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HomeMy WebLinkAboutbocc.con.245.20 - BOCC jKIN COUNT — Q./D�� SUMMARY OF BASIC LEASE TERMS CONTRACT NUMBER 245.2020 This Lease Summary made and entered into this Pt day of January 2021 between the Board of County Commissioners of Pitkin County, Colorado (hereinafter referred to as "County"), whose address is 123 Emma Road, Suite 106,Basalt,CO 81621,and P B&F,LLC,DBA Stubbies Sports Bar (hereinafter referred to as "Lessee") whose address is 123 Emma Road, Suite 206 and 208, 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, County does hereby lease to Lessee and Lessee does hereby rent from County the following described premises: 123 Emma Road, Suite 206 and 208, Basalt, Colorado 81621, containing approximately 3,335 square feet of sports bar space (referred to herein as the "Leased Premises") in the River Park Center Building(referred to herein as the "Building") Section 2: Term The term of this Lease shall commence on January 1,2021 and shall expire on December 31, 2021 (The Primary Term) unless sooner terminated as provided herein. The term "Lease Year" as used herein shall include each portion of a calendar year which may exist at the beginning and/or end of the term hereof Provided Lessee is not in default of this Lease and has performed all of its covenants and obligations thereunder, Lessee shall be entitled to extend the original primary term of this Lease twice by an additional one-year period each time upon the same terms and conditions as contained in this Lease, except that the fixed minimum rent for each such one-year period shall be increased by 3% over the fixed minimum rent in effect for this preceding Lease Year or the current CPI, whichever is greater. Lessee shall exercise said extensions options by giving written notice to the BOCC not less than 30 days before the expiration of then-existing Lease Year. Section 3: Rent Minimum Rent. Lessee shall pay County a fixed minimum annual rent for the lease year in the amount of$60,030.00, paid in monthly installments of$5,002.50. This amount is equivalent to $18.00 per square foot annually. Lessee shall pay County at the address of the County or at such other place as County may from time to time designate in writing to Lessee, without any prior demand therefore and without any deduction or setoff whatsoever, a fixed minimum annual rental 1 for the Leased Premises in equal monthly installments in accordance with the following schedule. Section 4: Utilities/Maintenance. Lessee shall provide and pay for all telephone, cable and electricity separately metered to the Leased Premises. Additionally, Lessee shall pay a percentage share of the County's costs for utilities and maintenance("Common Area Expenses)including costs and expenses incurred by the County, in operating, managing, policing, insuring, servicing, decorating, repairing, maintaining and replacing the (a) Common Area, (b) the exterior surfaces of exterior walls, elevator, roofs, foundations, and other structural portions of the Building from time to time, and the basic plumbing,heating,ventilation,air conditioning, sprinkler and electrical systems within the core of such building; and (c) the Common Utility Facilities, including but not limited to sanitary sewer lines and systems,gas lines and systems,water lines and systems,fire protection lines and systems, electrical 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, compost recycling and trash removal services, security, if any, fire protection and similar items; expenses related to the Common Utility Facilities; costs of insurance maintained by the County; 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. The percentage of Lessee's share of the County's costs is the proportional share of square footage of the premises rented by Lessee (3,335 square feet) to the rentable square footage of the entire Building(14,824 square feet),being 22.5%of the rentable area of the entire Building, (hereinafter referred to as "pro-rata share"). These charges are based on actual amounts and will be invoiced quarterly to the Lessee. Miscellaneous: Tenant agrees to remove trash and drippings from the Leased Premise in such a manner as will not deposit anything on the building or the grounds between the Lease Premises and the trash dumpsters to which all such items must be delivered on a daily basis as well as periodic and frequent cleaning by the Tenant of the grease residue from the cooking operations of the restaurant, so as to be substantially free of any such residue. Tenant agrees Tenant shall pay for all maintenance, servicing and replacement of the HVAC units, including but not limited fans, filters, coils, and all other equipment serving the Leases Premises of Tenant. Tenant agrees to separate recycle materials and place them into County supplied containers and participate in the County's composting program by separating all food related waste into supplied containers. Tenant further agrees on or before April 15 of each year to deep clean the Leased Premises, including the exterior patio deck and East stairwell and walkway in front of suite 206 and 208 doors. 2 NOTWITHSTANDING THE FOREGOING, in no event shall Common Area Expenses include: (a) capital improvements or repairs except those that either (i) are reasonably projected to reduce common area maintenance expenses, or (ii) are required as a result of any change after the commencement of the term in law or code and from which the Building is not exempt as a pre- existing structure, and provided that in either such case the cost of any such capital improvements or repairs shall be amortized over their useful life and Lessee shall be charged for only its pro-rata share of allocated costs occurring during the term of this Lease; (b) renovating or constructing Lessee improvements in leasable space, or renovating space vacated by any Lessee; (c) depreciation of the building or any portion thereof; or (d) expenses for which the County is reimbursed by another source, including without limitation insurance or construction warranties. Section 5: Insurance Lessee shall pay Lessee's pro-rata share of County's insurance premiums for the building as set forth in Article VI of the Lease. This amount will be adjusted upward or downward at year-end based on the actual cost. Section 6: Taxes Lessee shall pay taxes on its possessory interest as set forth in Article V of the Lease. Section 7: Security Deposit Lessee has on deposit with County as security for the performance of all terms, covenants, and conditions of this Lease, the sum of$5,000.00 (on file with Pitkin County). This deposit is to be retained by the County until the expiration of this Lease, at which time the deposit shall either be returned to Lessee or retained by County in accordance with the provisions of C.R.S. 38-12-101, et seq. 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 6: Business Use The Lessee shall utilize the Leased Premises for a sports bar use. County expressly reserves the right to withhold its consent to any change of use or purpose in its unrestricted discretion. 3 JKIN COUNT • RIVER PARK CENTER STANDARD COMMERCIAL LEASE CONTRACT NUMBER 245.2020 This lease, made and entered into this 1st day of January, 2021, between the Board of County Commissioners of Pitkin County Colorado (hereinafter referred to as "County") and P B & F, LLC, DBA Stubbies Sports Bar(hereinafter referred to as "Lessee") WITNESSETH: ARTICLE I: Leased Premises The County hereby leases to the Lessee,and the Lessee hereby rents from the County,the"Leased Premises"described in Section 1 of the Summary of Basic Lease Terms attached hereto and made a part hereof by this reference. ARTICLE II: The term of this Lease is stated in Section 2 of the Summary of Basic Lease Terms, which is incorporated herein by reference. ARTICLE III: Rent The Lessee agrees to pay the County a fixed minimum annual rental for the term of the Lease, which rent is specified in Section 3 of the Lease Summary of Business Terms, which is incorporated herein by this reference. This minimum rental is payable in equal monthly installments due on the first day of each calendar month during the term hereof without prior demand. ARTICLE IV: Penalties of Late Payment of Rent A. If the Lessee fails to pay a monthly installment of combined rent comprised of(a) the fixed minimum rent and (b) the utilities charges by the 10th day of the month in which it is due, Lessee shall add ten percent to that monthly installment as additional rent. B. The County 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 County's remedies in the event of such default, which remedies shall in all cases hereunder be considered to be cumulative. C. In the event that all or part of the rent 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 4 rate of one and one-half percent per month. D. If Lessee makes any payment to the County by a check that is later dishonored for any reason, the County may, in addition to the other remedies available to it hereunder, require that future rental payments be made by cashier's check or certified funds. Lessee agrees to pay the County $35 for each instance that a check written to Pitkin County is dishonored in addition to a late payment charge. The County, at its option,has the right to terminate this Lease upon receiving its first dishonored check from Lessee. ARTICLE V: Taxes Lessee has a taxable possessory interest in the Leased Premises. Any use or occupancy of government property by any person, partnership, corporation, limited-liability corporation (LLC) or other legal entity for the purposes of generating revenue from a business or operation is subject to a taxable possessory interest. The assessor's office will send out a "Notice of Value" on May Pt of each year that states the value associated with Lessee's possessory interest. That value will be the basis of the tax Lessee will be required to pay for that year. The value is based on the remaining income to be collected per the terms of Lessee's current lease. ARTICLE VI: Indemnity and Insurance A. Indemnification. Lessee shall indemnify, hold harmless and, not excluding the County's right to participate, defend the County and its officers, officials, agents, and employees (hereinafter referred to as "County") from and against any and all liabilities, claims, actions, damages, losses, or expenses including without limitation reasonable attorneys' fees and costs, (hereinafter referred to as"claims")for bodily injury or personal injury including death,or loss or damage to tangible or intangible property caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of Lessee or any of its officers, directors, agents, employees or contractors, arising out of or related to Lessee's occupancy and use of the Leased Premises. It is the specific intention of the parties that the County shall, in all instances, except for claims arising solely from the negligent or willful acts or omissions of the County,be indemnified by Lessee from and against any and all claims. It is agreed that Lessee will be responsible for primary loss investigation, defense and judgment costs where this indemnification is applicable. In consideration for the use and occupancy of the Leased Premises, the Lessee agrees to waive all rights of subrogation against the state, its officers, officials, agents and employees for losses arising from the use, occupancy or condition of the Leased Premises. B. Non-Waiver. The parties hereto understand and agree that the County is relying on, and does not waive or intend to waive by any provision of this Contract,the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act et seq., as from time to time amended, or otherwise available to the County, its subsidiary, associated and/or affiliated entities, successors, or assigns; or its elected officials, employees, agents, and volunteers. 5 C. Insurance. 1. Lessee's Insurance. (a) Lessee's Liability Insurance. Lessee shall procure and maintain at its own cost an occurrence form commercial general liability policy with such limits as County 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. County and Lessee recognize that nothing herein shall be construed as limiting Lessee's statutory protections within the Colorado Governmental Immunity Act. Such liability insurance shall be primary and not contributing to any insurance available to County and County's insurance shall be in excess thereto. (b) Lessee's Property Insurance. Personal property insuring all equipment, trade fixtures, inventory, fixtures, and personal property located on or in the Leased 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 Leased 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. Lessee shall carry policies of workers' compensation insurance and employers' liability insurance that satisfy all legal requirements of the State in which the Leased 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 County. The policies maintained by Lessee shall be with companies rated A 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 Leased Premises are located and domiciled in the USA. The limits of such insurance shall not limit Lessee'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 County prior to the Commencement Date and annually thereafter upon request of County. Lessee may provide required insurance coverage as part of a blanket policy. (e) Cancellation or Modification. If Lessee receives notice of cancellation or material modification, Lessee shall notify County and County's Management Agent in writing within five (5)business days of receiving such notice. (f) Miscellaneous. If Lessee fails to maintain and secure the insurance coverage required under this Article VI,County 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 County by Lessee within ten (10) business days after written demand. Lessee 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 Leased 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 Lessee's activity or equipment 6 in or about the Leased 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, Lessee shall be liable for the amount of such increase. Lessee shall reimburse County for such amount upon written demand from County and any such sum shall be considered additional Rent payable under this Lease. Lessee, 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 Leased Premises and the Building. County currently does not require Lessee to carry business interruption insurance; however, County recommends Lessee carry a policy of business interruption insurance. 2. County's Insurance. During the Term, County shall insure the Common Area improvements,the Building,and the shell of the Leased Premises(excluding Lessee's personal property, furniture, fixtures and equipment, Lessee Changes and the Lessee Improvements) against damage by fire and standard extended coverage perils and with vandalism and malicious mischief endorsements,rental loss coverage,at County's option,earthquake damage coverage, and such additional coverage as County deems appropriate. County 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 County's option, County may carry all such insurance under any blanket or umbrella policies which County has in force for other buildings and projects. At County's option, County may elect to self-insure all or any part of such required insurance coverage. County may,but shall not be obligated to,carry any other form or forms of insurance as County or County's mortgagees or ground lessors may determine is advisable. The cost of insurance obtained by County pursuant to this Article VI (including self-insured amounts and deductibles) shall be included in Common Area Expenses. D. Waiver of Subrogation. County agrees that any insurance maintained by it on the Leased Premises or in connection with the provisions of the Lease shall contain a waiver of subrogation provision as against Lessee and, in addition, County hereby waives all right of recovery which it might otherwise have against Lessee, its agents, employees, invitees, or licensees 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 Lessee, its agents, employees, invitees, or licensees. Lessee agrees that any insurance maintained by it on the Leased Premises or in connection with the provisions of the Lease shall contain a waiver of subrogation provision as against County and, in addition, Lessee hereby waives all right of recovery which it might otherwise have against County, its agents employees, invitees, or licensees 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 County, its agents, employees, or invitees. ARTICLE VII: Utilities and Maintenance A. Lessee shall provide and pay for all telephone, cable and electricity separately metered to the Leased Premises. Additionally, Lessee shall pay a percentage share of the County's costs for utilities and maintenance ("Common Area Expenses) including costs and expenses incurred by the County, in operating, managing, policing, insuring, servicing, decorating, repairing, maintaining and replacing the (a) Common Area, (b) the exterior surfaces of exterior walls, elevator,roofs, foundations,and other structural portions of the Building from time to time and the basic plumbing, heating, ventilation, air conditioning, sprinkler and electrical systems 7 within the core of such Building; and (c) the Common Utility Facilities, including but not limited to sanitary sewer lines and systems,gas lines and systems,water lines and systems, fire protection lines and systems, electrical 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 services, security, if any, fire protection and similar items; expenses related to the Common Utility Facilities; costs of insurance maintained by the County; 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. NOTWITHSTANDING THE FOREGOING, in no event shall Common Area Expenses include: (a) capital improvements or repairs except those that either (i) are reasonably projected to reduce common area maintenance expenses, or (ii) are required as a result of any change after the commencement of the term in law or code and from which the Building is not exempt as a pre-existing structure, and provided that in either such case the cost of any such capital improvements or repairs shall be amortized over their useful life and Lessee shall be charged for only its pro- rata share of allocated costs occurring during the term of this Lease; (b) renovating or constructing Lessee improvements in leasable space, or renovating space vacated by any Lessee; (c) depreciation of the building or any portion thereof; or (d) expenses for which the County is reimbursed by another source, including without limitation insurance or construction warranties. B. With regard to all utilities, it is mutually agreed that County shall not be liable in damages or otherwise for any interruption or failure thereof when such interruption or failure is not due to the gross negligence of County unless such interruption or failure is due to County's failure to timely provide for or pay its obligations hereunder. C. Lessee further agrees that Lessee will not install any equipment that will exceed or overload the capacity of any utility facility, and that if any equipment installed by Lessee shall require additional utility facilities; the same shall be installed and maintained at Lessee's expense in accordance with the plans and specifications which have received prior written approval by County. D. The percentage of Lessee's share of the County's costs is the proportional share of square footage of the premises rented by Lessee (3,335 square feet) to the rentable square footage of the entire Building(14,824 square feet),being 22.5%of the rentable area of the entire Building, (referred to as "pro-rata share"). These charges are based on actual amounts and will be invoiced quarterly to the Lessee. E. Common Area Expenses shall be billed to Lessee on a quarterly basis. For the purpose of this Lease quarters end on March 31, June 30, September 30 and December 31. Lessee shall pay to the County as additional rent, its share of Common Area Expenses as defined in Section 4 of the Summary of Basic Lease terms and in this Article VII Paragraph A, on the first business day after the end of each quarter. The County shall deliver to Lessee an Estimate Statement of the quarterly Common Area Expenses due no later than 15 days prior to the end of the quarter. 8 F. Within thirty (30) days after the expiration of the Term of this Lease or sooner termination of the Lease, the County shall deliver to Lessee a statement ("Actual Statement") which states Lessee's Share of the actual Common Area Expenses for the calendar year in which this Lease terminates. If the Actual Statement reveals Lessee's share of the actual Common Area Expenses is more than the total additional rent paid by Lessee for Common Area Expenses on account of the calendar year in which this Lease terminates, Lessee shall pay the County the difference in a lump sum within thirty (30) days of receipt of the Actual Statement. If the Actual Statement reveals Lessee's Share of the actual Common Area Expenses is less than the additional rent paid by Lessee for Common Area Expenses on account of the calendar year in which this Lease terminates,the County shall credit any overpayment toward the next monthly installment(s)of Lessee's share of the Common Area Expenses due under any extension of this Lease or promptly rebate Lessee after the expiration or sooner termination of this Lease. G. Any delay or failure by the County in delivering any Estimate Statement or Actual Statement pursuant to this Article VII shall not constitute a waiver of its right to require an increase in rent nor shall it relieve Lessee of its obligations pursuant to this Article VII, provided Lessee 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 Lessee does not object to any Estimate Statement or Actual Statement within thirty(30)days after Lessee receives any such statement, such statement shall be deemed final and binding on Lessee. Even though the Term has expired and Lessee has vacated the Leased Premises, when the County makes its final determination of Lessee's share of the actual Common Area Expenses for the year in which this Lease terminates, Lessee shall promptly pay any increase due over the estimated expenses paid and, conversely, the County shall promptly rebate any overpayment resulting from a decrease in such expenses to Lessee. 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 this Lease and the County's acceptance of Lessee's surrender of the Leased Premises,the County may estimate the actual Common Area Expenses for the then-current lease year and collect from Lessee, prior to Lessee's surrender of the Leased Premises, Lessee's share of any excess of such actual Common Area Expenses over the estimated Common Area Expenses paid by Lessee in such lease year. H. Miscellaneous: 1) Tenant agrees to remove trash and drippings from the Leased Premise in such a manner as will not deposit anything on the building or the grounds between the Lease Premises and the trash dumpsters to which all such items must be delivered on a daily basis as well as periodic and frequent cleaning by the Tenant of the grease residue from the cooking operations of the restaurant, so as to be substantially free of any such residue. 2) Tenant agrees Tenant shall pay for all maintenance, servicing and replacement of the HVAC units, including but not limited fans, filters, coils, and all other equipment serving the Leases Premises of Tenant. 3) Tenant agrees to separate recycle materials and place them into County supplied containers and participate in the County's composting program by separating all food related waste into supplied containers. 9 4) Tenant further agrees on or before April 15 of each year to deep clean the Leased Premises, including the exterior patio deck and East stairwell and walkway in front of suite 206 and suite 208 doors. ARTICLE VIII: Prohibited Uses; Nuisance and Cleanliness A. Lessee will not use, occupy, or permit the Leased Premises or any part thereof to be used or occupied for any unlawful or illegal business, use, or purposes deemed by the County 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. B. Lessee 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 Leased Premises are situated. Lessee shall, at its sole cost and expense, comply with any and all requirements pertaining to the Leased Premises of any insurance company necessary for the maintenance of reasonable fire and public liability insurance covering the Leased Premises. Lessee shall promptly comply with all laws, ordinances, orders, and regulations affecting the Leased Premises and the cleanliness, safety, and use of the same, including installation of additional facilities-as-required for the conduct and continuance of Lessee's business on the Leased Premises. No auction for fire or bankruptcy sales may be conducted on the Leased Premises without County's consent. C. Lessee covenants that it will exercise the highest duty of care to maintain the Leased Premises in a clean condition. D. Lessee shall not perform, act, or carry on any practices that may injure the Building of which the Leased Premises form a part or be a nuisance or menace to other Lessees in said Building. E. A breach of any of the terms or conditions contained in this Article VIII shall constitute a material breach of this Lease. ARTICLE IX: Maintenance and Repairs A. County's Obligations. County shall maintain the exterior (including exterior windows of the Leased Premises) of the Building and other common areas within the Building in good condition and repair in accordance with good housekeeping practice. County shall make such repairs forthwith, after receipt of written notice from the Lessee. 10 B. Lessee's Obligations. Lessee shall, at Lessee's own expense, maintain the interior of the Leased Premises in good condition and repair in accordance with good housekeeping practice. Lessee shall be responsible for cleaning and repairing the interior and exterior surfaces of the windows, deck and exterior doors in the Leased Premises. C. Alterations and Improvements. Lessee shall not have the right to make any alterations, improvements, and/or additions to the Leased Premises without first obtaining the County's written consent. D. Rights Upon Termination of Lease. Upon the termination of the Lease, all improvements to the Leased Premises existing at the commencement of the Lease, and any improvements installed by Lessee during the Lease that cannot be removed without damage to the Leased Premises, shall become the property of County and shall be surrendered with the Leased Premises and as a part thereof. This provision includes Lessee's equipment,trade fixtures and furniture. ARTICLE X: County Not Liable For Damages County shall not be liable to Lessee or to any other person whatsoever for any damage arising from the leakage, obstruction, interruption, failure or discontinuance of all or any part of any utility or utility system in or about the Leased Premises or the Building,or from water being upon or coming through the roof or vents, due to causes other than the negligence of County, nor for any damage arising from any acts or neglect of Co-Lessees or other occupants of the Building or of adjacent property, or the public. ARTICLE XI: Assignment and Subletting A. Except as provided herein, Lessee 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 Lessee, or sublet the Leased Premises in whole or in part without County's prior written consent, which consent shall not be unreasonably withheld except that Lessee shall have the right to collaterally assign its rights in this Lease to its secured Lenders without the consent of the County. If Lessee is a corporation, any sale or other transfer of the stock of such corporation that 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 County. Any assignment, encumbrance, sublet, or occupancy change made or given or permitted in violation hereof shall be null and void and without force or effect and shall be deemed a breach of this entire Lease. Any assignee must acknowledge in writing compliance with all exclusive uses in the building. B. Except as provided herein, if Lessee shall 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 Lessee to occupy the Leased Premises, County may collect rent from the person or persons then occupying the Leased Premises and apply the net amount collected to the rent reserved herein, but no such collection shall be deemed a waiver of this Article XI or the acceptance by County of such purported assignees of Lessee or occupant, or release of the Lessee of the further 11 performance of Lessee of covenants on the part of Lessee herein contained. ARTICLE XII: Access to Leased Premises A. County 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, make repairs, additions or alterations to the Leased Premises and for any lawful purpose. County agrees to provide Lessee with reasonable notice whenever it deems it necessary to enter upon the Leased Premises. B. For a period commencing ninety (90) days prior to the end of the lease term, County may have reasonable access to the Leased Premises for the purpose of exhibiting the same to prospective Lessees and to post any usual "For Lease" signs upon the Leased Premises. ARTICLE XIII: Destruction of Leased Premises If the Leased Premises shall be damaged by fire or other casualty, County shall, in County's sole judgment reasonably exercised, determine the length of time required to restore and repair the Leased Premises to tenantable condition, and shall notify Lessee of such determination within ten (10) days after the occurrence of such fire or other casualty. If it is determined that the Leased Premises cannot be restored to tenantable condition within thirty(30) days, then either County or Lessee may terminate this Lease by giving written notice of termination to the other within ten (10) days after County shall have notified Lessee of the time required for such restoration. If neither party shall so terminate this Lease, or if the Leased Premises can be restored to tenantable condition within 30 days, then County shall, at County'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 Leased Premises rendered un-tenantable 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 Lessee, or Lessee's agents, employees, invitees, or licensees. Notwithstanding the foregoing, County shall have no obligation to restore or repair any fixtures or other improvements placed upon the Leased Premises by Lessee and Lessee 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 Leased Premises be affected thereby), then County may terminate this Lease by giving Lessee written notice of such termination within 30 days after the date of such damage. ARTICLE XIV: Eminent Domain A. If title to all of the Leased Premises or so much thereof be taken by any public or quasi-public use under any statute or by right of eminent domain, or by private purchase in lieu thereof, so that a reasonable amount of reconstruction of the Leased Premises will not result in the Leased Premises being a practical improvement and reasonably suitable for Lessee's continued occupancy for the uses and purposes for which the premises are leased, this lease shall terminate as of the date that possession of said premises, or part thereof, be taken. 12 B. If any part of the Leased Premises shall be so taken and the remaining part thereof(after reconstruction of the then existing building in which the Leased Premises are located) is reasonably suitable for Lessee's continued occupancy for the purposes and uses for which the premises are leased, this lease shall, as to the part so taken, terminate as of the date that possession of such part of the Leased Premises be so taken and the fixed rent shall be reduced in the same proportion that the floor area of the portion of the Leased Premises so taken(less any additions thereto by reason of any reconstruction) bears to the original floor area of the Leased Premises, and County shall, at its own cost and expense, make all necessary repairs or alterations to the building in which the Leased Premises are located so as to constitute the portion of the building not taken a complete architectural unit and the remaining Leased Premises a complete merchandising unit,but such work shall not exceed the scope of the work to be done in originally constructing said Building. There shall be no abatement of rent during such restoration except to the extent otherwise provided in this paragraph. C. All compensation awarded or paid upon such a total or partial taking of the fee of the Leased Premises shall belong to and be the property of the County; provided, however, that County shall not be entitled to any award made to Lessee for loss of business, depreciation to, and cost of removal of stock and fixtures. D. Each party agrees to execute and deliver to the other all instruments that may be required to effectuate the provisions thereof. ARTICLE XV: Default A. The occurrence of any of the following shall constitute an event of default: i. Delinquency by the Lessee in payment of any rent under this Lease for a period of ten (10) days from the date such rent became due and payable. ii. Delinquency by the Lessee in the performance of or compliance with any of the other obligations of Lessee contained in this Lease, for a period of thirty(30)days after written notice thereof from County to Lessee. iii. Filing by or against the Lessee 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 Lessee's property, if within ninety (90) days after the commencement of any such proceedings involving the Lessee such petition shall not have been dismissed. B. In the event of default in non-payment of rent as defined in Paragraph A(i) above, this Lease shall automatically terminate on the date specified in the County's three (3) day notice for payment of rent or surrender of possession of the Leased Premises under Section 13-40-104(d) (1973 C.R.S.), if Lessee fails to pay such rent as demanded in said notice. To avoid potential forfeiture on account of clerical error or oversight, Lessee shall have the right to require the County to deliver a copy of any such notice to the President of a banking institution in Carbondale, Colorado, or to another responsible person in Carbondale, Colorado, to permit Lessee 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 Lessee under the 13 circumstances described in Paragraphs A(ii) and A(iii) above, this Lease shall automatically terminate on the date specified in County's three(3)days' notice to such bank or person under Section 13-40-104(e) (1973 C.R.S.). C. Upon the termination of this Lease pursuant to the preceding subparagraph, the Lessee shall peacefully surrender the Leased Premises to the County, and the County upon or at any time after any such termination, may, without further notice, reenter the Leased Premises and repossess it by force, summary proceedings, ejectment or otherwise, and may dispossess the Lessee and remove the Lessee 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. D. At any time after such termination, the County may relet the Leased Premises or any part thereof, in the name of the County 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 County, in the County's absolute discretion,may determine and may collect and receive the rents therefore. The County shall in no way be responsible or liable for any failure to collect any rent due upon such reletting. E. No such termination of this Lease shall relieve the Lessee's liability and obligations under this Lease, and such liability and obligations shall survive any such termination. In the event of any such termination, the Lessee shall pay to the County the rent required to be paid by the Lessee up to the time of such termination, and thereafter the Lessee, until the end of what would have been the term of this Lease in the absence of such termination, shall be liable to the County for, and shall pay to the County as and for liquidated and agreed damages for the Lessee's default the following: i. The equivalent of the amount of the rent which would be payable under this Lease by the Lessee if the Lease were still in effect, less ii. The net proceeds of any reletting effected pursuant to the provisions of the preceding paragraph,after deducting all of the County's expenses,all reasonable repossession costs, brokerage commission,legal expenses, attorney's fees, costs and expenses of preparation for such reletting. F. Should Lessee be dispossessed of the Leased Premises by operation of law or otherwise, any personal property belonging to Lessee left on the Leased Premises shall, at the County's sole option, be deemed to be abandoned to the County, or County may store such property in Lessee's name and at Lessee's expense without notice to Lessee. G. In the event of default by County, the Lessee shall have all rights and remedies available at law or in equity. ARTICLE XVI: County's Lien None ARTICLE XVII: Covenant of Quiet Enjoyment So long as the Lessee is not in default hereunder during the base term hereof and any renewal or 14 extension hereof, the County covenants that the Lessee shall peaceably and quietly occupy and enjoy the Leased Premises subject to the terms hereof The County warrants and agrees to defend the title to the Leased Premises, and further warrants that it has full authority to execute this Lease. ARTICLE XVIII: Accord and Satisfaction No payment by Lessee or receipt by County 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 County may accept any such check or payment without a prejudice to the County recovering the balance of such amounts due hereunder or pursue any other remedy provided in this Lease. ARTICLE XIX: Waiver One or more waivers of any covenant or condition by County 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 County to or of any act by Lessee requiring County's consent, or approval shall not be deemed to waive or render unnecessary County's consent or approval to or of any subsequent similar act by Lessee. The subsequent acceptance of rent hereunder by County shall not constitute a waiver of any preceding breach by Lessee of any term, covenant, or condition of this Lease other than the failure of Lessee to pay the particular rental so accepted,regardless of County's knowledge of such preceding breach at the time of acceptance of such rent. No waiver of any provision of this Lease shall be effective unless it is in writing and signed by the County. ARTICLE XX: Holding Over If Lessee should remain in possession of the Leased 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, at one hundred ten percent (110%) of the previous rent, and subject to all the conditions, provisions and obligations of this Lease insofar as the same are applicable to a month to month tenancy. ARTICLE XXI: Surrender of Leased Premises; Treatment of Lessee's Alterations at Expiration of Lease All alterations, additions, improvements, partitions, flooring, carpeting or fixtures, including but not limited to light fixtures, electrical fixtures, and plumbing fixtures, which may be made or installed by either of the parties hereto upon the Leased Premises and which in any manner are attached to the floors,walls,windows, or ceilings (excepting coolers, compressors, cash registers, computers or other mechanical equipment installed by Lessee) shall be the property of the County upon the expiration or other termination of this Lease, unless County shall elect otherwise. In the event the County shall so elect, such alterations, installations, additions or improvements made by Lessee upon the Leased premises as the County shall so elect shall be removed by the Lessee and Lessee shall restore the Leased Premises to its original condition at the commencement hereof normal wear and tear excepted, at its own costs and expense prior to the expiration or termination 15 of the term thereof; or if the Lessee fails to do so, County, in addition to all of its other rights and remedies hereunder,may do so at the Lessee's expense.Also, at the expiration or other termination of the lease term, Lessee shall remove all of his movable trade fixtures which shall not be property of the County under the foregoing provisions of this paragraph.The Lessee's obligations to perform the covenants contained in this Paragraph of this Lease shall survive the expiration or other termination of this Lease. ARTICLE XXII: Signs,Displays, and Other Advertising Media Lessee shall not erect or install any other exterior or interior window or door signs, advertising media, window or door lettering, or placards without County's written consent. The cost shall be the Lessee's sole expense. Lessee agrees not to use any advertising media that shall be deemed objectionable to County or other Lessees, such as loudspeakers, phonographs, or radio broadcasts in a manner to be heard outside the Leased Premises. Lessee shall not install any exterior lighting, decoration,painting,or awning or make any changes to the exterior of the Leased Premises without County's written consent. There shall be no newspaper sales dispensers or other vending machines on the exterior of the Leased Premises. All signs must comply with the Town of Basalt P.U.D. regulations. ARTICLE XXIII: Notices Any notice required or permitted under this Lease shall be in writing and shall be provided by electronic delivery to the e-mail addresses set forth below and by one of the following methods 1) hand-delivery or 2)registered or certified mail,postage pre-paid to the mailing addresses set forth below. Each party by notice sent under this paragraph may change the address to which future notices should be sent. Electronic delivery of notices shall be considered delivered upon receipt of confirmation of delivery on the part of the sender. Nothing contained herein shall be construed to preclude personal service of any notice in the manner prescribed for personal service of a summons or other legal process. To County: With a Copy To: Board of County Commissioners of Pitkin County Pitkin County Attorney's Office c/o Facilities Director Pitkin County 530 E. Main Street, Suite 302 485 Rio Grande Place#101 Aspen, CO 81611 Aspen, Colorado 81611 attorney@pitkincounty.com Facilitiesadmin@pitkincounty.com To Lessee: P B & F, LLC, DBA Stubbies Sports Bar 123 Emma Road Suite 208 Basalt, Colorado 81621 ctec@sopris.net 16 ARTICLE XXIV: Attorney's 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 Lease, or enforcement of any rights of remedies hereunder, including any indemnities herein contained, the substantially prevailing party shall be entitled in such litigation, action or proceeding to also recover as part of any judgment, award or other relief, its reasonable attorney's fees and costs incurred. The County and Lessee expressly waive any 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 Leased Premises. ARTICLE XXV: Miscellaneous Provisions A. If any portion of this Lease shall be declared invalid or unenforceable, the remainder of the Lease shall continue in full force and effect. B. Where necessary to carry out the meaning hereof,the singular shall mean the plural,the plural the singular, and any gender shall apply to all genders. C. 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. D. This Lease and all agreements herein contained shall bind the parties hereto and their heirs, personal representatives, successors and assigns. E. In the event that more than one Lessee is obligated under the terms of this Lease, each such Lessee shall be jointly and severally liable for the fulfillment of all of the obligations of this lease, including without limitation,the payment of rent and the payment of the Lessee's other financial obligations hereunder F. 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. G. This Lease shall be construed in accordance with the laws of the State of Colorado. Jurisdiction for any disputes hereunder shall be in the courts in and of Pitkin County and the State of Colorado. H. Time is of the essence for the performance of any obligation contained in this Lease. I. 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. IN WITNESS WHEREOF, the parties have executed this Lease on the day and year first above written. 17 LESSEE: P B &F, LLC / 4g- Dec-10-2020 By Trent Castleberry Date Dec-10-2020 By Blake MacDougal Date BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY iO4 5..44 Jan-05-2021 By Jodi Smith Date Pitkin County Facilities Director By S4eveA F. cLu Steven F. Child, Chair Board of County Commissioners APPROVED TO FORM: By Nk(3. --- Jan-05-2021 Richard Y. Neiley, Date Asst. Pitkin County Attorney 18 Attached Contract Number 245.2020 AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO,APPROVING A LEASE AGREEMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND F B & F,LLC. D/B/A STUBBIES SPORTS BAR FOR SPACE LOCATED AT RIVER PARK CENTER, 123 EMMA ROAD, BASALT, COLORADO ORDINANCE NO. 047 -2020 RECITALS: WHEREAS, pursuant to 30-35-301 C.R.S., the Board of County Commissioners of Pitkin County, Colorado ("BOCC"), a home rule county, is authorized to make and publish ordinances for carrying into effect or discharging the powers and duties conferred upon such counties by law as it deems necessary; and WHEREAS,pursuant to Section 2.8.1 of the Home Rule Charter("HRC"), the BOCC is authorized to take official action by Ordinance on matters where action is prescribed pursuant to the Colorado Revised Statues as amended; and WHEREAS, the BOCC is the owner of the premises known as the River Park Center, located at 123 Emma Road, Basalt, Colorado, more fully described as Lot K, Basalt Commercial Park, Lot Al; and WHEREAS, pursuant to Ordinance No. 005-2018, the BOCC entered into a certain lease agreement with P B & F, LLC d/b/a Stubbies Sports Bar("Lessee") dated January 1, 2018 through December 31, 2018. Under the provisions of this lease agreement, the lease was extended twice by two additional one-year periods, with provisions as agreed upon by the BOCC and the Lessee as defined in Contract No. 040-2019 and Contract No. 171-2020 respectively; and WHEREAS, lessee doing business at 123 Emma Road, Suite 206 and 208, Basalt, Colorado desires to enter into a new lease agreement under the terms and provisions in the attached lease agreement; and WHEREAS, the BOCC desires to enter into a new lease agreement with Lessee for commercial space, approved in the Pitkin County budget process revenue and expenditure for a commercial space located at 123 Emma Road, Suite 206 and 208 within the Pitkin County Facilities operations budget; and WHEREAS, it is in the best interest of both the BOCC and the Lessee, to set forth the terms for the operation of the commercial use on the Premises, subject to certain agreements by the BOCC and Lessee; and WHEREAS, the lease agreement provides for approximately 3,335 sf bar space. Lessee shall pay the BOCC a fixed minimum annual rent for the lease year in the amount of 60,030,paid in monthly installments of$5,002.50. This amount is equivalent to $18.00 per square foot annually; and WHEREAS, the term of this Lease shall commence on January 1, 2021 and shall expire on December 31, 2021 (The Primary Term)unless sooner terminated as provided herein. The term "Lease Year" as used herein shall include each portion of a calendar year which may exist at the beginning and/or end of the term hereof; and WHEREAS, provided Lessee is not in default of this Lease and has performed all of its covenants and obligations thereunder, Lessee shall be entitled to extend the original primary term of this Lease twice by an additional one-year period each time upon the same terms and conditions as contained in this Lease, except that the fixed minimum rent for each such one-year period shall be increased by 3% over the fixed minimum rent in effect for this preceding Lease Year or the current CPI, whichever is greater. Lessee shall exercise said extensions options by giving written notice to the BOCC not less than 30 days before the expiration of then-existing Lease Year; and WHEREAS, the BOCC finds adoption of this ordinance is in the best interest of the citizens of Pitkin County and declares this Ordinance effective upon adoption. NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado that it hereby adopts an Ordinance Approving a Lease Agreement(Attached hereto as Exhibit A)with P B and F, LLC., d/b/a Stubbies Sports Bar for Space Located at River Park Center, 123 Emma Road, Basalt, Colorado and authorizes the Chair or the Chair's designee to sign the Ordinance and upon the satisfaction of the County Attorney as to form, execute any other associated documents necessary to complete this matter. INTRODUCED AND FIRST READ ON THE_2nd DAY OF December , 2020 AND SET FOR SECOND READING AND PUBLIC HEARING ON THE 16th DAY OF December 2020. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE RESOLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE_3rd DAY OF December , 2020. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com) ON THE _3rd DAY OF_December 2020. ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE_16th DAY OF December 2020. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THE_24th DAY OF December , 2020. POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com) ON THE_17th DAY OF December , 2020. ATTEST: BOARD OF COUNTY COMMISSIONERS By .� h, .�bin.�-S By: S'k €A F. CIMLI, Jeanette Jones Steven F. Child, Chair Deputy County Clerk Dec-17-2020 Date: APPROVED AS TO FORM: MANAGER APPROVAL 5oti,,, Ell 19(upS ha&hu, John Ely, County Attorney Phylis Mattice for Jon Peacock, County Manager