HomeMy WebLinkAboutbocc.ord.002.2016 CONTRACT# )./3E
ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY, COLORADO,APPROVING THE EXECUTION OF A
LEASE AGREEMENT WITH RIVER PARK CENTER, LLC
FOR THE PURPOSE OF TEMPORARY OFFICE SPACE
ORDINANCE NO.tO.- -2016
1. The Courthouse Plaza Building,which currently houses the offices of Pitkin
County Administration, Community Relations, Finance, Human Resources, Open Space
and Trails, Information Technology, GIS and the County Attorney(the"County
Departments")will undergo a major renovation project("Project")commencing in early
2016.
2. The Board of County Commissioners ("the County")has determined that there is
a need for temporary leased space to continue the day to day business operations of the
County Departments for the duration of the Project. The Clerk&Recorder's Office and
Elections Department, also currently located in the Courthouse Plaza Building, have
acquired separate leases and will remain in Aspen.
3. The County and River Park Center, LLC, ("Landlord")desire to enter into a
commercial Lease Agreement for an initial term of twenty-three (23)months to
temporarily house the County Departments at River Park Center, located 123 Emma
Road,Basalt, CO. The Leased Premises and the Base Terms are as follows; with terms
more specifically outlined and described in the Lease Agreement:
• Initial Term: February 1, 2016-December 31,2017
• Leased Premises: 8,016 square feet(49%of total 16,051 square feet of
floor area)
• Term 23 months with option to extend on a month to month basis. Initial
base rent$9,686/month($116,232/yr.)with a 3%annual escalation to base
rent
o Monthly base rent for first 12 months: $9,686.00/month
($116,232/yr.)
o Monthly base rent for next 11 months: $9,976.58/month
(119,718.96/yr.)
o After 23 months: $10,275.87/month
• Security Deposit:N/A
4. The terms of the Lease Agreement shall incorporate language approved by the
County Manager and County Attorney and the Chair(or Chair's designee) shall be
authorized to execute the Lease Agreement in the form approved.
5. 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 upon
adoption.
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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 a commercial Lease Agreement with River Park Center, LLC, in a
form approved by the County Manager and County Attorney for the purpose of housing
the County Departments for the duration of the Courthouse Plaza renovation project.
INTRODUCED AND FIRST READ ON THE 13TH DAY OF JANUARY 2016 AND
SET FOR SECOND READING AND PUBLIC HEARING ON THE 27TH DAY OF
JANUARY 2016.
NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE
ORDINANCE PUBLIS IN THE ASPEN TIMES WEEKLY ON THE
l- DAY OF Ex124,,er ,2416.. 01615
NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE
POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE(www.pitkincounty.com)
ON THE 3(-4-t DAY OF C2e-e..Qle r 244.6. 20/J" ,
ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE 27TH DAY
OF JANUARY 2016.
PUBLISHED BY TITLE AND SHORT SMARY,A�TTE ADOPTION, IN THE
ASPEN TIMES WEEKLY ON THE // DAY OF /'.ar(/4__wcf, 2016.
POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITXIN
COUNTY WEBSITE(www.pitkincountv.com) ON THE DAY OF f— iivkf�p�,
2016. Q
THIS ORDNANCE IS EFFECTIVE ON JANUARY 27,2016.
ATT ST: BOARD OF COUNTY COMMI 0
I
By /,., . r i lido By:
Jeff ette Jones / Rac 1 E. Richards, Chair
De r` County Clerk
Date: /-:7-go/6
APPROVED AS TO FORM: MANAGER APPROVAL:
�Atto Jon Peacock, ty Manager Coun
John Ely, • .
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CONTRACT#
RIVER PARK CENTER STANDARD LEASE
LANDLORD:
River Park Center LLC
and
TENANT:
Pitkin County
River Park Center, No. 5, 1/8/2016, 10:30 a.m.
EXHIBITS
EXHIBIT"A"Center Site Plan
EXHIBIT"B"Floor Plan
EXHIBIT"C"Work Letter Agreement
EXHIBIT"D"Sample Form of Notice of Term Dates
EXHIBIT"E"Rules and Regulations
EXHIBIT"F" Parking
EXHIBIT"G"Typical Estimate Statement
SUMMARY OF BASIC LEASE INFORMATION AND DEFINITIONS
This SUMMARY OF BASIC LEASE INFORMATION AND DEFINITIONS ("Summary") is
hereby incorporated into and made a part of the attached Center Lease which pertains to the
Building described in Section 1.4 below. All references in the Lease to the"Lease"shall include
this Summary. All references in the Lease to any term defined in this Summary shall have the
meaning set forth in this Summary for such term. Capitalized terms used in this Summary and
capitalized terms in the Lease not otherwise defined in this Summary shall have the meaning
given to such terms in the Lease. If any inconsistency exists between this Summary and the
Lease,the provisions of the Lease shall control.
1.1 Landlord's Address: P.O. Box 1363,Carbondale, CO 81623
Property Manager Address: P.O. Box 1363, Carbondale, CO 81623
Rent Payment Address: P.O. Box 1363, Carbondale, CO 81623
1.2 Tenant's Address: 530 East Main Street, Aspen, CO 81611
1.3 Center: The center is commonly known as River Park Center.
1.4 Building: The building within which the Premises are located, is depicted in Exhibit"A"
attached hereto.
1.5 Premises: Those certain Premises within the Building shown on.the two pages of the
floor plans attached hereto as Exhibit"B", containing 8,016 rentable square feet space.
Tenant accepts Premises in its present"as is"condition.
1.6 Tenant's Share: See Section 1.3 of the Lease.
1.7 Commencement Date; Expiration Date:
Commencement Date: February 1,2016.
Expiration Date: December 31,2017.
1.8 Term: Twenty three months beginning on the Commencement Date and ending on the
Expiration Date, unless 90 day's written notice is given by Tenant on or before October
1, 2017 to continue on a month to month basis at the Base Rent of$10,275.87 per month
until no later than December 31, 2018. During that month to month term, either Tenant
or Landlord may terminate this Lease by ninety(90)days' written notice.
1.9 Monthly Base Rent:
Monthly Base Rent first 12 months, starting on February 1, 2016,=$9,686.00
Monthly Base Rent next 11 months,one hundred three percent(103%) of first 12 months
=$9,976.58
After 23 months, one hundred three percent(103%)of$9,976.58 which is $10,275.87
1.10 Permitted Use: Government offices.
1.11 Security Deposit: N/A
1.12 Tenant Improvements: The tenant improvements installed or to be installed in the
Premises, if any, described as"Tenant's Work"in the Work Letter Agreement attached
hereto as Exhibit"C".
1.13 Amount Due on Lease Execution:, Base Rent for first month: $9,686.00
CAM for first and last months: $
Security Deposit N/A
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RIVER PARK CENTER STANDARD LEASE
This LEASE which includes the preceding Summary of Basic Lease information and definitions
("Summary") attached hereto and incorporated herein by this reference (collectively, the
"Lease"), is dated for identification purposes only as of the 15th day of December, 2015, by and
between River Park Center, LLC ("Landlord"), and Pitkin County, Colorado("Tenant").
1. Premises.
1.1. Premises. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
Premises upon and subject to the terms, covenants and conditions contained in this Lease to be
performed by each party.
1.2. Landlord's Reservation of Rights. Provided Landlord does not interfere with Tenant's
use of and access to the Premises in an unreasonable manner, Landlord reserves the right from
time to time to install, use, maintain, repair, replace and relocate pipes, ducts, conduits, wires,
and appurtenant meters and equipment above the ceiling surfaces, below the floor surfaces, and
within the walls of the Building and the Premises.
1.3. Tenant's Share. "Tenant's Share" means a fraction, the numerator of which is 8,016
square feet, the total Floor Area (as defined below) of the Tenant's Premises and the
denominator of which is 16,051 square feet, the total Floor Area of the building, including the
Premises,per AnsiBoma Z65.5-2010 standards. Tenant's share is forty-nine percent(49%).
1.4. Floor Area. "Floor Area" of Tenant's Premises is 8.016 square feet. The Floor Area is
measured, on a floor by floor basis in accordance with AnsiBoma Z65.5-2010 standards.
2. Term.
2.1. Term; Notice of Lease Dates. The Term of this Lease shall be for the period designated
in Section 1.8 of the Summary of Basic Lease Information, commencing on the Commencement
Date, and ending on the Expiration Date, unless the Term is sooner terminated or extended as
provided in this Lease. Within ten (10) days after Landlord's written request, Tenant shall
execute a written confirmation of the Commencement Date and expiration date of the Term in
the form of the Notice of Term Dates attached hereto as Exhibit"D". The Notice of Term Dates
shall be binding upon Tenant unless Tenant objects thereto in writing within such ten (10) day
period.
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3. Rent.
3.1 Base Rent. Tenant shall pay Landlord on the first day of each month, as Base Rent for
the Premises,the Monthly Base Rent designated in Section 1.9 of the Summary. Annual Base
Rent for the first lease year is$116,232 and for the second lease year is$119,718.96. Tenant
shall pay the Monthly Base Rent in equal monthly installments of Monthly Base Rent in the
amounts designated in Section 1.9 of the Summary in advance on the first day'of each and every
calendar month during the Term,provided Tenant shall pay the first installment of Monthly Base
Rent upon execution of this Lease.
3.2 Monthly Base Rent. Monthly Base Rent first 12 months $9,686.00
Monthly Base Rent next 11 months, One hundred three percent(103%)of first 12 months,which
is $9,976.58. After 23 months, one hundred three percent(103%) of$9,976.58 which is
$10,275.87 shall be payable during any month to month tenancy provided for herein.
3.2 Additional Rent. All amounts and charges payable by Tenant under this Lease in
addition to the Annual Base Rent described in Section 3.1 above shall be considered additional
rent for the purposes of this Lease, and the word"rent"in this Lease shall include such
additional rent and Annual Base Rent unless the context specifically requires only the Annual
Base Rent. Tenant shall pay rent to Landlord as provided in herein, without any prior demand
therefor and without any deduction or offset, in lawful money of the United States of America.
3.3 Late Payments. Late payments of rent shall be subject to a late charge as provided
herein.
4. Common Area.
4.1 Definition of Common Area. "Common Area" means all areas and the improvements
thereon within the boundaries of the River Park Center now or later made available for
Landlord's general use, Tenant and other persons entitled to occupy Floor Area in the Center and
their customers, including, without limitation, the parking facilities of the Center which serve the
Center, loading and unloading areas, trash areas, roadways, sidewalks, walkways, parkways,
driveways, landscaped areas, and similar areas and facilities situated within the Center not
reserved for the exclusive use of any Center occupants. Common Area shall not include (i)the
entryway to a tenant's premises, (ii) any improvements installed by a tenant outside of its
premises, with or Landlord's consent, or(iii) any areas or facilities included in the description of
premises leased to a tenant.
4.2 Maintenance and Use of Common Area. Landlord shall determine the manner in
which the Common Area shall be maintained in its sole discretion. The use and occupancy by
Tenant of the Premises shall include the right to use the Common Area(except those portions of
the Common Area on which have been constructed or placed permanent or temporary kiosks,
displays, carts, and stands and except areas used in the maintenance or operation of the Center),
in common with Landlord and other tenants of the Center and their customers and invitees,
subject to (i) any covenants, conditions and restrictions governing, among other things, the
allocation of Common Area expenses to the Center, and any other operating agreements or
covenants, conditions, and restrictions from time to time encumbering the Center (collectively,
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the "Declaration"), and (ii)such reasonable, non-discriminatory rules and regulations
concerning the Center as Landlord may establish from time to time including, without limitation,
the Rules and Regulations attached hereto as Exhibit"E". Tenant shall promptly comply with all
such rules and regulations and any reasonable, non-discriminatory amendments thereto, upon
receipt of written notice from Landlord. Tenant acknowledges this Lease and all Tenant's rights
under this Lease are subject to the Declaration.
4.3 Control of and Changes to Common Area. Landlord shall have the sole and exclusive
control of the Common Area and the right to make reasonable changes to the Common Area.
Provided Landlord does not materially interfere with Tenant's use of and access to the Premises,
except as required by law, Landlord's rights shall include, but not be limited to, the right to
(a) restrain the use of the Common Area by unauthorized persons; (b) cause Tenant to remove or
restrain persons from any unauthorized use of the Common Area if they are using the Common
Area by reason of Tenant's presence in the Center.
4.4 Common Area Expenses. "Common Area Expenses" means all costs and expenses
incurred by Landlord, in operating, managing, policing, insuring, servicing, decorating,
repairing, maintaining and replacing the (a) Common Area, (b) the exterior surface of exterior
walls, roofs, foundations, and other structural portions of the building constituting the Center
from time to time including the Building and the basic plumbing, heating, ventilating, air
conditioning, sprinkler and electrical systems within the core of such building; and (c)the '—
Common Utility Facilities constitute "Common Area Expenses"; but shall not include capital
expenses; "Common Utility Facilities" include but are not limited to sanitary sewer lines and
systems, gas lines and systems, water lines and systems, fire protection lines and systems,
electric power, telephone and communication lines and systems. Common Area Expenses shall
include the following: expenses for maintenance, landscaping, snow removal, repaving,
resurfacing, repairs, replacements, painting, lighting, cleaning, trash removal, security, if any,
fire protection and similar items; management fees; payroll taxes, employment taxes, workers'
compensation, for those who perform duties connected with the operation, maintenance and
repair of the Center, its equipment, and the adjacent walks and landscaped areas; rental on
equipment; charges, surcharges, and other levies related to the requirements of any federal, state,
or local governmental agency; expenses related to the Common Utility Facilities; personal
property taxes and Real Property Taxes on the improvements and land comprising the Common
Area; costs of insurance maintained by Landlord pursuant to this Lease; costs of improvements
to the Common Area (i) intended to reduce operating expenses, (ii) as any laws, ordinances,
rules, or regulations of any governmental authority or agency having jurisdiction thereover may
require from time to time by, or (iii) for the refurbishment and replacement of Common Area
improvements or amenities; and a sum payable to Landlord for administration and overhead in
an amount equal to twelve percent(12%) of the Common Area Expenses for the applicable year.
4.5 Determination of Tenant's Quarterly Common Area Expense Charge. For the
purposes of this Lease, the first quarter shall be February 1, 2016 which shall be prorated as 2/3
of a quarter ending on March 31, 2016. The following quarters each start on April 1, July 1,
October 1 and January 1 of each year. From and after the Commencement Date, Tenant shall
pay to Landlord, on the first day of each calendar quarter during the Term of this Lease, Tenant's
Share of Landlord's estimate of the Common Area Expenses for the Center for such quarter
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("Tenant's Common Area Expense Charge"), except Tenant shall pay the first installment of
Tenant's Quarterly Common Area Expense Charge upon execution of this Lease.
4.6 Estimate Statement. Prior to the Commencement Date and on or about ninety(90) days
after the end of each calendar year during the Term of this Lease, Landlord shall deliver to
Tenant a statement ("Estimate Statement") substantially in the form of Exhibit "G",wherein
Landlord shall estimate both the Common Area Expenses and Tenant's Common Area Expense
Charge for the then-current calendar year. Tenant shall pay Landlord, as additional rent,
Landlord's estimated Quarterly Common Area Expense Charge each quarter thereafter until such
time as Landlord issues a revised Estimate Statement or the Estimate Statement for the
succeeding calendar year; except concurrently with the regular monthly rent payment next due
following the receipt of each such Estimate Statement Tenant shall pay Landlord an amount
equal to one quarterly installment of Landlord's estimated Common Area Expense Charge (less
any applicable Common Area Expenses already paid) in the current calendar year, to the month
of such rent payment next due. If at any time during the Term of this Lease, but not more often
than quarterly, Landlord determines Tenant's Share of Common Area Expenses for the current
calendar year will be greater than the amount set forth in the then-current Estimate Statement,
Landlord may issue a revised Estimate Statement and Tenant shall pay Landlord, within thirty
(30) days of receipt of the revised Estimate Statement, the difference between the amount owed
by Tenant under such revised Estimate Statement and the amount owed by Tenant under the
original Estimate Statement for the portion of the then-current calendar year which has expired.
Thereafter Tenant shall pay Tenant's Common Area Expense Charge based on such revised
Estimate Statement until Tenant receives the next calendar year's Estimate Statement or a new
revised Estimate Statement for the current calendar year.
4.7 Actual Statement. Within ninety (90) days of the end of each calendar year during the
Term of this Lease, Landlord shall deliver to Tenant a statement ("Actual Statement") which
states Tenant's Share of the actual Common Area Expenses for the preceding calendar year. If
the Actual Statement reveals Tenant's Share of the actual Common Area Expenses is more than
the total Additional Rent paid by Tenant for Common Area Expenses on account of the
preceding calendar year, Tenant shall pay Landlord the difference in a lump sum within thirty
(30) days of receipt of the Actual Statement. If the Actual Statement reveals Tenant's Share of
the actual Common Area Expenses is less than the Additional Rent paid by Tenant for Common
Area Expenses on account of the preceding calendar year, Landlord shall credit any overpayment
toward the next monthly installment(s) of Tenant's Share of the Common Area Expenses due
under this Lease.
4.8 Miscellaneous. Any delay or failure by Landlord in delivering any Estimate Statement
or Actual Statement pursuant to this Section shall not constitute a waiver of its right to require an
increase in rent nor shall it relieve Tenant of its obligations pursuant to this Section, provided
Tenant shall not be obligated to make any payments based on such Estimate Statement or Actual
Statement until thirty (30) days after receipt of such Estimate Statement or Actual Statement. If
Tenant does not object to any Estimate Statement or Actual Statement within thirty (30) days
after Tenant receives any such statement, such statement shall be deemed final and binding on
Tenant. Even though the Term has expired and Tenant has vacated the Premises,when Landlord
makes its final determination of Tenant's Share of the actual Common Area Expenses for the
year in which this Lease terminates, Tenant shall promptly pay any increase due over the
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estimated expenses paid and, conversely, Landlord shall promptly rebate any overpayment
resulting from a decrease in such expenses to Tenant. Such obligation shall be a continuing one
which shall survive the expiration or termination of this Lease. Prior to the expiration or sooner
termination of the Term and Landlord's acceptance of Tenant's surrender of the Premises,
Landlord may estimate the actual Common Area Expenses for the then-current lease year and
collect from Tenant, prior to Tenant's surrender of the Premises Tenant's Share of any excess of
such actual Common Area Expenses over the estimated Common Area Expenses paid by Tenant
in such lease year.
5. Use.
5.1 General. Tenant shall use the Premises solely for the Permitted Use as government
offices and shall not use or permit the Premises to be used for any other use or purpose. Tenant
shall observe and comply with the "Rules and Regulations" attached hereto as Exhibit"E", and
all reasonable non-discriminatory modifications thereof and additions thereto from time to time
put into effect and furnished to Tenant by Landlord. Landlord shall endeavor to enforce the
Rules and Regulations, but shall have no liability to Tenant for the violation or non-performance
by any other tenant or occupant of the Center of any such Rules and Regulations. Tenant shall,
at its sole cost and expense, observe and comply with all requirements of any board of fire
underwriters or similar body relating to the Premises, and all laws, statutes, codes, rules and
regulations now or hereafter in force relating to or affecting the use, occupancy, alteration or
improvement of the Premises, including, without limitation, the provisions of Title III of the
Americans with Disabilities Act of 1990 as it pertains to Tenant's use, occupancy, improvement
and alteration of the Premises. Tenant shall not use or allow the Premises to be used (a) in
violation of the Declaration or any other recorded covenants, conditions and restrictions affecting
the Center or of any law or governmental rule or regulation, or of any certificate of occupancy
issued for the Premises or the Building, or (b)for any improper, immoral, unlawful, or
objectionable purpose. Tenant shall not do or permit to be done anything which will obstruct or
interfere with the rights of other tenants or occupants of the Center, or injure or annoy them.
Tenant shall not cause, maintain or permit any nuisance in, on or about the Premises, the
Building or the Center, nor commit or suffer to be committed any waste in, on or about the
Premises.
5.2 Parking. Tenant shall have three signed and assigned parking spaces located with
immediate access to an entry door to the Premises. In addition, common parking spaces as shown
on Exhibit "F" as Parking Spaces 53-78 and 117-135 shall be shared with other users of the
Center and as required by the Town of Basalt PUD approval for Basalt Commercial Park. In all
parking spaces, Tenant and its employees shall park their vehicles only in those portions of the
Common Area from time to time designated for such purpose by Landlord. Further, Landlord
may adopt and implement such alternative parking programs as Landlord determines are
reasonably necessary to alleviate parking problems during peak traffic periods. The use of the
parking area shall be subject to the Parking Rules and Regulations attached hereto as Exhibit"E"
and any other reasonable, non-discriminatory rules and regulations adopted by Landlord from
time to time, including any system for controlled ingress and egress. Tenant shall furnish
Landlord with a list of its employees and the license numbers of their vehicles within fifteen(15)
days after Landlord requests such information. Tenant shall ensure its employees comply with
all the provisions of this Section and such other parking rules and regulations as Landlord may
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adopt and implement from time to time, including, but not limited to, systems of validation, or
any other programs which Landlord may deem necessary or appropriate to control, regulate, or
assist parking by customers of the Center.
5.3 Signs, Awnings and Canopies. Tenant shall not place or suffer to be placed or
maintained on the roof or on any exterior door, wall, or window of the Premises any sign,
awning or canopy, or advertising matter on the glass of any window or door of the Premises
without Landlord's prior written consent. Tenant further shall maintain such sign, awning,
canopy, decoration, lettering in good condition and repair at all times.
5.4 Refuse and Sewage. Tenant agrees not to keep any trash, garbage, waste or other refuse
on the Premises except in sanitary containers and shall regularly and frequently remove same
from the Premises. Tenant shall keep all containers or other equipment used for storage of such
materials in a clean and sanitary condition. Tenant shall properly dispose of all sanitary sewage
and shall not use the sewage disposal system for the disposal of anything except sanitary sewage.
Tenant shall keep the sewage disposal system free of all obstructions and in good operating
condition. If, in Landlord's judgment, Tenant's trash volume becomes excessive, Landlord may
charge Tenant for additional trash disposal services and/or require Tenant to contract directly for
additional trash disposal services at Tenant's sole cost and expense.
6. Payments and Notices. Tenant shall pay all rent and other sums payable by Tenant
pursuant to this Lease to Landlord at the address designated in the Summary of basic Lease
Information and definitions, or to such other persons and/or at such other places as Landlord may
hereafter designate in writing. Any notice required or permitted under this Lease must be in
writing and may be given by personal delivery (including delivery by nationally recognized
overnight courier or express mailing service), facsimile transmission sent by a machine capable
of confirming transmission receipt, with a hard copy of such notice delivered no later than one
(1) business day after facsimile transmission by another method specified in this Section 6, or by
registered or certified mail, postage prepaid, return receipt requested, addressed to Tenant at the
address(es) designated in Section 1.2 of the Summary, or to Landlord at the address(es)
designated in Section 1.1 of the Summary. Either party may, by written notice to the other,
specify a different address for notice purposes. Notice given in the foregoing manner shall be
deemed given (i)upon confirmed transmission if sent by facsimile transmission, provided such
transmission is prior to 5:00 p.m. on a business day (if such transmission is after 5:00 p.m. on a
business day or is on a non-business day, such notice shall be deemed given on the following
business day), (ii)when actually received or refused by the party to whom sent if delivered by a
carrier or personally served, or (iii) if mailed, on the day of actual delivery or refusal as shown
by the certified mail return receipt or the expiration of three (3) business days after the day of
mailing, whichever first occurs. For purposes of this Section 6, a "business day" is Monday
through Friday, excluding holidays observed by the United States Postal Service.
7. Surrender; Holding Over.
7.1 Surrender of Premises. Upon the expiration or sooner termination of this Lease, Tenant
shall deliver all keys for the Premises to Landlord, and Tenant shall deliver exclusive possession
of the Premises to Landlord broom clean and in first-class condition and repair, reasonable wear
and tear excepted with all Tenant's personal property and any cabling installed by or at Tenant's
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request (and those items, if any, of Tenant Improvements and Tenant Changes identified by
Landlord removed therefrom and all damage caused by such removal repaired, as required
pursuant to this Lease. If Tenant fails to surrender the Premises on the expiration or earlier
termination of this Lease (including upon the expiration of any subsequent month-to-month
tenancy consented to by Landlord pursuant to this Lease), with such removal and repair
obligations completed, in addition to the provisions of this Lease and Landlord's rights and
remedies under other provisions of this Lease, Tenant shall defend (by counsel approved in
writing by Landlord) and hold Landlord harmless from and against any and all claims,
judgments, suits, causes of action, damages, losses, liabilities and expenses (including attorneys'
fees and court costs) resulting from such failure to surrender, including, without limitation, any
claim made by any succeeding tenant based thereon.
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7.2 Holding Over. If Tenant holds over after the expiration or earlier termination of the
Term, Tenant shall become a tenant only, upon the terms and conditions set forth in this Lease so
far as applicable (including month to month Tenant's obligation to pay Tenant's Share of
Common Area Expenses and any other additional rent under this Lease), at a Monthly Base Rent
equal to the greater of: (a) one hundred three percent (103%) of the Monthly Base Rent
applicable to the Premises immediately.prior to the date of such expiration or earlier termination;
or (b)one hundred three percent (103%) of the prevailing market rate excluding any rental or
other concessions (as determined by Landlord) for the Premises in effect on the date of such
expiration or earlier termination. Landlord's acceptance of rent after such expiration or earlier
termination shall not constitute consent to a holdover beyond April 30, 2017 but as a tenant at
sufferance at one hundred ten percent (110%) of the monthly base rent or result in an extension
of this Lease. Tenant shall pay an entire month's Monthly Base Rent calculated in accordance
with this Section 7.2 for any portion of a month it holds over and remains in possession of the
Premises pursuant to this Section 7.2.
7.3 No Effect on Landlord's Rights. The foregoing provisions of this Section are in
addition to, and do not affect, Landlord's right of re-entry or any other rights of Landlord under
this Lease or otherwise provided at law or in equity.
8. Taxes.
8.1 Real Property Taxes. Not applicable. Tenant is exempt from Real Property Taxes.
9. Possession; Condition of Premises; Repairs.
9.1 Delivery of Possession. Landlord shall deliver possession of the Premises to Tenant in
its current "as-is" condition. Notwithstanding the foregoing, Landlord shall not be obligated to
deliver possession of the Premises to Tenant until Landlord has received from Tenant all of the
following: (i) a copy of this Lease fully executed by Tenant; (ii)the Security Deposit and the
first installment of Monthly Base Rent and Tenant's Monthly Common Area Expense Charge;
and(iii) copies of policies of insurance or certificates thereof as required under this Lease.
9.2 Condition of Premises. Prior to entering into this Lease, Tenant has made a thorough
and independent examination of the Premises and all matters related to Tenant's decision to enter
into this Lease. Tenant is thoroughly familiar with all aspects of the Premises and is satisfied
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they are in an acceptable condition and meet Tenant's needs. Tenant does not rely on, and
Landlord does not make, any express or implied representations or warranties as to any matters
including, without limitation, any characteristics of the Premises or improvements thereon, the
suitability of the Premises for the intended use. Tenant has satisfied itself as to such suitability
and other pertinent matters by Tenant's own inquiries and tests into all matters relevant in
determining whether to enter into this Lease. Tenant acknowledges, except as otherwise
expressly set forth in this Lease, neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the Premises, the Building or the Center or their
condition, or with respect to the suitability thereof for the conduct of Tenant's business.
Tenant's taking possession of the Premises shall conclusively establish the Center, the Premises,
the Tenant Improvements therein, the Building, and the Common Areas were at such time
complete and in good and satisfactory condition and repair.
9.3 Landlord's Repair Obligations. Landlord shall, as part of the Common Area Expenses,
repair, maintain and replace, as necessary, (a)the shell and other structural portions of the
Building (including the roof and foundations), (b)the basic plumbing, heating, ventilating, air
conditioning, sprinkler and electrical systems within the core of the Building (but not any
conduits or connections thereto or distribution systems thereof within the Premises), and (c)the
Common Areas of the Center; provided, however, to the extent such maintenance, repairs or
replacements are required as a result of any act, neglect, fault or omission of Tenant or any of
Tenant's agents, employees, contractors, licensees or invitees, Tenant shall pay to Landlord, as
additional rent, the costs of such maintenance, repairs or replacements as part of the Common
Area Expenses. Landlord shall not be liable to Tenant for failure to perform any such repairs,
maintenance or replacements, unless Landlord shall fail to make such repairs, maintenance or
replacements and such failure shall continue for an unreasonable time following written notice
from Tenant to Landlord of the need therefor. Without limiting the foregoing, Tenant waives the
right to make repairs at Landlord's expense and/or terminate this Lease or vacate the Premises
under any applicable law, statute or ordinance now or hereafter in effect.
9.4 Tenant's Repair Obligations. Except for Landlord's obligations specifically set forth in
this Lease, Tenant shall at all times and at Tenant's sole cost and expense, keep,maintain, clean,
repair, preserve and replace, as necessary, the Premises including all Tenant Improvements,
Tenant Changes,pipes and conduits, all fixtures, furniture and equipment, Tenant's signs, locks,
closing devices, security devices, windows, floors and floor coverings, shelving, and any
alterations, additions and other property located within the Premises in first-class condition and
repair, reasonable wear and tear excepted. Tenant shall replace, at its expense, any and all plate
and other glass in and about the Premises damaged or broken from any cause except due to the
gross negligence or willful misconduct of Landlord, its agents, or employees. Such maintenance
and repairs shall be performed with due diligence by licensed contractor(s) selected by Tenant.
10. Alterations.
10.1 Tenant Changes; Conditions.
(a) Tenant shall not make any alterations, additions, improvements or decorations to the
interior of the Premises (collectively, "Tenant Changes", and individually, a "Tenant
Change") unless Tenant first obtains Landlord's prior written approval thereof.
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Notwithstanding the foregoing, any Tenant Change which satisfies the following
conditions shall not require Landlord's prior approval (hereinafter a "Pre-Approved
Change"): (i)the costs of such Tenant Change do not exceed One Thousand Dollars
($1,000.00) individually; (ii)the costs of such Tenant Change when aggregated with the
costs of all other Tenant Changes'made by Tenant during any twelve month period do not
exceed Three Thousand Dollars ($3,000.00); (iii)Tenant delivers to Landlord final plans,
specifications and working drawings for such Tenant Change at least ten (10) days prior
to commencement of the work thereof; (iv) Tenant and such Tenant Change otherwise
satisfy all other conditions set forth in this Section; (v)the Tenant Change does not affect
the roof or the structural components of the Premises, the mechanical systems of the
Premises, the exterior portions of the Premises or portions of the Premises visible from
the Common Area; (vi)the Tenant Change does not trigger a legal requirement upon
Landlord to make any improvements or alterations to the Center; (vii) no building permit
is required; and (viii) the Tenant Change cannot easily be viewed from outside the
Premises.
(b) All Tenant Changes shall be performed: (i) in accordance with the approved plans,
specifications and working drawings; (ii) lien-free and in a first-class and workmanlike
manner; (iii)in compliance with the Declaration and all laws, rules and regulations of all
governmental agencies and authorities including, without limitation, the provisions of
Title III of the Americans with Disabilities Act of 1990 and the regulations promulgated
thereunder; (iv) in such a manner so as not to interfere with the occupancy of any other
tenant in the Building or any other building located within the Center, nor impose any
additional expense upon nor delay Landlord in the maintenance and operation of the
Building or any other building located within the Center; and (v) at such times, in such
manner and subject to such rules and regulations as Landlord may designate from time to
time.
(c) After Landlord has approved the Tenant Changes and the plans, specifications and
working drawings therefor (or is deemed to have approved the Pre-Approved Changes as
set forth above), Tenant shall: (i) enter into an agreement for the performance of such
Tenant Changes with such contractors and subcontractors selected by Tenant and
approved by Landlord; (ii)before proceeding with any Tenant Change (including any
Pre-Approved Change), provide Landlord with ten(10) days' prior written notice thereof;
(iii) obtain all necessary governmental permits and approvals for the commencement and,
completion of such Tenant Change; and (iv) at Landlord's request, obtain a completion
and lien indemnity bond, or other surety, satisfactory to Landlord for such Tenant
Change. Landlord's approval of any of Tenant's contractor(s) and subcontractor(s) shall
not release Tenant or any such contractor(s) and/or subcontractor(s) from any liability for
any conduct or acts of such contractor(s) and/or subcontractor(s).
(d) Throughout the performance of the Tenant Changes, Tenant shall obtain, or cause its
contractors to obtain, workers compensation insurance and commercial general liability
insurance in compliance with the provisions of this Lease.
10.2 Removal of Tenant Changes and Tenant Improvements. All Tenant Changes and the
initial Tenant Improvements in the Premises (whether installed or paid for by Landlord or
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Tenant), shall become Landlord's property and shall remain upon and be surrendered with the
Premises at the end of the Term of this Lease; provided, however, Landlord may, by written
notice delivered to Tenant at any time prior to the date that is thirty (30) days before the
expiration of the Term (or immediately upon any sooner termination of this Lease) identify those
items of the initial Tenant Improvements and Tenant Changes which Landlord shall require
Tenant to remove at the end of the Term of this Lease. If Landlord requires Tenant to remove
any such items as described above, Tenant shall, at its sole cost, remove the identified items on
or before the expiration or sooner termination of this Lease and repair any damage to the
Premises caused by such removal (or, at Landlord's option, shall pay to Landlord all Landlord's
costs of such removal and repair). At all times during the term of this Lease, Tenant shall ensure
all wiring and cabling it installs within the Premises or Building complies with all provisions of
local fire and safety codes and the National Electric Code. Further,upon the expiration or sooner
termination of the Term, Tenant shall remove all wiring and cabling within the Premises and the
Building (including the plenums, risers and rooftop) placed there by or at Tenant's direction,
unless excused in writing by Landlord. Without limitation to the remedies available to Landlord
if Tenant fails to comply with the terms and conditions of this subsection, Tenant shall forfeit
such sums from the Security Deposit (or otherwise pay to Landlord) an amount Landlord
believes necessary for the removal and disposal of any such wires and cabling.
10.3 Removal of Personal Property. All articles of personal property owned by Tenant or
installed by Tenant at its expense in the Premises (including business and trade fixtures, furniture
and movable partitions) shall be, and remain, Tenant's property, and shall be removed by Tenant
from the Premises, at Tenant's sole cost and expense, on or before the expiration or sooner
termination of this Lease. Tenant shall repair any damage caused by such removal.
10.4 Tenant's Failure to Remove. If Tenant fails to remove by the expiration or sooner
termination of this Lease all of its personal property, or any items of Tenant Improvements or
Tenant Changes identified by Landlord for removal pursuant to this Lease, Landlord may
(without liability to Tenant for loss thereof), at Tenant's sole cost and in addition to Landlord's
other rights and remedies under this Lease, at law, or in equity: (a)remove and store such items
in accordance with applicable law; and/or (b)upon ten (10) days' prior notice to Tenant, sell all
or any such items at private or public sale for such price as Landlord may obtain as permitted
under applicable law. Landlord may, in its sole discretion, retain the proceeds of any such sale.
11. Liens. Tenant shall not permit any mechanic's, materialmen's, or other liens to be filed
against all or any part of the Center, the Building or the Premises, nor against Tenant's leasehold
interest in the Premises, by reason of or in connection with any repairs, alterations,
improvements or other work contracted for or undertaken by Tenant or any other act or omission
of Tenant or Tenant's subtenants or their respective agents, employees, contractors, licensees or
invitees. Tenant shall, at Landlord's request, provide Landlord with enforceable, conditional and
final lien releases (and other evidence requested by Landlord to demonstrate protection from
liens) from all persons furnishing labor and/or materials with respect to the Premises. Landlord
shall have the right to post on the Premises and record any notices of non-responsibility which it
deems necessary for protection from such liens. If any such liens are filed, Tenant shall, at its
sole cost, immediately cause such lien to be released of record or bonded so it no longer affects
title to the Center, the Building or the Premises. If Tenant fails to cause such lien to be so
released or bonded within twenty (20) days after filing thereof, Landlord may, without waiving
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its rights and remedies based on such breach, and without releasing Tenant from any of its
obligations, cause such lien to be released by any means it shall deem proper, including payment
in satisfaction of the claim giving rise to such lien. Tenant shall pay to Landlord within five (5)
days after receipt of invoice from Landlord, any sum paid by Landlord to remove such liens,
together with interest at the Interest Rate from the date of such payment by Landlord.
12. Entry by Landlord. Landlord and its employees and agents may at all reasonable times
enter the Premises to inspect the same, to supply any service provided by Landlord to Tenant
under this Lease, to exhibit the Premises to prospective Ienders or purchasers (or during the last
year of the Term, to prospective tenants), to post notices of non-responsibility, and/or to alter,
improve, or repair the Premises or any other portion of the Building, all without being deemed
guilty of or liable for any breach of Landlord's covenant of quiet enjoyment or any eviction of
Tenant, and without abatement of rent. In exercising such entry rights, Landlord shall endeavor
to minimize, as reasonably practicable,the interference with Tenant's business, and shall provide
Tenant with reasonable advance written notice of such entry (except in emergency situations or
for scheduled services). Tenant shall provide Landlord with means Landlord deems proper to
open Tenant's doors in an emergency in order to obtain entry to the Premises. Any entry to the
Premises obtained by Landlord by any of such means or otherwise shall not under any
circumstances be construed or deemed to be a forcible or unlawful entry into, or a detainer of,
the Premises, or an eviction of Tenant from the Premises or any portion thereof, or grounds for.
any abatement or reduction of rent and Landlord shall not have any liability to Tenant for any
damages or losses on account of any such entry by Landlord except, subject to the provisions of
Section 22.1,to the extent of Landlord's gross negligence or willful misconduct.
13. Utilities and Services. Tenant shall be solely responsible for contracting with the
appropriate utility companies and shall promptly pay all charges (including hook-up and impact
fees) for heat, air conditioning, water, gas, electricity, or any other utility used, consumed or
provided in, furnished to or attributable to the Premises from and after the Turnover Date at the
rates charged by the supplying utility companies and/or Landlord. Should Landlord elect to
supply any or all of such utilities, Tenant shall purchase and pay for the same as additional rent
as apportioned by Landlord. Tenant shall reimburse Landlord within ten (10) days of billing for
fixture charges and/or water tariffs, if applicable, which local utility companies charge to
Landlord. Landlord shall notify Tenant of this charge promptly upon Landlord's receipt of •
notice regarding same. This reimbursement will increase or decrease with current charges being
levied against Landlord, the Premises, or the Building by the local utility company, and shall be
due as additional rent. If Tenant uses the common HVAC plant to supply HVAC to its Premises,
Tenant shall pay Tenant's proportionate share(based upon the number and size of all users of the
common HVAC plant) of costs of the electricity consumed by the common HVAC plant and the
maintenance and repair of the common HVAC plant, which shall be added to the amount Tenant
pays for Tenant's Monthly Common Area Expense Charge. Landlord shall not be liable for any
interruption.or failure in the supply of any such utility services to Tenant.
14. Damage or Destruction.
14.1 Landlord's Rights and Obligations. If(a) fire or other casualty damages the Premises
to an extent not exceeding twenty-five percent (25%) of the full replacement cost thereof, (b)
Landlord's contractor estimates in a writing delivered to the parties that the damage thereto is
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such that the Premises may be repaired, reconstructed or restored to a shell condition within one
hundred twenty (120) days from the date of such casualty, and (c) Landlord receives insurance
proceeds sufficient to cover the costs of such repairs, reconstruction, and restoration, Landlord
shall commence and proceed diligently with the work of repair, reconstruction and restoration
and this Lease shall continue in full force and effect. If, however(A) the Premises are damaged
to an extent exceeding twenty-five percent (25%) of the full replacement cost thereof, (B)
Landlord's contractor estimates such work or repair, reconstruction, and restoration will require
longer than one hundred twenty (120) days to complete, or (C) Landlord will not receive
insurance proceeds (and/or proceeds from Tenant, as applicable) sufficient to cover the costs of
such repairs, reconstruction and restoration, Landlord may elect to either:
(a) repair, reconstruct and restore the portion of the Premises damaged by such casualty
(excluding the Tenant Improvements and Tenant Changes, which Tenant shall
reconstruct in accordance with Section 18.2 below), in which case this Lease shall
continue in full force and effect; or
(b) terminate this Lease effective as of the date that is thirty (30) days after Tenant's receipt
of Landlord's election to terminate.
Under any of the conditions of this Section 15.1, Landlord shall give written notice to Tenant of
its intention to repair or terminate within the later of sixty (60) days after the occurrence of such
casualty, or fifteen(15)days after Landlord's receipt of the estimate from Landlord's contractor.
14.2 Tenant's Costs and Insurance Proceeds. If all or any part of the Premises is damaged
or destroyed, Tenant shall immediately notify Landlord. Provided Landlord does not terminate
this Lease pursuant to this Article, Landlord shall reconstruct the Premises to its previous
condition and shall deliver the Premises to Tenant. Tenant shall have thirty (30) days after
Landlord's delivery of the Premises in shell condition to reconstruct the Tenant Improvements
and Tenant Changes in the Premises, after which time, the rent abatement provided for herein
shall terminate. Tenant shall complete the Tenant Improvements and Tenant Changes in
accordance with this Lease. If, for any reason(including Tenant's failure to obtain insurance for
the full replacement cost of any Tenant Improvements or Tenant Changes which Tenant is
required to insure pursuant to this Lease), Tenant fails to receive insurance proceeds covering the
full replacement cost of such Tenant Improvements or Tenant Changes that are damaged, Tenant
shall be deemed to have self-insured the replacement cost of such Tenant Improvements and
Tenant Changes, and upon any damage or destruction thereto, Tenant shall pay the full
replacement cost of such items, less any insurance proceeds actually received from Tenant's
insurance with respect to such items. If Landlord terminates this Lease pursuant to this Section,
Tenant shall deliver to Landlord, and Tenant hereby assigns to Landlord, all insurance (or self-
insurance)proceeds payable to (or by)Tenant for the Tenant Improvements and Tenant Changes.
14.3 Abatement of Rent. If, as a result of any such damage, repair, reconstruction and/or
restoration of the Premises, Tenant is prevented from using, and does not use, the.Premises or
any portion thereof, the rent shall be abated or reduced, as the case may be, during the period
Tenant continues to be prevented from using and does not use the Premises or portion thereof, in
the proportion the Floor Area of the portion of the Premises Tenant is prevented from using, and
does not use, bears to the total Floor Area of the Premises (provided such abatement shall cease
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1 1
after the period of time given to Tenant to rebuild the Tenant Improvements and Tenant Changes
pursuant to the above, regardless of whether Tenant is then able to use the Premises).
Notwithstanding the foregoing to the contrary, if the damage is due to the negligence or willful
misconduct of Tenant or Tenant's Parties, there shall be no abatement of rent. Except for
abatement of rent as provided hereinabove, Tenant shall not be entitled to any compensation or
damages for loss of, or interference with, Tenant's business or use or access of all or any part of
the Premises resulting from any such damage, repair,reconstruction or restoration.
14.4 Inability to Complete. Notwithstanding anything to the contrary contained in this
Section 15, if Landlord is obligated or elects to repair, reconstruct and/or restore the damaged
portion of the Premises pursuant to this Lease, but is delayed from, completing such repair,
reconstruction and/or restoration beyond the date that is six (6) months after the date estimated
by Landlord's contractor for completion thereof pursuant to this Lease, by reason of any causes
beyond Landlord's control (including, without limitation, any events of Force Majeure as defined
in this Lease and delays caused by Tenant or Tenant's Parties), Landlord may elect to terminate
this Lease upon thirty(30) days' prior written notice to Tenant.
14.5 Damage Near End of Ter n . In addition to its termination rights in this Lease, Landlord
may terminate this Lease if any damage to the Building or Premises occurs during the last twelve
(12)months of the Term of this Lease and Landlord's contractor estimates in a writing delivered
to the parties that the repair, reconstruction or restoration of such damage cannot be completed
within the earlier of(a)the scheduled expiration date of the Term, or(b) sixty(60) days after the
date of such casualty.
14.6 Damage to the Building. If there is a total destruction of the Center or a partial
destruction of the Center, the cost of restoration of which would exceed one-third (1/3) of the
then-current replacement value of the Center, by any cause, whether or not insured against and
whether or not the Premises are partially or totally destroyed, Landlord may within a period of
one hundred eighty (180) days after the occurrence of such destruction, notify Tenant in writing
it elects not to so reconstruct or restore the Center, in which event this Lease shall cease and
terminate thirty(30)days following the date of such notice to Tenant.
14.7 Waiver of Termination Right. This Lease sets forth,the terms and conditions upon
which this Lease may terminate in the event of any damage or destruction. Accordingly, the
parties hereby waive any applicable statutes permitting the parties to terminate this Lease as a
result of any damage or destruction.
15. Eminent Domain.
15.1 Substantial Taking. Subject to the below provisions of this Lease, in case the whole of
the Premises, or such part thereof as shall substantially interfere with Tenant's use and
occupancy of the Premises as determined by Landlord, shall be taken for any public or
quasi-public purpose by any lawful power or authority by exercise of the right of appropriation,
condemnation or eminent domain, or sold to prevent such taking, either party may terminate this
Lease effective as of the date possession is required to be surrendered to such authority.
15
15.2 Partial Taking; Abatement of Rent. If a portion of the Premises is taken that does not
substantially interfere with the conduct of Tenant's business, neither party may terminate this
Lease and Landlord shall thereafter proceed to make a functional unit of the remaining portion of
the Premises (but only to the extent Landlord receives proceeds therefor from the condemning
authority), and rent shall be abated with respect to the part of the Premises which Tenant shall be
so deprived on account of such taking. Notwithstanding the foregoing, if any part of the
Building or the Center shall be taken (whether or not such taking substantially interferes with
Tenant's use of the Premises) and Landlord determines the operation of the Premises is'thereby
rendered impracticable or uneconomical, Landlord may terminate this Lease upon thirty (30)
days' prior written notice to Tenant.
15.3 Condemnation Award. Subject to the below provisions of this Lease, in connection
with any taking of the Premises or the Building, Landlord shall receive the entire amount of any
award made or given in such taking or condemnation, without deduction or apportionment for
any estate or interest of Tenant, it being expressly understood and agreed by Tenant that no
portion of any such award shall be allowed or paid to Tenant for any so-called bonus or excess
value of this Lease, and such bonus or excess value shall be Landlord's sole property. Tenant
shall not assert any claim against Landlord or the taking authority for any compensation because
of such taking (including any claim for bonus or excess value of this Lease); provided, however,
if any portion of the Premises is taken, Tenant may recover from the condemning authority (but
not from Landlord) any compensation as may be separately awarded or recovered for the taking
of Tenant's furniture, fixtures, equipment, and other personal property within the Premises, for
Tenant's relocation expenses, and for any loss of goodwill or other damage to Tenant's business
by reason of such taking.
15.4 Temporary Taking. If the Premises or any part thereof is taken for temporary use
(a)this Lease shall be and remain unaffected thereby and rent shall not abate, and (b)Tenant
shall be entitled to receive for itself such portion or portions of any award made for such use with
respect to the period of the taking within the Term, provided if such taking shall remain in force
at the expiration or earlier termination of this Lease, Tenant shall perform its obligations under
Section 9 with respect to surrender of the Premises and shall pay to Landlord the portion of any
award attributable to any period of time beyond the Term expiration date.. For purpose of this
Section, a temporary taking shall be defined as a taking for a period of two hundred seventy
(270) days or less.
15.5 Waiver of Termination Right. This Lease sets forth the terms and conditions upon
which this Lease may terminate in the event of a taking. Accordingly, the parties waive the
provisions of any applicable statutes permitting the parties to terminate this Lease as a result of a
taking.
16. Tenant's Insurance.
(a) Tenant's Liability Insurance. Tenant shall procure and maintain at its own cost an
occurrence form commercial general liability policy with such limits as Landlord may request
from time to time (which as of the date of this Lease shall be not less than $1,000,000 under a
combined single limit of coverage, $2,000,000 aggregate and $4,000,000 umbrella for a total of
$5,000,000. Landlord and Tenant recognize that nothing herein shall be construed as limiting
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Tenant's statutory protections with the Colorado Governmental Immunity Act. Such liability
insurance shall be primary and not contributing to any insurance available to Landlord and
Landlord's insurance shall be in excess thereto.
(b) Tenant's Property Insurance. Personal property insuring all equipment, trade
fixtures, inventory, fixtures, and personal property located on or in the Premises for perils
covered by the causes of loss - special form (all risk) and coverage for flood, wind, earthquake,
terrorism, and boiler and machinery for the Premises (if applicable). Such insurance shall be
written on a replacement cost basis in an amount equal to one hundred percent(100%) of the full
replacement value of the aggregate of the foregoing.
(c) Workers' Compensation/Employers Liability Insurance. Tenant shall carry
policies of workers' compensation insurance and employers' liability insurance that satisfy all
legal requirements of the State in which the Premises is located, but in no event have limits of
less than$500,000.
(d) General Requirements. All insurance policies shall be in forms satisfactory to
Landlord. The policies maintained by Tenant shall be with companies rated A-X or better in the
most current issue of A.M. Best's Insurance Ratings Guide. Insurers shall be licensed to do
business in the state in which the Premises are located and domiciled in the USA. The limits of
such insurance shall not limit Tenant's liability under this Lease. Any deductible amounts under
any insurance policies required by this Lease shall not exceed $50,000 for the first year of the
Lease. Certificates of insurance shall be delivered to Landlord prior to the Commencement Date
and annually thereafter upon request of Landlord. Tenant may provide required insurance
coverage as part of a blanket policy.
(e) Cancellation or Modification. If Tenant receives notice of cancellation or
material modification, Tenant shall notify Landlord and Landlord's Management Agent in
writing within five (5)business days of receiving such notice.
(f) Miscellaneous. If Tenant fails to maintain and secure the insurance coverage
required under this Article, Landlord shall have, in addition to all other remedies provided in this
Lease and by law, the right, but not the obligation, to procure and maintain such insurance, the
cost of which shall be due and payable to Landlord by Tenant within ten (10)business days after
written demand. Tenant shall not conduct or permit to be conducted by its employees, agents,
guests or invitees any activity, or place any equipment in or about the Premises or the Building
that will increase the cost of fire insurance or other insurance on the Building. If any increase in
the cost of fire insurance or other insurance is stated by any insurance company or by the
applicable insurance rating bureau,if any, to be due to Tenant's activity or equipment in or about
the Premises or the Building, such statement shall be conclusive evidence the increase in such
cost is due to such activity or equipment and, as a result thereof, Tenant shall be liable for the
amount of such increase. Tenant shall reimburse Landlord for such amount upon written
demand from Landlord and any such sum shall be considered additional Rent payable under this
Lease. Tenant, at its sole expense, shall comply with any and all requirements of any insurance
organization or company necessary for the maintenance of fire and public liability insurance
covering the Premises and the Building. Landlord currently does not require Tenant to carry
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business interruption insurance; however, Landlord recommends Tenant carry a policy of
business interruption insurance.
17. Landlord's Insurance. During the Term, Landlord shall insure the Common Area
improvements,the Building,and the shell of the Premises (excluding Tenant's personal property,
furniture, fixtures and equipment, Tenant Changes and the Tenant Improvements) against
damage by fire and standard extended coverage perils and with vandalism and malicious
mischief endorsements, rental loss coverage, at Landlord's option, earthquake damage coverage,
and such additional coverage as Landlord deems appropriate. Landlord shall also carry
commercial general liability insurance, in such reasonable amounts and with such reasonable
deductibles as a prudent owner of a similar building in the state in which the Building is located
would carry. At Landlord's option, Landlord may carry all such insurance under any blanket or
umbrella policies which Landlord has in force for other buildings and projects. At Landlord's
option, Landlord may elect to self-insure all or any part of such required insurance coverage.
Landlord may, but shall not be obligated to, carry any other form or forms of insurance as
Landlord or Landlord's mortgagees or ground lessors may determine is advisable. The cost of
insurance obtained by Landlord pursuant to this Section(including self-insured amounts and
deductibles)shall be included in Common Area Expenses.
18. Tenant's Default and Landlord's Remedies.
•
18.1 Tenant's Default. The occurrence of any one or more of the following events shall
constitute a default under this Lease by Tenant:
(a) Tenant's vacation Or Abandonment of the Premises. "Abandonment" includes,but is not
limited to, any absence by Tenant from or cessation of the conduct of business at the
Premises for five(5) business days or longer;
(b) Tenant's failure to make any payment of rent or additional rent or any other payment
required by this Lease;
(c) Five business days after Tenant's failure to observe or perform any of the express or
implied covenants or provisions of this Lease, other than as specified in this Section,
where such failure shall continue for a period of ten (10) days; provided, however, if the
nature of Tenant's default is such that more than ten(10)days are reasonably required for
its cure, Tenant shall not be in default if Tenant shall commence such cure within such
ten (10) day period and thereafter diligently prosecute such cure to completion, which
completion shall occur not later than sixty(60)days from the date of such failure;
18.2 Landlord's Remedies. If, during the Term, Tenant fails in fulfilling any of its
covenants, obligations or agreements set forth in this Lease and Landlord deems such event an
event of default under this Lease, Landlord, at its option, may exercise any one or more of the
following remedies: °
(a) Termination. Landlord may terminate this Lease, effective at such time as Landlord may
set forth in a notice to Tenant, and demand(and, if Tenant refuses such demand, recover)
possession of the Premises from Tenant. In such event, Tenant shall remain liable to .
Landlord for damages in the amounts described in this Lease.
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•
(b) Re-Entry/Repossession. Landlord may reenter and take possession of all or any part of
the Premises, without additional demand or notice, and repossess the same and expel
Tenant and any party claiming by, through or under Tenant, and remove the effects of
both using such force for such purposes as may be necessary, without being liable for
prosecution for such action or being deemed guilty of any manner of trespass, and
without prejudice to any remedies for arrears of rent or right to bring any proceeding for
• breach of covenants or conditions. No such reentry or taking possession of the Premises
by Landlord shall be construed as an election by Landlord to terminate this Lease unless
Landlord gives a written notice of such intention to Tenant. No notice from Landlord or
notice given under a forcible entry and detainer statute or similar law shall constitute an
election by Landlord to terminate this Lease unless such notice specifically so states.
Landlord reserves the right, following any reentry or reletting, to exercise its right to
terminate this Lease by giving Tenant such notice, in which event this Lease shall
terminate as specified in such notice.
(c) Continuation of Lease. Landlord may continue this Lease in full force and effect whether
or not Tenant shall have abandoned the Premises. If Landlord elects to continue this
Lease in full force and effect pursuant to this Section, Landlord shall be entitled to
enforce all of its rights and remedies under this Lease, including the right to recover rent
as it becomes due. Landlord's election not to terminate this Lease pursuant to this
Section or pursuant to any other provision of this Lease, at law or in equity, shall not
preclude Landlord from subsequently electing to terminate this Lease or pursuing any of
its other remedies.
18.3 Damages. Upon repossession of the Premises or termination of this Lease by reason of
or based upon or arising out of a default or breach of this Lease by Tenant, Landlord shall have
the right at any time and from time to time, and Landlord shall use commercially reasonable
efforts, to relet the Premises (or any part thereof) for Tenant's account or otherwise. Upon any
such reletting, Landlord may receive and collect the rent therefor, applying the same first to the
payment of such expenses as Landlord may have incurred in recovering possession of the
Premises, including attorneys' fees and expenses for putting the same into good order and
condition or preparing or altering the same for re-rental to the extent Landlord deems necessary
or desirable and all other expenses, commissions and charges paid, assumed or incurred by
Landlord in or about reletting the Premises and then to the fulfillment of Tenant's covenants
under this Lease. Any such reletting provided for in this Lease may be for the remainder of the
Term or any renewal term of this Lease, as originally granted, or for a longer or shorter period;
Landlord may change the character and use made of the Premises, and Landlord shall not be
required to accept any substitute tenant offered by Tenant or to observe any instructions given by
Tenant about reletting. In any such case, and whether or not the Premises or any part thereof be
relet, Tenant shall pay to Landlord the Base Rent, Percentage Rent, and all Additional Rent and
other charges required to be paid by Tenant up to the later of the time of such termination of this
Lease or of such recovery of possession of the Premises by Landlord, as the case may be, and
thereafter Tenant covenantsand agrees, if required by Landlord, to pay to Landlord until the end
of the Term, the equivalent of the amount of all Rent reserved by this Lease, and all other
charges required to be paid by Tenant, less the net proceeds of reletting, if any. In determining
the Percentage Rent payable by Tenant under this Lease subsequent to default, the Percentage
Rent for each year of the unexpired Term shall equal the average Percentage Rent paid by Tenant
19
from the commencement of the Term to the time of default, or during the preceding three full
calendar years, whichever period is shorter. Tenant shall also pay a pro rata portion of such
periodic Percentage Rent based upon the length of time between the previous payment of
Percentage Rent and the date of termination, and upon such termination Tenant shall submit a
statement to Landlord accurately showing Gross Sales made since submission of its last previous
statement, together with such additional supporting financial records as Landlord may require.
Landlord shall have the election in place of and instead of holding Tenant so liable to recover
against Tenant as damages for loss of the bargain and not as a penalty, an aggregate sum which
at the time of such termination of this Lease, or of such recovery of possession of the Premises
by Landlord, as the case may be, represents the then present worth of the excess, if any, of the
aggregate of the Rent and all other charges payable by Tenant under this Lease that would have
accrued for the balance of the Term, over the then present worth of the fair market rent and all
other charges for the Premises for the balance of the Term.
18.4 Landlord's Remedies; Re-Entry Rights. In the event of any default by Tenant, in
addition to any other remedies available to Landlord under this Lease, at law or in equity,
Landlord shall have the right, with or without terminating this Lease, to re-enter the Premises
and remove all persons and property from the Premises; Landlord may remove, store, and/or
dispose of such property pursuant to this Lease or any other procedures permitted by applicable
law. No re-entry or taking possession of the Premises by Landlord pursuant to this Section, and
no acceptance of surrender of the Premises or other action of Landlord, shall be construed as an
election to terminate this Lease unless Landlord provides written notice of such intention to
Tenant or unless a court of competent jurisdiction decrees the termination thereof.
18.5 Landlord's Right to Cure. Except as specifically provided in this Lease, Tenant shall
perform all covenants and agreements under this Lease at Tenant's sole cost and expense and
without any abatement or offset of rent. If Tenant fails to pay any sum of money (other than
Annual Base Rent) or perform any other act to be paid or performed under this Lease and such
failure shall continue for three (3) days with respect to monetary obligations (or ten (10) days
with respect to non-monetary obligations) after Tenant's receipt of written notice thereof from
Landlord, Landlord may, without waiving or releasing Tenant from any of Tenant's obligations,
make such payment or perform such other act on behalf of Tenant. All sums so paid by
Landlord and all necessary incidental costs incurred by Landlord in performing such other acts
(including attorneys' fees) shall be payable by Tenant to Landlord within five (5) days after
demand therefor as additional rent.
18.6 Interest. If Landlord does not receive any installment of rent payable by Tenant under
this Lease by the fifth day after the date due, such installment shall bear interest at the Interest
Rate set forth in this Lease of the Summary from the date due until paid. All interest, and any
late charges imposed pursuant to this Lease, shall be considered additional rent due from Tenant
to Landlord under the terms of this Lease.
18.7 Late Charges. Tenant acknowledges, in addition to interest costs, late payments by
Tenant to Landlord of any rent due under this Lease shall cause Landlord to incur costs not
contemplated by this Lease, the exact amount of such costs being extremely difficult and
impractical to fix. Such other costs include, without limitation, processing, administrative and
accounting charges and late charges the terms of any mortgage, deed of trust or related loan
20
•
documents encumbering the Premises, the Building or the Center may impose on Landlord.
Accordingly, if Landlord does not receive any installment of rent payable by Tenant under this
Lease by the fifth business day after the date due, Tenant shall pay Landlord an additional sum of
five percent (5%) of the overdue amount as a late charge. The parties agree such late charge
represents a fair and reasonable estimate of the costs Landlord will incur by reason of any, late
payment by Tenant, and the payment of late charges and interest are distinct and separate in that
the payment of interest is to compensate Landlord for the use of Landlord's money by Tenant,
while the payment of late charges is to compensate Landlord for Landlord's processing,
administrative and other costs incurred by Landlord resulting from Tenant's delinquent
payments. Acceptance of a late charge or interest shall not constitute a waiver of Tenant's
default with respect to the overdue amount or prevent Landlord from exercising any of the other
rights and remedies available to Landlord under this Lease or at law or in equity now or hereafter
in effect.
18.8 Security Interest. Tenant hereby grants to Landlord a lien and security interest on all
Tenant's property now or hereafter placed in or upon the Premises including, but not limited to,
all fixtures, machinery, equipment, furnishings and other articles of personal property, and all
proceeds of the sale or other disposition of such property (collectively, the "Collateral") to
secure the payment of all rent to be paid by Tenant pursuant to this Lease. Such lien and security
interest shall be in addition to any landlord's lien provided by law. This Lease shall constitute a
security agreement under the Uniform Commercial Code (the "UCC") so Landlord shall have,
and may enforce, a security interest in the collateral. Tenant shall execute as debtor and deliver
such financing statement or statements and any further documents as Landlord may now or
hereafter request to perfect or otherwise protect such security interest pursuant to the UCC.
Landlord may also at any time file a copy of this Lease as a financing statement. Landlord, as
secured party, shall be entitled to all rights and remedies afforded as secured party under the
UCC, which rights and remedies shall be in addition to Landlord's liens and rights provided by
law or by the other terms and provisions of this Lease.
18.9 Rights and Remedies Cumulative. All Landlord's rights, options, and remedies
contained in this Lease and elsewhere in this Lease, along with any other rights or remedies
available to Landlord at law or in equity, shall be construed and held to be cumulative, and no
one of them shall be exclusive of the other. Nothing in this Section shall limit or otherwise
affect Tenant's indemnification of Landlord pursuant to any provision of this Lease.
19. Landlord's Default. Landlord shall not be in default in the performance of any
obligation under this Lease unless Landlord has failed to perform such obligation within thirty
(30) days after the receipt of written notice from Tenant specifying in detail Landlord's failure to
perform; provided however, if the nature of Landlord's obligation is such that its performance
requires more than thirty (30) days, Landlord shall not be in default if it commences such
performance within such thirty.(30) day period and thereafter diligently pursues the same to
completion. Upon any such uncured default by Landlord, Tenant may exercise any of its rights
provided in law or at equity; provided, however: (a)Tenant shall have no right to offset or abate
rent if Landlord defaults under this Lease, except to the extent this Lease specifically provides
such offset rights to Tenant; (b)Tenant shall have no right to terminate this Lease; (c) Tenant's
rights and remedies under this Lease shall be limited to the extent (i)Tenant has expressly
waived in this Lease any of such rights or remedies and/or (ii)this Lease otherwise expressly
21
limits Tenant's rights or remedies, including the limitation on Landlord's liability contained in
this Lease; and(d) Landlord shall not be liable for consequential damages.
20. Subordination. Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, and at the election of Landlord or any
mortgagee of a mortgage or a beneficiary of a deed of trust now or hereafter encumbering all or
any portion of the Building or the Center, or any lessor of any ground or master lease now or
hereafter affecting all or any portion of the Building or the Center (collectively, "Landlord
Parties"),this Lease shall be subject and subordinate at all times to such ground or master leases
(and such extensions and modifications thereof), and to the lien of such mortgages and deeds of
trust (and to any advances made thereunder and to all renewals, replacements, modifications and
extensions thereof). Notwithstanding the foregoing, Landlord or its mortgagee may subordinate
or cause to be subordinated any or all ground or master leases or the lien of any or all mortgages
or deeds of trust to this Lease. If any ground or master lease terminates for any reason or any
mortgage or deed of trust is foreclosed or a conveyance in lieu of foreclosure is made for any
reason, at the election of Landlord's successor in interest, Tenant shall attom to and become the
tenant of such successor. Tenant hereby waives its rights under any current.or future law which
gives or purports to give Tenant any right to terminate or otherwise adversely affect this Lease
and Tenant's obligations under this Lease in the event of any such foreclosure proceeding or
sale. Tenant shall execute and deliver to Landlord within ten (10) days after receipt of written
demand by Landlord and in the form required by Landlord, any additional documents evidencing
the priority or subordination of this Lease with respect to any such ground or master lease or the
lien of any such mortgage or deed of trust or evidencing Tenant's agreement to attom to
Landlord's successor. If Tenant requests any modifications to such document(s) other than
corrections, Tenant shall pay any fee required by the lender or other third party. Should Tenant
fail to sign and return any such documents within such ten (10) day period, Tenant shall be in
default under this Lease without the applicability of notice or cure periods specified above.
21. Estoppel Certificate.
21.1 Tenant's Obligations. Within ten (10) business days following Landlord's written
request, Tenant shall execute and deliver to Landlord an estoppel certificate, on the lender's
standard form, certifying: (a)the Commencement Date of this Lease; (b)this Lease is
unmodified and in full force and effect (or, if modified, this Lease is in full force and effect as
modified, and stating the date and nature of such modifications); (c)the date to which the rent
and other sums payable under this Lease have been paid; (d)there are not, to Tenant's best
knowledge, any defaults under this Lease by either Landlord or Tenant, except as specified in
such certificate; and (e) such other matters requested by Landlord. Any mortgagee, beneficiary,
purchaser, or prospective purchaser of any portion of the Center and their assignees, may rely
upon any such estoppel certificate.
21.2 Tenant's Failure to Deliver. Tenant's failure to deliver such estoppel certificate within
such time shall constitute a default under this Lease without the applicability of notice or cure
periods specified in Section 23.1 above and shall be conclusive upon Tenant: (a)this Lease is in
full force and effect without modification, except as Landlord may represent; (b)there are no
uncured defaults in Landlord's or Tenant's performance (other than Tenant's failure to deliver
the estoppel certificate); and (c)not more than one (1) month's rental has been paid in advance.
22
Tenant shall indemnify,protect, defend (with counsel approved by Landlord in writing) and hold
Landlord harmless from and against any and all claims, judgments, suits, causes of action,
damages, losses, liabilities and expenses (including attorneys' fees and court costs) attributable
to any failure by Tenant to timely deliver any such estoppel certificate to Landlord pursuant to
this Lease.
22. Modification and Cure Rights of Landlord's Mortgagees and Lessors.
22.1 Modifications. If, in connection with Landlord's obtaining or entering into any
financing or ground lease for any portion of the Building or the Center, the lender or ground
lessor shall request modifications to this Lease, Tenant shall, within ten (10) days after request
therefor, execute an amendment to this Lease including such modifications, provided such
modifications are reasonable, do not increase Tenant's obligations under this Lease, or adversely
affect the leasehold estate created by this Lease or Tenant's rights under this Lease.
22.2 Cure Rights. If Landlord defaults under this Lease, Tenant shall give notice by
registered or certified mail to any beneficiary of a deed of trust or mortgagee covering the
Premises or ground lessor of Landlord whose address shall have been furnished to Tenant, and
shall offer such beneficiary, mortgagee or ground lessor a reasonable opportunity to cure the
default (including with respect to any such beneficiary or mortgagee, time to obtain possession
of the Premises, subject to this Lease and Tenant's rights under this Lease, by power of sale or
judicial foreclosure, if such should prove necessary to effect a cure).
23. Quiet Enjoyment. Landlord covenants and agrees so long as Tenant performs all
covenants and provisions under this Lease (including payment of rent under this Lease), Tenant
shall and may peaceably and quietly have, hold, and enjoy the Premises in accordance with and
subject to the terms and conditions of this Lease as against all persons claiming by, through, or
under Landlord.
24. Transfer of Landlord's Interest. "Landlord", so far as Landlord's covenants or
obligations are concerned, is limited to mean and include only the owner or owners, at the time
in question, of the fee title to the Premises. In the event of any transfer or conveyance of any
such title or interest (other than a transfer for security purposes only), the transferor shall be
automatically relieved of all Landlord's covenants and obligations contained in this Lease
accruing after the date of such transfer or conveyance. Landlord and Landlord's transferees and
assignees shall have the absolute right to transfer all or any portion of their respective title and
interest in the Center, the Building,the Premises and/or this Lease without Tenant's consent, and
such transfer or subsequent transfer shall not be deemed a violation by Landlord of any of the
terms and conditions of this Lease.
25. Limitation on Landlord's Liability. The parties expressly understand and agree
notwithstanding anything in this Lease to the contrary, and notwithstanding any applicable law to
the contrary, Landlord's liability under this Lease (including any successor landlord) and any
recourse by Tenant against Landlord shall be limited solely and exclusively to Landlord's
interests in the Center as encumbered. Neither Landlord nor any of the Landlord Parties shall
have any personal liability under this Lease, and Tenant hereby expressly waives and releases
such personal liability on behalf of itself and all persons claiming by, through or under Tenant.
23
Tenant hereby waives and Tenant shall not be entitled to any consequential,punitive, exemplary,
special, or other similar damages.
26. Miscellaneous.
26.1 Governing Law. This Lease shall be governed by, and construed pursuant to, the laws
of the State of Colorado in which the Center is located. In any action brought under or arising out
of this Lease, Tenant hereby consents to the jurisdiction of any competent court within the State
of Colorado and hereby consents to service of process by any means authorized by Colorado law.
26.2 Successors and Assigns. Subject to the provisions of this Lease, and except as otherwise
provided in this Lease, all of the covenants, conditions, and provisions of this Lease shall be
binding upon, and shall inure to the benefit of, the parties hereto and their respective heirs,
personal representatives and permitted successors and assigns; provided, however, no rights shall
inure to the benefit of any Transferee of Tenant unless the Transfer to such Transferee is made in
compliance with the provisions of this Lease, and no options or other rights expressly made
personal to the original Tenant under this Lease or in any rider attached hereto shall be
assignable to or exercisable by anyone other than the original Tenant under this Lease.
26.3 No Merger. The voluntary or other surrender of this Lease by Tenant or a mutual
termination thereof shall not work as a merger and shall, at Landlord's option, either
(a) terminate all or any existing subleases, or (b) operate as an assignment of Tenant's interest
under any or all such subleases to Landlord.
26.4 Professional Fees. If either Landlord or Tenant should bring suit against the other with
respect to this Lease, including for unlawful detainer or any other relief against the other under
this Lease, all costs and expenses incurred by the prevailing party therein (including, without
limitation, its actual appraisers', accountants', attorneys' and other professional fees, expenses
and court costs), shall be paid by the other party.
26.5 Waiver. The waiver by either party of any breach by the other party of any term,
covenant, or condition contained in this Lease shall not be a waiver of any subsequent breach of
the same or any other term, covenant, and condition, nor shall any custom or practice which may
become established between the parties in the administration of the terms of this Lease be a
waiver of, or affect, the right of any party to insist upon the performance by the other in strict
accordance with such terms. No waiver of any default of either party under this Lease shall be
implied from any acceptance by Landlord or deliveryby Tenant (as the case may be) of any rent
or other payments due under this Lease or any omission by the non-defaulting party to take any
action on account of such default if such default persists or is repeated, and no express waiver
shall affect defaults other than as specified in such waiver. Landlord's subsequent acceptance of
rent shall not act as a waiver of any preceding breach by Tenant of any term, covenant or
condition of this Lease other than a failure by Tenant to pay the particular rent so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such
rent.
26.6 Terms and Headings. The words "Landlord" and "Tenant" include the plural and the
singular. Words used in any gender include other genders. The Section headings of this Lease
24
are not a part of this Lease and shall have no effect upon the construction or interpretation of any
part of this Lease. Any deletion of language from this Lease prior to its execution by Landlord
and Tenant shall not raise any presumption, canon of construction or implication, including,
without limitation, any implication the parties intended thereby to state the converse of the
deleted language.
26.7 Time. Time is of the essence with respect to performance of every provision of this
Lease in which time or performance is a factor. All references in this Lease to "days" mean
calendar days unless specifically modified in this Lease to be"business"days.
26.8 Prior Agreements; Amendments. This Lease, including the Summary and all Exhibits
and Riders attached hereto, contains all of the covenants,provisions, agreements, conditions and
understandings between Landlord and Tenant concerning the Premises and any other matter
covered or mentioned in this Lease, and no prior agreement or understanding, oral or written,
express or implied, pertaining to the Premises or any such other matter shall be effective for any
purpose. No provision of this Lease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respective successors in interest. The parties
acknowledge the execution of this Lease supersedes all prior agreements, representations, and
negotiations to the extent not expressly incorporated in this Lease.
26.9 Severability. The invalidity or unenforceability of any provision of this Lease (except
for Tenant's obligation to pay Annual Base Rent, Percentage Rent and Common Area Expenses)
shall in no way affect, impair or invalidate any other provision of this Lease, and such other
provisions shall remain valid and in full force and effect to the fullest extent permitted by law.
26.10 Recording. Neither Landlord nor Tenant shall record this Lease. Neither party shall
record a short form memorandum of this Lease without the prior written consent (and signature
on the memorandum) of the other, and prior to recordation Tenant must execute and deliver to
Landlord, in recordable form, a properly acknowledged quitclaim deed or other instrument
extinguishing all of Tenant's rights and interest in and to the Center, the Building, and the
Premises, and designating Landlord as the transferee, which deed or other instrument Landlord
shall hold and which Landlord may record once this Lease terminates or expires (but not prior
thereto). If such short form memorandum is recorded in accordance with the foregoing,the party
requesting the recording shall pay for all costs of or related to such recording, including, but not
limited to,recording charges and documentary transfer taxes.
26.11 Exhibits and Riders. All Exhibits and Riders attached to this Lease are hereby
incorporated in this Lease for all purposes as though set forth at length in this Lease.
26.12 Auctions. Tenant shall have no right to conduct any auction in, on or about the Premises,
the Building or the Center.
26.13 Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a lesser
amount than the rent payment stipulated in this Lease shall be deemed to be other than on
account of the rent, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent be an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover the balance of
25
such rent or pursue any other remedy provided in this Lease. Tenant agrees each of the
foregoing covenants and agreements shall be applicable to any covenant or agreement either
expressly contained in this Lease or imposed by any statute or at common law.
26.14 No Partnership. Landlord does not, for any purpose, become Tenant's partner in the
conduct of its business or otherwise, or joint venturer or a member of a joint enterprise with
Tenant, by reason of this Lease. This Lease includes provisions relating to Percentage Rent, if
any, solely for the purpose of providing a method whereby rent is measured and ascertained.
26.15 Force Majeure. 'If either party hereto shall be delayed or hindered in or prevented from
the performance of any act required by this Lease by reason of strikes, lock-outs, labor troubles,
inability to procure materials, failure of power, governmental moratorium or other governmental
action or inaction (including failure, refusal or delay in issuing permits, approvals and/or
authorizations), injunction or court order, riots, insurrection, war, fire, earthquake, flood or other
natural disaster or other reason of a like nature not the fault of the party delaying in performing
work or doing acts required under the terms of this Lease (but excluding delays due to financial
inability) (herein collectively, "Force Majeure Delays"), performance of such act shall be
excused for the period of the delay and the period for the performance of any such act shall be
extended for a period equivalent to the period of such delay. The provisions of this Section shall
not apply to nor operate to excuse Tenant from the payment of rent in accordance with the terms
of this Lease.
26.16 Counterparts. The parties may execute this Lease in one or more counterparts, each of
which shall constitute an original and all of which shall be one and the same agreement.
26.17 Nondisclosure of Lease Terms. Tenant acknowledges and agrees the terms of this
Lease are confidential and constitute Landlord's proprietary information. Disclosure of the
terms could adversely affect Landlord's ability to negotiate other leases and impair Landlord's
relationship with other tenants. Accordingly, Tenant agrees it, and its partners, officers,
directors, employees, agents and attorneys, shall not intentionally and voluntarily disclose the
terms and conditions of this Lease to any newspaper or other publication or any other tenant or
apparent prospective tenant of the Building or other portion of the Center, or real estate agent,
either directly or indirectly, without Landlord's prior written consent.
26.18 Non-Discrimination. Tenant acknowledges and agrees there shall be no discrimination
against, or segregation of, any person, group of persons, or entity on the basis of race, color,
creed, religion, age, sex, marital status, national origin, or ancestry in the leasing, subleasing,
transferring, assignment, occupancy, tenure, use, or enjoyment of the Premises, or any portion
thereof.
26.19 Jury Trial. To the extent permitted by law, each party hereby waives any right to a trial
by jury in any action seeking specific performance of any provision of this Lease, for damages
for any breach under this Lease, or otherwise for enforcement of any right or remedy under this
Lease.
26
lS
26.20 OFAC.
(1) Tenant represents and warrants (a) Tenant and each person or entity owning an
interest in Tenant is (i) not currently identified on the Specially Designated Nationals and
Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the
Treasury ("OFAC") and/or on any other similar list maintained by OFAC pursuant to any
authorizing statute, executive order or regulation (collectively, the "List"), and (ii) not a person
or entity with whom a citizen of the United States is prohibited to engage in transactions by any
trade embargo, economic sanction, or other prohibition of United States law, regulation, or
Executive Order of the President of the United States, (b) none of Tenant's funds or other assets
constitute property of, or are beneficially owned, directly or indirectly, by any. Embargoed
Person (as defined below), (c) no Embargoed Person has any interest of any nature in Tenant
(whether directly or indirectly), (d)none of Tenant's funds have been derived from any unlawful
activity with the result that the investment in Tenant is prohibited by law or this Lease is in
violation of law, and (e) Tenant has implemented procedures, and will consistently apply those
procedures, to ensure the foregoing representations and warranties remain true and correct at all
times. "Embargoed Person" means any person, entity or government subject to trade
restrictions under U.S. law, including but not limited to, the International Emergency Economic
Powers Act, 50 U.S.C. §1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq.,
and any Executive Orders or regulations promulgated thereunder with the result that the
investment in Tenant is prohibited by law or Tenant is in violation of law.
(2) Tenant covenants and agrees (a) to comply with all requirements of law relating to
money laundering, anti-terrorism, trade embargos and economic sanctions, now or hereafter in
effect, (b) to immediately notify Landlord in writing if any of the representations, warranties or
covenants set forth in this paragraph or the preceding paragraph are no longer true or have been
breached or if Tenant has a reasonable basis to believe they may no longer be true or have been
breached, (c) not to use funds from any "Prohibited Person" (as such term is defined in the
September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With
Persons Who Commit,Threaten to Commit, or Support Terrorism) to make any payment due to
Landlord under this Lease and(d) at Landlord's request,to provide such information as Landlord
may request to determine Tenant's compliance with the terms of this Lease.
(3) Tenant hereby acknowledges and agrees Tenant's inclusion on the List at any time
during the Term shall be a material default of this Lease. Notwithstanding anything in this Lease
to the contrary, Tenant shall not permit the Premises or any portion thereof to be used or
occupied by any person or entity on the List or by any Embargoed Person (on a permanent,
temporary or transient basis), and any such use or occupancy of the Premises by any such person
or entity shall be a material default of this Lease.
27
IN WITNESS WHEREOF,the parties have executed this Lease as of the day and year
first above written.
LANDLORD:
River P = ter, C
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By: SFS,ALA _K,/,
By:
Name:
Title:
Date:
TENANT:
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By:
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--/dh�r K`'&► o w'
Title: l7w,4-n r e p, ch'v-=
Date: //Z G/(P
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31
EXHIBIT C
WORK LETTER AGREEMENT
1. Plans and Specifications. Within twenty (20)business days after the date of this
Lease, Tenant may submit to Landlord construction plans and specifications for Tenant's Work
as described in this Exhibit"C". Tenant shall employ an appropriate professional to prepare
plans that are professional, complete and in compliance with governing laws, codes and
ordinances and the Declaration. Within twenty (20) days thereafter, Landlord shall either
approve or disapprove the plans and specifications. Plans and specifications as approved by
Landlord shall be defined as the"Approved Construction Plans."
2. Requirements Relating to Tenant's Work.
2.1 All Tenant's Work in the Premises shall be strictly in accordance with the
Approved Construction Plans, the Declaration, and all governing laws, codes and ordinances.
Tenant shall obtain, at its sole cost and expense, permits and approval from all authorities for
Tenant's Work and shall furnish Landlord with a copy of such permits prior to commencement
of construction.
2.2 Ten (10) days after completion of construction of Tenant's Work, Tenant
shall deliver to Landlord the following items: (a)the original of the Certificate of Occupancy for
the Premises issued by the appropriate governmental agency; (b) copies of all mechanics' lien
releases or other lien releases relating to Tenant's Work, notarized and unconditional, in such
form as Landlord shall have pre-approved; (c) if required by Landlord, a copy of Tenant's
recorded valid Notice of Completion; (d) if required by Landlord, copies of all building permits
indicating inspection and approval by the issuer of such permits; (e)if required by Landlord, an
architect's certification that the Premises have been constructed in accordance with Approved
Construction Plans and are one hundred percent (100%) complete; (f) if required by Landlord,
copies of all guaranties, warranties and operations manuals issued by the contractors and
suppliers of Tenant's Work, which guaranties and warranties shall inure to the benefit of both
Landlord and Tenant; and (g)if required by Landlord,an as-built plan for Tenant's Work.
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t _
EXHIBIT D
SAMPLE FORM OF NOTICE OF TERM DATES
To: River Park Center, LLC Date:
Re: River Park Center Lease between River Park Center, LLC ("Landlord"), and
("Tenant"), concerning Suite
("Premises")located at 123 Emma Road,Basalt, CO 81621.
Ladies and Gentlemen:
In accordance with the above-referenced Lease, we wish to advise and/or confirm as follows:
1. The Premises have been accepted by Tenant as being substantially complete in
accordance with the Lease, and no deficiency in construction exists.
2. Tenant has accepted and is in possession of the Premises, and acknowledges under the
provisions of the Lease, the Term of the Lease is for twenty-three (23) months, with option to
continue on a month to month basis until no later than December 31, 2018. During that month to
month term, either Tenant or Landlord may terminate the month to month term upon ninety (90)
days' written notice, and commenced upon the Commencement Date of
and is scheduled to expire on , subject to earlier termination as
provided in the Lease.
3 In accordance with the Lease, rental payment has commenced (or shall commence) on
4. Rent is due and payable in advance on the first day of each and every month during the
Term of the Lease.
5. The exact number of Floor Area within the Premises is 8,016 square feet.
6. Tenant's current Monthly Common Area Expense Payment is$
AGREED AND ACCEPTED
TENANT:
Pitkin County
By: Date:
Name:
Title:
33
EXHIBIT E
RULES AND REGULATIONS
1. No sign,name or notice shall be installed or displayed on any part of the outside or inside
of the Building or in any part of the Common Area without Landlord's and in compliance with
regulations of the Town of Basalt and otherwise in compliance with the Sign Criteria below.
2. Tenant shall not obstruct any sidewalks, halls, passages, exits, entrances, or loading
docks of the Building. Neither Tenant nor any employee, invitee, agent, licensee or contractor of
Tenant shall go upon or be entitled to use any portion of the roof of the Building.
3. Upon approval by the Town of Basalt, Tenant shall have the right or entitlement to the
display of Tenant's name or logo on any Center sign, monument sign or pylon sign.
4. All cleaning and janitorial services for the Premises shall be provided, at Tenant's sole
cost and expense, exclusively by or through Tenant or Tenant's janitorial contractors in
accordance with the provisions of Tenant's Lease. Tenant shall not cause any unnecessary labor
by carelessness or indifference to the good order and cleanliness of the Premises.
5. Landlord shall furnish Tenant, free of charge, with keys to each door lock in the
Premises. Landlord may impose a reasonable charge for additional_ keys. Tenant, upon
termination of its tenancy, shall deliver to Landlord the keys of all doors which have been
furnished to, or otherwise procured by Tenant.
6. Electric wires, telephones, burglar alarms or other similar apparatus shall not be installed
in the Premises -except-with the approval and unddf--Landlord's direction. The location of
telephones, call boxes and any other equipment affixed to the Premises shall be subject to
Landlord's approval. Any installation of telephones, telegraphs, electric wires or other electric
apparatus made without Landlord's approval shall be removed by Tenant at Tenant's own
expense.
7. Tenant shall not use or keep in the Premises any kerosene, gasoline or inflammable or
combustible fluid or material other than those limited quantities necessary for the operation or
maintenance of office equipment, subject to any express provisions of Tenant's Lease to the
contrary. Tenant shall not use or permit to be used in the Premises any foul or noxious gas or
substance, or permit or allow the Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by reason of noise, odors or
vibrations, nor shall Tenant bring into or keep in or about the Premises any birds or animals.
8. Tenant shall not use any method of heating or air-conditioning other than that supplied by
Landlord.
10. Tenant shall close and lock all doors of its Premises and entirely shut off all water faucets
or other water apparatus, unless otherwise needed for Tenant's business and, except with regard
to Tenant's computers and other equipment, if any, which reasonably require electricity on a
24-hour basis, all electricity, gas or air outlets before Tenant and its employees leave the
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Premises. Tenant shall be responsible for any damage or injuries sustained by other tenants or
occupants of the Building or by Landlord for noncompliance with this rule.
11. The toilet rooms, toilets, urinals, wash bowls, and other apparatus shall not be used for •
any purpose other than that for which they were constructed and no foreign substances of any
kind shall be thrown therein.
12. Tenant shall not install any radio or television antenna, loudspeaker or other device on
the roof or exterior walls of the Building. Tenant shall not interfere with radio or television
broadcasting or reception from or in the Building or elsewhere.
13. Except as expressly permitted in Tenant's Lease, Tenant shall not mark, drive nails,
screw or drill into the partitions, window mullions, woodwork or plaster, or deface the Premises
or any part thereof, except to install normal wall hangings. Tenant shall repair any damage
resulting from noncompliance under this rule.
14. Landlord reserves the right to exclude or expel from the Center any person who, in
Landlord's judgment, is intoxicated or under the influence of liquor or drugs or who is in
violation of any of the Rules and Regulations of the Center.
15. Tenant shall store all its trash and garbage within its Premises or in designated trash
containers or enclosures within the Center. Tenant shall not place in any trash box or receptacle
any material which cannot be disposed of in the ordinary and customary manner of trash and
garbage disposal. All garbage and refuse disposal shall be made in accordance with directions
issued from time to time by Landlord.
16. The Premises shall not be used for lodging or for manufacturing of any kind.
•
17. Tenant agrees it shall comply with all fire and security regulations that may be issued
from time to time by Landlord, and Tenant also shall provide Landlord with the name of a
designated responsible principal or employee to represent Tenant in all matters pertaining to such
fire or security regulations. Tenant shall cooperate fully with Landlord in all matters concerning
fire and other emergency procedures.
18. Tenant assumes any and all responsibility for protecting its Premises from theft, robbery
and pilferage. Such responsibility shall include keeping doors locked and other means of entry
to the Premises closed.
19. Tenant shall use, at Tenant's expense, such pest extermination contractor as Landlord
may direct and at such intervals as Landlord may require.
20. Landlord may waive any one or more of these Rules and Regulations for the benefit of
Tenant or any other tenant, but no such waiver by Landlord shall be construed as a waiver of
such Rules and Regulations in favor of Tenant or any other such tenant, nor prevent Landlord
from thereafter enforcing any such Rules and Regulations against any and all of the tenants in the
Building.
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21. These Rules and Regulations are in addition to, and shall not be construed to modify or
amend, in whole or in part, the terms, covenants, agreements and conditions of any lease of
premises in the Center.
22. Landlord reserves the right to make such other and reasonable Rules and Regulations as,
in its judgment, may from time to time be needed for safety, security, care and cleanliness of the
Center and for the preservation of good order therein. Tenant shall abide by all such Rules and
Regulations hereinabove stated and any additional rules and regulations adopted by Landlord.
23. Tenant shall be responsible for the observance of all of the foregoing rules by Tenant's
employees,agents, clients, customers, invitees or guests.
24. Tenant shall fully cooperate with Landlord in any programs in which Landlord may elect
to participate relating to the Building's energy efficiency, environmental efficiency, and/or
safety, including, without limitation, the Leadership in Energy and Environmental Design
(LEED) program and related Green Building Rating System promoted by the U.S. Green
Building Council.
PARKING RULES AND REGULATIONS
In addition to the foregoing rules and regulations and the parking provisions contained in the
Lease to which this Exhibit"E" is attached, the following rules and regulations shall apply with
respect to the use of the Center's parking areas.
1. Every parker is required to park and lock his/her own vehicle. All responsibility for
damage to or loss of vehicles is assumed by the parker and Landlord shall not be responsible for
any such damage or loss by water, fire, defective brakes, the act or omissions of others, theft, or
for any other cause.
2. Tenant and its employees shall not park in any parking areas designated for use by
customers or visitors only, or in any other parking areas that may be designated by Landlord
from time to time.
3. Tenant shall not leave vehicles in the parking areas overnight nor park any vehicles in the
parking areas other than automobiles,motorcycles, motor driven or non-motor driven bicycles or
four wheeled trucks.
4. No overnight or extended term storage of vehicles shall be permitted;, a vehicle may be
parked overnight if and only if the reason for such overnight parking is(a)the vehicle has broken
down and needs to be towed, or (b)the owner of the vehicle is an employee of a tenant of the
Center and is traveling overnight for business purposes.
5. Vehicles must be parked entirely within painted stall lines of a single parking stall.
6. All directional signs and arrows must be observed.
7. The speed limit within all parking areas shall be five (5)miles per hour.
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8. Parking is prohibited: (a) in areas not striped for parking; (b) in aisles; (c) where "no
parking" signs are posted; (d)on ramps; (e) in cross-hatched areas; and (f) in reserved spaces and
in such other areas as may be designated by Landlord.
9. Washing, waxing, cleaning or servicing of any vehicle in any area not specifically
reserved for such purpose is prohibited.
10. Landlord may refuse to permit any person who violates these rules to park in the parking
areas, and any violation of the rules shall subject the vehicle owner to one (1) warning and
thereafter the vehicle shall be subject to removal, at such vehicle owner's expense, except a
violation of rules 3 or 4 shall be subject to the immediate removal of the vehicle without
warning, at such vehicle owner's expense.
SIGN CRITERIA
The following criteria shall govern the design, fabrication, construction, installation and
maintenance of all Premises signage installed at any time. No sign, advertisement, notice,
lettering, writing, placard or similar devise shall be installed, exhibited, inscribed, painted,
affixed or attached on any part of the Premises (interior or exterior) except as expressly
permitted by this Exhibit.
Signage is a key component and approval of the Town of Basalt identification enhances the
overall design of the Center. The quality of the design and fabrication detailing is subject to
review and approval by the Town of Basalt and shall conform to the local Basalt codes and sign
requirements.
Permitted sign types include flat-mounted signs and limited window signs, each subject to
approval by the Town of Basalt.
ADDRES S
Tenant may install the space address above the entrance door using reverse cut vinyl numbers,
white in color, applied directly to the inside face of the glass. Landlord in conjunction with the
Fire Marshall shall determine its exact location.
Tenant may install the space address and Tenant's name on the rear service door to the premises.
Address and name shall be white vinyl die cut letters three inches in height.
MAXIMUM COMBINED SIGNAGE
The total amount of sign area allowed for each tenant is that allowed by the Town of Basalt.
PROHIBITED SIGNS AND MATERIALS
• Plastic materials including acrylic and vacuum-formed letters
• Internally illuminated, acrylic-faced channel letters
• Cabinet type signs or sign boxes
37
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• Paper, cardboard, stickers,placards, insignias,trademarks, or decals applied to or
located on the storefront glazing AND fixtures and displays visible through the
storefront, including credit card signs
• Flashing, moving,or roof signs; searchlights or beacons; signs or lighting that causes
direct glare; neon or gas filled signs
• Freestanding signs
• Temporary signs or banners
• Exposed raceways, ballast boxes,transformers, crossovers or conduit
• Stamps or decals of the sign manufacturer shall not be displayed on any visible
portion of the sign
• Odor or smoke producing signs
GENERAL SIGN REQUIREMENTS
1. Illumination and mounting equipment such as transformers,ballasts, crossovers, and
electrical feeds must be concealed. Connections and penetrations through the fascia
are to be minimized. Tenants will be required to repair any damage to the fascia at the
end of the lease term. Mounting hardware must be concealed or decorative fasteners
if exposed.
2. Tenant is responsible for the integrity of the connection supports.
3. Sign and electrical permits must be obtained by the Tenant. All contractors must be
registered and licensed by the Town of Basalt.
4. Any damage caused to,the building or Premises by sign installation shall, at
Landlord's option, be repaired by the Landlord and charged to the Tenant.
5. Tenant shall give Landlord at least three(3)business days' advance written notice
prior to installing any sign at the Premises. Such notice shall specify the exact date
and time of installation so that, if Landlord desires, Landlord may have a
representative present during installation.
6. Power for any sign is to be connected to junction boxes on the interior side of the
exterior façade wall. Tenant is to provide wiring and conduit from raceway to
junction boxes. All conduit is to be concealed.
7. If visible exterior disconnects are required by code,they shall be painted to match the
sign band.
8. All signs are be installed with a minimum number of penetrations of the wall and
caulked or sealed so as to be watertight. Penetrations to be through joints and not
through masonry units.
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9. All signs must comply with governing codes, all applicable governmental authorities
and compliance must be evidenced to Landlord in the form of a permit or other
written approval of such governmental authority prior to the installation and as more
specifically required by code of the Town of Basalt.
•
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EXHIBIT G
TYPICAL ESTIMATE STATEMENT
!may 1.pa 1
41c12015 Ramer Park Ceder
P O Sox 13E3
Carbeettle CO 51423 •
LT7689SISO
BRISTLECONE MT WORTS
781 EAST VALLEY ROAD
BASALT CO 81921
RIVER PARK CENTER
2015-1st Ouster
PRO-RATA
TOTAL BILL SUM DATES SHARE 37.4%
ELECTRIC S 722.45 12IZ.1P14.0 1S $ 27020
GAS $ 4.107.54 1218144F11f15 $ 1,770.75
TRASH $ 1,300,77 J4rr#Li>d%MI6 $ 55407
WA s 1,524.80 Jm i toslcs 1$ s 9 27
MARMENANCE $ 5,570.22 Jar a ar ME $ UMW
INSURARCE s 9,B1a94 Jerpihrtsh 2015 s 1,492.9a
T 2014 4 - 2014 4
MISC
TOTAL
$ 17,633.03 $ -3
Previous Ws= s -
Propa'ymwa 4flait $ -
Cloture ste*dIost $ 8,$
TSB Dew $ 6592.e0
41