HomeMy WebLinkAboutbocc.con.358.2017 - BOCC CONTRACT
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LEASE MODIFICATION AGREEMENT
This Lease Modification Agreement is made this 22 day of December 2017,by and
between the Board of County Commissioners of Pitkin County, having an address of 123
Emma Road, Suite 106, Basalt,CO 81621("Landlord") and Muc Ho ("Tenant"), having an
address of 123 Emma Road, Suite 102, Basalt, CO 81621.
WHEREAS, Landlord and Tenant are the parties to that certain lease agreement
entered into by Landlord and David Ho, dated May 14, 1998,Assignment of Lease to Muc
Ho dated May 14, 1998, and Lease Modification dated March 1, 2011 (collectively the
"Lease'),for the premises described as follows:
Name of Business: Ho Palace approximately: 1,769 Square Feet.
Located at: 123 Emma Road Suite#102, Basalt, CO, 81621
State of: Colorado County of: PITKIN
which Lease is incorporated by reference herein.
WHEREAS, the parties desire to modify the terms of the Lease;
NOW,THEREFORE,the parties agree as follows:
1. Article VI,¶ 2 shall be amended to read:
Tenant shall pay Tenant's pro-rata share of Landlord's snow removal, trash removal, and
common area maintenance costs and repair costs associated with the operation of the
Building.Tenant shall also pay its pro-rata share of the Landlord's water and sewer costs
associated with the operation of the Leased Premises. The above amounts shall be
payable in equal monthly installments due on the same day as the minimum monthly
rental payments are due hereunder without prior demand. Tenant's common area
maintenance costs shall include all fees,charges, and expenses associated with
maintenance of the grease trap.
2. The Lease shall remain in full force and effect except as modified above The parties
agree that there are no defaults by either party with respect to the Lease at the time of this
Lease Modification Agreement.
Landlord: Tenant:
Pitkin County Board of County Muc Ho
Commissioners
— 'd_ /7
By:J tr 'ea ock, County Manager By:
"SR/ Title:
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIINIIIIIII
RECEPTION#: 645854, R. 50.00, D: E0 00
DOC CODE: LEASE
Pg 1 of 27,03/15/2018 at 12:01'57 PM
Janice K Vos Caudill, Pitkin County, CO
Tammy Rascon
From: pros=1076685e0e=doug®dougtasafen.com on behalf of Douglas Alen
(doug@douglasallen.comJ
Sent: Monday,April 04,2011 6:27 PM
To: Tammy Rascon
LEASE MODIFICATION
THIS LEASE MODIFICATION,made and entered Into eWeetivo March 1,2011,
between RIVER PARK CENTER, LLC,(hereinafter referred to as"Landlord",
whose street is P.O.Boa 1363,Carbondale,Colorado 81623,and Mae Ho,
(hereinafter referred to as"Tenant"),whose address 123 Emma Road,Suite 102,
Basalt,Colorado 81621.
WITNESSETH:
WHEREAS,the Landlord and Meld Ho entered Into a Lease,Summary of
Business Terms and Assignment of Lease,each dated May 14, 1998,which Lease
was assigned on May 14, 1998 to Mac Ho as Tenant(n11 of which are herein
collectively referred to as"LEASE DOCUMENTATION")for certain leased
premises In the River Park Center,located in Basalt,Colorado as more specifically
described therein,whose address is Ho Palace, I23 Emma Road,Suite 102, Bank,
Colorado 81621.
WHEREAS, Landlord and Tenant desire to modify the LEASE
DOCUMENTATION on the terms and conditions set forth herein:
NOW THEREFORE for the mutual considerations set forth herein and other good
and valuebk consideration receipt of which Is hereby acknowledged,the parties
agree as follows:
SECTION A
LEASED PREMISES
The leased premia of approximately 1,769 square feet,described In the LEASE
DOCUMENTATION dated May 14, 1998 remains unchanged.
tui nmndc+uui
SECTION B
RENT
Landlord and Tenant agree that the remaining LEASE TERM shall begin on
March 1,2011 and end on February 20,2021.The term"Lease Year"as used herein
shall have the same meaning as In the Lease and Summary of Business Terms except
each Lease Year shall start on March I of each Lease Year and end on the last day
of February the following year.Landlord and Tenant agree that the minimum
anneal rent for the 2011,2012 and 2013 Lease Years shall be$42,000.00,payable
$3,500.00 each month during the tint 36 months of the extended Lease Term.
Beginning oo the first day of the 41°Lease Year,(March 1,2014)and each lease year
thereafter each minimum monthly rent payment 0113,500.00 shall be increased
each month by the amount,if any of the increase in the consumer price index each
lease year,which shall continue to be paid monthly in addition to the minimum rent
(and the monthly installments based thereon)shall be adjusted upward in
accordance with the CPI provisions of the LEASE DOCUMENTATION. All
provisions of the LEASE DOUMENTATION not specifically changed by this
modification remain unchanged.
IN WITNESS WHEREOF,the Landlord and Tenant have executed this Lease
Modification effective March 1,2011.
LANDLORD: RIVER PARK CENTER,LLC
Atrci 2 41 14
ug(P.Alla Managr Member
TENANT: HO PALACE
r;' C—
Muc Ho,individually
stiuI.rmxi+uei
) ?
117491
Douglas Allen
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ASSIGNMENT OF LEASE
For valuable consideration receipt of which is hereby acknowledged, David Ho
assigns all of his right,title and interest in that certain lease dated the 14th day of May,
1998 between River Park Center, LLC as Landlord and David Ho as Tenant to Muc Ho
which assignment is subject to the conditions of the CONSENT TO ASSIGNMENT OF
LEASE set forth below.
Dated.
�,�/d� /�
David Muc FYo" �l411.7
Mailing Address:
12.3 Emma Read #io2-
Thasait , co ?,that
Phone Number: 913 -3855
CONSENT TO ASSIGNMENT OF LEASE
River Park Center,LLC(Landlord)hereby consents to the assignment of the lease
dated May 14th, 1998 covering certain premises described as Suite 102,River Park Center
Building, 0123 Emma Road, Basalt, Colorado by David Ho (Tenant)to Muc Ho
(Assignee)subject to the following conditions:
1. All outstanding triple net tax assessments and outstanding rent shall be paid in frill.
2.Muc Ho shall personally guaranty the lease
3. Landlord does not release the Tenant(David Ho)from his liability under the lease.
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Consent to Assignment
Page 2
4. Muc Ho agrees to pay a$100 documentation preparation fee to Landlord for
preparation of this assignment
Dated.
Landlord'
River Park Center, LLC
BY:
Jon Seigle, Managing Member
Tenant: atl�fl
David Ho '
Assignee:
Muio
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SUMMARY OF BUSINESS TERMS
THIS LEASE SUMMARY, made and entered into this III day of
in An 1998, between RIVER PARK CENTER, LLC., (hereinafter referred
to astandlord"), whose address is PO Box 1363, Carbondale, CO 81623, and David Ho
(hereinafter referred to as"Tenant"),whose address is 0123 Emma Road, Suite 102,
Basalt, CO 81621.
WITNESSETH:
Section 1:
Leased Premises
In consideration of the mutual covenants and agreements set forth herein and in the
following full text of the Lease to which this Summary of Business Terms is attached,
which Lease is made a part hereof by this reference, Landlord does hereby lease to Tenant
and Tenant does hereby rent from Landlord the following described Leased Premises
(referred to as"Leased Premises"): Suite 102 located at 0123 Emma Road, Basalt,
Colorado 81621, containing 1,769.33 square feet as depicted on Exhibit A attached hereto
and also including certain common areas such as the parking spaces, common bathroom
and walkways, and the right to exclusively use a certain portion of the patio in front of the
premises for food service. i, egSa pn..„,us crcc fti- A„oe a.n 44AU.-.,.r
CwL.R 4 CAseater V
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Section 2:
Terns
The tem of this Lease shall commence on July 13'”, 1998 or upon opening of the
restaurant to be operated in the premises whichever occurs first and shall expire on July 1,
2001 (The Primary Term). The term"Lease Year" as used herein shall mean each full
calendar year during the term hereof, and each portion of a calendar year which may exist
at the beginning and/or end of the term hereof. If Tenant is not in default of the J race,
Tenant shall be entitled to two five year options to extend the Primary Term of the lease
on the same terms and conditions as set forth herein, provided however that the rent for
the first year of the second five year option period shall be the higher of the previous
year's rent as adjusted by the formula set forth in Article 111 of the Lease or the fair market
rental value of the property as determined by an appraisal paid for by the parties, To
exercise the options granted herein, Tenant must provide written notice of its intention to
exercise the option to Landlord ninety(90) days prior to the expiration of the lease term
as may be extended by the exercise of an option granted herein.
Section 3
Rent
(a) Minimum Rent. Tenant shall pay Landlord at the address of the Landlord or at
such other place as Landlord may from time to time designate in writing to Tenant,
without any prior demand therefor and without any deduction or setoff whatsoever, a
fixed minimum annual rental for the Leased Premises in equal monthly installments in
accordance with the following schedule:
Period Monthly LoW
7113/98-7/1/99 $2801.44 $33,617.27
in advance on the first day of each calendar month provided that rent for first month and
last month of the lease shall be prorated. Commencing on the first day of the second year
of the Lease, and annually thereafter during the term of the Lease,the minimum annual
rent shall be$37,897.76(and the monthly installments based thereon)and shall be
adjusted upward in accordance with the provisions of Article 111, paragraph I (b-f) of the
Lease.
Section 4
Utilities/Maintenance
Tenant shall provide and pay for all telephone, gas, and electricity separately
metered to the Leased Premises. Tenant shall pay his pro rata share for the gas,
electricity, water and sewer charges for the entire building. Tenant shall pay Tenant's pro
rata share of Landlord's snow removal, any common trash removal, and all common
maintenance such as grounds, parking lots, common bathrooms,etc The percentage of
Tenant's share of the Landlord's costs referred to above is the pro-rata share of square
footage of the premises rented by Tenant(1769.33square feet)to the rentable square
footage of the entire Building(14,824 square feet), being 12%of the rentable area of the
entire Building(hereinafter referred to as"pro-rata share"), which amount shall be payable
on the first day of each month with the rent as described in Section 3. The amount will be
adjusted upward or downward at year-end based on actual costs.
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Section 5:
Insurance
Tenant shall pay Tenant's pro-rata share of Landlord's fire and extended coverage
and liability insurance premiums for the Building,as set forth in Article V of the Lease,
which amount shall be payable on the first day of each month with the rent as described in
Section 3. This amount will be adjusted upward or downward at year-end based on actual
costs. Landlord reserves the right to estimate the monthly amount and bill the Tenant on a
monthly basis subject to quarterly accounting
Section 6:
Taxes
Tenant shall pay Tenant's pro-rata share of Landlord's real property taxes for
1998, payable in 1999(from date of the commencement of the Lease)and each year
thereafter as set forth in Article VII of the Lease. Landlord shall bill Tenant for its share
of the taxes due pursuant to Article VII and Tenant shall pay the same within thirty(30)
days. Landlord reserves the right to bill Tenant for 1/12 of the estimate taxes on a monthly
basis subject to a quarterly accounting.
Section T
Sewriw Deoosit
Tenant shall, upon execution hereof, deposit with Landlord as security for the
performance of all terms, covenants, and conditions of this Lease, the sum of$4,000 to be
retained by the Landlord until the expiration of this Lease, and any renewals or extensions
thereof, at which time the deposit shall either be returned to Tenant or retained by
Landlord in accordance with the provisions of C.R.S. 38-12-101, et seq., 1973. In no way
is it understood or to be construed that this security deposit is to be considered as the final
rental payment due under this Lease. No interest shall be paid on the security deposit.
Section 8:
Business Use
The Tenant shall utilize the premises for a restaurant and bar. Tenant
acknowledges that the number of seats it may have in the premises is limited by Town of
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Basalt parking regulations. Landlord expressly reserves the right to withhold its consent
to any change of use or purpose in its unrestricted discretion. No smoking shall be allowed
in the premises.
Section 9:
Tenant Improvements
Tenant shall be responsible for Si Tenant improvements including fixtures, interior
finishing, and interior demising walls. Landlord must approve all tenant improvements
prior to installation.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this Lease
Summary on the day and year first above written.
LANDLORD: RIVER PARK CENTER,LLC,
By:
Jon David Seigle,T aging Member
/13
TENANT: ,/
tRe; Ht
Rp to.at
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LEASE
THIS LEASE, made and entered into this tV day of /n4 1998,
beneen RIVER PARK CENTER,LLC„ (hereinafter referred to a� 'Landlord and DAVID
HO, (hereinafter referred to as 'Tenant').
WITNESSETH:
ARTICLE I
(used Premises
The Landlord hereby leases to the Tenant, and the Tenant hereby rents from Landlord,
the'Leased Premises"described in Section 1 of the Lease Summary of Business Terms
attached hereto and made a part hereof by this reference.
ARTICLE II
Term
The term of this Lease is stated in Section 2 of the Lease Summary of Business Terms,
which is incorporated herein by reference.
• ARTICLE W
1. The Tenant agrees to pay the Landlord a fixed minimum amrual rental for each
Lease Year during the term of the Lease, which rem is specified in Section 3 of the Lease
Summary of Business Terms, This minimum renal is payable in equal monthly installments
due on the first day of each calendar[moth during the term hereof without prior demand
a Commencing on the second arrive sary date of the commencement
• date of this Lease as determined in Section 2 of the Lease Summery of Business Terms
and annually thereafter during the term of this Ince the annual rental shall be adjusted
upward,based tenon increases(if any)in the cost of living during the preceding year
using the"Price Inde[', ill as more particubsrly deserrbed below.
b.
."Price Index"shall mean the Coostmmer Price Index All Urban
Consumers(CPI-U)-U.S. City Average,or a successor or substitute index published
or authorized by the United State Depamneat of Labor,Bureau of Labor Statistics.
c. The following formula shall be used for determining the adjustment,if
any,in the fixed minimum annual rent
"Price Index" for the January immediately
Current index Number n preceding the adjustment date
Base Index Number 'Price Index" fix the January of the previous
year.
d As promptly as practicable after the commencement of the first
adjustment year, and thereafter as promptly as practicable after the first day of each
succeeding adjustment year,Landlord shall compute the increase, if any, in the cost of
lnnntg for the year immediately preceding said went year. Such computation shall
be made by use of current and base index numbers provided for each adjustment year
as set forth in Paragraph (c) above. .
e. In computing increases for each adjustment year the current index
number shall be divided by the base index number. From the quotient thereof there
shall be subtracted the integer I and my resulting pensive number shall be deemed to
be the percentage of increase of cost of living -
F. The percentage of increase in the cost of living shall be multiplied by
the minimum annual rental including increases fix the year preceding the adjustment
year for which the increase is being computed Not withstanding the calculation set
forth herein,the rental amount payable hereinafter shall increase by a minimum of 3%
per year or the actual increase as determined hereunder.
g. The Landlord shall, within a reasonable period of time after obtaining
the appropriate data ntv'cary for computing such increases,give the Tenant notice of
any increase so determined. Tenant shall, within thirty(30)days after the receiving of
such notice, notify the Landlord of any claimed error in the calculations, and Landlord
shall make such adjustments as he deems appropriate. However,nothing herein shall
be construed to extend the time as provided m Article IV below when rents as
determined by Landlord am due and payable by Tenant
h. Minimum annual rent for each adjustment year,together with increases
calculated in accordance with Paragraph I (b) through(f)of this Article III,shall be
due and payable to the Landlord in equal monthly installments due on the fust day of
each derdar month of each adjustment year(retroactive moons then due being
payable within thirty(30)days after giving notice thereof by Landlord to Tenant)at the
address set forth in the Lease Summary of Business Terms.
i if publication of dee pertinent Consumer Price Index shall be
discontinued, the parties hereto shall thereafter accept comparable statistics on the cost
of living for the average of all U.S. cities, all items, as the same shall be computed and
published by an agency of the United States or by a responsible financial periodical of
recognized authority that to be selected by the parties hereto. In the event of(1)use of
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comparable statistics in place of the Consumer Price Index as above mentioned,or(2)
publication of the Index figures at other than bimonthly intervals, there shall be made in
the method of computation above provided revision as the circumstances may require
to carry out the intent of this Article.
ARIICTPN
Penalties for Late Payment of Rent and
Late Furnishing of Sales Statements
1. If the Tenant fails to pay a monthly installment of combined rent comprised of
a. the fixed minimum rent per Article ILII;
b. the insurance assessment per Article V:
c. the utilities assessment per Article VI; and
d. the tax assessment per Article VII;
by the 5th day of the month in which itis due,Tenant shall add 10%to that monthly installment
as additional rent.
2. The Landlord need not give any notice to be entitled to these payments, and
such additional rentals or penalties shall in no way be construed to limit the Landlord's
remedies in the event of such default, which remedies shall in all cases hereunder be deemed to
be cumulative.
3. In the event all or part of the rent as described in paragraph 1 of this Article is
delinquent beyond the 30th day of the month in which it is due, the delinquent amount(plus the
related late payment penalty)shall bear interest at the rate of one and one-half percent(1.5%)
per month.
ARTICLE V
insurmtce
1. Liability. Tenant agrees at its own expense to maintain in full force during the
lease term policies of comprehensive liability insurance,including property damage, written by
ane or more responsible insurance companies license to do business in Colorado which will
insure Tenant and Landlord against liability for injury to persons and/or property, end death of
any person or persons occurring in or about the Leased Premises. Each policy shall be •
approved as to form and insurance company by Landlord. The liability under such insurance
shall not be lets than 51,000.000.00 for any one person injured or killed,and not less than
$1,000,000.00 for any one accident, and not less than 5100,000.00 property damage. The
policies shall name as insured parties,Tenant and Landlord and any persons, firms or
corporations designated by Landlord and shall contain a clause that the insurer will not cancel
or change the insurance without Sot giving the Landlord tin(10)days,prior written notice. A
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copy of the policy or a certificate of insurance shall be delivered to the Landlord. If Tenant
fails to comply with this paragraph,Landlord shall have the right o obtain the said insurance
and pay the premiums therefor and in such event the entire amount of such premium shall be
immediately paid by Tenant to Landlord.
2. Insurance on Tenant's Prooerty. The Tenant agrees that it will at all times
during the lease term maintain in fug force and effect on all its leasehold improvements,
furniture,fixtures and equipment in the Leased Premises a policy or policies of fire insurance
with the standard extended coverage endorsement attached to the extent of at least 80'/"of their
insurable value,the proceeds of which will,so long as this lease is in effect, be used for the
repair or replacement of the properties so insured It is understood that the Landlord shall have
no interest in such insurance, and will sign all documents necessary or property in connection
with the settlement of any claim or loss by Tenant
3. Landlords Fire.Extended Coverage and Liability Insurance. Landlord shall
pay the cost of fire and extended coverage insurance covering the Building against loss or
damage by floe and by other risks now or hereafter embraced by "extended coverage" in the
amount of the full insurable value of the Building. The term"extended coverage„will be
defined in writing for Tenant's benefit Landlord, at landlords expense,shall also maintain in
full force during the lease tens general public liability insurance%r the Building common areas
and sidewalks insuring the Landlord against any and all liability or claims ofliability for injuries
to or death of arty persons or persons and/or for damage to the property of any person or
persons arising out of;ocaaimed by or resulting from any accident or incident in or aboin said
common areas and/or sidewalks. The limits of such liability insurance coverage shall be not
less than 51,000.000.00 for any one person injured or killed,nor less than $3,000,000.00 for
any one accident or occurrence, and not less than S100,000.00 for property damage. Each such
policy of liability insurance shall name Tenant as an additional insured. For each Lease Year
Tenant shall pay Tenants pro-ram share of the premiums for the above described insurance
coverage, which amount shall be payable in equal monthly installments due on the same day as
the minimum monthly rental payments are due hereof without prior demand. As promptly as
possible following receipt by Landlord of its annual insurance premium notice for the Building,
a copy of the same shall be sent to the Tenant together with a statement of any increase in
Tenants future share which may be necessitated by said premium notice. In case of any
increase in Tenants sham,Tenant shall commence paying such increased share on the day the
next minimum monthly rental payment is due hereunder.
4. Waiver of Subrogation Landlord agrees that any insurance maintained by it on
the Premises or in connection with the provisions of the Lease shall contain a waiver of
subrogation provision as against Tenn and, in addition,Landlord hereby waives all right of
recovery which it might otherwise have against Tenant,its agents,employees,invitees, or
li mssees for any loss or damage which is covered by such insurance notwithstanding that such
loss or damage may result from the neglect or fault of Tenant,its agents,employees, invitees or
licensees. Tenant agrees that any inamnce maintained by it en the Premises or in cormection
with the provisions of the Lease shall contain a waiver of subrogation provision as against
Landlord and, in addition,Tenant hereby waives all right of recovery which it might otherwise
have against Landlord, its agents, employees, invitees,or licenses for any loss or damage which
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is covered by such insurance notwithstanding that such loss or damage may result from the
neglect or fault of Landlord, its agents,employees, invitees or licensees.
ARTICLE VI
Utilities and Maintenance
1. Tenant shall provide and pay for all telephone, gas and electricity separately
metered to the leased premises. Tenant shall pay Tenant's pro-rata share of Landlord's gas and
electricity costs associated with the operation of the Melding,
2. Tenant shall pay Tenant's pm-cam share of Landlords snow removal,trash
removal,and common area maintenance costs and repair oasts associated with the operation of
the Building. Tenant shall also pay it's pro-ram share of the Landlords water and sewer costs
associated with the operation of the Leased Premises. The above amounts shall be payable in
equal monthly installments due on the same day as the minimum monthly rental payments are
due hereunder without prior demand -•
3. With regard to all utilities, it is mutually agreed that Landlord shall not be liable
in damages or otherwise for any interruption or failure thereof when such interruptioo or failure
is not due to the gross negligence of Landlord.
4. Ienant further agrees that Tenant will not install any equipment which will
exceed or overload the capacity of any utility facility, end that if any equipment installed by
Tenant shall require additional utility facilities,the same shall be msmlled and maintained at
Tenant's expense in accordance with the plans and specifications which have received prior
written approval by Landlord
ARTICLE VII
Taxes
L The Tenant shall pay its pro-ram shoe(as set firth in Section 4,Summary
liminess Terms)of all real estate maces,assessments and other governmental levies and
charges, general and special, which are assessed or wed upon the tmderiying red property,
the Building,or any part thereof or become payable during the terms of the Lease commencing
with the year 199_ (payable in 199 J. an
Landlord reserves S right to bill Tenant in Advance on
a,monthly basis 1/12 of the estimme amounts due under this paragraph subject to an final
accounting upon issuance of the tax bill and if Landlord elects to bill Tenant on a monthly
basis,Tenant agrees to pay the same. All tax payments shall be deemed as additional rent.
2. The Tenant shall pay before delinquency any and all personal property tax
assessments, lie-ate fees, and public charges levied or assessed or imposed winch became
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• payable during the term hereof upon Tenants leasehold improvements, furniture,fixnues,
equipment,appliance and other personal pmperry, installed or located in the leased Premises.
ARTICLE VI •
Prohibited Uses:Nuisance and Cleanliness
1. Tenant will not use, occupy,or permit the Laced Premises or any pan thereof
to be used or occupied for any unlawful or illegal business, use, or purposes deemed by the
Landlord to be disreputable or hazardous,nor in such manner as to constitute a nuisance of any
kind, nor for any purpose or in any way in violation of any present or future laws,rules,
requirements,orders, directions, ordinances or regulations of the United States of America,
State of Colorado,County of Pitkin, ,Town of Basalt,or other municipal,governmental or
lawful authority whatsoever.
2. Tenant shall not do or permit anything to be done in or about the Leased
Premises or bring or keep anything therein which will in any way increase the rate of fire
insurance upon the Building wherein the premises are situated Tenant chat' ar urs sole cost
and expenses, comply with any and all requirements pertaining to the premises of any
insurance company necessary for the maintenance of reasonable fire and public liability •
insurance covering the Lease Premises. Tenant shall promptly comply with all laws,
ordinances,orders, and regulations affecting the premises and the cleanliness,safety and use of
the same, including installation of additional facilities as required for the conduct and
continuance of Tenants business on the Leased Premises. No auction for fire or banlouptcy
sales may be conducted on the premiseswithoutLandlords consent
3. Tenant chat,not permit any noxious or offensive odors to exist in or around the
Leased Premises.
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4. Tenant covenants that h will exercise the highest duty of care to maintain the
Leased Premises in a dean condition.
5. Tenant shall not perform any act or cavy on any practices which may injure the
Building of which the Leased Premises form a part or be a nuisance or menace to other tenants
in said Building.
6. A breach of any of the terms or conditions contained in this Article VIII shall
constitute a material breach of this Lease.
ARTICLE DC
Maintenance and Repairs.
1. Landlords Obtiaacons. Landlord shall maintain the exterior(except the
windows of the Premises)of the Building and other common areas within the Building in good
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condition and repair in accordance with good housekeeping practice Landlord shall make such
repairs forthwith,after receipt of written notice from Tenant
2. Tenant's Obligations. Tenant shall, at Team's own expense, maintain the
interior of the Leased Premises in good condition and repair in accordance with good
housekeeping practice. Tenant shall be responsible for cleaning and repairing the interior and
exterior surfaces of the windows and arterior doors in the Leased Premises, Tenant shall
maintain and keep in a neat condition exterior display space. obi./ tet- ,,uopo�.-Lrx ./r-
a,a ..r a4.LL.a...J. 4h ...a, {q •
3. Reimbursement. Landlord shall reimburse Tenant for the expense of any /1/-
repairs which Tenant may be required to make which are occasioned by the acts or neglects of
Landlord, its agents,employees, invitees or licensees; and Tenant shall reimburse Landlord for
the expense of any repass which Landlord may be required to make which ere occasioned by
the acts or neglects of Tenant, its agent, employees, invitees or licensees; provided,however,
that the respcaasible party must be given notice of the maintenance or repair item end a
reasonable time to repair the same before the other party shall be entitled to perform the
necessary maintenance or repair.
4. Alterations and Improvement*. Tenant shah not have the right to make any
alterations, improvements,and/or additions to the Leased Premises without first obtaining .
Landlord's written consent
5. Right Unci Termuatioa of r ease. Upon the termination of the Lease, all
improvements to the Premises edsang at the commencement of the Lease,and any
improvements installed by Tenant during the Lease which not be removed without damage
to the Premises,shall become the property of Landlord and cha11 be surrendered with the
Premises and as a part thereof
ARTICLE X
Landlord Not Liable For Damage%
Landlord shall not be liable to Tenant or to any other person whatsoever for any
damage arising from the leakage,obstruction, tmemrpnon, %'lure or discontinuance of all or
any part of any utility or utility system in or about the Loosed Premises or the Building,or from
water being upon or coming through the roof or vents,due to causes other thin the negligence
of Landlord,nor for any damage arising from any acts or neglect of co-tenants or other
occupant of the Building or of adjacent property,or the public
ARTICLE XI
Indemnification of Landlord
Tenant a indemnity Landlord and save it harmless from and against any and all
claims, actions or damages or liability or expense in the loss of life, personal injury, and/or
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damage to pmpely arising from or out of any occurrence in, upon, or at the Leased Premises, .
or the occupancy or use by Tenant of the Leased Premises or any part thereof,or occasioned
wholly or in pan by any act or omission of Tenn,its agents, contractors, servant, lesssees,
guests, customers,or concessionaires. In case Landlord shall without fault on its part be made
a party to any litigation commenced by or against Tenant, then Tenant shall fully protect and
hold the Landlord harmless and pay all costs,expenses and reasonable arorney's fees incurred
or paid by Landlord in connection with such litigation and at Tenant's option Tenant can
undertake Landlord's defense. Tenant shall also pay all costs, expenses and reasonable
attorneys fees that may be incurred or paid by Landlord in enforcing the covenants and
agreement in this Lease(including this indemnification), so long as Landlord prevails in such
litigation.
ARTICLE XII
Assiemtent and Subletting
1. Except as provided herein,Tenant shall not assign this Lease nor any interest
herein,or encumber, mortgage or hypothecate this Lease or any interest herein, or permit the
use of the Leased Premises by any person or persons other than Tenant,or sublet the premises
in whole or in part without Landlord's prior written consent, which consent shall not be
unreasonably withheld. If Tenant is a corporation, any sale or other transfer of the stock of such
corporation which results in the present shareholders therein owning less than 51%of the stock
thereof shall be deemed an assignment of this Lease, requiring the prior written consent of
Landlord. Any assignment encumbrance,sublet,or occupancy change made or given or
permitted in violation hereof chall be null and void and without force or effect and shall be
deemed a breach of this entire Lease.
2. Except as provided herein,if Tenant shell purport to assign or encumber this
Lease or sublet all or any portion of the Leased Premises or permit any person or persons other
than Tenant to occupy the premises,Landlord may whet rent from the person or persons then
occupying the premises and apply the net amount collected to the rent reserved herein,but no
such collection shall be deemed a waiver of this Article XII or the acceptance by Landlord of
such purported assignees of Tenant or occupant,or release of the Tenant of the further
performance of Tenant of covenant on the part of Tenant herein contained
ARTICLE XIII
Access to Premises
1. Landlord and its authorized representative shall have the right to enter upon the
Leased Premises at all reasonable hours(and in emergencies, at all times)to inspect the same,
to make repairs, additions or alterations to the premises and for any lawful purpose. Landlord
agrees to provide Tenant with reasonable notice whenever it deems it necessary to enter upon
the premises.
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2. For a period conunenchng ninety(90) days prior to the end of the lease terra,
Landlord may have reasonable access to the Leased Premises for the purpose of exhibiting the
same to prospective tenants and to post any usual For Lease" signs upon the Leased Premises.
ARTICLE XIV
Destruction of Premise
If the Premises shall be damaged by fire or other casualty,Landlord shall,in Landlord's
sole judgment reasonably exercised, determine the length of time required to restore and repair
the Premises to tenantable condition, and shall notify Tenant of such determination within 10
days after the occurrence of such fire or other raawlty. If it is determined that the Premises
cannot be restored to tenantable condition within ninety(90)days,then either Landlord or
Tenant may terminate this Lease by giving written notice of termination to the other within ten
• (10)days after Landlord shall have notified Tenant of the tune required for such restoration. If
neither party shall so terminate this Lease,or if the Premises can be restored to tenantable
condition within 90 days,then Landlord shall, at-Landlord's own expense, restore and repair the
same to tenantable condition as speedily as possible and the rent shall be abated, in whole or in
part, according to the portion of the Premises rendered untenantable, during the period of such
restoration and repair, except that there shall be no abatement of rent if such fire or other
casualty shall be caused by the acts or neglects of Tenant,or Tenant's agents,employees,
invitees,or licensees. Notwithstanding the foregoing,Landlord chat)have no obligation to
restore or repair any fixtures or other improvements placed upon the Premises by Tenant and
Tenant shall have the sole obligation to repair and restore such items. In the event that the
Building shall be so damaged by fire or other casualty that demolition or substantial
reconstruction is required(whether or not the Premises be affected thereby),then Landlord
may terminate this Lease by giving Tenant written notice of such termination within 30 days
after the date of such damage.
ARTICLE XV
Eminent Domain
1. If tide to all of the leased premises or so much thereof be taken by any public or
quasi-public use under any statute or by right of eminent domain, or by private purchase in lieu
thereof,so that a reasonable amount of reconstruction of the premises will not result in the
premises being a practical improvement and reasonably suimble for Tenant's continued
occupancy for the uses and purposes for which the premises are leased,this lease shall
terminate as of the date that possession of said premises,or part thereof be takes
2. If any part of the premises shall be so taken and the remaining part thereof
(after reconsntction of the then existing building in which the premises are located)is
reasonably suitable for Tenant's continued occupancy for the purposes and uses for which the
premises are leased,this lease shag as to the parr so taken terminate as of the date that
possession of such pert of the exclusive premises be so taken and the fixed rem shall-be
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reduced in the same proportion that the floor area of the portion of the exclusive premises so
taken(less any additions thereto by reason of any reconstnxtion) bears to the original floor area
of the exclusive premises,and Landlord shall at its own cost and expense, mak^all necessary
repairs or alterations to the building in which the premises are located so as to constitute the
portion of the building not taken a complete architectural unit and the remaining exclusive
premises a complete merchandising trait, but such work shall not exceed the scope of the work
to be done in originally constructing said Budding. There shall be no abatement of rent during
such restoration except to the extent otherwise provided in this paragraph.
3. All compensation awarded or paid upon such a total or partial taking of the fee
of the premises shall belong to and be the property of the Landlord;provided, however, that
Landlord shall not be entified to any award made to Tenant for loss of business, depredation to,
and cost of removal of stock and fixtures.
4. Each parry agrees to execute and deliver to the other all instruments drat may
be required to effectuate the provisions thereof,
ARTICLE XVI
Default
1. The occurrence of any of the following shall constitute an event of default
a Delinquency by the Ienant in payment of any rent wider this Lease for
a period of five (5) days from the date such rent became due and payable.
b. Delinquency by the Tenant in the performance of or compliance with
any of the other obligations of Tenant contained in this Lease, for a period of ten(10)
days after written notice thereof from Landlord to Tenant
c. Filing by or against the Tenant in any court pursuant to any statute
either of the United States or of any state,of a petition of bankruptcy or insolvency,or
for reorganization,or for the appointment of a receiver or trustee,of all or a portion of
the Tenants property, if within ninety(90)days after the commencement of any such
proceedings involving the Tenant such petition shall not have been dismissed
2. In the event of default in non-payment of rent as defined in Paragraph 1(a)
above,this Lease shall automatically terminate on the date specified in the Landlords three(3)
day notice for payment of rent or surrender of possession of the premises under Section 13-40-
104(d)(1913 CIS.),if Tamafails to pay such rent as demanded in said notice. To avoid
potential forfeiture on account of clerical error or oversight,Tenant shall have the right to
require the Landlord to deliver a copy of any such notice to the President of a banking
institution in Carbondale,Colorado,or toanother responsible person in Carbondale, Colorado,
to permit Tenant to arrange for payment of such rent within said three(3)day period. If notice
of the identity and address of such bank or person shall be specified in writing by Tenant under
the circumstances described in Paragraphs 1(b) and 1(c)above,this Lease shall automatically
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terminate on the date specified in landlord's three(3)days notice to such bank or person under
Section 13-40-104(e)(1973 C.RS.).
3. Upon the termination of this Lease pursuant to the preceding subparagraph, the
Tenant shall peacefully surrender the Leased Premises to the Landlord, and the Landlord upon
or at any time after any such termination, may, without further notice, reenter the Leased
Premises end repossess it by force, summery proceedings, ejectment or otherwise, and may
dispossess the Tenant and remove the Tenant and all other persons and property from the
Leased Premises, and may have, hold and enjoy the Leased Premises and the right to receive
all rental income therefrom.
4. At any time after such termination, the Landlord may relet the Leased Premises
or my part thereof, in the name of the Landlord or otherwise for such term(which may be
greater or less than the period which would otherwise have constituted the balance of the term
of this Lease)and on such conditions as the Landlord,in the Landlord's absolute discretion,
may determine and may collect and receive the rents therefore The Landlord shall in co way
be responsible or liable for any failure to collect any rent due upon such reletting.
5. No such termination of this Lease shall relieve the Tenant's liability and
obligations under this Lease, and such liability and obligations shall survive any such •
termination In the event of any such termination,die Tenant shall pay to the Landlord die rent •
required m be paid by the Tenant up to the time of such termination, and thereafter the Tenant,
annul the end of what would have been the term of this Lease in the absence of such
terrnirration, shall be liable to the Landlord for,and shall pay to the Landlord as and for
liquidated and agreed damages for the Tenant's default the following:
a. The equivalent of the amount of the rein which would be payable under
this Lease by the Tenant if the Lease were still in effect, less
b. The net proceeds of any reletting effected pursuant to the provisions of
the preceding paragraph, after deducting all of the Landlord's expenses, all reasonable
repossession costs,brokerage commission, legal expenses, attorney's fees,costs and
expenses of preparation for such reletting
6. Should Ienant be dispossessed of the Leased Premises by operation of law or
otherwise, any personal property belonging to Tenant left on the premises shall,at the
Landlord's sole option,be deemed to be abandoned to the Landlord,or Landlord may store
such property in Tenants name and at Tenant's expense without notice to Tenant
7.In the event of default by Landlord,the Tenant shall have all rights and remedies
available at law or in equity.
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ARTICLE XVII
Landlord's Lien
The parties expressly understand and agree that in order to secure payment of all sums
becoming due at any time to Landlord hereunder and to secure the proper performance and
fulfillment by Tenant of the Tenant's agreements herein,Landlord hereby has a security interest
in and first lien upon all of the leasehold improvements and fixtures owned by Tenant(or to the
extent Tenant has any other interest therein)which Tenant shall hereafter place or permit to be
placed in, upon or about the Leased Premises. Tenant hereby agrees to give and doe give
Landlord a security interest in the subject leasehold improvements and fixtures and agrees to
execute,upon receipt of written request therefor from Landlord at any time during the term
hereof, a Financing Statement evidencing said security interest to be filed and recorded in the
manner provided by law. In the event of default by Tenant under this Lease, the Landlord shall
have a right to all of the subject leasehold improvements, personal property and fixtures as if
Landlord were a creditor under the Colorado Uniform Commercial Code. In addition, in the
event of a default by Tenant under this lease,the.Tenant hereby authorizes the Landlord to
enter upon the premises and to sell(and to remove, if necessary)the leasehold improvements
and fixtures which are the subject of this Gen. Such action by Landlord shall not be deemed.a
breath of the Lease. Tenant agrees to Pay the reasonable attorneys fees incurred by the
Landlord in the event the Landlord must foreclose upon the security interest and first Gen
granted by Tenant herein. Notwithstanding the preceding,Landlord agrees to subordinate its.
security interest and lien grained hereunder to any purchase money mortgage or liens, other
lessor security interests and/or line of credit security interests covering any fixtures of Tenant in
the premises.
ARTICLE XVIII
Covenant of Outer Eniovment
So long as the Tenant is not in default hereunder during the base term hereof and any
renewal or extension hereof,the Landlord covenants that the Tenant shall peaceably and quiedy
occupy and enjoy the Leased Premises subject to the terms hereof The Landlord warrants and
agrees to defend the title to the Leased Premises,and further warrents that it has MI authority
to execute this Lease.
ARTICLE XIX
Accord and Satisfaction
No payment by Tenant or receipt by Landlord of a lesser amount than the rent herein
provided shall be deemed to be other than on account of the earliest amount due and payable •
hereunder,nor shall the endorsement or statement accompanying any check or payment
required hereunder be deemed an accord and satisfaction, and Landlord may accept any such
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check or payment without a prejudice to the Landlord trying to recover the balance of such
amounts due hereunder or pursue any other remedy provided in this I Pave,
ARTICLE XX
Mortgage priority
This Lease shall not be a lien against the Leased Premises with respect to any
mortgages or trust deeds now or hereafter placed upon the premises or the Building The
recording of such mortgage or mortgages shall have preference and precedence and be superior
and prior in lien to this Lease,irrespective of the dare of recording and the Tenant agrees to
execute any instruments, without cost, which may be deemed necessary or desirable, to further
effect the subordination of this Lease to any such mortgage or mortgages. A refusal by the
Tenant to execute any such instruments shall entitle the Landlord to at once terminate this
Lease. Tenant agrees not to record or file this Lease or any memorandum thereof in the real
estate records affecting the Building in which the premises are located. Any such recording in
violation hereof shall be considered a slander of Landlord's tide and a breach of this entire
Lease. This covenant shall survive the expiration or earlier termination of this Lease.
Notwithstanding the preceding,Landlord agrees to obtain non-disturbance agreements for the
benefit of Tenant from Landlord's oust deed or mortgage holders against the Building if
reasonably available.
•
ARTICLE XX1
Estoppel Certificate
Tenant agrees at any time and from time to lima,upon no less than ten(10)days prior
request by the Landlord,to execute, acknowledge and deliver to Landlord a statement in
writing certifying that this Lease is unmodified and in full Poore and effect(or, if there have
been modifications,that the same is in fop force and effect as modified and stating the
modifications),and the dates to which the fixed rent and other charges have been paid in
advance,if any, and confirming Tenant's acceptance of the premises,the commencement of the
lease term,and the rent provided under the lease,it being intended that such statement
delivered pursuant to this paragraph may be relied upon by any prospective purchaser,
mortgagee,or assignee of any mortgagee of the Leased Premises or the Building.
•
ARTICLE)QWII
•
• Waiver
One or more waivers of any covenant or condition by Landlord shall not be construed
as a waiver of a subsequent breach of the same or any other covenant or condition,and the
consent or approval by Landlord to or of any act by Tenant requiring Landlord's consent,or
approval shall not be deemed to waive or render unnecessary Landlord's consent or approval to
or of any subsequent similar act by Tenant The subsequent acceptance of rent hereunder by
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• Landlord shall not constitute a waiver of any preceding breach by Tenant of any term.covenant
or condition of this Lease other than the failure of Tenant to pay the particular rental so
accepted, regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such rent. No waiver of any provision of this J Anse shall be effective unless a is
in writing and signed by the Landlord
ARTIri F XXIII
Hold Over
If Tenant should remain in possession of the premises after the expiration or other
termination of the lease term and without executing a new lease, then such holding over shall
be construed as a tenancy from month to month, subject to all the conditions, provisions and
obligations of this Lease insofar as the same are applicable to a month to month tenancy.
ARTICLE XXIV
Surrender of Premises:Treatment of Tenant's
Alterations at Expiration of Lease
All alterations, additions, improvements,partitions, flooring, carpeting or fixtures,
including but not limited to light fixtures, electrical fixtures, and plumbing formes, which may
be made or installed by either of the parties hereto upon the Leased Premises and which in any
manner are attached to the floors, walls, windows, or ceilings(excepting coolers, compressors;
cash registers, computers or other mechanical equipment installed by Tenant)shall be the
property of the Landlord upon the expiration or other termination of this Lease, unless
Landlord shall elect otherwise. In the event the Landlord shall so elect,such alterations,
installations, additions or improvements made by Tenant upon the Leased premises as the
Landlord shall so elect shall be removed by the Tenant and Tenant shall restore the premises to
. its original condition at the commencement hereof,normal wear and tear excepted, at its own
cost and expense prior to the expiration or termination of the term hereof;or if the Tenant fails
to do so,.Landlord, in addition to all of its other rights and remedies hereunder,may do so at
the Tenant's expense. Also, at the expuanon or other termination of the lease term,Tenant
shall remove all of his movable trade fixtures which shall not be property of the Landlord under
the foregoing provisions of this paragraph The Tenant's obligations to perform the covenants
contained in this Paragraph of this Lease shall survive the expiration or other termination of this
Lease.
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ARTICLE XXV
Signs_Disolays. and Other Advernsiner Media
Tenant shall be entitled an exterior sign as set forth on Exhibit A attached hereto.
Tenant shall not erect or install any other exterior or interior window or door signs,
advertising mwlia, window or door lettering, or placards without Landlord's written consent
The cost shall be the Tenants sole expense. Tenant agrees not to use any advertising media
that shall be deemed objectionable to Landlord or other tenants, such as loudspeakers,
phonographs,or radio broadcasts in a manner to be heard outside the prettilses. Tenant shall
not install any exterior lighting, decoration, painting, or awning or make any changes to the
exterior of the Leased Premises without Landlords written consent There shall be no
newspaper sales dispensers or other vending machines on the exterior of the premises. AU
signs must comply with the Town of Basalt regulations.
ARTICLE XXVI
Notices
I. All notices m be given with respect to this Lease shall be in writing Each
notice shall be sent by registered or certified mail,postage prepaid and return receipt
requested to the party to be notified at the address set forth herein or at such other address as
either party may from time to time designate in writing.
2. Every notice shall be deemed to have been given at the time it shall be
deposited in the United States mail in the manner prescribed herein Nothing contained herein
shall be construed to preclude personal service of any notice in the manner prescribed for
personal service of a smarmy or other legsl process.
ARTICLE XXVII
Attomels Fees and Waiver of Right to Jury
In the event of any litigation or other action or proceeding between the parties hereto
arising out of the performance or nonperformance of this T.tea or enforcement of any rights of
remedies hereunder, including any indemnities herein contained, the prevailing parry shall be
entitled in such litigation, action or proceeding to also recover as part Of any judgment, award
or other relief, its reasonable attorney's fees and costs incurred. The Landlord and Tenant
expressly waive arty right which either may have to trial by jury of any dispute arising under
this Lease relating to the issues of termination of this Lease and rights to possession of the
premises.
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ARTIIZF JOCVI I
HOUR OF OPERATION
Unless Tenant is prevented from doing so by fire or other casualty beyond Tenant's
reasonable control and except for reasonable periods of repairing, cleaning, and redecorating
the premises,Tenant agrees to keep the leased premises open for business for lunch and dinner
during all such days and hours as are customary for similar businesses in the River Park Center
and in the city limits of the Town of Basalt and at all such times keep the business fully manned
and in full operation with sufficient and competent personnel for the proper operation of a first
class =mutant
ARTICLE)OCDC
Miscellaneous Provisions
L If any portion of this Lease shall be declared invalid or unenforceable,the -
remainder of the Lease shall continue in full force and effect
2. Where necessary to carry out the meaning hereof the singular shall mean the
plural,the ph ral the singular,and any gender shall apply to all genders.
3. This Lease and the Lease Summary of Business Terms attached hereto
constitute the total understanding of the parties with respect to the subject matter hereof and no
modifications thereof may be made except by a writing signed by both of the parties.
4. This Lease and all agreements herein contained shall bind the parties hereto
and their heirs, personal representatives,successors and assigns.
5. Each term and each provision of this Lease shall be construed as,and shall
have the same force and effect as though made in the form of a covenant
6. This Lease shall be construed in accordance with the laws of the State of
Colorado.
7. Time is of the essence for the performance of any obligation contained in this
Lease.
S. There shall be no smoking permitted in the premises.
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IN WITNESS WHEREOF,the parties have executed this Lease on the day and year
first above written.
LANDLORD: RIVER PARK CENTER, LLC.,
By \
Jon David Seigle, ' .g Member
TENANT: ,
., avid �i
$y
Qaevcaltzuc.a«
•
17
Tammy Rascon
From: prvs=1076685e0e=doug@douglasallen.com on behalf of Douglas Allen
[doug@douglasallen.com]
Sent: Monday,April 04, 2011 8:23 PM
To: Liz Stewart; R.Jordan William Ill; Tammy Rascon; Susan Tracy
Ho Palace lease was signed today,$3,500 per mo first 3 years,then CPI applies till 2021 for whatever the
signature is worth. Muc is happy!
f H
I
Douglas Allen
403 Lacet Ln.
Aspen, CO 81611
(970) 925-8800
1