Resolution #63, 2010 – Lease Harbert Lumber

m
THE CnT
Mayor and City Council
THROUGH
Steve
ASPEN
Wf
MEMORANDUM
TO
OF
Barwick City Manager
Scott Miller City Capital Asset Director
August 2 2010
August 9 2010
Lease for 38005 Highway 82
FROM
DATE
MEETING DATE
RE
Baclcaround
Western
Building
changes
to the lease
Highway
Solutions Inc the parent company of Harbert Lumber has requested several
agreement with the city for the property used as a lumber yard at 38005
82 For several months
Building Solutions
revenue
the
Inc to draft
for the lumber
property
city staff
has negotiated with the
management of Western
lease agreement that is fair to both sides The drop in sales
from the peak in 2007 and the possible annexation and rezoning of
a
yard
housing
for affordable
were
the
major
factors in the
renegotiation
Discussion
Changes
to the lease
Change
agreement
aze as
follows
from current term of to
yeaz extension of
year
2010
and
1
ending July 31 2013
existing
lease to
a
term
starting
August
Change termination notification from six months to twelve months for Lessor and from
sixty days to twelve months for Lessee
The monthly rent shall change from 53
61 of
045 to 35
000 or one twelfth 1
12 of 4
annual
sales
the prior yeaz
s
gross
After the first year of the lease both parties agree to renegotiate the minimum monthly rent
for the remaining term of the lease
Request of Council Staff requests that Council approve the lease agreement for 38005
82
Attachment
Lease
Agreement
Highway
3
RESOLUTION
Series of 2010
A RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE
CITY OF ASPEN COLORADO AND WESTERN BUILDING SOLUTIONS
INC SETTING FORTH THE TERMS AND CONDITIONS REGARDING A
LEASE FOR 38005 HIGHWAY 82 AND AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONTRACT
WHEREAS there has been submitted to the City Council a lease agreement
between the City of Aspen Colorado and Western Building Solutions Inc a copy
of which lease agreement is annexed hereto and made
THE
NOW THEREFORE BE IT RESOLVED
CITY OF ASPEN COLORADO
a
part thereof
BY THE CITY COUNCIL OF
Section 1
That the
City
Council of the
City of Aspen hereby
approves that lease
agreement between the City of Aspen Colorado and Western Building Solutions
Inc regarding a lease for property at 38005 Highway 82 a copy of which is
annexed hereto and
incorporated herein and does hereby authorize the City
Manager of the City of Aspen to execute said lease on behalf of the City of Aspen
Dated
Michael C
Ireland Mayor
I Kathryn S Koch duly appointed and acting City Clerk do certify that the
foregoing is
a
Council of the
true
and
accurate copy
adopted by the City
a meeting held August 9 2010
of that resolution
City of Aspen Colorado
at
Kathryn S Koch City Clerk
LEASE AGREEMENT
THIS LEASE AGREEMENT
by
Lessee
and the
City
of Aspen
the Lease
is made and entered into
and between Western
Building
as
of
Solutions Inc
the
the Lessor
ARTICLE I
Demise and Descriation of Premises
1
Colorado
Lessor is the
owner
of certain real property located at 38005
Highway 82 Aspen
the Premises
2
1
Lessor
leases to Lessee and Lessee
hereby
hereby
leases from Lessor the
Premises
2
1
to the
The Lessee shall take and accept the Premises in their present
obligations of the Lessor and the Lessee as set forth herein
condition subject
ARTICLE II
Initial Term of Lease
1
2
The initial term ofthis Lease shall be for
of three
3 yeazs commencing
July 31 2013 the Initial
August 1 2010 the Commencement Date and ending
Term provided that unless either Lessor or Lessee provides the other party written notice that
a
period
on
on
such Initial Term
or
any extension term will not be further renewed within the time frames set
forth in Section 2 ofthis Lease such Initial Term
automatically
renew
for
an
and
2
thereafter
by
the then
applicable
extension term shall
additional year
terms agreements
one term under the
Such
automatic
extensions
shall
continue until one of the
provisions
sazne
conditions
parties gives a notice of termination
covenants
or
in accordance with Section 2 of this Lease
Lessor may terminate this Lease at the end of the Initial Term or any time
written notice to the Lessee not later than twelve 12 months prior to the desired
termination date So
long as
the Lessee is current with all ofits
not in default of any of the terms
obligations
agreements covenants conditions
the time of election Lessee is herein
granted
the
option
or
to the Lessor and is
provisions
of the Lease at
to terminate this Lease at any time
the term of this Lease provided that if Lessee should elect to exercise the foregoing eazly
termination option Lessee shall notify Lessor in writing of Lessee
s election to do so by not later
during
than twelve
12
months
prior
to the desired termination date
ARTICLE III
Minimum Monthly Rent
1
3
The
obligation to
pay rent under the terms of this Lease shall
Commencement Date The minimum
monthly
rent for the first year of the
begin on the
yeaz Lease
three
term
shall be the greater of thirty
twelfth 1
61of
five thousand dollars 35
000 or one
12 of4
the prior yeaz
annual
sales
the
end
of
each
of
Neaz
the
Lease
all
term
s
gross
year
parties agree
to
renegotiate the minimum monthly rent
monthly rent is not recorded as
for the
minimum
anniversary of the
monthly rent shall
Commencement Date
revert to
one
fifty
an
upcoming yeaz If such renegotiation of
addendum to this Lease agreement prior to each
during
the
year
three
Lease term then the minimum
thousand five hundred dollars
500 per month
51
and
shall be increased
by three percent 3 per yeaz thereafter Annual gross sales shall include
not including sales tax from sales by Lessee at the Aspen location and the sales of any
associated facility shipping into the city of Aspen The term annual shall refer to the fiscal yeaz
income
of Western
effect
as
described in
2
3
Date
Building
and
The
on or
Solutions which ends
31 Rental
2 Rent will be prorated for any
3
paragraph
monthly rent
for each month shall be due
adjustments
shall take
partial month
on or
before the Commencement
before the first day of each month
without set
offwhatsoever Rent shall be
Galena
annually on July
Street Aspen Colorado 81611
paid
or
thereafter without any demand therefore and
to the Lessor at the City of Aspen 130 South
at such other address
as
Lessor may
designate
In addition to minimum rent all other amounts to be paid by Lessee to Lessor
pursuant to this Lease if any shall be deemed to be additional rent irrespective of whether
designated as such and shall be due and payable within ten 10 business days after receipt by
3
Lessee of Lessor
s statement
or
together
with the next
succeeding
monthly rent whichever shall first occur Lessor shall have the
pay additional rent as for the nonpayment of minimum rent
installment of minimum
same
remedies for the failure to
ARTICLE IV
s Additional Costs And Lessor Costs
Lessee
1
4
In addition to the minimum
Lessee shall pay all costs
a
limitation electricity
All
chazges
charges
monthly
rent
provided
and expenses incurred for the
for all utilities
and natural gas
for in Article III
above
the
following purposes
the
Premises including without
telephone trash removal water and sewer serving the
serving
Premises
b
fixtures inventory
All taxes levied and assessed
and
improvements
of Lessee
against
the
personal property supplies
All
c
Premises
which
are
not
charges
expressly
follows the maintenance and
for non
structural repairs and maintenance within the
covered
by warranties
or
insurance
provided
for
herein
as
glass fixtures electrical fixtures and systems
plumbing fixtures and systems mechanical systems air conditioning systems heating systems
ventilation systems interior walls and wall systems floor coverings doors interior painting
ordinazy course roof repairs and maintenance any improvements made to the Premises by the
Lessee and all interior janitorial services
d
land and
All
improvements
repair
general
of doors
and
special
real
property taxes levied
and assessed
against
the
of the Premises
pay when due directly to the persons or parties entitled to
payment for all services and other matters described in paragraphs 4
a b c and d above
1
Lessee shall furnish proof of such payment to Lessor upon request
2
4
Lessee shall
3
4
promptly
It is the intent of the Lessor and the Lessee that the minimum
monthly rent
throughout the terms of this
Lease and that except as otherwise expressly provided for herein all costs expenses and
obligations directly relating to the Premises shall be the responsibility of the Lessee provided
however that Lessor will make all structural repairs to the Premises and will keep in good order
and repair the roof foundations and subsurface conditions of the Premises upon knowledge or
notification of the necessity for such repairs and further provided that if the need for the repair
shall be attributable to any act or omission of Lessee its officers employees licensees invitees
or contractors Lessee shall be responsible therefore
Lessor shall be under no liability for repair
maintenance or alteration with respect to the Premises or any part thereof or any plumbing
electrical or other mechanical installations therein or any cleaning or painting thereof except as
may be expressly set out in this Lease or unless due to negligence of Lessor its officers
employees licensees invitees concessionaires or contractors
specified
in Article III above shall be
absolutely
net to the Lessor
ARTICLE V
Use
1
5
The Premises
lumber and other
are to be used for wazehousing sale and distribution of all types of
and assembly and wazehousing of
materials
building
light manufacturing or
and components for residential construction and other
business activities and necessazy administrative and office functions
building products
2
5
reasonably
related
Lessee covenants and agrees that it i will comply with all governmental laws
regulations and requirements now in force or which hereafter may be in force of
ordinances
any governmental body or authorities having jurisdiction over the Premises and ii shall not
suffer permit or commit any waste or nuisance on the Premises Lessee shall not do or permit
anything to be done in or about the Premises which will cause the cancellation of any insurance
policy covering the Premises
3
5
equipment
Lessee shall be entitled to install in the Premises all trade
and
furnishings
necessary for the
operation
fixtures operational
of Lessee
s business and may
remove
the
same
at Lessee
s sole cost upon the termination of this Lease and shall
to the Premises
as a
repair
any
damage
caused
result of any such removal
ARTICLE VI
Insurance
Lessee shall maintain fire and extended coverage
1
6
and
100
of loss
vandalism malicious mischief
covering one hundred percent
physical loss
of all improvements fixtures and personal property with a
of direct
risks
replacement cost
100 on a blanket basis
2
coverage of 000
special
causes
of the full
minimum
2
6
fixtures floor coverings
improvements operational equipment furnishings tools machinery and inventory insured
one hundred percent 100 of its replacement cost
3
6
Lessee
at its
keep
its trade
to
expense shall during the entire term hereof keep in full force
and effect a broad form commercial general liability policy covering the acts and negligence of
Lessee
at its
own
expense shall
insurance
own
s
Lessee
Lessor
employees agents and servants occun
ing on and offthe Premises and naming the
as an additionally insured party with a combined single limit per incident of not less
than one million dollars
000
1
00
000
4
6
All such
policies of insurance shall name Lessee as the insured and Lessor and
s if any shall be named as
any person firms or corporations designated by Lessor and lender
additional insureds and loss payees on a primary and noncontributory basis as their interests
may exist Such insurance shall be evidenced by a certificate of insurance issued to Lessor and
shall contain language stating that the policy cannot be canceled for any reason without first
giving the Lessor and the Lessee thirty 30 days prior written notice provided that in the case
payment of premiums the policy may be canceled upon ten 10 days prior written
ofnon
5
6
With respect to any insurance
notice
required by
the terms of this
Lease
both the Lessor
and Lessee waive any rights of subrogation against each other and any insurance policy
maintained by either shall contain an express waiver of the insurer
s right of subrogation
against
the other
ARTICLE VII
Damage
1
7
against
as
If the Premises shall be
the Lessor
or
Destruction
partially damaged by any casualty an Event insured
of and to the extent of the insurance proceeds and as soon
shall upon receipt
reasonably permitted by the circumstances repair
the Premises in
a manner
and to the extent
s sole discretion to carry on Lessee
s business operations for
necessary and desirable in Lessee
the remainder ofthe term ofthe Lease and until such repair is complete the monthly rent shall
be abated
proportionately
as
to that
portion
of the Premises rendered untenantable
Lessee shall
be responsible for the payment of any deductible under the insurance to be carried pursuant to
1 above Notwithstanding the foregoing if i the Premises by reason of such
pazagraph 6
ii the Premises should be damaged as a result
of a risk which is not covered by said insurance or iii the Premises are damaged to the extent
of fifty percent 50 or more of the then monetary value thereof or iv any or all of the
buildings or common areas of the Premises are damaged to such an extent that the Premises
reasonably cannot be operated as an integral unit then and in any of such events the Lessee may
cancel this Lease by notice of cancellation given within ninety 90 days after such event and
thereupon this Lease shall expire and Lessee shall vacate and surrender the Premises to Lessor
and no rent or other chazges will be due from Lessee to Lessor after the date of the event In the
occurrence aze
rendered
event Lessee elects to
wholly untenantable
or
any damage any abatement of rent or other chazges shall end five
Lessee to Lessor that the Premises have been repaired If this lease is not
repair
5 days after notice by
by Lessee Lessee may repair and restore its property and fixtures as described in
2 above in a manner and to the extent necessary and desirable in Lessee
s sole
paragraph 6
discretion to carry on Lessee
s business operations for the remainder of the term of the Lease
and the proceeds of all insurance carried by Lessee on its property and fixtures shall be held in
trust by Lessee for the purpose of said repair and replacement
terminated
ARTICLE VIII
Siens Alterations Maintenance Repairs and Access
Lessee shall not make
1
8
to be made any material
alterations
additions
or
fixtures exterior signs floor coverings
lighting plumbing fixtures canopies
awnings or make any changes to the
interior or exterior of the Premises without first obtaining written approval from the Lessor
which approval shall not be unreasonably withheld conditioned or delayed Lessee shall present
to the Lessor plans and specifications for such work at the time approval is sought In the event
Lessor consents to the making of any alterations additions or improvements to the Premises by
ssole cost and expense All such work with
Lessee the same shall be made by Lessee at Lessee
respect to any alterations additions and changes shall be done in a good and workmanlike
manner and
diligently prosecuted to completion Any such alterations additions or
improvements but not including trade fixtures or signs shall at once become a part of the realty
improvements
interior
or
or
install
or cause
or cause
to be installed any trade
exterior
or
and shall be surrendered with the Premises unless Lessee otherwise elects at the end of term
hereof
in which
case
Lessee would be
responsible
this
paragraph
00
000
10
2
8
by
Lessee in
permits
material shall
All work
a
good
mean an
performed by
Lessee
during
and workmanlike manner
plans
the term of this Lease Lessee agrees to
timely
removal of
same
and the
timely
as
and Lessee forever warrants that the
materials and in strict accordance with
for the
of the Commencement Date For the purpose of
item the cost of which installed is in excess of
restoration of the Premises to its condition
using
the term of this Lease shall be constructed
licensed contractors with
appropriate
shall be free of any liens for labor and
and specifications approved by the Lessor During
same
indemnify
save and hold harmless the
Lessor
its
successors
during
and
assigns against
loss liability
any
or
damage resulting
from such work performed
the term of this Lease
3
8
Lessee
at its sole cost and expense shall at all times
but not limited to the interior of the
keep
the
Premises including
building
glass
moldings exterior entrances
signs docks sidewalks partitions doors fixtures and appurtenances thereof including lighting
electrical fixtures and systems plumbing fixtures and systems sewage facilities heating
equipment and systems air conditioning equipment and systems electric motors floor
simprovements in good clean order condition and repair
coverings and Lessee
4
8
thereof by
shall
cause
30 days
all
Should any mechanic
s
reason
the
of s
Lessee acts
same
or
or
other lien be filed
omissions
to be canceled and
after written notice
Failure of the Lessee to
6
8
Lessor shall have the
or
against
the Premises
because of a claim
dischazged
by Lessor subject
5
8
and window
of record by bond
or
any
against Lessee
or
part
Lessee
otherwise within
thirty
to Article IX below
performed the work to be
accomplished by Lessee in a good and workmanlike manner using licensed contractors with
appropriate permits shall constitute a default under the provisions ofthis Lease by Lessee and
Lessor shall have all the rights and remedies available under the terms of this Lease or at law or
in equity with respect to such default
any kind
in upon
perform
or cause to
have
and
right
to
place maintain
and under the Premises
as
may be necessary for the
and to enter upon and
inspect
the Premises
as
repair
all
utility equipment of
servicing of the Premises
set forth in Section 19
1 of this Lease
ARTICLE IX
Indemnification
1
9
Lessee shall forever
keep
improvements placed thereon
of lien demands chazges encumbrances or litigation arising
from all
the Premises and all
free
claims liens claims
directly
indirectly out of or by reason of any work or activity ofLessee on the Premises or
any part thereof and shall forthwith and within thirty 30 days after the filing of any lien for
s expense fully pay and satisfy the same and shall
record unless in active litigation at Lessee
reimburse Lessor for all loss damage and expense including reasonable attorneys fees which
it may suffer to be put to by reason of any such claims of lien demands charges encumbrances
or litigation
or
2
9
lien
as
In the event Lessee should fail to obtain the
release discharge or a bonding of any
the right at its option at any time
4 above Lessor shall have
provided by pazagraph 8
ofsuch
thirty 30 day period to pay the
expiration
after the
same or discharge the same with or
without the costs and expenses claimed by such claimant All amounts so paid by Lessor shall
be repaid by Lessee to Lessor upon receipt of written demand
together with supporting
documentation
3
9
Lessee shall forever indemnify Lessor and
save
and hold it harmless from and
losses expenses suits actions damages claims and liability in
connection with loss of life bodily or personal injury or property damage arising from or
against
any and all costs
upon at or from the
out of
the occupancy or use by Lessee of the
or in
part by any act or omission of Lessee
in
Premises
part thereof or occasioned wholly
its agents contractors employees servants invitees customers licensees and concessionaires
or Lessee
s breach default or nonperformance of this Lease Agreement in each case during the
term of this Lease Lessor shall likewise indemnify Lessee against acts or omissions of Lessor
its agents contractors employees servants invitees customers licensees and concessionaires
or Lessor
s breach default or nonperformance of this Lease Agreement
occurrence
any
Premises
or
any
or
Lessor shall not be
4
9
responsible or liable at any time for any loss or damage to
s business
merchandise equipment fixtures or other personal property or to Lessee
including any loss or damage to either the person or property of Lessee that may be occasioned
by or through the acts or omissions of persons occupying adjacent connecting or adjoining
s
Lessee
space including but not limited to that property described in Exhibit A unless such acts or
omissions were at the request of or required by the Lessor Lessee shall store its property in and
shall
enjoy the Premises at its own risk and hereby releases Lessor to the full extent
permitted by law from all claims of every kind resulting in loss of life personal or bodily injury
or property damage except as a result of Lessor
s negligent or wrongful act or omission
use
and
5
9
Lessee shall
give prompt
notice to Lessor in
case
of fire
or
accidents at the
Premises
6
9
commenced
In
by
either party shall without fault on its part be made a party to any litigation
against the other party then the party at fault shall protect and hold the other
case
or
harmless and shall pay all costs expenses and reasonable attorneys fees incurred by the other
It is expressly agreed that all of the foregoing provisions of this Article IX shall apply and
become effective from and after the Commencement Date
ARTICLE X
Subordination
1
10
Lessee shall
upon
request
of Lessor execute all reasonable and normal
instruments necessary to
permit a mortgage deed of trust or other encumbrances to be placed on
thereof
or any part
as security for any indebtedness of the Lessor and to
sleasehold interest to all of such encumbrances and security
subordinate this Lease and Lessee
the Premises
interests provided
that
this Lease and Lessee
s
long as no Default has occurred under pazagraph
possession ofthe Premises shall not be terminated
so
1 of this
14
Lease
2
10
Upon the
sale
refinancing by the Lessor of the Premises and improvements
described in this Lease and its exhibits the Lessee shall cooperate with the Lessor by furnishing
to the Lessor requested estoppel certificates by executing such instruments as aze necessazy to
subordinate the Lessee
s leasehold interest to necessary parties by executing required affidavits
of occupancy and by doing such other things and furnishing such other documents as may
reasonably be required by the Lessor or a purchaser of the Premises or any part thereof or from
the Lessor or a lender or a financial institution taking a security interest in the property Lessee
s
failure to deliver an estoppel certificate within ten 10 business days following receipt of a
written request by Lessor shall be conclusive upon Lessee that a this Lease is in full force and
effect without modification and b there are no uncured defaults in Lessor
s performance
or
ARTICLE XI
Late Char
e and Interest
1
11
Any payment
due under this Lease
by
the Lessee to the Lessor and not paid
within ten
10 days from the date it becomes due and payable shall
percent 5 thereof intended to defray any cost to Lessor resulting
beaz
a
late
charge
of five
from late payments and the
Lessee agrees to pay said late charge to the Lessor The payment together with the late chazge
shall beaz interest at the rate of one and one
halfpercent 1
5 per month from the date the
payment initially became due until the date it is paid
ARTICLE XII
Condemnation
1
12
XII the term condemnation proceeding shall mean any
in
which
interest
in the Premises is taken for any public or quasi
proceeding
any
public
purpose by any lawful authority through exercise of the power of eminent domain or right of
condemnation or by purchase or otherwise in lieu thereof
action
As used in this Article
or
2
12
proceeding
proceeding
If the whole of the Premises shall be
then this Lease shall
3
12
shall be taken
cease
acquired
and terminate
as
a manner
the
condemnation
of the date of title
vesting in
such
this Lease shall not
as to
by
written notice to
cease
Lessor
terminate
and terminate if Lessee
reconfigures
render the Premises suitable for the business of Lessee
consistent with the occupancy as existed prior to the taking If such
is not extensive enough to render the Premises unsuitable for the business of
reasonably
partial taking
Lessee then this Lease
such a partial taking
4
12
by
If any part of the Premises including necessary drives loading and parking areas
aforesaid and such partial taking shall render that portion not so taken
Despite
foregoing
drives loading and pazking areas so
in
taken
as
unsuitable for the business of Lessee then Lessee may
this Lease
or
shall continue in effect
If more than
fifty percent 50
Rent shall be
equitably adjusted
to account for
of the floor area of said Premises shall be taken
as
aforesaid
Lessee may by written notice to Lessor terminate this Lease If this Lease is
provided in this subsection rent shall be paid up to the day that possession is
terminated as
taken
by public authority
and Lessor shall make
an
equitable
refund of any rent
paid by
so
Lessee in
advance
5
12
Lessee shall not be entitled to and
waives all claim to any
and whether for diminution in
hereby expressly
condemnation award for any taking whether whole
value of the leasehold or to the fee estate provided
or
partial
however that Lessee shall have the right to
the extent that the same shall not reduce Lessor
s award to claim from the condemnor but not
from the Lessor such compensation as may be recoverable by Lessee in its own right for
s business fixtures improvements and signs Lessee shall be required to
damages to Lessee
make its own claim if any to the condemnor and will beaz all costs and expenses in connection
with any such claims
ARTICLE XIII
Bankruatcy
1
13
If at any time during the term of this Lease there shall be filed by or against
Lessee in any court pursuant to any statute of the United States or any State a petition of
bankruptcy or of insolvency or for reorganization or for the appointment of a receiver or trustee
of all
or a
creditors
of Lessee
s property or if Lessee makes an assignment for the benefit of
Lessee shall have breached this Lease and this Lease at the option of the Lessor
portion
exercised after the
period provided below may be canceled and terminated
provided such petition of bankruptcy or of insolvency or for reorganization or for the
appointment of a receiver or trustee shall continue for a period of sixty 60 days and pursuant to
applicable bankruptcy law In such event neither Lessee nor any person claiming through or
under Lessee by virtue of any statute or of an order of any court shall be entitled to possession or
to remain in possession of the Premises but shall forthwith quit and surrender the Premises
expiration
ofthe
ARTICLE XIV
Default and Remedies
1
14
Upon the
occurrence
shall have the remedies set forth in
of any of the
pazagraph
following
events
each
a
Default
Lessor
2below
14
Lessee fails to pay the minimum monthly rent or any other sum due
hereunder within ten 10 days after receipt of written notice to Lessee from Lessor
a
b
Lessee fails to
perform
any other term
condition
or
covenant to be
performed by it pursuant to this Lease within thirty 30 days after receipt ofwritten notice to
Lessee from Lessor or such longer period of time as may be reasonably required to cure a matter
which
due to its nature cannot
reasonably be
rectified within thirty
30 days
become
c
bankrupt
Subject to
insolvent
Article XIII above Lessee
or
any
guazantor of this Lease shall
file any debtor proceedings
have taken against such party in
Federal
a petition of bankruptcy or for insolvency
statutes
pursuant
reorganization or the appointment of a receiver or trustee or Lessee petitions for or enters into a
or
to State
any court
or
or
or
creditors arrangement or suffers this Lease to be taken under a writ of execution and in each of
the foregoing cases Lessee fails within ninety 90 days after commencement of such action to
have such action vacated
or
dismissed
1 above Lessor shall
Upon the occurrence of any event set forth in pazagraph 14
have the option to take any or all of the following actions pursuant to Colorado law without
further notice or demand of any kind to Lessee or other person
s
2
14
Immediately reenter and remove all persons or property from the
a
Premises storing said property in a public place warehouse or elsewhere at the cost of
and for
the account of Lessee all without service of notice or resort to legal process and without being
deemed guilty of or liable in trespass No such reentry or taking possession of the Premises by
Lessor shall be construed
of such intention is
construed to be
as an
given by
election
on
its
part to
terminate this Lease unless
Lessor to Lessee No such action
by
a
written notice
Lessor shall be considered
or
forcible entry
a
Collect by suit or otherwise each installment
b
hereunder or enforce by suit or otherwise any other
the part of Lessee required to be kept or performed
becomes due
c
Terminate this Lease
by
of rent
term
or
or
other
sum as
provision
it
hereof on
written notice to Lessee In the event of such
termination Lessee agrees to immediately surrender possession ofthe Premises
terminate this Lease Lessee shall have no further interest in this Lease or in the
Should Lessor
Premises and
breach
iii the
of rent and charges
the Lessor may recover from Lessee all damages it may incur by reason of Lessee
s
including i the cost of recovering the Premises ii reasonable attorneys fees and
worth at the time of such termination of the excess if any of the amount
equivalent to rent reserved in this Lease for the remainder of the stated term
over
the then
reasonable rental value of the Premises for the remainder of the stated term all of which amounts
shall be immediately due and payable at Lessor
s election from Lessee to Lessor
Should Lessor reenter as provided above or should it
d
legal proceedings or pursuant to any notice provided by law and
take
possession
whether or not it
pursuant to
terminates this Lease Lessor may relet the Premises or any part thereof for such term or terms
which may be for a term extending beyond the term of this Lease and at such rental or rentals
and upon such other terms and conditions as Lessor in its sole discretion may deem advisable In
all respects Lessor shall act in a commercially responsible manner Upon each such reletting all
rentals and
or deposits received
by
the Lessor from such reletting shall be
s
applied at Lessor
residue if any shall
election first to the payment of any indebtedness due hereunder and the
held by Lessor and applied in payment of future rent as the same may become
hereunder If such rentals received from such reletting
paid during
such month
by
Lessee
hereunder
during
due and
be
payable
any month be less than that to be
Lessee shall pay any such
deficiency to
Lessor
deficiency shall be calculated and paid monthly No such reentry and reletting of the
by Lessor shall be construed as an election on its part to terminate this Lease unless a
written notice ofsuch intention be given to Lessee pursuant to subsection c of this
2 or unless the termination thereof be decreed by a court of competent jurisdiction
pazagraph 14
Notwithstanding any such reletting without termination Lessor may at any time hereafter elect to
terminate this Lease for such previous breach
Such
Premises
The remedies
2 shall be in addition to and
given to the Lessor in this paragraph 14
supplemental to all other rights or remedies which Lessor may have under law or equity but in
all respects shall be exercised in accordance with applicable Colorado law
ARTICLE XV
Ouiet Enioyment
1
15
Subject
to Section 15
2 below Lessor
to any trust deeds
or
Premises and that
Lessee
mortgages
on
now
of record
payment
of rents herein
through
provided for and performance of the
and may peacefully possess and enjoy the
hereof on its part to be performed shall
during the term hereof without any interruption
provisions
Premises
or
hereby covenants and warrants that subject
hereafter placed on record it is the owner of the
or
disturbance
by
anyone
claiming
Lessor
2
15
Lessor
acknowledges
comprising residential apaztments
business operated on the Premises
and agrees that i certain portions of the Premises
currently leased by the Lessor to employees of the
aze
on the
effective date of this
Lease which leases are described
on Exhibit A to this Lease the Emolovee Leases ii copies of the Employees Leases have
been provided to Lessee for its review and iii contemporaneously with the execution of this
Lease Lessee has entered into an assignment and assumption agreement pursuant to which
Lessor assigns and Lessee assumes all rights and obligations of Lessor under those Employee
s rights acquired pursuant to such assignment and assumption shall
Leases provided that Lessee
be limited to those of a sublessor to each of the employees under the Employee Leases and in all
cases shall be subject to the Lessee
s rights and obligations under this Lease
ARTICLE XVI
Surrender of Premises
1
16
At the
expiration of this Lease
broom clean condition
free
they
debris reasonable weaz
surrendering the Premises Lessee
fixtures and such alterations
specified
or
for removal
by
same
were
from
Before
Lessee shall surrender the Premises in the
in upon delivery of possession thereto under this Lease
and tear excepted and shall deliver all keys to Lessor
as
the
personal property and trade
or additions to the demised premises made by Lessee as may be
and
Lessor and Lessee shall repair any damage caused by such property
the removal thereof If Lessee fails to
expiration of this Lease the same at the
shall become the property of the Lessor
shall
remove
remove
option
its
all of its
and fixtures upon the
shall be deemed abandoned and
personal property
of the
Lessor
ARTICLE XVII
Holding Over
1
17
No
holding
over
and continuation of any business
of the term hereof shall be considered to be
a
renewal
or
Lessee after the
by
expiration
extension of this Lease unless written
approval of such holding over and a definite agreement to such effect is signed by Lessor
defining the length of such additional term Any holding over without the consent of Lessor
shall be considered to be a day
to tenancy at a rental amount equal to three times the daily
rate of the then scheduled minimum monthly rental provided herein computed on the basis of a
thirty 30 day month
ARTICLE XVIII
Transfer
1
18
Lessee shall not
or
any interest therein or sublet the Premises
of all or any portion of the Premises or business conducted
hypothecate this Lease without first obtaining the written
assign
any part thereof or license the use
thereon or therein or encumber or
Pledge of Leasehold Interest
this Lease
or
consent of Lessor which consent may be withheld
discretion
Lease without
this Lease
by
Lessor for any
reason
in Lessor
s sole
hypothecating of this
assignment subletting licensing encumbering
such prior written consent shall at the option of the Lessor be void or terminate
and any
or
or
ARTICLE XIX
s Access to Premises
Lessor
1
19
With the
exception
of emergencies Lessor shall have
access
to the
Premises and
making such
each part thereof at all reasonable times for the purpose of inspecting the same
repairs as Lessor may deem desirable and posting notices which Lessor deems necessary for the
of Lessor or any portion of the Premises Lessee acknowledges that Lessor intends to
market the Premises for sale and agrees that Lessor shall also have the right to enter the Premises
protection
after giving
notice three
business hours to
inspect
3 business days
or
s
advance at all reasonable times during Lessee
to prospective purchasers mortgagees tenants
s
reasonable efforts to minimize disruption to Lessee
to exhibit the
in
same
and Lessees Lessor agrees to use all
business operations in connection with s
Lessor entry
on
the Premises
ARTICLE XX
Notices
1
20
to serve on
All notices or demands of any kind which Lessor may be required or may desire
Lessee under the terms of this Lease shall be served on Lessee as an alternative to
a
copy thereof by registered or certified mail postage prepaid
addressed to Lessee at c
o Richazd Goodman PO Box 2607 Grand Junction Colorado 81502
personal service by mailing
or
at such other address
Lessor
or
or addresses as
may from time to time be designated by Lessee in writing to
Service shall be deemed complete at the time of the leaving of such notice as aforesaid
within three
3 days
after
mailing
of same All notices and demands from Lessee to Lessor
may be similarly served on Lessee at the
may in writing designate to Lessee City
following
Manager
address
or
at such other address
130 South Galena Street
as
Lessor
Aspen Colorado
81611
ARTICLE XXI
Attornment
1
21
In the event of the sale
the event of any
or
assignment
sinterest in the Premises or in
of Lessor
of or in the event of exercise of the
for the foreclosure
proceedings brought
under any mortgage or other security instrument made by Lessor covering the
Premises Lessee shall attorn to the assignee or purchaser and recognize such purchaser as Lessor
power of sale
under this Lease
ARTICLE XXII
sRieht to Cure
Lessor
1
22
In the event of breach
noncompliance hereunder by Lessor Lessee
shall
it give Lessor written notice of the
exercising any right
remedy
claimed breach default or noncompliance For the thirty 30 days following the giving of said
notice or such longer period of time as may be reasonably required to cure a matter which due
to its nature cannot reasonably be rectified within thirty 30 days Lessor shall have the right to
cure the breach default or noncompliance involved
before
default
or
available to
or
ARTICLE XXIII
sFees and Costs
Attorney
1
23
In the event that
a
party
to this Lease is required to
shall be entitled to
bring
suit in order to enforce
prevailing party
s fees and costs
attorney
including out
pocket costs the cost of expert witnesses and reasonable administrative
of
from
the non
expenses
prevailing party including those incurred in any appeal or in connection
with any bankruptcy case involving the Lessor or the Lessee or the Premises
this Lease the
recover
its reasonable
ARTICLE XXIV
Force Maieure
1
24
Neither the Lessor
in the observance
delay
performed to
nor
the Lessee shall be
of any term
responsible
or
liable to the other for
condition of this Lease to be observed
performance
delay is proximately caused by causes beyond that party
s
reasonable control and occun
without
its
fault
or
without
ing
negligence including
limitation
i Acts of God including fire flood earthquake storm hurricane or other natural disaster
ii waz invasion act of foreign enemies hostilities whether war is declared or not civil war
rebellion revolution insurrection military or usurped power or confiscation terrorist activities
riots and other civil commotions iii labor dispute strike or lockout and iv failure of any
suppliers subcontractors and carvers to substantially meet its performance obligations under
any agreement entered into for the purpose of satisfying any obligation under this Agreement in
each case whether or not similar to the matters herein specifically enumerated and any such
delay shall extend by like time any period of performance by such party and shall not be deemed
a breach
of or failure to perform under this Lease or any provision thereof The payment of rent
or other sums due hereunder however shall not be deemed to be events excusable by Force
Majeure
any
or
or
the extent that such
or
ARTICLE XXV
Hazardous Materials
1
25
enacted
or
For purposes hereof Environmental Laws shall mean all existing or hereafter
amended federal state or local laws statutes rules regulations and ordinances
relating to the protection of human health or the environment or prevention of pollution
including without limitation all requirements pertaining to the protection of the health and
safety of employees or the public and all requirements pertaining to the reporting licensing
permitting investigation and remediation of emissions dischazges releases or threatened
releases of Hazardous Materials For purposes hereof Hazardous Materials shall mean i any
substance the presence of which requires investigation or remediation under Environmental
Laws or ii any substance which is or hereafter becomes defined as a hazardous waste
hazazdous substance hazazdous material hazazdous chemical toxic substance toxic chemical
or
pollutant or contaminant in or pursuant to Environmental Laws or iii asbestos or asbestos
containing material chlorinated biphenyls or equipment or articles containing same For
purposes of this Article XXV the term Premises shall refer to the entire Premises
2
25
during the term of the Lease there shall be no
use presence disposal storage generation release or threatened release of any Hazardous
Materials on from or under the Premises in any manner which is inconsistent with the uses for
which this Lease is authorized or in violation of any Environmental Laws without the prior
written consent ofLessor Lessor shall not unreasonably withhold condition or delay consent as
long as
Lessee agrees and covenants that
Lessee demonstrates to Lessor
s reasonable satisfaction that such Hazardous Material is
s business and will be used kept and stored in a manner that
necessary or useful to Lessee
complies with all laws regulating any such Hazardous Material in which case Lessor may
require
additional Hazardous Material insurance from Lessee Lessee shall
Environmental Laws and obtain and maintain in full force and effect
licenses approvals or authorizations required
comply with all
any and all permits
under Environmental Laws
during
the term of this
Lease
3
25
Lessee shall and does
harmless Lessor its
hereby agree to forever indemnify defend and hold
and its officers and directors from and against any and all
employees
losses
claims demands actions damages whether direct or consequential penalties liabilities costs
and expenses including without limitation all reasonable attorney
s fees and legal expenses and
or
other
environmental
cleanup
response costs arising out of any violation or alleged violation by
Lessee or its agents or employees of any Environmental Laws any breach of the provisions of
this Article XXV or any environmental condition of the Premises caused by or resulting from in
whole or in part the Lessee or its employees or agents in each case occurring during the term of
this Lease
4
25
Lessor shall and does
agree to forever indemnify defend and hold the
Lessee its employees and its agents officers and directors harmless from and against any and all
losses claims demands actions damages whether direct of consequential penalties liabilities
hereby
costs and expenses including without limitation all attorney
s fees and legal expenses and
or other environmental
costs
cleanup
response
arising out of any violation or alleged violation
by
Lessor
or
its agents
or
of this Article
in whole
or
employees
of the any Environmental
Laws
any breach of the
XXV
any environmental condition of the Premises caused
in part the Lessor or its employees or agents
or
by
or
provisions
resulting from
ARTICLE XXVI
Miscellaneous Provisions
or agreements
provisions herein nor any one or more covenants and
herein contained is intended nor shall the same be deemed or construed to create a partnership
between Lessor and Lessee to make them joint venturers nor to make Lessor in any way
responsible for the debts or losses of the Lessee
impair
1
26
Neither the
2
26
The
any other
3
26
provision
a
unenforceability
writing
4
26
hereof shall not effect
or
or
breaches of any
provision
of this Lease shall be
or
succeeding breach of such provision or of any other
of this Lease shall be deemed to have been waived unless such
provision
signed by
as
provision
preceding
and
Except
of any
hereof
waiver of any
hereof No
waiver be in
or
No waiver of any breach
construed to be
provision
invalidity
the party
otherwise
provided
shall inure to the benefit of the
against
all
their
whom the waiver will be enforced
herein shall be binding upon and
representatives heirs successors and assigns
provisions
parties
legal
provision to be performed by Lessee shall be construed to be both a covenant and a
condition and if there shall be more than one Lessee and a guazantor
s they shall all be bound
jointly and severally by such provisions In the event of any sale or assignment except for
purposes of security or collateral by Lessor of the Premises or this Lease Lessor shall from and
after the Commencement Date irrespective of when such sale or assignment occurs be entirely
Each
relieved of all of its
Commencement
5
26
obligations
Date
as
of the time of such sale
whichever is
later except
for any
or
assignment
obligations
or on
under
the
paragraph
4
25
or addenda if any attached hereto set forth the
Lease exhibits riders and
All
parties
exhibits riders or addenda mentioned in this Lease
agreement
are incorporated herein by reference If any provision contained in a rider or addendum is
inconsistent with a provision in the body of this Lease the provision contained in the rider or
addendum shall control It is agreed that this Lease contains no restrictive covenants or
exclusive use permits in favor of Lessee
entire
This
between the
6
26
This Lease shall be
governed by
and construed and enforced in accordance
with
Colorado law
7
26
Time is of the
8
26
Indemnifications contained in
essence
of each and every provision hereof
shall survive the termination of this lease
pazagraphs 9
19
39
6
3 and 25
25
4 of this Lease
9
26
The
headings
purposes of interpretation
or
used herein
are
for convenience and shall not be considered for
construction hereof
10 Feminine or neuter pronouns shall be substituted for those of masculine form or
26
vice versa and the plural shall be substituted for the singulaz number or vice versa in any place
or places in which the context may require such substitution or substitutions
11 Lessee shall not record this Lease or
26
a memorandum
thereof without the
prior
written consent of Lessor which consent may be withheld in Lessor
s sole aad absolute
discretion
ARTICLE XXVII
AnthorHv of Shrnstories
1
27
which he is
personally represents and
behalf of the e
ity for
partnership of otherwise and
Each person executing this Lease individually and
duly authorized to execute and deliver the same
warrants that be is
signing whether it
that this Lease is
binding
IN WITNESS
be a
upon said
WHEREOF
corporation general
entity
or
limited
on
in accordance with its terms
Lessor and Lessee have executed this Lease
as
of the date
first above written
LESSOR
City
of Aspen
By
Name
Title
LESSEE
Western Building Solutions Inc
a Colorad
co post
By
Nam
n
Richard R Goodman
Title Senior Vice President