in and for the County of Boulder. Colorado. Restrictive Covenants. This Lease is subject and subordinate to the terms of.and Tenant's use of the Leased Premises is controlled by, the covenants and restrictions described hereinafter as follows: Those of record. In the event of a conflict between this Lease and said instruments, the terms of the instruments shall control. Tenant shall execute any documents reasonably required to evidence the priority of such instruments. Exhibits. All Exhibits referred to in this Lease are incorporated herein and made a part hereof by this reference. In the event that any exhibits mentioned in this Lease are not attached hereto, the intention to omit them shall be presumed and their absence shall not vitiate this Lease. PARAGRAPH 30 - ADDITIONAL PROVISIONS . Landlord. at the Landlord's expense will warrant that as of the Commencement Date, the lift/elevator, electrical, plumbing. 1-IVAC. air circulation, and all building systems are in excellent working order and provide sufficient temperature control and ventilation air consistent with current standards or as mutually agreed. 21 . Landlord will professionally clean the Premises prior to Tenant's occupancy. Landlord will provide to Tenant an allowance for new carpet and/or flooring in the amount not to exceed $ 4.00/sf installed with prior approval of Landlord. Landlord and Tenant will work together to mitigate or correct any issues related to noise transfer or security that may exist or that may develop between the Bank premises and the County office premises. Tenant hereby acknowledges that, from time to time, there may be construction work on adjacent space(s). Landlord will inform the Tenant as to the scope and nature of the work in a reasonable and timely fashion.Tenant also.acknowledges that there may be noise and possible paint odor as a result of said renovation. Upon vacating the Premises, the Tenant will hire a professional carpet cleaner to thoroughly clean the carpets located within the Premises. • Tenant acknowledges that it is the Tenant's responsibility to comply with the local fire department codes and ordinances and Tenant shall furnish and keep up-to-date the fire extinguishers as per the current city code within Tenant's Premises. All other terms and conditions shall remain the same and said Lease is hereby ratified and confirmed accordingly. ALL LEASE PAYMENTS AS WELL AS TENANT NOTIFICATIONS TO LANDLORD ARE TO BE SUBMITTED TO: Vectra Bank Colorado,NA-Attention Facilities Department-1650 S Colorado Blvd-Suite 100-Denver,CO 80222 IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and year first above written. LANDLORD: TENANT: Vectra i . • Colorado, Pitkin County /ft 4/ By: ! -� ���/� • .. oN '}iEAcam,'Cooary Mit-o ea R • Date: /® 2j144--‘ Date: )1,0 • • • • • 22 EXHIBIT "A" Space plan t 11.E OIMEN5I0145 nivire CtlWORA ASA NOr MEASI, n i-oaa AN51/13OMA 265,5-2010 23 CONTRACT# 97 1/ STANDARD OFFICE LEASE a • THIS STANDARD LEASE agreement("Lease") is made as of the _day of 07` :. , 2015 by and between the James E. Cox Living Trust ("Landlord"), and Pitkin County Board of County Commissioners ("Tenant"). WITNESSETH: THAT FOR AND IN CONSIDERATION of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: ARTICLE I. -DEFINITIONS AND ATTACHMENTS 1.1 Certain Defined Terms: As used herein, the term: (a) "Landlord's Address" means c/o Frias Properties of Aspen, 730 E. Durant, Aspen, CO, 81611, or such other address as may be designated in writing by Landlord from time to time. (b) "Tenant's hailing Address" means 530 East Main Street, Aspen, CO 81611 or such other address as may be designated in writing by Tenant from time to time. (c) "Tenant's Building Address" means 501 East Hyman Avenue, Suite 205. (d) "Tenant's Trade Name" means Pitkin County CIerk & Recorder. (e) "Building" means the Ute City Building, Aspen, County of Pitkin, State of Colorado, containing approximately 14,092 gross leasable square feet, subject to additions, deletions and other changes thereto that Landlord may from time to time designate as included within or excluded from the Building. Unless a contrary intent is express or evident from the context, "Building" includes the land owned upon which is located the Building, together with all other improvements on that land. (f) "Premises" means Space 205 in the Building, containing approximately 935 square feet of gross leasable area. Gross leasable area is measured from the outside of exterior walls and the middle of interior demising walls. Notwithstanding the estimate of square footage of the Premises, the rent reserved hereunder is not based upon a dollar amount per square foot, but is a gross amount for the entire space. (g) "Term" means that period of time commencing at noon on the 1 Commencement Date (as hereinafter defined) and ending at noon twenty-four (24) months thereafter, except that, in the event the Commencement Date is a date other than the first day of a calendar month, the Term shall be for said number of months plus the remainder of the calendar month following the Commencement Date. (h) "Commencement Date" shall be November 1. 2015. (i) "Permitted Use" means Business office for the Pitkin County Clerk& Recorder,including the Elections Department. (j) "Minimum Guaranteed Rental"means, $ 3.117.00 per month. Commencing on October 1, 2016 , and annually thereafter during the Term of this Lease and any option periods, the Minimum Guaranteed Rental shall be adjusted upward at the annual rate of 4 %. (k) N/A. (1) "Initial Common Area Maintenance Charge" means $ 938.00 per month. The monthly "Common Area Maintenance Charge" shall be adjusted annually pursuant to the terms of the Lease. (m) "Initial.Insurance Escrow Payment" means $ 159.00 per month. The monthly "Insurance Escrow Payment" shall be adjusted annually pursuant to the terms of the Lease. (n) "Security Deposit"means the sum of$ 8.700.00 . (o) "Broker(s)"(if any)means Setterfield&Bright . (p) N/A. 2 1.2 Additional Defined Terms. The following additional terms are defined in the Sections of this Lease noted below. "Additional Rental" § 4.4 "Claimant" §19.10 "Common Area" § 6.1 "Common Area Maintenance Charge" § 6.4 "Default Rate" ' § 4.5 "Event of Default" §19.1 "Gross Sales" N/A "Insurance" §13.2 "Insurance Escrow Payment" §13.5 "Monthly Payment" § 4.1 "Percentage Rate" § 1.1(J) "Ready for Occupancy" § 3.1 "Taxes" §18.1 "Tax Escrow Payment" §18.2 1.3 Attachments. The following documents, if checked, are attached hereto, and such documents, as well as all drawings and documents prepared pursuant hereto, shall be deemed a part hereof: [ 1 Exhibit A--Rules and Regulations of the Building. [____] Exhibit B-Personal Guaranty 1 1 Other[specify] : ARTICLE IL -GRANTING CLAUSE For and in consideration of the obligation of Tenant to pay rent and other charges as herein provided and in consideration of the other terms, covenants and conditions hereof, Landlord hereby leases to Tenant, and Tenant hereby rents from Landlord the Premises together with a non-exclusive license, subject to the provisions hereof, to use all appurtenances thereunto and any other areas designated by Landlord from time to time for use by tenants of the Building, to have and to hold for the Term, all upon the terms and conditions set forth in this Lease. 3 { ARTICLE III. ACCEPTANCE OF PREMISES 3.1 Tenant, having examined the Leased Premises, is familiar with the condition thereof, and relying solely on such examination, will take them "as is" in their current condition, unless otherwise expressly agreed upon in writing. Tenant shall at all times maintain the Leased Premises in good condition and state of repair and shall, at. Tenant's own cost and expense, make all necessary 'repairs thereto including periodic painting and decorating, and at the end or other expiration of the term hereof, shall deliver up the Leased Premises in as good condition and order as at the commencement of this Lease, wear and tear from reasonable use, casualty, and damage by the elements excepted. ARTICLE IV.-RENTAL 4.1 Monthly Payment. The term "Monthly Payment" shall refer to the sum of the Minimum Guaranteed Rental, the Common Area Maintenance Charge, the Insurance Escrow Payment, all as defined in this Lease. The initial Monthly Payment (prorated to the end of the month) shall begin to accrue and shall be due and payable on the Commencement Date. Thereafter, the full Monthly Payment shall be due and payable in advance on the first day of each succeeding calendar month during the Term at Landlord's address, without demand and without set-off or deduction for any reason whatsoever except as may be expressly provided in this Lease. 4.2 Percentage Rental. N/A 4.3 Gross Sales Defined. N/A. 4.4 Additional Rental The term "Additional Rental" shall mean all sums, charges or amounts of whatever nature to be paid by Tenant to Landlord in accordance with the provisions of this Lease, whether or not such sums, charges or amounts are specifically referred to herein as Additional Rental. All Additional Rental, unless otherwise provided, shall be due and payable within five days of notice thereof to Tenant. • 4.5 Default Interest and Late Charge. In the event Tenant fails to pay Landlord in full or when due any installment of the Monthly Payment, Percentage Rental or Additional Rental, or any other sum to be paid to Landlord which may become due hereunder, Landlord will incur additional expenses in an amount not readily ascertainable and which have not been elsewhere provided for between Landlord and Tenant. If Tenant should fail to pay to Landlord within five (5) days of the due date thereof any such installment or other sum to be paid hereunder, Tenant will pay to Landlord, as Additional Rental, a late charge of 10% of the payment due, and interest on the entire delinquent amount at the "Default Rate". Both such charges shall begin to accrue on the day following the original payment due date. The"Default Rate" means an annual rate of interest equal to the greater of 18%or three percentage points over the prime rate in effect at the Chase Manhattan Bank in New York City (or 4 !F! any successor institution) on the date when such payment was due. Provision for such late charge and default interest shall be in addition to all other rights and remedies available to Landlord hereunder or at law or in equity and shall not be construed as liquidated damages(other than for the administrative inconvenience and loss of use of money caused by the delinquency) or otherwise limiting Landlord's remedies in any manner. 4.6 Bad Checks. If Tenant makes any payment to Landlord with a check which fails to clear the bank on which it is drawn the first time it is submitted, that payment shall not be deemed made until Tenant delivers to Landlord the amount of the payment (together with any late charges and default interest) in cash or by certified or cashier's check. After the second time during the Term that Tenant makes any payment with a check which so fails to clear, Landlord shall not be required to accept any payments from Tenant other than in cash or by certified or cashier's check. ARTICLE V.- SALES REPORTS AND RECORDS 5.1 Statements of Gross Sales. N/A. 5.2 Books and Records. N/A. 5.3 Right to Audit. N/A. ARTICLE VI. -COMMON AREA 6.1 Common Area Defined. The "Common Area" is the part of the Building designated by Landlord from time to time for the non-exclusive general common use of all tenants and other occupants of the Building, their officers, agents, employees and customers, including (without limitation and.. to the extent applicable to this Building) all parking areas, driveways, sidewalks, landscaping, curbs, loading docks and areas, trash enclosures, private streets and alleys, lighting facilities, hallways, lobbies, malls, plazas, stairways, escalators, elevators, restrooms, janitor's closets, mechanical rooms, and other areas and improvements provided by Landlord for the non-exclusive common use or benefit of all tenants, all of which shall be subject to Landlord's sole management and control and shall be operated and maintained in such manner as Landlord in its reasonable discretion shall determine. 6.2 Right to Change Common Area and Building. Landlord reserves the right at any time and from time to time to change the dimensions and location of the Common Area as well as the location, dimensions, identity and type of the Building and/or of the commercial spaces therein(not including the Premises), and to construct additional buildings or additional stories on existing buildings or other improvements on the property, and to add or eliminate retail space,not including the Premises, in the Building, and to perform substantial renovation work in and to the Building or the mechanical systems serving the Building, which work may include, but need not be 5 limited to, the repair or replacement of the Building's exterior facade, electrical systems, air conditioning, heating and ventilating systems, plumbing systems, common hallways, or lobby. Landlord shall have access to the Premises at all reasonable times, upon reasonable notice, for the purpose of performing such work. Landlord shall incur no liability to Tenant, nor shall Tenant be entitled to any abatement of rent, on account of any noise, dust, vibration, or other disturbance to Tenant's business at the Premises (provided Tenant is not denied access to the Premises) which shall arise out of said access by Landlord or the performance by Landlord of the aforesaid work. Landlord shall use reasonable efforts (which shall not include any obligation to employ labor at overtime rates) to avoid disruption of Tenant's business during any such entry upon the Premises by Landlord. If material disruption is anticipated to occur, Landlord shall, if at all practicable, schedule its construction to occur between the spring dosing of the lifts and the fall reopening of the lifts at the ski area closest to the Building. Tenant's rent shall abate for any period of time that Tenant is not able to open for business at the Premises due to such construction, and a like period of time shall be added to the end of the Term of this Lease. 6.3 Use of Common Area. Tenant and its agents, employees customers, subtenants, licensees and concessionaires shall have the non-exclusive right and license to use the Common Area as constituted from time to time, such use to be in common with Landlord, other tenants of the Building and other persons permitted by Landlord to use the same, and subject to the exclusive control and management of Landlord and such reasonable rules and regulations governing use as Landlord may -from time to time prescribe. Tenant shall not solicit business or display merchandise within the Common Area, or distribute handbills therein, or take any action which would interfere with the rights of other persons to use the Common Area without the prior written consent of Landlord. Landlord may temporarily close any part of the Common Area for such periods of time as may be necessary to make repairs or alterations or to prevent the public from obtaining prescriptive rights. 6.4 Common Area Maintenance Charge. Tenant agrees to pay, as its "Common Area Maintenance Charge" each month, its proportionate share of the costs of operation and maintenance of the Building, including the Common Area which may be incurred by Landlord in its discretion. Such costs include, but are not limited to, the costs incurred for lighting, heating, air conditioning, providing water and sewerage services to, painting, cleaning, policing, insuring, inspecting, landscaping, repairing, replacing, guarding and protecting, and removing snow and ice from (except where a particular tenant is obligated to remove snow and ice as provided in Section 7.4) the Common Area and sidewalks or other public areas adjacent to the Building; the cost of collecting and removing trash and garbage of the tenants of the Building(if performed by Landlord); the cost of utilities supplied to the Building to the extent provided in Section 12.2; the cost of maintenance and repairs made by Landlord pursuant to Section 8.1 or Section 12.1; and the cost of related legal and accounting services. Such costs shall not include any commissions or other leasing charges payable to anyone. The above enumeration of costs shall not create any obligation (expressed or 6 implied) on the part of Landlord to furnish such service. The Common Area Maintenance Charge shall be computed on the ratio of the square feet of gross floor area of the Premises to the gross leasable square footage of the Building.In addition to the above charges, Landlord shall charge a management fee. For each month of the Term, Tenant shall pay the Common Area Maintenance Charge as part of the Monthly Payment. The Initial Common Area Maintenance Charge as specified in Section 1.1 is based upon Tenant's proportionate share of the estimated operation costs for the Common Area for the year in which this Lease is executed.The Common Area Maintenance Charge is subject to increase or decrease relative to that amount as determined by Landlord from time to time to reflect Landlord's updated estimate of Tenant's current proportionate share of such costs. This monthly share shall never be less than the sum specified in Paragraph 1.1(1) of the Lease. The Common Area Maintenance Charge account of Tenant shall be reconciled at the end of each calendar year and at the termination of this Lease in the following manner. If the aggregate Common Area Maintenance Charge payments actually made by Tenant for a calendar year are less than Tenant's share of the cost of operation and maintenance of the Common Area, Tenant shall pay to Landlord as Additional Rental the difference within 30 days of Landlord's request therefor; if the total Common Area Maintenance Charge payments made for a calendar year are more than Tenant's actual pro rata share of the cost of operation and maintenance of the Common Area for that year, Landlord shall retain such overpayment and credit it to Tenant's account, unless such overpayment is calculated at the termination of this Lease, in which case Landlord shall refund to Tenant such overpayment within 60 days after the termination of this Lease. ARTICLE VII. -USE AND CARE OF PREMISES 7.1 Use of Premises and Trade Name. The Leased Premises shall be used and occupied by Tenant for the public offices of the Pitkin County Clerk and Recorder and will specifically be used for the conduct of election activities and voter registration and other voter services and other functions of the Office of Clerk and Recorder. Tenant's use of the Leased Premises shall not violate any applicable laws, ordinances, or regulations of any applicable government authority. 7.2 Prohibited Use. Tenant shall not permit any objectionable or unpleasant odors to emanate from the Premises; nor place or permit any radio, television, loud- speaker or amplifier on the roof or outside the Premises or where the same can be seen or heard from outside the Premises; nor place an antenna, awning or other projection on the exterior of the Premises; nor solicit business or distribute leaflets or other advertising material in the Common Area; nor take any other action which in the exclusive judgment of Landlord would be in bad taste or constitute a nuisance or disturb or endanger other tenants or customers of the Building or unreasonably interfere with their use of their respective premises; nor do anything which would tend to injure the reputation of the Building. Tenant shall not permit dogs, cats, or other animals on the Premises or in the Building. 7.3 Use of Roof. Use of the roof above the Premises is reserved to Landlord. 7.4 Care of Premises, Trash Removal and Deliveries. Tenant shall at its expense keep the Premises in good and clean condition, free from dirt, rubbish, snow, ice, insects and pests at all times, and shall store all trash and garbage within the Premises, arranging for the regular pickup of such trash and garbage at Tenant's expense. if so designated and prescribed by Landlord, Tenant will store all trash and garbage within an area outside of the Premises designated by Landlord for trash pickup and removal, and only in receptacles of the size, design and color from time to time prescribed by Landlord. Landlord may, at its sole option, arrange for collection of all trash and garbage within the Building and, should Landlord exercise such election, Tenant's proportionate share of the reasonable cost thereof will be included as a part of the Common Area Maintenance Charge. Tenant shall not operate an incinerator or burn trash or garbage within the Building. The receiving and delivery of goods and merchandise shall be made only in the manner and areas from time to time prescribed by Landlord. 7.5 Permits and Licenses. Tenant shall procure, at its sole expense, any permits and licenses required for the transaction of its business in the Premises and otherwise comply with all applicable laws, ordinances and governmental regulations and the provisions of applicable Condominium Documents, if any. 7.6 Laws; Rules and Regulations of Building. Tenant shall comply with all laws, ordinances, orders, rules and regulations of any state, federal, municipal and other agencies or bodies having any jurisdiction thereof relating to the use, condition or occupancy of the Premises and Building. Tenant will comply with the reasonable rules and regulations of the Building adopted and altered by Landlord from time to time for the safety, care and cleanliness of the Premises and Building and for preservation of good order therein, all of which will be sent by Landlord to Tenant in writing and shall be thereafter carried out and observed by Tenant, its employees, contractors, agents, invitees and customers. The rules and regulations of the Building in force upon execution of this Lease, if any, are attached hereto as Exhibit A. Landlord shall notify Tenant in writing of any modifications of said rules or adoption of new rules. All such rules and regulations shall be deemed to be incorporated into and form a part of this Lease. Any default in the performance or observance of such rules and regulations shall constitute,an Event of Default hereunder and Landlord shall have all remedies provided for in this Lease for such default by Tenant. Landlord, however, shall not be responsible to Tenant for non-observance by any other tenant or person of such rules and regulations. 8 • 7.7 Toxic Damage. Tenant shall not cause or permit the disposal in the Building or the improper transportation, generation, storage, treatment, or use in the Building of any "solid wastes" or "hazardous wastes" as such terms are defined by the Resource Conservation and Recovery Act, 42 U.S.C. § 6903, § 1004, and 40 C.F.R. Part 261, as amended or superseded; or any "hazardous substances" as that term is defined by Section 101(14) of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601(14), as amended or superseded; or any other flammable, noxious or toxic materials. • ARTICLE VIII. -MAINTENANCE AND REPAIR OF PREMISES 8.1 Landlord's Repair Obligation. Landlord shall keep in good repair the foundation, the structure, and exterior walls (except store fronts, plate glass windows, doors, door closure devices, window and door frames, molding, locks, and hardware, and except painting or other treatment of wall surfaces within or facing the Premises or other leasable space), the utility lines and facilities outside the Premises and other leasable areas, HVAC systems, and common areas, except that Landlord shall not be required to make any repairs occasioned by the negligence of Tenant, its agents, employees, contractors, subtenants, licensees, concessionaires or customers, which repairs shall be made by Tenant. In the event that the Premises should become in need of repairs required to be made by Landlord, Tenant shall give immediate written notice thereof to Landlord,and Landlord shall not be responsible in any way for failure to make any such repairs until a reasonable time shall have elapsed after delivery of such written notice. Landlord's obligation hereunder is limited to repairs specified in this Section 8.1 only, and Landlord shall have no liability for any damage or injury arising out of any condition or occurrence causing a need for such repairs. Landlord shall have access to the Premises as necessary or convenient to make repairs required by this Section. Unless specified herein, Tenant shall be responsible for its percentage of all other repairs and replacements to the building and premises, including but not limited to the roof, sidewalks, curbs and gutter, and landscaping. 8.2 Tenant's Repair Obligation. Tenant shall, at its sole cost and expense, make all needed repairs and replacements to the Premises, including replacement of cracked or broken glass, except for any replacements required to be made by Landlord under the provisions of Section 8.1 and Article XV, and shall keep all plumbing units, pipes and connections within the Premises in good repair and free from obstruction and protected against ice and freezing. Tenant shall furnish, maintain and replace all electric light bulbs, tubes and tube casings within the Premises. If any repairs and replacements required to be made by Tenant hereunder are not made within twenty days after written notice to Tenant, Landlord may, at its option, make such repairs without liability to Tenant for any loss or damage which may result to its stock or business by reason of such repairs, and Tenant shall pay to Landlord as Additional Rental the cost of such repairs plus 10%of said cost to cover Landlord's overhead. 9 8.3 Maintenance of HVSC. Maintenance of HVAC (Heating, Ventilating and Cooling systems). A heating system exists within the building and the Landlord assures it is proper working condition with the Tenant able to control their own spaces. The landlord is intending to install a ventilating and air cooling system that will serve the tenants premises. Maintenance of this system within the Premises shall be Tenant's responsibility throughout the Term. Maintenance of the roof-top components and all utilities that serve them shall be Landlord's responsibility throughout the Term Landlord will insure that heating and swamp cooling are operational upon occupancy. 8.4 Surrender of Premises. At the expiration of this Lease, Tenant shall surrender the Premises in good condition, except for reasonable wear and tear and except for loss by fire or other casualty the repair of which is stated herein to be the Landlord's responsibility, and shall surrender all keys for the Premises to Landlord and shall inform Landlord of all combinations of locks, safes and vaults, if any, in the Premises. All alterations, additions, improvements and fixtures (other than unattached, movable trade fixtures) which may be made or installed by Landlord or Tenant upon the Premises shall remain upon and be surrendered with the Premises and become the property of Landlord at the termination of this Lease, unless Landlord requests the removal of some or all of same, in which event Tenant shall remove the same as requested and restore the Premises to their original condition at Tenant's expense, leaving behind whatever Landlord did not request to have removed. All ceiling or wall mounted lighting (including track lighting) shall be considered an attached fixture and shall remain with the premises. ARTICLE IX.-ALTERATIONS 9.1 Rights with Respect to Alterations. Tenant shall not make any alterations, additions or improvements to the Premises, except for the installation of unattached, movable trade fixtures which may be installed without drilling, cutting, gluing, or otherwise defacing the Premises, without the prior written consent of Landlord, which consent shall not be unreasonably withheld. Landlord will cooperate with tenant to make improvements deemed necessary to premises for intended uses including but not limited to electrical power and lighting, data and phone facilities, security systems, addition or removal of interior demising walls. 9.2 Construction of Alterations. All construction work done by Tenant within or upon the Premises shall be performed in a good and workmanlike manner,in compliance with all governmental requirements and the requirements of contract or deed of trust to which the Landlord may be a party, and in such manner as to cause a minimum of interference with other construction in progress and with the transaction of business in the Building. Tenant agrees to indemnify Landlord and hold it harmless against any loss, liability or damage resulting from such work, and Tenant shall, if requested by Landlord, furnish a bond or other security satisfactory to Landlord against any such loss, liability or damage. 9.3 Mechanic's Liens. Tenant has no authority or power to cause or permit 10 • any lien or encumbrance of any kind whatsoever whether created by act of Tenant, operation of law or otherwise, to be attached to or placed upon Landlord's title or interest in the Premises or the Building. Tenant hereby agrees to indemnify, defend and save Landlord harmless from all claims, liabilities, loss, damage, costs or expenses, including attorneys' fees, and interest incurred on account of any claims of any nature whatsoever, including claims or liens of laborers, materialmen, or others for work actually or allegedly performed for, or materials, equipment or supplies actually or allegedly furnished to, or used by or for, Tenant or persons claiming under Tenant. Should any such lien ("mechanic's lien") be filed or recorded against the Premises or the Building, Tenant covenants and agrees to cause such mechanic's lien to be released or discharged of record within 15 days after Tenant learns of the filing or recording of such mechanic's lien (or such shorter period, after Tenant learns of such recording or filing, as may be required by any mortgage, deed of trust, land or ground lease which may now or hereafter encumber the Building) unless Landlord by written notice shall extend such time. If Tenant shall fail to cause such lien forthwith to be so released or discharged after being notified of the filing thereof, then,in addition to any other right or remedy of Landlord, Landlord may pay the amount claimed to be due without obligation to ascertain its validity, and the amount so paid by Landlord, including reasonable attorneys' fees incurred by Landlord, shall be immediately due and payable by Tenant to Landlord as Additional Rental. Tenant shall promptly notify Landlord of the filing or recording of any such mechanic's lien of which Tenant learns and of any notice of intent to file a mechanic's lien statement which is served upon Tenant. _Landlord shall have the right to post and keep posted on the Premises until any alterations, additions, improvements, or repairs are completed any notices permitted or required by law which Landlord shall deem proper for the protection of Landlord, the Premises, the Building or any party having an interest therein, from mechanic's liens, and Tenant shall assist as requested in maintaining such postings. Tenant shall give written notice to Landlord at least 10 days prior to the commencement of any work relating to alterations or additions to the Premises where the cost of the work shall exceed $1,000.00, and if requested by Landlord shall provide a list of all contractors, subcontractors and suppliers engaged to perform such work, and partial lien waivers relating to the work to be performed as the work is performed. In the performance of all alterations, additions, improvements or repairs conducted by Tenant's contractors or subcontractors, all such contractors and subcontractors shall be required to maintain casualty and liability insurance and workmen's compensation coverage as is reasonably adequate to protect fully Landlord and Tenant. 9.4 Cabling. Tenant shall be required to remove upon the expiration or other termination of this Lease, without further notice from Landlord, any electronic, computer, telecommunications, data and/or any other cabling or wiring and related equipment (all, collectively, "cabling") which is installed by or for the benefit of Tenant and located in the Premises or any other portion of the Building, unless Landlord notifies Tenant in writing prior to such expiration (or, in the event of such earlier termination, as soon as reasonably practicable after such termination) that Landlord elects to have Tenant leave such cabling in the Building. 11 9.5 Satellite Dishes. Without limitation to Tenant's rights under applicable Federal Communication Commission OTARD (i.e., Over-The-Air Reception Devices) regulations, Tenant agrees not to utilize any wireless communications equipment (other than usual and customary cellular telephones), including antennae and/or satellite receiver dishes, within the Premises or the building without Landlord's prior written consent. Such consent may be conditioned in such a mannerso as to protect the interests of the building and the other tenants therein, including without limitation, life safety concerns. Tenant will be allowed to establish a wireless network for exclusive use of County employees within the premises ARTICLE X. -RIGHT OF ACCESS Landlord shall have the right to enter upon the Premises at any reasonable time upon reasonable notice for the purpose of inspecting the same, or of making repairs to the Premises, or of making repairs, alterations or additions to adjacent premises, or of showing the Premises to prospective purchasers, lessees or lenders. Landlord may place "For Rent" signs and the like on or about the Premises during the last three months of the Term. ARTICLE XL-SIGNS, DISPLAYS AND STORE FRONTS 11.1 Store Fronts. Tenant shall not, without Landlord's prior written consent, (a)make any changes to or paint the space front; (b)install any exterior lighting, decorations or paintings; or (c) erect, install or place any signs, window or door lettering, placards, decorations or advertising media of any type on the exterior of the Premises or which can be viewed from the exterior of the Premises, excepting only dignified displays for its display windows acceptable to Landlord. 11.2 Signs. All signs, decorations and advertising media shall conform in all respects to the sign criteria established for the Building by Landlord from time to time in the exercise of its sole discretion, and shall be subject to the prior written approval. of Landlord as to construction, method of attachment, size, shape, height, lighting, color and general appearance. All signs shall be kept in good condition and in proper operating order at all times. Landlord reserves the right to designate a uniform type of sign for.the Building to be installed and paid for by Tenant for the Premises. Tenant agrees to have erected arid/or installed and fully operative on or before ten days after the Commencement Date all signs for the Premises, which shall be in compliance with Landlord's sign criteria as well as applicable governmental sign codes. Tenant, upon vacation of the Premises or removal or alteration of its sign or signs for any reason, shall be responsible for the prompt repair,painting, and/or replacement of the surface where such signs were attached. 11.3. Displays and Advertising. N/A. 12 ARTICLE XII. -UTILITIES 12.1 Landlord's Obligation. Landlord agrees to cause to be provided and maintained the mains, conduits and other facilities necessary to supply water, electricity, telephone, sewerage, and (at Landlord's option) gas service up to the Premises, in such amounts as Landlord may reasonably determine and subject to any special provisions contained elsewhere in this Lease and its Exhibits. Landlord shall also pay the charges for reasonable water, electricity, gas (if used), and sewage(but not telephone) service to the.Premises and any other leasable space in the Building to the extent such utilities are not separately metered for that space. 12.2. Tenant's Obligation.Tenant shall not install any equipment which will exceed the rating or overload the capacity of any utility facilities provided by Landlord, nor shall Tenant be wasteful in its use of any utility service not separately metered to the Premises. If Tenant's Work or any other alterations of the Premises require payment of an additional tap or other utility fee or charge, Tenant shall pay the same when due. Tenant shall promptly pay for its own telephone service. Tenant shall promptly pay for any other utility service to the Premises if it is separately metered for the Premises. All charges for utilities to or within the Building which are not separately metered shall be included within the Common Area Maintenance Charge. If some but not all of the leasable space in the Building is separately metered, Landlord in its sole discretion may apportion the utility charges included in the Common Area Maintenance Charge between Tenant and other tenants so as to reflect a credit to the tenant which pays its own separately metered utilities and an increased charge to the tenant which does not pay for its own utilities. For example, if only the Premises are separately metered, Landlord may specify that Tenant need only pay one-half of the utilities amount included in the Common Area Maintenance Charge that would otherwise be payable by Tenant. Conversely, if only a space other than the Premises is separately metered,Landlord may specify that Tenant must pay more than the utilities amount included in the Common Area Maintenance Charge that would otherwise be payable by Tenant. Landlord may not adjust so as to collect more for utilities than Landlord must pay for utilities, nor will Landlord unreasonably refuse to use an adjustment to which all affected tenants admit they are bound so long as it passes through all utilities charges for which Landlord must pay. Within the limitations of the preceding sentence,however, Landlord's adjustment or decision not to adjust shall not be subject to challenge on any ground. 12.3 Landlord Not Liable. Landlord shall not be liable in any respect for damages to either person or property for any interruption or failure whatsoever in utility services. Nor shall such interruption or failure be construed as an eviction of Tenant, nor work an abatement, reduction or set-off of rent, nor relieve Tenant from fulfillment of any covenant or agreement hereof. Further, Tenant shall neither hold, nor attempt to hold, Landlord liable for any injury or damage, either proximate or remote, caused by the negligence or default of any third party,nor liable for any injury or damage occasioned by defective electrical wiring or the breaking or stoppage of plumbing or sewerage upon the Leased Premises or upon adjacent premises, nor for 13 any damage occasioned by breakage of water or other utility lines or pipes upon the Leased Premises or upon adjacent premises, or from water being upon or coming from the roof or roof vents, nor for any damage arising from any acts or negligence of other tenants or occupants of adjacent premises, or any other persons. ARTICLE XIII. -INDEMNITY AND INSURANCE 13.1 Indemnity. Except to the extent that Landlord was grossly negligent or •guilty of fraud, Landlord shall not be liable to Tenant or to Tenant's successors, assigns, officers, employees, agents, contractors, customers or visitors, or to any other person or entity whomsoever, and Tenant hereby waives and agrees to hold harmless Landlord against all claims against Landlord and/or Landlord's directors, officers, general and limited partners, employees, venturers or agents•for any loss of life or injury to person or damage to or loss of property in or about the Building (a)caused wholly or in part by any act, omission or neglect of Tenant, its officers, agents, employees, contractors, subtenants, licensees or concessionaires, or of any other person entering the Building under the express or implied invitation of Tenant, (b) arising out of the occupancy or use by Tenant of the Premises or any part thereof or any other part of the Building and the conduct of its business therein, (c) arising out of any breach or default by Tenant in the performance of its obligations hereunder. • Neither this nor any other indemnification contained in this Lease is limited by the amount of insurance carried or required to be carried. 13.2 Tenant's Insurance. Tenant agrees to carry public liability insurance on the Premises during the Lease Term or any extension covering the Tenant and naming the Landlord as an additional named insured for limits of not less than Three Million and No/100 Dollars ($3,000,000.00) for bodily injury, including death, and personal injury for any one (1) occurrence, One Million and No/100 Dollars ($1,000,000.00) property damage insurance or a combined single limit of Three Million and No/100 Dollars ($3,000,000.00). Tenant's insurance will include contractual liability coverage recognizing this Lease, products and completed operations liability, workman's compensation including employees liability at not less than statutory limits, and providing that Landlord and Tenant shall be given a minimum of thirty (30) days written notice by the insurance company prior to cancellation,. Tenant also agrees to carry insurance against fire and such other risks as are from time to time required by Landlord, including, but not limited to, a standard "All-Risk" policy of property insurance protecting against all risk of physical loss or damage, including without limitation, sprinkler leakage coverage and plate glass insurance covering all plate glass in the Premises (including store fronts) and terrorism(only if required by Landlord's lender)in amounts not less than the actual replacement cost, covering all of Tenant's merchandise, trade fixtures, furnishing, wall coverings, floor coverings, carpeting, drapes, equipment and all items of personal property of Tenant located on or within the Premises. Tenant shall provide Landlord with certificates or, at Landlord's request, copies of the policies, evidencing that such insurance is in full force and effect and stating the terms thereof. The minimum limits of the comprehensive general liability policy of 14 insurance.shall in no way limit or diminish Tenant's liability under any other provision of this Lease. Tenant will not do or suffer to be done anything which will contravene Landlord's insurance policies or prevent Landlord from procuring such policies in amounts and companies selected by Landlord. If anything done, omitted to be done or suffered to be done by Tenant in, upon or about the Premises shall cause the rates of any insurance effected or carried by Landlord on the Premises or other property to be increased beyond the regular rate from time to time applicable to the Premises for use for the purpose permitted under this Lease, or such other property for the use or uses made thereof, Tenant will pay the amount of such increase promptly upon Landlord's demand and Landlord shall have the right to correct any such condition at Tenant's expense. In the event of any financing or refinancing of the Building as described in Paragraph 22.1 below, Tenant agrees, at the request of Landlord, to add such lender as an additional insured on its policy or policies. 13.3 Additional Requirements Regarding Restaurant Operation and Liquor License. N/A. 13.4 Waiver of Right of Recovery. Landlord and Tenant agree and covenant that neither shall be liable to the other, or to any insurance company (by way of subrogation or otherwise) insuring the other party, for loss arising out of damage to or destruction of the Building or contents thereof or death or injury to any person to the extent that such loss is covered by insurance benefiting the party suffering such loss. This agreement shall be binding whether or not such damage or destruction be caused by negligence of either party or their agents, employees or visitors. However, if by reason of the foregoing waiver, either party shall be unable to obtain or renew any such insurance without additional cost, such waiver shall be deemed not to have been made by such party. 13.5 Tenant to Pay Proportionate Share of Insurance Costs. Tenant agrees to pay as its "Insurance Escrow Payment" each month, its proportionate share of Landlord's monthly cost of carrying public liability, fire and extended coverage, and rental loss insurance on the Building ("Insurance"). Such Insurance may be carried at the discretion of Landlord in such amounts and with such companies as Landlord shall reasonably determine. For each month of the Term, Tenant shall pay its Insurance Escrow Payment as part of the Monthly Payment. The Insurance Escrow Payment shall constitute a monthly escrow deposit with Landlord equal to 1/12th of Landlord's estimate of Tenant's proportionate share of the Insurance which will be due and payable for that year. Tenant authorizes Landlord to use such funds so deposited with Landlord to pay the cost of such Insurance. The Initial Insurance Escrow Payment as defined in Section 1.1 is based upon Tenant's monthly proportionate share of the estimated Insurance for the year in which this Lease is executed. The Insurance Escrow Payment is subject to increase or decrease relative to that amount as reasonably determined by Landlord from time to time to reflect Landlord's updated estimate of Tenant's proportionate share of the Insurance. This monthly share shall never be less than the sum specified in Paragraph 1.1(m) of the Lease. The Insurance 15 Escrow Payment account of Tenant shall be reconciled at the end of each calendar year and at the termination of the Lease, in the following manner. If for a calendar year Tenant's total Insurance Escrow Payments actually paid are less than Tenant's actual pro rata share of the Insurance for that year, Tenant shall pay to Landlord as Additional Rental the difference within 30 days of Landlord's request therefor; if for a calendar year the total Insurance Escrow Payments paid by Tenant are more than Tenant's actual pro rata share of the Insurance, Landlord shall retain such excess and credit it to Tenant's account, or if such excess is calculated upon the termination of the Lease, Landlord shall refund to Tenant such excess within GO days after such termination. Tenant's proportionate share of the cost of Insurance shall be computed by multiplying the cost of Insurance by a fraction, the numerator of which shall be the number of square feet of gross floor area in the Premises and the denominator of which shall be the gross leasable square footage of the Building. ARTICLE XIV. -LIMITED LIABILITY Except to the extent that Landlord was grossly negligent or guilty of fraud, Landlord and Landlord's agents and employees shall not be liable to Tenant or any other person or entity whomsoever for any loss of life or injury to person or damage to property caused by the Premises or other portions of the Building being out of repair or by defect in or failure of equipment, pipes or wiring, or broken glass, or by the backing up of drains, or by gas, water, steam, electricity or oil leaking, escaping or flowing into the Premises, nor shall Landlord be liable to Tenant or any other person or entity whomsoever for any loss or damage that may be occasioned by or through the acts or omissions of other tenants of the Building or of any other persons or entities whomsoever. To the maximum extent permitted by law, Tenant agrees to use and occupy the Premises, and to use such other portions of the Building as Tenant is herein given the right to use, at Tenant's own risk. Tenant shall indemnify, defend and hold Landlord harmless from any loss, cost, expense or claim arising out of such injury or damage referred to in this Article. ARTICLE XV. -DAMAGE BY CASUALTY 15.1 Notice to Landlord. Tenant shall give immediate written notice to Landlord of any damage caused to the Premises or Building by fire or other casualty. 15.2 Landlord's Obligation to Repair and Reconstruct. In the event that the Premises shall be damaged or destroyed by fire or other casualty insurable under standard fire and extended coverage insurance and Landlord does not elect to terminate this Lease as hereinafter provided, Landlord shall proceed with reasonable diligence and at its sole cost and expense to rebuild and repair the Premises. If the Building shall (i)be destroyed or substantially damaged by a casualty or in an amount not fully covered by Landlord's insurance; or (ii)be destroyed or rendered untenantable to an extent in excess of 50% of the primary retail level of the Premises; or (iii)be substantially damaged during the last two years of the Term, then Landlord may elect either to terminate this Lease as hereinafter provided or to proceed to 16 rebuild and repair the Premises. Should Landlord elect to terminate this Lease it shall give written notice of such election to Tenant within 90 days after the occurrence of such casualty. If Landlord should not elect to terminate this Lease, Landlord shall proceed with reasonable diligence and at its sole cost and expense to rebuild and repair the Premises. Landlord's obligation to rebuild and repair under this Article XV shall in any event be limited to restoring Landlord's Work to substantially the condition in which the same existed prior to the casualty. 15.3 Tenant's Obligation to Repair and Reconstruct. Tenant agrees that, promptly after Landlord's completion of Landlord's Work as required in Section 15.2 above, Tenant will proceed with reasonable diligence and at its sole cost and expense to rebuild, repair and restore its signs, fixtures, equipment and the other items of Tenant's Work. 15.4 Operation of Business and Rental. Tenant agrees that during any period of reconstruction or repair of the Premises it will continue the operation of its business within the Premises to the extent reasonably possible. During the period from the occurrence of the casualty until Landlord's repairs are completed, the Minimum Guaranteed Rental shall be reduced to such extent as may be fair and reasonable under the circumstances. However, there shall be no abatement of the other charges or Additional Rental provided for herein. ARTICLE XVI. EMINENT DOMAIN 16.1 Effect of Significant Taking. If more than 20% of the floor area of the Premises should be taken for any public or quasi-public use under any governmental law, ordinance or regulation or by right of eminent domain or by private purchase in lieu thereof, this Lease shall terminate and all payments otherwise due Landlord hereunder during the unexpired portion of this Lease shall be abated, effective on the date physical possession is taken by the condemning authority. 16.2 Effect of Partial Taking. If less than 20%of the floor area of the Premises should be taken as aforesaid, this Lease shall not terminate; however, each component of the Monthly Payment(except as provided hereinafter)and any monthly adjustments thereto during the unexpired portion of this Lease shall be reduced in proportion to the area taken, effective on the date physical possession is taken by the condemning authority. If Landlord, in its sole and absolute discretion, believes that reduction of the Minimum Guaranteed Rental in proportion to the area taken would be unfair, Landlord may, at its expense, obtain appraisals by an MAI appraiser, which appraisals shall not be subject to challenge by Tenant, of (a) the fair rental value of the entire Premises just before the taking and (b) the fair rental value of the portion of the Premises remaining just after the taking, and the Minimum Guaranteed Rental shall be reduced to an amount equal to the Minimum Guaranteed Rental times the fraction of (b) over (a). Following a partial taking, Landlord shall make all necessary repairs or alterations within the scope of Landlord's Work necessary to make the Premises an architectural whole. 17 1 16.3 Effect of Common Area Taking. If any part of the Common Area shall be taken as aforesaid, this Lease shall not terminate, nor shall the rental payable hereunder be reduced, except that either Landlord or Tenant may terminate this Lease if loss of the area of the Common Area taken renders the Premises untenantable. Any election to terminate this Lease in accordance with this provision shall be evidenced by written notice of termination delivered to the other party within 30 days after the date physical possession is taken by the condemning authority. 16.4 Condemnation Award. All compensation awarded for any taking(or the proceeds of private sale in lieu thereof) of the Building or any part thereof(including the Premises or Common Area) shall be the property of Landlord, and Tenant hereby assigns its interest in any such award to Landlord; provided, however, that Landlord shall have no interest in any award made to Tenant for loss of business, for relocation, or for the taking of Tenant's trade fixtures and other personal property if a separate award for such items is made to Tenant. ARTICLE XVII. -ASSIGNMENT AND SUBLETTING 17.1 Landlord's Reasonable Consent Required and Continuing Liability of Tenant. Tenant shall not assign or in any manner transfer this Lease or any estate or interest therein, or sublet the Premises or any part thereof, or grant any license, concession or other right to occupy any portion of the Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld (as defined below). 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 change in control in a partnership, directly or through a change or changes in the control (as defined in Section 17.3) of one or more corporate general partners; or (v) 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. If Tenant requests Landlord to consent to a proposed assignment or subletting, Tenant shall pay to Landlord, as Additional Rental, the sum of $1,000.00 to cover Landlord's administrative costs and counsel fees, plus all out-of-pocket expenses incurred by Landlord, in connection with such request, whether or not consent is ultimately given. Any attempted assignment or subletting by Tenant in violation of the terms and covenants of this Section shall be 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 rental herein specified and for compliance with all of Tenant's other obligations under this Lease. 18 The above language to the effect that Landlord's consent "shall not be unreasonably withheld" shall be deemed to require Landlord's consent when the following conditions are met: (a) Tenant shall not be in default under any of the terms or provisions of the Lease. (b) The assignee or sublessee shall agree to faithfully perform and to be bound by all of the terms and provisions of the Lease, such agreement to be in a form reasonably satisfactory to Landlord. (c) If the proposed assignee or sublessee, or any general partner thereof or venturer therein, is a corporation (other than a corporation the outstanding voting stock of which is listed on a "national securities exchange" as defined in the Securities Exchange Act of 1934), the owners of a majority of the issued and outstanding shares of stock in that corporation personally and unconditionally guarantee the performance of all Lease obligations, such guaranty to be in a form reasonably satisfactory to Landlord. (d) The proposed assignee or sublessee and all required guarantors shall submit financial statements prepared by C.P.A.'s which establish to Landlord's reasonable satisfaction their financial ability to perform Tenant's Lease obligations and otherwise to succeed in their proposed business. (e) The proposed assignee or sublessee shall reasonably satisfy Landlord(i) that it is a high quality retailer which will be compatible and not competitive with other tenants in the Building,(ii)that it has adequate prior experience in the type of business proposed for the Premises, and (iii) that a good reputation and credit standing were established in connection with such prior experience. TENANT ACKNOWLEDGES THAT THIS SECTION 17.1 WAS FREELY NEGOTIATED AND IS REASONABLE IN ALL OF THE CIRCUMSTANCES OF THIS LEASE. 17.2 Rental Increase and Right of First Refusal. In the event of any assignment of this Lease or sublease of the Premises, the Minimum Guaranteed Rental shall be automatically adjusted upwards as necessary to reflect the current market level of minimum guaranteed rental, but in no event shall the Minimum Guaranteed Rental hereunder be decreased. The market level shall be as determined by Landlord in its sole discretion based on recent actual leases of comparable space by Landlord and other market indicators of which Landlord is aware. Landlord's determination of such market level shall not be subject to challenge by Tenant unless made in bad faith. • Within ten days after Tenant has provided Landlord with such information about a proposed assignment or subletting as Landlord may reasonably request, and upon 19 1 Tenant's request therefor, Landlord shall provide Tenant with Landlord's determination of the current market level of minimum guaranteed rental, if higher than the actual Minimum Guaranteed Rental hereunder. Such determination shall not be subject to change for 60 days after being communicated to Tenant. In addition to the foregoing rental increase, Landlord shall have a right of first refusal with respect to any proposed assignment or subletting by Tenant, which right must be exercised within ten days after Tenant has provided Landlord with full details of the proposed assignment or subletting. If Landlord in fact exercises such rights of first refusal, Tenant shall be released from any further obligations under the Lease. 17.3 Transfer of Corporate Shares. If Tenant, or a general partner of Tenant if Tenant is a partnership, or a joint venturer of Tenant if Tenant is a joint venture, is a corporation (other than a corporation the outstanding voting stock of which is listed • on a "national securities exchange," as defined in the Securities Exchange Act of 1934) and if at any time after execution of this Lease there shall be a change in the control. (as defined below) of such corporation, Tenant shall give Landlord notice of such event within 15 days from the date of such change. In such event and whether or not Tenant has given such notice, Landlord may elect to terminate this Lease at any time thereafter by giving Tenant notice of such election, in which event this Lease and the rights and obligations of the parties hereunder shall cease as of a date set forth in such notice. In the event of any such termination, all obligations of Tenant hereunder shall be adjusted as of the date of such termination. For purposes of Section 17.1 and this Section 17.3, the term "control" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a corporation, whether through the ownership of voting securities, by contract, or otherwise. 17.4 Effect of Transfer by Landlord. In the event of the transfer and assignment by Landlord of its interest in this Lease and in the Premises to a person expressly assuming Landlord's obligations under this Lease, Landlord shall thereby be released from any further obligations hereunder, and Tenant agrees to look solely to such successor in interest of the Landlord for performance of such obligations. The Security Deposit and any other security given by Tenant to secure performance of Tenant's obligations hereunder may be assigned and transferred by Landlord to such successor in interest, and Landlord shall thereby be discharged of any further obligation relating thereto. ARTICLE XVIII. -DEFAULT BY TENANT AND LANDLORD'S REMEDIES 19.1 Event of Default Defined. Any one or more of the following events shall constitute an"Event of Default"by Tenant under this Lease: A. Tenant shall fail to pay when due (and within any statutory notice period) any installment of the Monthly Payment, Percentage Rental or Additional 20 Rental payable hereunder, or any other payment or expense demanded by Landlord as herein provided. B. Tenant shall fail to comply with any term, provision, condition, representation or covenant of this Lease, other than the payment of monies due hereunder or expenses demanded by Landlord, and shall not cure such failure within 20 days after written notice thereof to tenant or such longer period (up to but in no event greater than 90 days total) as may be reasonably necessary to effect a cure, provided that Tenant has promptly commenced and is diligently prosecuting same with reasonable prospects of success (provided that no cure period shall be allowed for a default which by its nature is incapable of being cured after the fact). C. Filing by or against the Tenant or any guarantor of Tenant's obligations under this Lease, in any court pursuant to any statute 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 the Tenant's or guarantor's property, if within 60 days after the commencement of any such proceeding involving the Tenant or guarantor such petition shall not have been dismissed. D. After having opened the Premises to the public, Tenant shall desert, vacate or not open for business any substantial portion of the Premises, when Tenant is required to be open for business, for a total of more than twenty days in any one twelve-month period, or Tenant shall inform Landlord that it intends to abandon the Premises. E. Tenant's removal or attempt to remove from the Premises of any inventory, equipment, fixtures or improvements other than in the ordinary course of business. F. Tenant shall do or permit to be done anything which creates a lien upon the Premises or the Building and shall fail (in the case of a mechanic's lien) to obtain the release or discharge of same within the time provided for in Section 9.3 of this Lease. G. The business operated by Tenant shall be closed for failure to pay any State sales tax as required or for any other reason. H. 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 or party except in the manner herein provided. I. The interest of Tenant in this Lease, the Premises or any part of the Premises shall be levied on or under execution or by other process of law directed against Tenant, or shall be taken upon or subject to any attachment at the instance of any creditor or claimant against Tenant and said attachment shall not be discharged or disposed of within 15 days after the levy thereof. 21 • J. If Tenant shall be a corporation and Tenant shall cease to exist as a corporation in good standing in the state of its incorporation or if Tenant be a partnership or other entity and Tenant shall be dissolved or otherwise liquidated (unless such dissolution or liquidation is for purposes of dropping or adding a partner or partners, the partnership so dissolved or liquidated is immediately reconstituted, and the net worth of the reconstituted partnership is not materially less than the net worth of the partnership when dissolved or liquidated). K. The admission to Landlord in writing by Tenant or any guarantor of Tenant's obligations hereunder of its inability to pay its debts when due. L. Any material representation of Tenant shall prove to have been false. M. Any other act or omission identified as an Event of Default elsewhere in this Lease. Any cure period provided by statute shall be deemed to run concurrently(rather than sequentially)with any cure period provided for herein. 19.2 Remedies. Upon the occurrence of any such Event of Default, all of Tenant's rights to possession of the Premises shall automatically terminate, and Landlord shall have the option to pursue any one 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. Upon the termination of Tenant's possessory rights,Tenant shall immediately and peacefully surrender the Premises to the Landlord, and if Tenant fails to do so,Landlord,without prejudice to any other remedy which Landlord may have for possession, damages, or arrearages in rental, may enter upon and take possession of the Premises through legal process or, if no individual person is then actually on or about the Premises and breach of the peace can be avoided,without use of legal process. Thereafter Landlord may have, hold and enjoy the Premises and the right to receive all rental income therefrom, and may alter all locks and other security devices at the Premises. B. At any time after such termination of Tenant's possessory rights, the Landlord may relet the Leased Premises or any part thereof, in the name of the 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 the Landlord,in Landlord's absolute discretion, may determine, and may collect and receive the rents therefor. • 19.3 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 22 and obligations shall survive any such termination. In the event of any such termination of Tenant's possessory rights,Tenant shall immediately pay to the Landlord the sum of all Monthly Payments, Percentage Rental, and Additional Rental and other indebtedness accrued to date of such repossession, and thereafter Tenant shall pay to the Landlord all Monthly Payments and any Additional Rental required to be paid by Tenant to Landlord during the remainder of the Term until the date of expiration of the Term, diminished by any net sums thereafter received by Landlord through reletting the Premises during said period(after deducting expenses incurred by Landlord as provided in Section 19.8 hereof). In no event shall Tenant be entitled to any excess of any rental obtained by reletting over and above the rental herein reserved. Actions to collect amounts due by Tenant to Landlord as provided in this Section 19.3 may be brought from time to time, on one or more occasions,without the necessity of Landlord's waiting until the expiration of the Term. 19.4 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. Upon such Lease termination, or in the event a court shall otherwise construe this Lease as terminated following Tenant's loss of its possessory rights hereunder, Landlord shall have and exercise all rights of ownership of the Premises, and Tenant shall pay to the Landlord in one lump sum the sum of all Monthly Payments, Percentage Rental, and Additional Rental and other indebtedness to Landlord accrued to date of such termination, plus, as and for liquidated damages for Tenant's default, an amount equal to the present value of the total Monthly Payments and Percentage Rental (as calculated pursuant to Sections 7.1 and 19.12 hereof), which would have become due during the remainder of the Term but for termination of this Lease, less the amount of rental loss for the same period that Tenant proves could have been avoided through the exercise of such mitigation efforts as are legally required of Landlord. If such sum is not paid to Landlord on the termination date, said sum shall bear interest at the Default Rate until paid. For purposes of this section, "present value" shall be computed by discounting the amount in question to present worth at a discount rate equal to one percentage point above the discount rate then in effect at Chase Manhattan Bank or any successor thereto. 19.5 Subleasing by Landlord Without Terminating Lease: In the further alternative, at any time following the termination of Tenant's possessory rights, Landlord may elect to sublet all or portions of the Premises without terminating this Lease, in which case Landlord and Tenant shall have all of the rights and obligations set forth in Sections 19.2 and 19.3 above as may be properly applicable to such a subletting. 19.6 Not a Surrender. Exercise by Landlord of any one or more remedies herein granted or otherwise available shall not be deemed to be an acceptance of surrender of the Premises by Tenant, whether by agreement or by operation of law, it being understood that such surrender can be effected only by the written agreement of Landlord and Tenant. No alteration of locks or other security devices and no removal or other exercise of dominion by Landlord over the property of Tenant or 23 others at the Premises shall be deemed unauthorized or constitute a conversion or a Lease termination. Tenant hereby consents, after any Event of Default, to the aforesaid exercise of dominion over Tenant's property within the Premises. All claims for damages by reason of such re-entry and/or repossession and/or alteration of locks or other security devices are hereby waived, as are all claims for damages by.reason of any distress warrant, forcible detainer proceedings, sequestration proceedings or other legal process. 19.7 Property Left on Premises. Any property of Tenant, or of anyone claiming under,by, or through Tenant, which is left on the Premises more than fifteen days after expiration of the Term or termination of possessory rights 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. 19.8 Additional Costs of Default. 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 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 Premises into condition acceptable to a new tenant or tenants; all reasonable expenses incurred by Landlord in enforcing or defending Landlord's rights and/or remedies, including reasonable attorneys'fees; and a sum equal to $150 for each hour that any principal of Landlord, and $50 for each hour that any other employee of Landlord, spends in connection with obtaining the right to relet, rendering suitable for reletting, and attempting to relet the Premises or any part thereof. 19.9 No Duty to Relet. In the event of termination of possessory rights or repossession of the Premises for an Event of Default, Landlord shall not have any greater obligation to relet or attempt to relet the Premises, or any portion thereof, or to collect rental on the 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 Premises for any period, to any tenant, and for any use and purpose. 19.10 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 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 action or proceedings, and paying, purchasing, contesting, or compromising any claim, right, encumbrance, charge or lien 24 with.respect to the Premises or the Building. 19.11 Security Deposit. Upon Tenant's signing of this Lease, Tenant shall deliver to Landlord the Security Deposit, to be held by Landlord without interest as security for the performance by Tenant of Tenant's covenants and obligations under this Lease, it being expressly understood that such deposit is not an advance payment of rental or a measure of Landlord's damages in case of default by Tenant. If at any time during the Term any of the rental herein reserved shall be overdue and unpaid, or any other sum payable by Tenant to Landlord hereunder shall be overdue and unpaid, then Landlord may at the option of Landlord (but Landlord shall not be required to) appropriate and apply any portion of the Security Deposit to the payment of any such overdue rental or other sum. In the event of the failure of Tenant to keep and perform any of the terms, covenants and conditions of this Lease to be kept and performed by Tenant, then Landlord at its option may appropriate and apply the Security Deposit, or so much thereof as may be necessary, to compensate Landlord for loss or damage sustained or suffered by Landlord due to such breach on the part of Tenant. Should the Security Deposit or any portion thereof be appropriated and applied by Landlord for the payment of overdue rental or other sums due and payable to Landlord by Tenant hereunder, or for a breach on the part of Tenant, the Tenant shall, within five days after the written demand of Landlord, forthwith remit to Landlord a sufficient amount in cash to restore the Security Deposit to the original sum deposited. Landlord shall have the right to commingle the Security Deposit with other funds of Landlord. Should Tenant comply with all of the terms, covenants and conditions of this Lease and promptly pay all of the rental herein provided for as it falls due, and all other sums payable by Tenant to Landlord hereunder, the Security Deposit shall be returned in full to Tenant within 60 days of the end of the Term or of the earlier termination of this Lease. 19.12 Calculation of Percentage Rental Damages. N/A. 19.13 Landlord's Right to Use Furniture, Fixtures and Equipment. In the event that Landlord shall have taken possession of the 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 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 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 the County in which the Premises are located, 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. Landlord shall also have the right to relinquish possession of all or any portion of such furniture, fixtures, equipment and other property to any person ("Claimant") claiming to be entitled to 25 possession thereof who presents to Landlord a copy of any instruments represented to Landlord by Claimant to have been executed by Tenant (or any predecessor of Tenant) granting Claimant the right under various circumstances to take possession of such furniture, fixtures, equipment or other property, without the necessity on the part of Landlord to inquire into the authenticity of said instrument's copy of Tenant's or Tenant's predecessor's signature thereon and without the necessity of Landlord's making any nature of investigation or inquiry as to the validity of the factual or legal basis upon which Claimant purports to act; and Tenant agrees to indemnify and hold Landlord harmless from all cost, expense, loss, damage and liability incident to Landlord's relinquishment of possession of all or any portion of such furniture, fixtures, equipment or other property to Claimant. The rights of Landlord herein stated shall be in addition to any and all other rights which are created elsewhere in this Lease or which Landlord has or may hereafter have at law or in equity; and Tenant stipulates and agrees that the rights herein granted Landlord are commercially reasonable. 19.14 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 first 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 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 be removed from the 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 provisions of this Section shall constitute a security agreement under the Uniform Commercial Code. This lien and security interest is given in addition to any statutory lien to which 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 ten days 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 Statement. ARTICLE XIX. -DEFAULT BY LANDLORD AND TENANT'S REMEDIES 20.1 Tenant's Remedies. In the event of any default by Landlord, Tenant's 26 exclusive remedy shall be an action for damages, but prior to any such action Tenant will give Landlord written notice specifying such default with particularity, and Landlord shall thereupon have 20 days (or such longer period as may be necessary in the circumstances) in which to cure any such default. Unless and until Landlord fails so to cure any default under such notice,Tenant shall not have any remedy or cause of action by reason thereof. All obligations of Landlord hereunder will be construed as covenants, not conditions; and all such obligations will be binding upon Landlord only during the period of its ownership of the Building and not thereafter. 20.2 Limitation on Right of Recovery Against Landlord. Tenant acknowledges and agrees that the liability of Landlord under this Lease shall be limited to its interest in the Building and any judgments rendered against Landlord shall be satisfied solely out of the proceeds of sale of its interest in the Building. No personal judgment shall lie against Landlord upon extinguishment of its rights in the Building and any judgment so rendered shall not give rise to any right of execution or levy against Landlord's assets. The provisions hereof shall inure to Landlord's successors and assigns including any Mortgagee. The foregoing provisions are not intended to relieve Landlord from the performance of any of Landlord's obligations under this Lease, but only to limit the personal liability of Landlord in case of recovery of a judgment against Landlord. ARTICLE XX. -HOLDING OVER In the event Tenant remains in possession of the Premises after the expiration of this Lease and without the execution of a new lease, it shall be deemed to be occupying the Premises as a tenant from month to month at a monthly rental equal to twice the sum of (a) the Monthly Payment payable during the last month of the Term and (b)the average Percentage Rental payable hereunder for the last two years of the Term, and otherwise subject to all the conditions, provisions and obligations of this Lease insofar as the same are applicable to a month to month tenancy. In the event of any such holding over, Tenant shall indemnify Landlord against all claims for damages by any other lessee to whom Landlord may have leased all or any part of the Premises effective upon the expiration or termination of this Lease or by any other person damaged by such holding over. ARTICLE XXI.- SUBORDINATION,ATTORNMENT AND CONDOMINIUMIZATION 22.1 Subordination. This Lease shall be secondary, junior and Inferior at all times to the lien of any mortgage and to the lien of any deed of trust or other method of financing or refinancing (hereinafter collectively referred to as "mortgage") now or hereafter existing against all or a part of the Premises or the Building, and to all renewals, modifications, replacements, consolidations and extensions thereof, and Tenant shall execute and deliver all documents requested by any mortgagee or security holder to effect such subordination. If Tenant fails to execute and deliver any such document requested by a mortgagee or security holder 27 • to effect such subordination, Landlord is hereby authorized to execute such documents and take such other steps as are necessary to effect such subordination on behalf of Tenant as Tenant's duly authorized irrevocable agent and attorney-in- fact. In connection with any assignment of rents and leases given by landlord in the course of any financing or refinancing of the Building, Tenant understands and agrees that such assignment will include any letter of credit or other credit support • given by Tenant or any guarantor to secure Tenant's or grantor's performance or to enhance Tenant's credit, and Tenant agrees to execute and deliver any agreements reasonably required by the lender to effectuate and carry out such assignment. Tenant's failure or refusal to execute and deliver any agreements, instruments or certificates provided for this Section 22.1 or 22.2 below within ten(10) days after the mailing by Landlord of a written request shall be a default of this Lease. 22.2 Attornment. Tenant shall, in the event of a sale or assignment of Landlord's interest in the Premises or the Building, or if the Premises or the Building comes into the hands of a mortgagee or any other successor whether because of a mortgage foreclosure, exercise of a power of sale under a mortgage, or otherwise, attorn to the purchaser or such mortgagee or other successor and recognize the same as landlord hereunder. Tenant shall execute, at landlord's request, any attornment agreement required by any mortgagee or other such successor to be executed, containing such provisions as such mortgagee or other successor requires. Such successor shall not be (i) liable for any previous act or mission of Landlord under this Lease, (ii) subject to any offset that theretofore accrued to Tenant against Landlord or(iii)bound by any previous prepayment of rent or security deposit which have not been expressly delivered by Landlord to such successor. If so requested, Tenant shall enter into a new lease with that successor on the same terms and conditions as are contained in this Lease (for the unexpired term of this Lease then remaining). 22.3 Non-Disturbance. Notwithstanding any other provision of this Paragraph 22.3 and so long as Tenant is not in default, Tenant's possession of the Premises and Tenant's rights and privileges under the Lease or any extensions or renewals thereof will not be disturbed, diminished or interfered with by Landlord or by anyone claiming an interest in the Property by, through or under Landlord and Landlord will make all reasonable efforts (but without the expenditure of any monies other than attorney fees) to secure for Tenant a subordination and non-disturbance agreement among Landlord, Tenant and the mortgagee providing for Tenant's rights as aforesaid, in form and substance reasonably acceptable to Tenant. 22.4 Condominiun'ization. Landlord reserves the right,without the consent of Tenant and at no expense to Tenant, to execute and record declarations, restrictive covenants, maps or other documents for the purpose of subdividing the subject property into condominium units and common elements, provided that if any portion of the Premises shall be included in a condominium unit, Landlord's right as declarant and owner thereof shall be subject and subordinate to the possessory and other rights of Tenant to the Premises under this Lease. 28 ARTICLE XXII. -NOTICES 23.1 Giving of Notice. Wherever any notice is required or permitted hereunder such notice shall be in writing. Any notice, document or payment required or permitted to be delivered hereunder shall be deemed to be given when personally delivered or, whether or not actually received, (a) on the business day after the day sent by generally recognized overnight delivery service to the Tenant's Mailing Address if to Tenant or to Landlord's Address if to Landlord, or (b) three days after being deposited in the United States mail, postage prepaid, Certified or Registered Mail, Return Receipt Requested, addressed to Tenant's Mailing Address if to Tenant, or to Landlord's Address if to Landlord, or at such other address as Landlord or Tenant may have hereafter specified by written notice to the other. Electronic delivery of notices shall also be deemed sufficient and considered delivered upon receipt of confirmation of delivery on the part of the sender. ,Notices shall be sent as follows unless amended in writing: For Landlord: Sherrna404 Born?e Commes'c ial c/a gr;k Bark Igoo d± . -fie 0, CaoH-oia,cA Rsoro 03L t.Y-5o3q__ Sri kBesbacomcorn With Copy to John Case _l? c �F2o3 1 Ash CO 8I b 12- _6Iz_9?b_ �i 3q� _ ahn hocthiocase @e mai 1,CDn7 For Tenant: Janice Vos 530 East Main St.,Aspen,Co 81611 ,970 920 5180 Janice.vos@pitkincounty.com With Copy to John Ely,County Attorney 530 East Main St.,Aspen,Co 81611 970 920 5190 John.ely@pitkincounty.com 23.2 Effect of Notice. If and when included within the term "Landlord" as used in this instrument there is more than one person, firm or corporation, all shall jointly arrange among themselves for their joint execution of such notice specifying some individual at some specific address for the receipt of notices and payments to Landlord. -If and when included within the term 'Tenant" as used in this instrument there is more than one person, firm or corporation, all shall jointly arrange among themselves for their joint execution of such a notice specifying some individual at some specific address for the receipt of notice and payments to Tenant All parties included within the terms "Landlord" and "Tenant", respectively, shall be bound by notices and payments given in accordance with the provisions of this Article to the same effect as if each had received such notice or payment. 29 - 1 ARTICLE XXIII.- ESTOPPEL STATEMENTS Each party agrees to execute, acknowledge and deliver to the other party at any time within five days of the other party's request, a writing ratifying this Lease and certifying: (a)that Tenant has entered into occupancy of the Premises and the date of such entry if such is the case; (b)that this Lease is in full force and effect, and has not been assigned, modified, supplemented or amended in any way (or if there has been any assignment, modification, supplement or amendment, identifying the same); (c)that this Lease represents the entire agreement between Landlord and Tenant as to the subject matter hereof (or if there has been any assignment, modification, supplement or amendment, identifying the same); (d)the date of commencement and expiration of the Term; (e)that all conditions under this Lease to be performed by the other party have been satisfied and all required contributions by Landlord to Tenant on account of Tenant's improvements have been received (and if not, what conditions remain unperformed);(f) that to the knowledge of the signer of such writing no default exists in the performance or observance of any covenant or condition in the Leaseand there are no defenses or offsets against the enforcement of this Lease by the other • party (or specifying such default, defense or offset of which the signer may have knowledge); (g) that, except for the Security Deposit and one month's rental, no rental has been paid in advance and no other security has been deposited with Landlord; and (h) the date to which rental has been paid under this Lease. ARTICLE XXV. -DIRECTION OF TENANT'S ENERGIES N/A. ARTICLE XXVI. -MISCELLANEOUS 26.1 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. 26.2 Captions. The captions used herein are for convenience only and do not limit or amplify the provisions hereof. 26.3 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 30 unnecessary consent to or approval of any subsequent similar act. 26.4 Notice to Mortgagee of Landlord's Default. At any time when there is - outstanding a mortgage, deed of trust or similar security instrument covering Landlord's interest in the Premises, Tenant may not exercise any remedies for default • by Landlord hereunder unless and until the holder of the indebtedness secured by such mortgage, deed of trust or similar security instrument shall have received written notice of such default and a reasonable time for curing such default shall thereafter have elapsed. 26.5 Quiet Enjoyment. Landlord agrees that if Tenant shall perform all of the covenants and agreements herein required to be performed by Tenant, Tenant shall, subject to the terms of this Lease and of any applicable-Condominium Documents, at all times during the continuance of this Lease, have the peaceable and quiet enjoyment and possession of the Premises. 26.6 Entire Agreement and Execution. This Lease contains the entire agreement between the parties and replaces and supersedes any prior agreements or letters of intent between the parties. 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. 26.7 Broker. Tenant warrants that it has had no dealing with any broker or agent in connection with the negotiation or execution of this Lease other than the Broker(s), if any, identified in Section 1.1(p). In the event any agent or broker other than the Broker(s) so identified shall make a claim for a commission or fee, Tenant shall be responsible for payment thereof and hereby indemnifies and holds Landlord harmless from such claim for commission or fees. 26.8 Governing Law; 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 Pitkin County District Court in Aspen, Colorado shall have subject matter jurisdiction to entertain any action brought to enforce this Lease and, by execution hereof, voluntarily submits to the personal jurisdiction of such courts. 26.9 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 and legal representatives except as otherwise herein expressly provided. 26.10 Attorney's Fees. In the event of any action or proceeding brought by 31 Landlord or Tenant against the other under this Lease, the substantially prevailing party shall be entitled to recover all reasonable costs and expenses, including the fees and expenses of its attorneys, with a maximum amount of fees to be no more than $50,000.00. 26.11 Invalid Provisions. If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective during the Term, 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 substituted a legal, valid and enforceable clause or provision as similar to such illegal,invalid or unenforceable clause or provision as may be possible. 26.12 Authority 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 requisite action of Tenant's board of directors, or partners, as the case may be, and agree upon request 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. 26.13 Corporate Tenants. If Tenant is a corporation, the persons executing this Lease on behalf of Tenant hereby covenant and warrant that Tenant is a duly constituted corporation qualified to do business in the state in which the Premises are located; all Tenant's franchise and corporate 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. 26.14 Tenant's Financials. If requested by Landlord, Tenant, upon the execution of this Lease, shall have provided to Landlord a copy of Tenant's financial statements (including but not limited to its balance sheet, income statement and all notes and footnotes thereto) for its three immediately preceding fiscal years. Such statements shall be audited, if available; otherwise they shall be certified as true, correct and complete by the Tenant's authorized officer or partner. Tenant acknowledges that Landlord will have relied on such financial statements in entering into this Lease. 26.15 Joint and Several Liability. If two or more individuals, corporations, partnerships or other business associations (or any combination of two or more thereof) shall sign this Lease as Tenant, the liability of each such individual, corporation, partnership 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 any one of such individuals, corporations, partnerships 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 32 statute 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 Statutes, 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. 26.16 No Liens or Encumbrances. Tenant agrees not to obtain any financing secured by Tenant's interests in the Premises and not to encumber the Premises or Tenant's interest therein without the prior written consent of Landlord,which consent may be withheld in Landlord's sole discretion, and to keep the Premises free from all liens and encumbrances except liens and encumbrances created by Landlord. 26.17 Waiver of Jury Trial. Landlord and Tenant hereby mutually waive any and all rights which either party may have to request a jury trial in any proceeding at law or in equity in any court of competent jurisdiction relating to this Lease. 26.18 No Recordation. Without the prior consent of Landlord, which consent may be withheld in Landlord's sole discretion, Tenant shall not record this Lease or any evidence of this Lease. 26.19 Compliance with ADA. Tenant accepts the Premises as is, and Tenant shall be responsible to: • (a) comply with allprovisions and requirements of the Americans With Disabilities Act (Title 1I1) with regard to the non-structural elements in Tenant's own premises; (b) indemnify Landlord from any and all costs of any kind incurred by Landlord due to the Tenant's failure to comply with the above. 26.20 OFAC Representation. Tenant represents and warrants to Landlord that neither Tenant nor any of its affiliates, nor any of their respective partners, members, shareholders or other equity owners, and none of their respective employees, officers, directors, representatives or agents, is a person or entity with whom U.S. person or entities are restricted form doing business under regulations of the Office of Foreign Assets Control ("OFAC") of the United States Department of the Treasury (including those named on OFAC's Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other_governmental action. 26.21 Personal Guaranty. N/A (intentionally omitted) 26.22 Time of the Essence. Time is of the essence with respect to the 33 performance of every provision of this Lease in which time of performance is a factor. 26.23 No Offer. The submission of this Lease by Landlord to Tenant shall not constitute an offer on the part of Landlord to lease the Premises to Tenant or prevent Landlord from showing or negotiating with other interested parties and nothing herein shall be binding on the parties unless and until signed by both Landlord and Tenant. IN WITNESS WHEREOF, the parties hereto have executed this Lease Agreement as of the day and year first above written. LANDLORD:The James E. Cox Living Trust. 1 By: +. �Lr Prin •d N.me:___ in251.1 Title. ` {S TENANT: Pitkin County Printed N Title: f�v /f'>ka..-rr�' . 34 :, ,O TRACT# -9-01" STANDARD OFFICE LEASE THIS STANDARD LEASE agreement("Lease")is made as of the oY/ day of_0 X2015 by and between the James E. Cox Living Trust("Landlord"), and Pitkin County Board of County Commissioners , ("Tenant"). WITNESSETH: THAT FOR AND IN CONSIDERATION of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: ARTICLE I. -DEFINITIONS AND ATTACHMENTS 1,1 Certain Defined Terms. As used herein, the term: (a) "Landlord's Address" means c/o Frias Properties of Aspen, 730 E. Durant, Aspen, CO, 81611, or such other address as may be designated in writing by Landlord from time to time. (b) "Tenant's Mailing Address" means 530 East Main Street, Aspen, CO 81611 or such other address as may be designated in writing by Tenant from time to time. (c) "Tenant's Building Address" means 501 East Hyman Avenue, Suite 106. (d) "Tenant's Trade Name" means Pitkin County Clerk & Recorder. (e) "Building" means the Ute City Building, Aspen, County of Pitkin, State of Colorado, containing approximately 14,092 gross leasable square feet, subject to additions, deletions and other changes thereto that Landlord may from time to time designate as included within or excluded from the Building. Unless a contrary intent is express or evident from the context, "Building" includes the land owned upon which is located the Building, together with all other improvements on that land. (f) "Premises" means Space 106 in the Building, containing approximately 1,047 square feet of gross leasable area. Gross leasable area is measured from the outside of exterior walls and the middle of interior demising walls. Notwithstanding the estimate of square footage of the Premises, the rent reserved hereunder is not based upon a dollar amount per square foot, but is a gross amount for the entire space. (g) "Term" means that period of time commencing at noon on the Commencement Date (as hereinafter defined) and ending at noon twenty-four(24) months thereafter, except that, in the event the Commencement Date is a date other than the first day of a calendar month, the Term shall be for said number of months plus the remainder of the calendar month following the Commencement Date. (h) "Commencement Date" shall be October 1, 2015. (i) "Permitted Use" means Business office for the Pitkin County Clerk& Recorder,including the Elections Department. (j) "Minimum Guaranteed Rental" means, $ 5,235.00 per month. Commencing on October 1, 2016 , and annually thereafter during the Term of this Lease and any option periods, the Minimum Guaranteed Rental shall be adjusted upward at the annual rate of 4 %. (k) N/A. (1) "Initial Common Area Maintenance Charge" means $ 1,051.00 _per month. The monthly "Common Area Maintenance Charge" shall be adjusted annually pursuant to the terms of the Lease. (m) "Initial Insurance Escrow Payment" means $ 178.00 per month. The monthly "Insurance Escrow Payment" shall be adjusted annually pursuant to the terms of the Lease. (n) "Security Deposit" means the sum of $ 15;200.00 . (o) "Broker(s)" (if any) means Setterfield &Bright . (p) N/A. • • 2 1.2 Additional Defined Terms. The following additional terms are defined in the Sections of this Lease noted below: "Additional Rental" § 4.4 "Claimant" §19.10 "Common Area" § 6.1 "Common Area Maintenance Charge" § 6.4 "Default Rate" § 4.5 "Event of Default" §19.1 "Gross Sales" N/A "Insurance" §13.2 "Insurance Escrow Payment" §13.5 • "Monthly Payment" § 4.1 "Percentage Rate" § 1.1(J) "Ready for Occupancy" § 3.1 "Taxes" §18.1 "Tax Escrow Payment" §18.2 1.3 Attachments. The following documents, if checked, are attached hereto, and such documents, as well as all drawings and documents prepared pursuant hereto, shall be deemed a part hereof: [ ] Exhibit A-- Rules and Regulations of the Building. [____] Exhibit B - Personal Guaranty [ ] Other [specify] : ARTICLE IL - GRANTING CLAUSE For and in consideration of the obligation of Tenant to pay rent and other charges as herein provided and in consideration of the other terms, covenants and conditions hereof, Landlord hereby leases to Tenant, and Tenant hereby rents from Landlord the Premises together with a non-exclusive license, subject to the provisions hereof, to use all appurtenances thereunto and any other areas designated by Landlord from time to time for use by tenants of the Building, to have and to hold for the Term, all upon the terms and conditions set forth in this Lease. 3 ARTICLE IIL -ACCEPTANCE OF PREMISES 3.1 Tenant, having examined the Leased Premises, is familiar with the condition thereof, and relying solely on such examination, will take them "as is" in their current condition, unless otherwise expressly agreed upon in writing. Tenant shall at all times maintain the Leased Premises in good condition and state of repair • and shall, at Tenant's own cost and expense, make all necessary repairs thereto including periodic painting and decorating, and at the end or other expiration of the term hereof, shall deliver up the Leased Premises in as good condition and order as at the commencement of this Lease, wear and tear from reasonable use, casualty, and damage by the elements excepted. ARTICLE IV. - RENTAL 4.1 Monthly Payment. The term "Monthly Payment" shall refer to the sum of the Minimum Guaranteed Rental, the Common Area Maintenance Charge, the Insurance Escrow Payment, all as defined in this Lease. The initial Monthly Payment (prorated to the end of the month) shall begin to accrue and shall be due and payable on the Commencement Date. Thereafter, the full Monthly Payment shall be due and payable in advance on the first day of each succeeding calendar month during the Term at Landlord's address, without demand and without set-off or deduction for any reason whatsoever except as may be expressly provided in this Lease. 4 .2 Percentage Rental. N/A 4.3 Gross Sales Defined. N/A. 4.4 Additional Rental. The term "Additional Rental" shall mean all sums, charges or amounts of whatever nature to be paid by Tenant to Landlord in accordance with the provisions of this Lease, whether or not such sums, charges or amounts are specifically referred to herein as Additional Rental. All Additional Rental, unless otherwise provided, shall be due and payable within five days of notice thereof to Tenant. 4.5 Default Interest and Late Charge. In the event Tenant fails to pay Landlord in full or when due any installment of the Monthly Payment, Percentage Rental or Additional Rental, or any other sum to be paid to Landlord which may become due hereunder, Landlord will incur additional expenses in an amount not readily ascertainable and which have not been elsewhere provided for between Landlord and Tenant. If Tenant should fail to pay to Landlord within five (5) days of the due date thereof any such installment or other sum to be paid hereunder, Tenant will pay to Landlord, as Additional Rental, a late charge of 10% of the payment due, and interest on the entire delinquent amount at the "Default Rate". Both such charges shall begin to accrue on the day following the original payment due date. The "Default Rate" means an annual rate of interest equal to the greater of 18% or three percentage points over the prime rate in effect at the Chase Manhattan Bank in New York City (or 4 any successor institution)-on the date when such payment was due. Provision for such late charge and default interest shall be in addition to all other rights and remedies available to Landlord hereunder or at law or in equity and shall not be construed as liquidated damages (other than for the administrative inconvenience and loss of use of money caused by the delinquency) or otherwise limiting Landlord's remedies in any manner. 4.6 Bad Checks. If Tenant makes any payment to Landlord with a check which fails to clear the bank on which it is drawn the first time it is submitted, that payment shall not be deemed made until Tenant delivers to Landlord the amount of the payment (together with any late charges and default interest) in cash or by certified or cashier's check. After the second time during the Term that Tenant makes any payment with a check which so fails to clear, Landlord shall not be required to accept any payments from Tenant other than in cash or by certified or cashier's check. ARTICLE V. - SALES REPORTS AND RECORDS 5.1 Statements of Gross Sales. N/A. 5.2 Books and Records. N/A. 5.3 Right to Audit. N/A. ARTICLE VI. - COMMON AREA 6.1 Common Area Defined. The "Common Area" is the part of the Building designated by Landlord from time to time for the non-exclusive general common use of all tenants and other occupants of the Building, their officers, agents, employees and customers, including (without limitation and to the extent applicable to this Building) all parking areas, driveways, sidewalks, landscaping, curbs, loading docks and areas, trash enclosures, private streets and alleys, lighting facilities, hallways, lobbies, malls, plazas, stairways, escalators, elevators, restrooms, janitor's closets, mechanical rooms, and other areas and improvements provided by Landlord for the non-exclusive common use or benefit of all tenants, all of which shall be subject to Landlord's sole management and control and shall be operated and maintained in such manner as Landlord in its reasonable discretion shall determine. 6.2 Right to Change Common Area and Building. Landlord reserves the right at any time and from time to time to change the dimensions and location of the Common Area as well as the location, dimensions, identity and type of the Building and/or of the commercial spaces therein(not including the Premises), and to construct additional buildings or additional stories on existing buildings or other improvements on the property, and to add or eliminate retail space, not including the Premises, in the Building, and to perform substantial renovation work in and to the Building or the mechanical systems serving the Building, which work may include, but need not be 5 limited to, the-repair or replacement of the Building's- exterior--facade, electrical systems, air conditioning, heating and ventilating systems, plumbing systems, common hallways, or lobby. Landlord shall have access to the Premises at all reasonable times, upon reasonable notice, for the purpose of performing such work. Landlord shall incur no liability to Tenant, nor shall Tenant be entitled to any abatement of rent, on account of any noise, dust, vibration, or other disturbance to Tenant's business at the Premises (provided Tenant is not denied access to the Premises) which shall arise out of said access by Landlord or the performance by Landlord of the aforesaid work. Landlord shall use reasonable efforts (which shall not include any obligation to employ labor at overtime rates) to avoid disruption of Tenant's business.during any such entry upon the Premises by Landlord. If material disruption is anticipated to occur, Landlord shall, if at all practicable, schedule its construction to occur between the spring closing of the lifts and the fall reopening of the lifts at the ski area closest to the Building. Tenant's rent shall abate for any period of time that Tenant is not able to open for business at the Premises due to such construction, and a like period of time shall be added to the end of the Term of this Lease. 6.3 Use of Common Area. Tenant and its agents, employees customers, subtenants, licensees and concessionaires shall have the non-exclusive right and license to use the Common Area as constituted from time to time, such use to be in common with Landlord, other tenants of the Building and other persons permitted by Landlord to use the same, and subject to the exclusive control and management of Landlord and such reasonable rules and regulations governing use as Landlord may from time to time prescribe. Tenant shall not solicit business or display merchandise within the Common Area, or distribute handbills therein, or take any action which would interfere with the rights of other persons to use the Common Area without the prior written consent of Landlord. Landlord may temporarily close any part of the Common Area for such periods of time as may be necessary to make repairs or alterations or to prevent the public from obtaining prescriptive rights. 6.4 Common Area Maintenance Charge. Tenant agrees to pay, as its "Common Area Maintenance Charge" each month, its proportionate share of the costs of operation and maintenance of the Building, including the Common Area which may be incurred by Landlord in its discretion. Such costs include, but are not limited to, the costs incurred for lighting, heating, air conditioning, providing water and sewerage services to, painting, cleaning, policing, insuring, inspecting, landscaping, repairing, replacing, guarding and protecting, and removing snow and ice from (except where a particular tenant is obligated to remove snow and ice as provided in Section 7.4) the Common Area and sidewalks or other public areas adjacent to the Building; the cost of collecting and removing trash and garbage of the tenants of the Building (if performed by Landlord); the cost of utilities supplied to the Building to the extent provided in Section 12.2; the cost of maintenance and repairs made by Landlord pursuant to Section 8.1 or Section 12.1; and the cost of related legal and accounting services. Such costs shall not include any commissions or other leasing charges payable to anyone. The above enumeration of costs shall not create any obligation (expressed or 6 I�f 1 implied) on the part of Landlord to furnish such service. The Common Area Maintenance Charge shall be computed on the ratio of the square feet of gross floor area of the Premises to the gross leasable square footage of the Building. In addition to the above charges, Landlord shall charge a management fee. For each month of the Term, Tenant shall pay the Common Area Maintenance Charge as part of the Monthly Payment. The Initial Common Area Maintenance Charge as specified in Section 1.1 is based upon Tenant's proportionate share of the estimated operation costs for the Common Area for the year in which this Lease is executed. The Common Area Maintenance Charge is subject to increase or decrease relative to that amount as determined by Landlord from time to time to reflect Landlord's updated estimate of Tenant's current proportionate share of such costs. This monthly share shall never be less than the .sum specified in Paragraph 1.1(1) of the Lease. The Common Area Maintenance Charge account of Tenant shall be reconciled at the end of each calendar year and at the termination of this Lease in the following manner. If the aggregate Common Area Maintenance Charge payments actually made by Tenant for a calendar year are less than Tenant's share of the cost of operation and maintenance of the Common Area, Tenant shall pay to Landlord as Additional Rental the difference within 30 days of Landlord's request therefor; if the total Common Area Maintenance Charge payments made for a calendar year are more than Tenant's actual pro rata share of the cost of operation and maintenance of the Common Area for that year, Landlord shall retain such overpayment and credit it to Tenant's account, unless such overpayment is calculated at the termination of this Lease, in which case Landlord shall refund to Tenant such overpayment within 60 days after the termination of this Lease. ARTICLE VIII. - USE AND CARE OF PREMISES 7.1 Use of Premises and Trade Name. The Leased Premises shall be used and occupied by Tenant for the public offices of the Pitkin County Clerk and Recorder and will specifically be used for the conduct of election activities and voter registration and other voter services and other functions of the Office of Clerk and Recorder. Tenant's use of the Leased Premises shall not violate any applicable laws, ordinances, or regulations of any applicable government authority. 7.2 Prohibited Use. Tenant shall not permit any objectionable or unpleasant odors to emanate from the Premises; nor place or permit any radio, television, loud- speaker or amplifier on the roof or outside the Premises or where the same can be seen or heard from outside the Premises; nor place an antenna, awning or other projection on the exterior of the Premises; nor solicit business or distribute leaflets or other advertising material in the Common Area; nor take any other action which in the exclusive judgment of Landlord would be in bad taste or constitute a nuisance or disturb or endanger other tenants or customers of the Building or unreasonably interfere with their use of their respective premises; nor do anything which would tff tend to injure the reputation of the Building. Tenant shall not permit dogs, cats, or other animals on the Premises or in the Building. 7.3 Use of Roof. Use of the roof above the Premises is reserved to Landlord. 7.4 Care of Premises, Trash Removal and Deliveries. Tenant shall at its expense keep the Premises in good and clean condition, free from dirt, rubbish, snow, ice, insects and pests at all times, and shall store all trash and garbage within the Premises, arranging for the regular pickup of such trash and garbage at Tenant's expense. If so designated and prescribed by Landlord, Tenant will store all trash and garbage within an area outside 'of the Premises designated by Landlord for trash pickup and removal, and only in receptacles of the size, design and color from time to time prescribed by Landlord. Landlord may, at its sole option, arrange for collection of all trash and garbage within the Building and, should Landlord exercise such election, Tenant's proportionate share of the reasonable cost thereof will be included as a part of the Common Area Maintenance Charge. Tenant shall not operate an incinerator or burn trash or garbage within the Building. The receiving and delivery of goods and merchandise shall be made only in the manner and areas from time to time prescribed by Landlord. 7.S Permits and Licenses. Tenant shall procure, at its sole expense, any permits and licenses required for the transaction of its business in the Premises and otherwise comply with all applicable laws, ordinances and governmental regulations and the provisions of applicable Condominium Documents, if any. 7.6 Laws; Rules and Regulations of Building. Tenant shall comply with all laws, ordinances, orders, rules and regulations of any state, federal, municipal and other agencies or bodies having any jurisdiction thereof relating to the use, condition or occupancy of the Premises and Building. Tenant will comply with the reasonable rules and regulations of the Building adopted and altered by Landlord from time to time for the safety, care and cleanliness of the Premises and Building and for preservation of good order therein, all of which will be sent by Landlord to Tenant in writing and shall be thereafter carried out and observed by Tenant, its employees, contractors, agents, invitees and customers. The rules and regulations of the Building in force upon executionof this Lease, if any, are attached hereto as Exhibit A. Landlord shall notify Tenant in writing of any modifications of said rules or adoption of new rules. All such rules and regulations shall be deemed to be incorporated into and form a part of this Lease. Any default in the performance or observance of such rules and regulations shall constitute an Event of Default hereunder and Landlord shall have all remedies provided for in this Lease for such default by Tenant. Landlord, however, shall not be responsible to Tenant for non-observance by any other tenant or person of such rules and regulations. 8 1 7.7 Toxic Damage. Tenant shall not cause or permit the disposal in the Building or the improper transportation, generation, storage, treatment, or use in the Building of any "solid wastes" or "hazardous wastes" as such terms are defined by the Resource Conservation and Recovery Act, 42 U.S.C. § 6903, § 1004, and 40 C.F.R. Part 261, as amended or superseded; or any "hazardous substances" as that term is defined by Section 101(14) of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601(14), as amended or superseded; or any other flammable, noxious or toxic materials. ARTICLE VIII. - MAINTENANCE AND REPAIR OF PREMISES 8.1 Landlord's Repair Obligation. Landlord shall keep in good repair the foundation, the structure, and exterior walls (except store fronts, plate glass windows, doors, door closure devices, window and door frames, molding, locks, and hardware, and except painting or other treatment of wall surfaces within or facing the Premises or other leasable space), the utility lines and facilities outside the Premises and other leasable areas, HVAC systems, and common areas, except that Landlord shall not be required to make any repairs occasioned by the negligence of Tenant, its agents, employees, contractors, subtenants, licensees, concessionaires or customers, which repairs shall be made by Tenant. In the event that the Premises should become in need of repairs required to be made by Landlord, Tenant shall give immediate written notice thereof to Landlord, and Landlord shall not be responsible in any way for failure to make any such repairs until a reasonable time shall have elapsed after delivery of such written notice. Landlord's obligation hereunder is limited to repairs specified in this Section 8.1 only, and Landlord shall have no liability for any damage or injury arising out of any condition or occurrence causing a need for such repairs. Landlord shall have access to the Premises as necessary or convenient to make repairs required by this Section. Unless specified herein, Tenant shall be responsible for its percentage of all other repairs and replacements to the building and premises, including but not limited to the roof, sidewalks, curbs and gutter, and landscaping. 8.2 Tenant's Repair Obligation. Tenant shall, at its sole cost and expense, make all needed repairs and replacements to the Premises, including replacement of cracked or broken glass, except for any replacements required to be made by Landlord under the provisions of Section 8.1 and Article XV, and shall keep all plumbing units, pipes and connections within the Premises in good repair and free from obstruction and protected against ice and freezing. Tenant shall furnish, maintain and replace all electric light bulbs, tubes and tube casings within the Premises. If any repairs and replacements required to be made by Tenant hereunder are not made within twenty days after written notice to Tenant, Landlord may, at its option, make such repairs without liability to Tenant for any loss or damage which may result to its stock or business by reason of such repairs, and Tenant shall pay to Landlord as Additional Rental the cost of such repairs plus 10% of said cost to cover Landlord's overhead. 9 8.3 Maintenance of HVSC. Maintenance of HVAC (Heating, Ventilating and Cooling systems). A heating system exists within the building and the Landlord assures it is proper working condition with the Tenant able to control their own spaces. The landlord is intending to install a ventilating and air cooling system that will serve the tenants premises. Maintenance of this system within the Premises shall be Tenant's responsibility throughout the Term. Maintenance of the roof-top components and all ;utilities that serve them shall be Landlord's responsibility throughout the Term Landlord will insure that heating and swamp cooling are operational upon occupancy. 8.4 Surrender of Premises. At the expiration of this Lease, Tenant shall surrender the Premises in good condition, except for reasonable wear and tear and except for loss by fire or other casualty the repair of which is stated herein to be the Landlord's responsibility, and shall surrender all keys for the Premises to Landlord and shall inform Landlord of all combinations of locks, safes and vaults, if any, in the Premises. All alterations, additions, improvements and fixtures (other than unattached, movable trade fixtures) which may be made or installed by Landlord or Tenant upon the Premises shall remain upon and be surrendered with the Premises and become the property of Landlord at the termination of this Lease, unless Landlord requests the removal of some or all of same, in which event Tenant shall remove the same as requested and restore the Premises to their original condition at Tenant's expense, leaving behind whatever Landlord did not request to have removed. All ceiling or wall mounted lighting (including track lighting) shall be considered an attached fixture and shall remain with the premises. ARTICLE IX. - ALTERATIONS 9.1 Rights with Respect to Alterations. Tenant shall not make any alterations, additions or improvements to the Premises, except for the installation of unattached, movable trade fixtures which may be installed without drilling, cutting, gluing, or otherwise defacing the Premises, without the prior written consent of Landlord, which consent shall not be unreasonably withheld. Landlord will cooperate with tenant to make improvements deemed necessary to premises for intended uses including but not limited to electrical power and lighting, data and phone facilities, security systems, addition or removal of interior demising walls. 9.2 Construction of Alterations. All construction work done by Tenant within or upon the Premises shall be performed in a good and workmanlike manner, in compliance with all governmental requirements and the requirements of contract or deed of trust to which the Landlord may be a party, and in such manner as to cause a minimum of interference with other construction in progress and with the transaction of business in the Building. Tenant agrees to indemnify Landlord and hold it harmless against any loss, liability or damage resulting from such work, and Tenant shall, if requested by Landlord, furnish a bond or other security satisfactory to Landlord against any such loss, liability or damage. 9.3 Mechanic's Liens.. Tenant has no authority or power to cause or permit 10 any lien or encumbrance of any kind whatsoever whether created by act of Tenant, operation of law or otherwise, to be attached to or placed upon Landlord's title or interest in the Premises or the Building. Tenant hereby agrees to indemnify, defend and save Landlord harmless from all claims, liabilities, loss, damage, costs or expenses, including attorneys' fees, and interest incurred on account of any claims of any nature whatsoever, including claims or liens of laborers, materialmen, or others for work actually or allegedly performed for, or materials, equipment or supplies actually or allegedly furnished to, or used by or for, Tenant or persons claiming under Tenant. Should any such lien ("mechanic's lien") be filed or recorded against the Premises or the Building, Tenant covenants and agrees to cause such mechanic's lien to be released or discharged of record within 15 days after Tenant learns of the filing or recording of such mechanic's lien (or such shorter period, after Tenant learns of such recording or filing, as may be required by any mortgage, deed of trust, land or ground lease which may now or hereafter encumber the Building) unless Landlord by written notice shall extend such time. If Tenant shall fail to cause such lien forthwith to be so released or discharged after being notified of the filing thereof, then, in addition to any other right or remedy of Landlord, Landlord may pay the amount claimed to be due without obligation to ascertain its validity, and the amount so paid by Landlord, including reasonable attorneys' fees incurred by Landlord, shall be immediately due and payable by Tenant to Landlord as Additional Rental. Tenant shall promptly notify Landlord of the filing or recording of any such mechanic's lien of which Tenant learns and of any notice of intent to file a mechanic's lien statement which is served upon Tenant. Landlord shall have the right to post and keep posted on the Premises until any alterations, additions, improvements, or repairs are completed any notices permitted or required by law which Landlord shall deem proper for the protection of Landlord, the Premises, the Building or any partyhaving an interest therein, from mechanic's liens, and Tenant shall assist as requested in maintaining such postings. Tenant shall give written notice to Landlord at least 10 days prior to the commencement of any work relating to alterations or additions to the Premises where the cost of the work shall exceed $1,000.00, and if requested by Landlord shall provide a list of all contractors, subcontractors and suppliers engaged to perform such work, and partial lien waivers relating to the work to be performed as the work is performed. In the performance of all alterations, additions, improvements or repairs conducted by Tenant's contractors or subcontractors, all such contractors and subcontractors shall be required to maintain casualty and liability insurance and workmen's compensation coverage as is reasonably adequate to protect fully Landlord and Tenant. 9.4Cabling. Tenant shall be required to remove upon the expiration or other termination of this Lease, without further notice from Landlord, any electronic, computer, telecommunications, data and/or any other cabling or wiring and related equipment (all, collectively, "cabling") which is installed by or for the benefit of Tenant and located in the Premises or any other portion of the Building, unless Landlord notifies Tenant in writing prior to such expiration (or, in the event of such earlier termination, as soon as reasonably practicable after such termination) that Landlord elects to have Tenant leave such cabling in the Building. 11 9. 5 Satellite Dishes. Without limitation to Tenant's rights under applicable Federal Communication Commission OTARD (i.e., Over-The-Air Reception Devices) regulations, Tenant agrees not to utilize any wireless communications equipment (other than usual and customary cellular telephones), including antennae and/or satellite receiver dishes, within the Premises or the building without Landlord's prior written consent. Such consent may be conditioned in such a manner so as to protect the interests of the building and the other tenants therein, including without limitation, life safety concerns. Tenant will be allowed to establish a wireless network for exclusive use of County employees within the premises ARTICLE X. - RIGHT OF ACCESS Landlord shall have the right to enter upon the Premises at any reasonable time upon reasonable notice for the purpose of inspecting the same, or of making repairs to the Premises, or of making repairs, alterations or additions to adjacent premises, or of showing the Premises to prospective purchasers, lessees or lenders. Landlord may place "For Rent" signs and the like on or about the Premises during the last three months of the Term. ARTICLE XI. - SIGNS, DISPLAYS AND STORE FRONTS 11.1 Store Fronts. Tenant shall not, without Landlord's prior written consent, (a) make any changes to or paint the space front; (b) install any exterior lighting, decorations or paintings; or (c) erect, install or place any signs, window or door lettering, placards, decorations or advertising media of any type on the exterior of the Premises or which can be viewed from the exterior of the Premises, excepting only dignified displays for its display windows acceptable to Landlord. 11.2 Signs. All signs, decorations and advertising media shall conform in all respects to the sign criteria established for the Building by Landlord from time to time in the exercise of its sole discretion, and shall be subject to the prior written approval of Landlord as to construction, method of attachment, size, shape, height, lighting, color and general appearance. All signs shall be kept in good condition and in proper operating order at all times. Landlord reserves the right to designate a uniform type of sign for the Building to be installed and paid for by Tenant for the Premises. Tenant agrees to have erected and/or installed and fully operative on or before ten days after the Commencement Date all signs for the Premises, which shall be in compliance with Landlord's sign criteria as well as applicable governmental sign codes. Tenant, upon vacation of the Premises or removal or alteration of its sign or signs for any reason, shall be responsible for the prompt repair, painting, and/or replacement of the surface where such signs were attached. 11.3. Displays and Advertising. N/A. 12 ARTICLE XII. -UTILITIES 12.1 Landlord's Obligation. Landlord agrees to cause to be provided and maintained the mains, conduits and other facilities necessary to supply water, electricity, telephone, sewerage, and (at Landlord's option) gas service up' to the Premises, in such amounts as Landlord may reasonably determine and subject to any special provisions contained elsewhere in this Lease and its Exhibits. Landlord shall also pay the charges for reasonable water, electricity, gas (if used), and sewage (but not telephone) service to the Premises and any other leasable space in the Building to the extent such utilities are not separately metered for that space. 122. Tenant's Obligation.Tenant shall not install any equipment which will exceed the rating or overload the capacity of any utility facilities provided by Landlord, nor shall Tenant be wasteful in its use of any utility service not separately metered to the Premises. If Tenant's Work or any other alterations of the Premises require payment of an additional tap or other utility fee or charge, Tenant shall pay the same when due. Tenant shall promptly pay for its own telephone service. Tenant shall promptly pay for any other utility service to the Premises if it is separately metered for the Premises. All charges for utilities to or within the Building which are not separately metered shall be included within the Common Area Maintenance Charge. If some but not all of the leasable space in the Building is separately metered, Landlord in its sole discretion may apportion the utility charges included in the Common Area Maintenance Charge between Tenant and other tenants so as to reflect a credit to the tenant which pays its own separately metered utilities and an increased charge to the tenant which does not pay for its own utilities. For example, if only the Premises are separately metered, Landlord may specify that Tenant need only pay one-half of the utilities amount included in the Common Area Maintenance Charge that would otherwise be payable by Tenant. Conversely, if only a space other than the Premises is separately metered, Landlord may specify that Tenant must pay more than the utilities amount included in the Common Area Maintenance Charge that would otherwise be payable by Tenant. Landlord may not adjust so as to collect more for utilities than Landlord must pay for utilities, nor will Landlord unreasonably refuse to use an adjustment to which all affected tenants admit they are bound so long as it passes through all utilities charges for which Landlord must pay. Within the limitations of the preceding sentence, however, Landlord's adjustment or decision not to adjust shall not be subject to challenge on any ground. 12.3 Landlord Not Liable. Landlord shall not be liable in any respect for damages to either person or property for any interruption or failure whatsoever in utility services. Nor shall such interruption or failure be construed as an eviction of Tenant, nor work an abatement, reduction or set-off of rent, nor relieve Tenant from fulfillment of any covenant or agreement hereof. Further, Tenant shall neither hold, nor attempt to hold, Landlord liable for any injury or damage, either proximate or remote, caused by the negligence or default of any third party, nor liable for any injury or damage occasioned by defective electrical wiring or the breaking or stoppage of plumbing or sewerage upon the Leased Premises or upon adjacent premises, nor for 13 any damage occasioned by breakage'of water or other utility lines or pipes upon the Leased Premises or upon adjacent premises, or from water being upon or coming from the roof or roof vents, nor for any damage arising from any acts or negligence of other tenants Or occupants of adjacent premises, or any other persons. ARTICLE XIII. - INDEMNITY AND INSURANCE 13.1 Indemnity. Except to the extent that Landlord was grossly negligent or guilty of fraud, Landlord shall not be liable to Tenant or to Tenant's successors, assigns, officers, employees, agents, contractors, customers or visitors, or to any other person or entity whomsoever, and Tenant hereby waives and agrees to hold harmless Landlord against all claims against Landlord and/or Landlord's directors, officers, general and limited partners, employees, venturers or agents for any loss of life or injury to person or damage to or loss of property in or about the Building (a) caused wholly or in part by any act, omission or neglect of Tenant, its officers, agents, emploYees, contractors, subtenants, licensees or concessionaires, or of any other person ,entering the Building under the express or 'implied invitation of Tenant, (b) arising out of the occupancy or use by Tenant of the Premises or any part thereof or any other part of the Building and the conduct of its business therein, (c) arising out of any 'breach or default by Tenant in the performance' of its obligations hereunder. Neither this nor any other indemnification contained in this Lease is limited by the amount of insurance carried or required to be carried. 13.2 Tenant's Insurance. Tenant agrees to carry public liability insurance on the Premises during the Lease Term or any extension covering the Tenant and naming the Landlord as an additional named insured for limits of not less than Three Million and No/100 Dollars ($3,000,000.00) for bodily injury, including death, and personal injury for any one (1) occurrence, One Million and No/100 Dollars ($1,000,000.00) property damage insurance or a combined single limit of Three Million and No/100 Dollars ($3,000,000.00). Tenant's insurance will include contractual liability coverage recognizing this Lease, products and completed operations liability, workman's compensation including employees liability at not less than statutory limits, and providing that Landlord and Tenant shall be given a minimum of thirty (30) days written notice by the insurance company prior to cancellation,. Tenant also agrees to carry insurance against fire and such other risks as are from time to time required by Landlord, including, but not limited to, a standard "All-Risk" policy of property insurance protecting against all risk of physical loss or damage, including without limitation, sprinkler leakage coverage and plate glass insurance covering all plate glass in the Premises (including store fronts) and terrorism (only if required by Landlord's lender) in amounts not less than the actual replacement cost, covering all of Tenant's merchandise, trade fixtures, furnishing, wall coverings, floor coverings, carpeting, drapes, equipment and all items of personal property of Tenant located on or within the Premises. Tenant shall provide Landlord with certificates or, at Landlord's request, copies of the policies, evidencing that such insurance is in full force and effect and stating the terms thereof. The minimum limits of the comprehensive general liability policy of 14 insurance shall in no way limit or diminish Tenant's liability under any other provision of this Lease. Tenant will not do or suffer to be done anything which will contravene Landlord's insurance policies or prevent Landlord from procuring such policies in amounts and companies selected by Landlord. If anything done, omitted to be done or suffered to be done by Tenant in, upon or about the Premises shall cause the rates of any insurance effected or carried by Landlord on the Premises or other property to be increased beyond the regular rate from time to time applicable to the Premises for use for the purpose permitted under this Lease, or such other property for the use or uses made thereof, Tenant will pay the amount of such increase promptly upon Landlord's demand and Landlord shall have the right to correct any such condition at Tenant's expense. In the event of any financing or refinancing of the Building as described in Paragraph 22.1 below, Tenant agrees, at the request of Landlord, to add such lender as an additional insured on its policy or policies. 13.3 Additional Requirements Regarding Restaurant Operation and Liquor License. N/A. 13.4 Waiver of Right of Recovery. Landlord and Tenant agree and covenant that neither shall be liable to the other, or to any insurance company (by way of subrogation or otherwise) insuring the other party, for loss arising out of damage to or destruction of the Building or contents thereof or death or injury to any person to the extent that such loss is covered by insurance benefiting the party suffering such loss. This agreement shall be binding whether or not such damage or destruction be caused by negligence of either party or their agents, employees or visitors. However, if by reason of the foregoing waiver, either party shall be unable to obtain or renew any such insurance without additional cost, such waiver shall be deemed not to have been made by such party. 13.5 Tenant to Pay Proportionate Share of Insurance Costs. Tenant agrees to pay as its "Insurance Escrow Payment" each month, its proportionate share of Landlord's monthly cost of carrying public liability, fire and extended coverage, and rental loss insurance on the Building ("Insurance"). Such Insurance may be carried at the discretion of Landlord in such amounts and with such companies as Landlord shall reasonably determine. For each month of the Term, Tenant shall pay its Insurance Escrow Payment as part of the Monthly Payment. The Insurance Escrow Payment shall constitute a monthly escrow deposit with Landlord equal to 1/12th of Landlord's estimate of Tenant's proportionate share of the Insurance which will be due and payable for that year. Tenant authorizes Landlord to use such funds so deposited with Landlord to pay the cost of such Insurance. The Initial Insurance Escrow Payment as defined in Section 1.1 is based upon Tenant's monthly proportionate share of the estimated Insurance for the year in which this Lease is executed. The Insurance Escrow Payment is subject to increase or decrease relative to that amount as reasonably determined by Landlord from time to time to reflect Landlord's updated estimate of Tenant's proportionate share of the Insurance. This monthly share shall never be less than the sum specified in Paragraph I.1(m) of the Lease. The Insurance 15 • Escrow Payment account of Tenant shall be reconciled at the end of each calendar year and at the termination of the Lease, in the following manner. If for a calendar year Tenant's total Insurance Escrow Payments actually paid are less than Tenant's actual pro rata share of the Insurance for that year, Tenant shall pay to Landlord as Additional Rental the difference within 30 days of Landlord's request therefor; if for a calendar year the total Insurance Escrow Payments paid by Tenant are more than Tenant's actual pro rata share of the Insurance, Landlord shall retain such excess and credit it to Tenant's account, or if such excess is calculated upon the termination of the Lease, Landlord shall refund to Tenant such excess within 60 days after such termination. Tenant's proportionate share of the cost of Insurance shall be computed by multiplying the cost of Insurance by a fraction, the numerator of which shall be the number of square feet of gross floor area in the Premises and the denominator of which shall be the gross leasable square footage of the Building. ARTICLE XIV. - LIMITED LIABILITY Except to the extent that Landlord was grossly negligent or guilty of fraud, Landlord and Landlord's agents and employees shall not be liable to Tenant or any other person or entity whomsoever for any loss of life or injury to person or damage to property caused by the Premises or other portions of the Building being out of repair or by defect in or failure of equipment, pipes or wiring, or broken glass, or by the backing up of drains, or by gas, water, steam, electricity or oil leaking, escaping or flowing into the Premises, nor shall Landlord be liable to Tenant or any other person or entity whomsoever for any loss or damage that may be occasioned by or through the acts or omissions of other tenants of the Building or of any other persons or entities whomsoever. To the maximum extent permitted by law, Tenant agrees to use and occupy the Premises, and to use such other portions of the Building as Tenant is herein given the right to use, at Tenant's own risk. Tenant shall indemnify, defend and hold Landlord harmless from any loss, cost, expense or claim arising out of such injury or damage referred to in this Article. ARTICLE XV. -DAMAGE BY CASUALTY 15.1 Notice to Landlord. Tenant shall give immediate written notice to Landlord of any damage caused to the Premises or Building by fire or other casualty. 15.2 Landlord's Obligation to Repair and Reconstruct. In the event that the Premises shall be damaged or destroyed by fire or other casualty insurable under standard fire and extended coverage insurance and Landlord does not elect to terminate this Lease as hereinafter provided, Landlord shall proceed with reasonable diligence and at its sole cost and expense to rebuild and repair the Premises. If the Building shall (i) be destroyed or substantially damaged by a casualty or in an amount not fully covered by Landlord's insurance; or (ii)be destroyed or rendered untenantable to an extent in excess of 50% of the primary retail level of the Premises; or (iii)be substantially damaged during the last two years of the Term, then Landlord may elect either to terminate this Lease as hereinafter provided or to proceed to 16 rebuild and repair the Premises. Should Landlord elect to terminate this Lease it shall give written notice of such election to Tenant within 90 days after the occurrence of such casualty. If Landlord should not elect to terminate this Lease, Landlord shall proceed with reasonable diligence and at its sole cost and expense to rebuild and repair the Premises. Landlord's obligation to rebuild and repair under this Article XV shall in any event be limited to restoring Landlord's Work to substantially the condition in which the same existed prior to the casualty. 15.3 Tenant's Obligation to Repair and Reconstruct. Tenant agrees that, promptly after Landlord's completion of Landlord's Work as required in Section 15.2 above, Tenant will proceed with reasonable diligence and at its sole cost and expense to rebuild, repair and restore its signs, fixtures, equipment and the other items of Tenant's Work. 15.4 Operation of Business and Rental. Tenant agrees that during any period of reconstruction or repair of the Premises it will continue the operation of its business within the Premises to the extent reasonably possible. During the period from the occurrence of the casualty until Landlord's repairs are completed, the Minimum Guaranteed Rental shall be reduced to such extent as may be fair and reasonable under the circumstances. However, there shall be no abatement of the other charges or Additional Rental provided for herein. ARTICLE XVI. EMINENT DOMAIN 16.1 Effect of Significant Taking. If more than 20% of the floor area of the Premises should be taken for any public or quasi-public use under any governmental law, ordinance or regulation or by right of eminent domain or by private purchase in lieu thereof, this Lease shall terminate and all payments otherwise due Landlord hereunder during the unexpired portion of this Lease shall be abated, effective on the date physical possession is taken by the condemning authority. 16.2 Effect of Partial Taking. If less than 20% of the floor area of the Premises should be taken as aforesaid, this Lease shall not terminate; however, each component of the Monthly Payment (except as provided hereinafter) and any monthly adjustments thereto during the unexpired portion of this Lease shall be reduced in proportion to the area taken, effective on the date physical possession is taken by the condemning authority. If Landlord, in its sole and absolute discretion, believes that reduction of the Minimum Guaranteed Rental in proportion to the area taken would be unfair, Landlord may, at its expense, obtain appraisals by an MAI appraiser, which appraisals shall not be subject to challenge by Tenant, of (a) the fair rental value of the entire Premises just before the taking and (b) the fair rental value of the portion of the Premises remaining just after the taking, and the Minimum Guaranteed Rental shall be reduced to an amount equal to the Minimum Guaranteed Rental times the fraction of (b) over (a). Following a partial taking, Landlord shall make all necessary repairs or alterations within the scope of Landlord's Work necessary to make the Premises an architectural whole. 17 16.3 Effect of Common Area Taking. If any part of the Common Area shall be taken as aforesaid, this Lease shall not terminate, nor shall the rental payable hereunder be reduced, except that either Landlord or Tenant may terminate this Lease if loss of the area of the Common Area taken renders the Premises untenantable. Any election to terminate this Lease in accordance with this provision shall be evidenced by written notice of termination delivered to the other party within 30 days after the date physical possession is taken by the condemning authority. 16.4 Condemnation Award. All compensation awarded for any taking (or the proceeds of private sale in lieu thereof) of the Building or any part thereof (including the Premises or Common Area) shall be the property of Landlord, and Tenant hereby assigns its interest in any such award to Landlord; provided, however, that Landlord shall have no interest in any award 'made to Tenant for loss of business, for relocation, or for the taking of Tenant's trade fixtures and other personal property if a separate award for such items is made to Tenant. ARTICLE XVII. - ASSIGNMENT AND SUBLETTING 17.1 Landlord's Reasonable Consent Required and Continuing Liability of Tenant. Tenant shall not assign or in any manner transfer this Lease or any estate or interest therein, or sublet the Premises or any part thereof, or grant any license, concession or other right to occupy any portion of the Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld (as defined below). 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 change in control in a partnership, directly or through a change or changes in the control (as defined in Section 17.3) of one or more corporate general partners; or (v) 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. If Tenant requests Landlord to consent to a proposed assignment or subletting, Tenant shall pay to Landlord, as Additional Rental, the sum of $1,000.00 to cover Landlord's administrative costs and counsel fees, plus all out-of-pocket expenses incurred by Landlord, in connection with such request, whether or not consent is ultimately given. Any attempted assignment or subletting by Tenant in violation of the terms and covenants of this Section shall be 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 rental herein specified and for compliance with all of Tenant's other obligations under this Lease. 18 The above language to the effect that Landlord's consent "shall not be unreasonably withheld" shall be deemed to require Landlord's consent when the following conditions are met: (a) Tenant shall not be in default under any of the terms or provisions of the Lease. (b) The assignee or sublessee shall agree to faithfully perform and to be bound by all of the terms and provisions of the Lease, such agreement to be in a form reasonably satisfactory to Landlord. (c) If the proposed assignee or sublessee, or any general partner thereof or venturer therein, is a corporation (other than a corporation the outstanding voting stock of which is listed on a "national securities exchange" as defined in the Securities Exchange Act of 1934), the owners of a majority of the issued and outstanding shares of stock in that corporation personally and unconditionally guarantee the performance of all Lease obligations, such guaranty to be in a form reasonably satisfactory to Landlord. (d) The proposed assignee or sublessee and all required guarantors shall submit financial statements prepared by C.P.A.'s which establish to Landlord's reasonable satisfaction their financial ability to perform Tenant's Lease obligations and otherwise to succeed in their proposed business. (e) The proposed assignee or sublessee shall reasonably satisfy Landlord (i) that it is a high quality retailer which will be compatible and not competitive with other tenants in the Building, (ii) that it has adequate prior experience in the type of business proposed for the Premises, and (iii) that a good reputation and credit standing were established in connection with such prior experience. TENANT ACKNOWLEDGES THAT THIS SECTION 17.1 WAS FREELY NEGOTIATED AND IS REASONABLE IN ALL OF THE CIRCUMSTANCES OF THIS LEASE. 17.2 Rental Increase and Right of First Refusal. In the event of any assignment of this Lease or sublease of the Premises, the Minimum Guaranteed Rental shall be automatically adjusted upwards as necessary to reflect the current market level of minimum guaranteed rental, but in no event shall the Minimum Guaranteed Rental hereunder be decreased. The market level shall be as determined by Landlord in its sole discretion based on recent actual leases of comparable space by Landlord and other market indicators of which Landlord is aware. Landlord's determination of such market level shall not be subject to challenge by Tenant unless made in bad faith. Within ten days after Tenant has provided Landlord with such information about a proposed assignment or subletting as Landlord may reasonably request, and upon 19 Tenant's request therefor, Landlord shall provide Tenant with Landlord's determination of the current market level of minimum guaranteed rental, if higher than the actual Minimum Guaranteed Rental hereunder. Such determination shall not be subject to change for 60 days after being communicated to Tenant. In addition to the foregoing rental increase, Landlord shall have a right of first refusal with respect to any proposed assignment or subletting by Tenant, which right must be exercised within ten days after Tenant has provided Landlord with full details of the proposed assignment or subletting. If Landlord in fact exercises such rights of first refusal, . Tenant shall be released from any further obligations under the Lease. 17.3 Transfer of Corporate Shares. If Tenant, or a general partner of Tenant if Tenant is a partnership, or a joint venturer of Tenant if Tenant is a joint venture, is a corporation (other than a corporation the outstanding voting stock of which is listed on a "national securities exchange," as defined in the Securities Exchange Act of 1934) and if at any time after execution of this Lease there shall be a change in the control (as defined below) of such corporation, Tenant shall give Landlord notice of such event within 15 days from the date of such change. In such event and whether or not Tenant has given 'such notice, Landlord may elect to terminate this Lease at any time thereafter by giving Tenant notice of such election, in which event this Lease and the rights and obligations of the parties hereunder shall cease as of a date set forth in such notice. In the event of any such termination, all obligations of Tenant hereunder shall be adjusted as of the date of such termination. For purposes of Section 17.1 and this Section 17.3, the term "control" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a corporation, whether through the ownership of voting securities, by contract, or otherwise. 17.4 Effect of Transfer by Landlord. In the event of the transfer and assignment by Landlord of its interest in this Lease and in the Premises to a person expressly assuming Landlord's obligations under this Lease, Landlord shall thereby be released from any further obligations hereunder, and Tenant agrees to look solely to such successor in interest of the Landlord for performance of such obligations. The Security Deposit and any other security given by Tenant to secure performance of Tenant's obligations hereunder may be assigned and transferred by Landlord to such successor in interest, and Landlord shall thereby be discharged of any further obligation relating thereto. ARTICLE XVIII. -DEFAULT BY TENANT AND LANDLORD'S REMEDIES 19.1 Event of Default Defined. Any one or more of the following events shall constitute an "Event of Default" by Tenant under this Lease: A. Tenant shall fail to pay when due (and within any statutory notice period) any installment of the Monthly Payment, Percentage Rental or Additional 2 Rental payable hereunder, or any other payment or expense demanded by Landlord as herein provided. B. Tenant shall fail to comply with any term, provision, condition, representation or covenant of this Lease, other than the payment of monies due hereunder or expenses demanded by Landlord, and shall not cure such failure within 20 days after written notice thereof to tenant or such longer period (up to but in no event greater than 90 days total) as may be reasonably necessary to effect a cure, provided that Tenant has promptly commenced and is diligently prosecuting same with reasonable prospects of success (provided that no cure period shall be allowed for a default which by its nature is incapable of being cured after the fact). C. Filing by or against the Tenant or any guarantor of Tenant's obligations under this Lease, in any court pursuant to any statute 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 the Tenant's or guarantor's property, if within 60 days after the commencement of any such proceeding involving the Tenant or guarantor such petition shall not have been dismissed. D. After having opened the Premises to the public, Tenant shall desert, vacate or not open for business any substantial portion of the Premises, when Tenant is required to be open for business, for a total of more than twenty days in any one twelve-month period, or Tenant shall inform Landlord that it intends to abandon the Premises. E. Tenant's removal or attempt to remove from the Premises of any inventory, equipment, fixtures or improvements other than in the ordinary course of business. F. Tenant shall do or permit to be done anything which creates a lien upon the Premises or the Building and shall fail (in the case of a mechanic's lien) to obtain the release or discharge of same within the time provided for in Section 9.3 of this Lease. G. The business operated by Tenant shall be closed for failure to pay any State sales tax as required or for any other reason. H. 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 or party except in the manner herein provided. I. The interest of Tenant in this Lease, the Premises or any part of the Premises shall be levied on or under execution or by other process of law directed against Tenant, or shall be taken upon or subject to any attachment at the instance of any creditor or claimant against Tenant and said attachment shall not be discharged or disposed of within 15 days after the levy thereof. 21 J. If Tenant shall be a corporation and Tenant shall cease to exist as a corporation in good standing in the state of its incorporation or if Tenant be a partnership or other entity and Tenant shall be dissolved or otherwise liquidated (unless such dissolution or liquidation is for purposes of dropping or adding a partner or partners, the partnership so dissolved or liquidated is immediately reconstituted, and the net worth of the reconstituted partnership is not materially less than the net worth of the partnership when dissolved or liquidated). K. The admission to Landlord in writing by Tenant or any guarantor of Tenant's obligations hereunder of its inability to pay its debts when due. L. Any material representation of Tenant shall prove to have been false. M. Any other act or omission identified as an Event of Default elsewhere in this Lease. Any cure period provided by statute shall be deemed to run concurrently (rather than sequentially) with any cure period provided for herein. 19.2 Remedies. Upon the occurrence of any such Event of Default, all of Tenant's rights to possession of the Premises shall automatically terminate, and Landlord shall have the option to pursue any one 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. Upon the termination of Tenant's possessory rights, Tenant shall immediately and peacefully surrender the Premises to the Landlord, and if Tenant fails to do so, Landlord, without prejudice to any other remedy which Landlord may have for possession, damages, or arrearages in rental, may enter upon and take possession of the Premises through legal process or, if no individual person is then actually on or about the Premises and breach of the peace can be avoided, without use of legal process. Thereafter Landlord may have, hold and enjoy the Premises and the right to receive all rental income therefrom, and may alter all locks and other security devices at the Premises. B. At any time after such termination of Tenant's possessory rights, the Landlord may relet the Leased Premises or any part thereof, in the name of the 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 the Landlord, in Landlord's absolute discretion, may determine, and may collect and receive the rents therefor. 19.3 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 22 and obligations shall survive any such termination. In the event of any such termination of Tenant's possessory rights, Tenant shall immediately pay to the Landlord the sum of all Monthly Payments, Percentage Rental, and Additional Rental and other indebtedness accrued to date of such repossession, and thereafter Tenant shall pay to the Landlord all Monthly Payments and any Additional Rental required to be paid by Tenant to Landlord during the remainder of the Term until the date of expiration of the Term, diminished by any net sums thereafter received by Landlord through reletting the Premises during said period (after deducting expenses incurred by Landlord as provided in Section 19.8 hereof). In no event shall Tenant be entitled to any excess of any rental obtained by reletting over and above the rental herein reserved. Actions to collect amounts due by Tenant to Landlord as provided in this Section 19.3 may be brought from time to time, on one or more occasions, without the necessity of Landlord's waiting until the expiration of the Term. 19.4 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. Upon such Lease termination, or in the event a court shall'otherwise construe this Lease as terminated following Tenant's loss of its possessory rights hereunder, Landlord shall have and exercise all rights of ownership of the Premises, and Tenant shall pay to the Landlord in one lump sum the sum of all Monthly Payments, Percentage Rental, and Additional Rental and other indebtedness to Landlord accrued to date of such termination, plus, as and for liquidated damages for Tenant's default, an amount equal to the present value of the total Monthly Payments and Percentage Rental (as calculated pursuant to Sections 7.1 and 19.12 hereof), which would have become due during the remainder of the Term but for termination of this Lease, less the amount of rental loss for the same period that Tenant proves could have been avoided through the exercise of such mitigation efforts as are legally required of Landlord. If such sum is not paid to Landlord on the termination date, said sum shall bear interest at the Default Rate until paid. For purposes of this section, "present value" shall be computed by discounting the amount in question to present worth at a discount rate equal to one percentage point above the discount rate then in effect at Chase Manhattan Bank or any successor thereto. 19.5 Subleasing by Landlord Without Terminating Lease. In the further alternative, at any time following the termination of Tenant's possessory rights, Landlord may elect to sublet all or portions of the Premises without terminating this Lease, in which case Landlord and Tenant shall have all of the rights and obligations set forth in Sections 19.2 and 19.3 above as may be properly applicable to such a subletting. 19.6 Not a Surrender. Exercise by Landlord of any one or more remedies herein granted or otherwise available shall not be deemed to be an acceptance of surrender of the Premises by Tenant, whether by agreement or by operation of law, it being understood that such surrender can be effected only by the written agreement of Landlord and Tenant. No alteration of locks or other security devices and no removal or other exercise of dominion by Landlord over the property of Tenant or 23 others at the Premises shall be deemed unauthorized or constitute a conversion or a Lease termination. Tenant hereby consents, after any Event of Default, to the aforesaid exercise of dominion over Tenant's property within the Premises. All claims for damages by reason of such re-entry and/or repossession and/or alteration of locks or other security devices are hereby waived, as are all claims for damages by reason of any distress warrant, forcible detainer proceedings, sequestration proceedings or other legal process. 19.7 Property Left on Premises. Any property of Tenant, or of anyone claiming under, by, or through Tenant, which is left on the Premises more than fifteen days after expiration of the Term or termination of possessory rights 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. 19.8 Additional Costs of Default. 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 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 Premises into condition acceptable to a new tenant or tenants; all reasonable expenses incurred by Landlord in enforcing or defending Landlord's rights and/or remedies, including reasonable attorneys' fees; and a sum equal to $150 for each hour that any principal of Landlord, and $50 for each hour that any other employee of Landlord, spends in connection with obtaining the right to relet, rendering suitable for reletting, and attempting to relet the Premises or any part thereof. 19.9 No Duty to Relet. In the event of termination of possessory rights or repossession of the Premises for an Event of Default, Landlord shall not have any greater obligation to relet or attempt to relet the Premises, or any portion thereof, or to collect rental on the 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 Premises for any period, to any tenant, and for any use and purpose. 19.10 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 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 action or proceedings, and paying, purchasing, contesting, or compromising any claim, right, encumbrance, charge or lien 24 with respect to the Premises or the Building. 19.11 Security Deposit. Upon Tenant's signing of this Lease, Tenant shall deliver to Landlord the Security Deposit, to be held by Landlord without interest as security for the performance by Tenant of Tenant's covenants and obligations under this Lease, it being expressly understood that such deposit is not an advance payment of rentalor a measure of Landlord's damages in case of default by Tenant. If at any time during the Term any of the rental herein reserved shall be overdue and unpaid, or any other sum payable by Tenant to Landlord hereunder shall be overdue and unpaid, then Landlord may at the option of Landlord (but Landlord shall not be required to) appropriate and apply any portion of the Security Deposit to the payment of any such overdue rental or other sum. In the event of the failure of Tenant to keep and perform any of the terms, covenants and conditions of this Lease to be kept and performed by Tenant, then Landlord at its option may appropriate and apply the Security Deposit, or so much thereof as may be necessary, to compensate Landlord for loss or damage sustained or suffered by Landlord due to such breach on the part of Tenant. Should the Security Deposit or any portion thereof be appropriated and applied by Landlord for the payment of overdue rental or other sums due and payable to Landlord by Tenant hereunder, or for a breach on the part of Tenant, the Tenant shall, within five days after the written demand of Landlord, forthwith remit to Landlord a sufficient amount in cash to restore the Security Deposit to the original sum deposited. Landlord shall have the right to commingle the Security Deposit with other funds of Landlord. Should Tenant comply with all of the terms, covenants and conditions of this Lease and promptly pay all of the rental herein provided for as it falls due, and all other sums payable by Tenant to Landlord hereunder, the Security Deposit shall be returned in full to Tenant within 60 days of the end of the Term or of the earlier termination of this Lease. 19.12 Calculation of Percentage Rental Damages. N/A. • 19.13 Landlord's Right to Use Furniture, Fixtures and Equipment. In the event that Landlord shall have taken possession of the 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 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 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 the County in which the Premises are located, 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. Landlord shall also have the right to relinquish possession of all or any portion of such furniture, fixtures, equipment and other property to any person ("Claimant") claiming to be entitled to 25 possession thereof who presents to Landlord a copy of any instruments represented to Landlord by Claimant to have been executed by Tenant (or any predecessor of Tenant) granting Claimant the right under various circumstances to take possession of such furniture, fixtures, equipment or other property, without the necessity on the part of Landlord to inquire into the authenticity of said instrument's copy of Tenant's or Tenant's predecessor's signature thereon and without the necessity of Landlord's making any nature of investigation or inquiry as to the validity of the factual or legal basis upon which Claimant purports to act; and Tenant agrees to indemnify and hold Landlord harmless from all cost, expense, loss, damage and liability incident to Landlord's relinquishment of possession of all or any portion of such furniture, fixtures, equipment or other property to Claimant. The rights of Landlord herein stated shall be in addition to any and all other rights which are created elsewhere in this Lease or which Landlord has or may hereafter have at law or in equity; and Tenant stipulates and agrees that the rights herein granted Landlord are commercially reasonable. 19.14 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 first 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 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 be removed from the 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 provisions of this Section shall constitute a security agreement under the Uniform Commercial Code. This lien and security interest is given in addition to any statutory lien to which 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 ten days 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 Statement. ARTICLE XIX. - DEFAULT BY LANDLORD AND TENANT'S REMEDIES • 20.1 Tenant's Remedies. In the event of any default by Landlord, Tenant's 26 exclusive remedy shall be an action for damages, but prior to any such action Tenant will give Landlord written notice specifying such default with particularity, and Landlord shall thereupon have 20 days (or such longer period as may be necessary in the circumstances) in which to cure any such default. Unless and until Landlord fails so to cure any default under such notice, Tenant shall not have any remedy or cause of action by reason thereof. All obligations of Landlord hereunder will be construed as covenants, not conditions; and all such obligations will be binding upon Landlord only during the period of its ownership of the Building and not thereafter. 20.2 Limitation on Right of Recovery Against Landlord. Tenant acknowledges and agrees that the liability of Landlord under this Lease shall be limited to its interest in the Building and any judgments rendered against Landlord shall be satisfied solely out of the proceeds of sale of its interest in the Building. No personal judgment shall lie against Landlord upon extinguishment of its rights in the Building and any judgment so rendered shall not give rise to any right of execution or levy against Landlord's assets. The provisions hereof shall inure to Landlord's successors and assigns including any Mortgagee. The foregoing provisions are not intended to relieve Landlord from the performance of any of Landlord's obligations under this Lease,.but only to limit the personal liability of Landlord in case of recovery of a judgment against Landlord. ARTICLE XX. - HOLDING OVER In the event Tenant remains in possession of the Premises after the expiration of this Lease and without the execution of a new lease, it shall be deemed to be occupying the Premises as a tenant from month to month at a monthly rental equal to twice the sum of (a) the Monthly Payment payable during the last month of the Term and (b) the average Percentage Rental payable hereunder for the last two years of the Term, and otherwise subject to all the conditions, provisions and obligations of this Lease insofar as the same are applicable to'a month to month tenancy. In the event of any such holding over, Tenant shall indemnify Landlord against all claims for damages by any other lessee to whom Landlord may have leased all or any part of the Premises effective upon the expiration or termination of this Lease or by any other person damaged by such holding over. ARTICLE XXI. - SUBORDINATION, ATTORNMENT AND CONDOMINIUMIZATION 22.1 Subordination. This Lease shall be secondary, junior and inferior at all times to the lien of any mortgage and to the lien of any deed of trust or other method of financing or refinancing (hereinafter collectively referred to as "mortgage") now or hereafter existing against all or a part of the Premises or the Building, and to all renewals, modifications, replacements, consolidations and extensions thereof, and Tenant shall execute and deliver all documents requested by any mortgagee or, security holder to effect such subordination. If Tenant fails to execute and deliver any such document requested by a mortgagee or security holder 27 to effect such subordination, Landlord is hereby authorized to execute such documents and take such other steps as are necessary to effect such subordination on behalf of Tenant as Tenant's duly authorized irrevocable agent and attorney-in- fact. In connection with any assignment of rents and leases given by landlord in the course of any financing or refinancing of the Building, Tenant understands and agrees that such assignment will include any letter of credit or other credit support given by Tenant or any guarantor to secure Tenant's or grantor's performance or to enhance Tenant's credit, and Tenant agrees to execute and deliver any agreements reasonably required by the lender to effectuate and carry out such assignment. Tenant's failure or refusal to execute and deliver any agreements, instruments or certificates provided for this Section 22.1 or 22.2 below within ten (10) days after the mailing by Landlord of a written request shall be a default of this Lease. 22.2 Attornment. Tenant shall, in the event of a sale or assignment of Landlord's interest in the Premises or the Building, or if the Premises or the Building comes into the hands of a mortgagee or any other successor whether because of a mortgage foreclosure, exercise of a power of sale under a mortgage, or otherwise, attorn to the purchaser or such mortgagee or other successor and recognize the same as landlord hereunder. Tenant shall execute, at landlord's request, any attornment agreement required by any mortgagee or other such successor to be executed, containing such provisions as such mortgagee or other successor requires. Such successor shall not be (i) liable for any previous act or mission of Landlord under this Lease, (ii) subject to any offset that theretofore accrued to Tenant against Landlord or (iii) bound by any previous prepayment of rent or security deposit which have not been expressly delivered by Landlord to such successor. If so requested, Tenant shall enter into a new lease with that successor on the same terms and conditions as are contained in this Lease (for the unexpired term of this Lease then remaining). 22.3 Non-Disturbance. Notwithstanding any other provision of this Paragraph 22.3 and so long as Tenant is not in default, Tenant's possession of the Premises and Tenant's rights and privileges under the Lease or any extensions or renewals thereof will not be disturbed, diminished or interfered with by Landlord or by anyone claiming an interest in the Property by, through or under Landlord and Landlord will make all reasonable efforts (but without the expenditure of any monies other than attorney fees) to secure for Tenant a subordination and non-disturbance agreement among Landlord, Tenant and the mortgagee providing for Tenant's rights as aforesaid, in form and substance reasonably acceptable to Tenant. 22.4 Condominiumization. Landlord reserves the right, without the consent of Tenant and at no expense to Tenant, to execute and record declarations, restrictive covenants, maps or other documents for the purpose of subdividing the subject property into condominium units and common elements, provided that if any portion of the Premises shall be included in a condominium unit, Landlord's right as declarant and owner thereof shall be subject and subordinate to the possessory and other rights of Tenant to the Premises under this Lease. 28 ARTICLE ISI. - NOTICES 23.1 Giving of Notice. Wherever any notice is required or permitted hereunder such notice shall be in writing. Any notice, document or payment required or permitted to be delivered hereunder shall be deemed to be given when personally delivered or, whether or not actually received, (a) On the business day after the day sent by generally recognized overnight delivery service to the Tenant's Mailing Address if to Tenant or to Landlord's Address if to Landlord, or (b) three days after being deposited in the United States mail, postage prepaid, Certified or Registered Mail, Return Receipt Requested, addressed to Tenant's Mailing Address if to Tenant, or to Landlord's Address if to Landlord, or at such other address as Landlord or Tenant may have hereafter specified by written notice to the other. Electronic delivery of notices shall also be deemed sufficient and considered delivered upon receipt of confirmation of delivery on the part of the sender. Notices shall be sent as follows unless amended in writing: For Landlord: finer lx 6011.0e_Co1hrnefeia1 Clo Enk 8'd(biC. I p_Lj ' 4 c Q, Cir+DIa , CA q5 DI Co 1_Likq._ _ Efik.BO sbau ratnac i ad.Cervi With Copy to John Case _9 q 34jobriliacIt:lig nie.i L ev ) For Tenant: Janice Vos 530 East Main St., Aspen, Co 81611 970 920 5180 Janice.vos@pitkincounty.corn With Copy to John Ely, County Attorney 530 East. Main St., Aspen, Co 81611 970 920 5190 John.ely@pitkincounty.com 23.2 Effect of Notice. If and when included within the term "Landlord" as used in this instrument there is more than one person, firm or corporation, all shall jointly arrange among themselves for their joint execution of such notice specifying some individual at some specific address for the receipt of notices and payments to Landlord. If and when included within the term "Tenant" as used in this instrument there is more than one person, firm or corporation, all shall jointly arrange among themselves for their joint execution of such a notice specifying some individual at some specific address for the receipt of notice and payments to Tenant. All parties included within the terms "Landlord" and "Tenant", respectively, shall be bound by notices and payments given in accordance with the provisions of this Article to the same effect as if each had received such notice or payment. 29 • ARTICLE%SII. - ESTOPPEL STATEMENTS Each party agrees to execute, acknowledge and deliver to the other party at any time within five days of the other party's request, a writing ratifying this Lease and certifying: (a) that Tenant has entered into occupancy of the Premises and the date of such entry if such is the case; (b) that this Lease is in full force and effect, and has not been assigned, modified, supplemented or amended in any way (or if there has been any assignment, modification, supplement or amendment, identifying the same); (c) that this Lease represents the entire agreement between Landlord and Tenant as to the subject matter hereof (or if there has been any assignment, modification, supplement or amendment, identifying the same); (d) the date of commencement and expiration of the Term; (e) that all conditions under this Lease to be performed by the other party have been satisfied and all required contributions by Landlord to Tenant on account of Tenant's improvements have been received (and if not, what conditions remain unperformed); (f) that to the knowledge of the signer of such writing no default exists in the performance or observance of any covenant or condition in the Lease and there are no defenses or offsets against the enforcement of this Lease by the other party (or specifying such default, defense or offset of which the signer may have knowledge); (g) that, except for the Security Deposit and one month's rental, no rental has been paid in advance and no other security has been deposited with Landlord; and (h) the date to which rental has been paid under this Lease. ARTICLE XXV. -DIRECTION OF TENANT'S ENERGIES N/A. ARTICIF XXVI. - MISCELLANEOUS 26.1 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. 26.2 Captions. The captions used herein are for convenience only and do not limit or,amplify the provisions hereof. 26.3 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 30 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. 26.4 Notice to Mortgagee of Landlord's Default. At any time when there is outstanding a mortgage, deed of trust or similar security instrument covering Landlord's interest in the Premises, Tenant may not exercise any remedies for default by Landlord hereunder unless and until the holder of the indebtedness secured by such mortgage, deed of trust or similar security instrument shall have received written notice of such default and a reasonable time for curing such default shall thereafter have elapsed. 26.5 Quiet Enjoyment. Landlord agrees that if Tenant shall perform all of the covenants and agreements herein required to be performed by Tenant, Tenant shall, subject to the terms of this Lease and of any applicable Condominium Documents, at all times during the continuance of this Lease, have the peaceable and quiet enjoyment and possession of the Premises. 26.6 Entire Agreement and Execution. This Lease contains the entire agreement between the parties and replaces and supersedes any prior agreements or letters of intent between the parties. 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. 26.7 Broker. Tenant warrants that it has had no dealing with any broker or agent in connection with the negotiation or execution of this Lease other than the Broker(s), if any, identified in Section 1.1(p). In the event any agent or broker other than the Broker(s) so identified shall make a claim for a commission or fee, Tenant shall be responsible for payment thereof and hereby indemnifies and holds Landlord harmless from such claim for commission or fees. 26.8 Governing Law; 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 Pitkin County District Court in Aspen, Colorado shall have subject matter jurisdiction to entertain any action brought to enforce this Lease and, by execution hereof, voluntarily submits to the personal jurisdiction of such courts. 26.9 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 and legal representatives except as otherwise herein expressly provided. 31 26.10 Attorney's Fees. In the event of any action or proceeding brought by Landlord or Tenant against the other under this Lease, the substantially prevailing party shall be entitled to recover all reasonable costs and expenses, including the fees and expenses of its attorneys, with a maximum amount of fees to be no more than $50,000.00. 26.11 Invalid Provisions. If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective during the Term, 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 substituted a legal, valid and enforceable clause or provision as similar to such illegal, invalid or unenforceable clause or provision as may be possible. 26.12 Authority 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 requisite action of Tenant's board of directors, or partners, as the case may be, and agree upon request 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. 26.13 Corporate Tenants. If Tenant is a corporation, the persons executing this Lease on behalf of Tenant hereby covenant and warrant that Tenant is a duly constituted corporation qualified to do business in the state in which the Premises are located; all Tenant's franchise and corporate 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. 26.14 Tenant's Financials. If requested by Landlord, Tenant, upon the execution of this Lease, shall have provided to Landlord a copy of Tenant's financial statements (including but not limited to its balance sheet, income statement and all notes and footnotes thereto) for its three immediately preceding fiscal years. Such statements shall be audited, if available; otherwise they shall be certified as true, correct and complete by the Tenant's authorized officer or partner. Tenant acknowledges that Landlord will have relied on such financial statements in entering into this Lease. 26.15 Joint and Several Liability. If two or more individuals, corporations, partnerships or other business associations (or any combination of two or more thereof) shall sign this Lease as Tenant, the liability of each such individual, corporation, partnership 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 any one of such individuals, corporations, partnerships or other business associations shall be deemed to have 32 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 statute 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 Statutes, 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. 26.16 No Liens or Encumbrances. Tenant agrees not to obtain any financing secured by Tenant's interests in the Premises and not to encumber the Premises or Tenant's interest therein without the prior written consent of Landlord, which consent may be withheld in Landlord's sole discretion, and to keep the Premises free from all liens and encumbrances except liens and encumbrances created by Landlord. 26.17 Waiver of Jury Trial. Landlord and Tenant hereby mutually waive any and all rights which either party may have to request a jury trial in any proceeding at law or in equity in any court of competent jurisdiction relating to this Lease. 26.18 No Recordation. Without the prior consent of Landlord, which consent may be withheld in Landlord's sole discretion, Tenant shall not record this Lease or any evidence of this Lease. 26.19 Co;rupliance with ADA. Tenant accepts the Premises as is, and Tenant shall be responsible to: (a) comply with all provisions and requirements of the Americans With Disabilities Act (Title III) with regard to the non-structural elements in Tenant's own premises; (b) indemnify Landlord from any and all costs of any kind incurred by Landlord due to the Tenant's failure to comply with the above. 26.20 OFAC Representation. Tenant represents and warrants to Landlord that neither Tenant nor any of its affiliates, nor any of their respective partners, members, shareholders or other equity owners, and none of their respective employees, officers, directors, representatives or agents, is a person or entity with whom U.S. person or entities are restricted form doing business under regulations of the Office of Foreign Assets Control ("OFAC") of the United States Department of the Treasury (including those named on OFAC's Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action. 26.21 Personal Guaranty. N/A (intentionally omitted) 33 26.22 Time 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 a factor. 26.23 No Offer. The submission of this Lease by Landlord to Tenant shall not constitute an offer on the part of Landlord to lease the Premises to Tenant or prevent Landlord from showing or negotiating with other interested parties and nothing herein shall be binding on the parties unless and until signed by both Landlord and Tenant. IN WITNESS WHEREOF, the parties hereto have executed this Lease Agreement as of the day and year first above written. LANDLORD: The James E. Cox Living Trust. \, By. ,i in tee aaI�,e: c 1 Glc,+' itle: �bn�5�4t TENANT: Pitkin County By: Printed Name: ` 'j x... 34 s#� 26.22 Time 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 a factor. 26.23 No Offer. The submission of this Lease by Landlord to Tenant shall not constitute an offer on the part of Landlord to lease the Premises to Tenant or prevent Landlord from showing or negotiating with other interested parties and nothing herein shall be binding on the parties unless and until signed by both Landlord and Tenant. IN WITNESS WHEREOF, the parties hereto have executed this Lease Agreement as of the day and year first above written. LANDLORD: The James E. Cox Living Trust. By: . Printed Name: Title: TENANT: Pitkin County • By: . Printed Name: ; x.: . Title: 1,40e,--: • 34