10-16-1989-1996 Warehouse SpaceADDENDUM TO LEASE AGREEMENT
FOR WAREHOUSE UNITS 3, 4 AND
140 METCALF ROAD
AVON, COLORADO
ECEIVE
OCT 2 11996
TOWN OF AVON
It is hereby agreed that the three lease agreements for the above
referenced properties dated September 28, 1982, October 1, 1983
and August 31, 1989 respectively between the Town of Avon,
Tenant, and Doyle and Associates, (now Alan and Judy Wigod dba
Metcalf U -Stor It), Landlord are hereby modified as follows:
1. The expiration dates are extended to September 30, 1999.
2. The base rent for the three properties is increased to
$69,130.56 for the .first year of the extended lease term
payable in monthly installments of $5,760.88 commencing
October 1, 1996.
All other terms and conditions of the above referenced leases
remain in full force and effect.
Qitr 'u
Executed this ` day of s_T mb. r 1996.
TENANT:
Town of Avon
b
LANDLORD:
Metcal U -Sto t
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LEASE AGREEMENT
THIS INDENTURE OF LEASE, is dated as of the 1st day of June , 1980,
by and between DOYLE 4 ASSOCIATES, a Colorado general partnership ( "Landlord ") and
TOWN OF AVON ( "Tenant ").
RECITALS
1. Landlord owns the real estate (the "Land ") described in Exhibit A
attached hereto and made a part hereof, and the buildings thereon.
2. Landlord and Tenant desire to enter into a lease of a certain part of a
building located on the Land (the "Premises ") as depicted in Exhibit A attached
hereto and made a part hereof, on the terms and conditions contained herein.
LEASE
In consideration of the recitals and the mutual covenants and obligations
hereinafter set forth, Landlord hereby leases to Tenant and Tenant hereby rents from
Landlord the Premises upon the terms and conditions hereinafter set forth.
1. TERM. Subject to the terms and conditions hereof, Tenant shall have and
hold the Premises for a period (the "Lease Term ") commencing on the date of this
Lease and ending at 12:00 p.m. midnight on ** , 19 The words
"Lease Term" shall include any renewal or extension of such initial period defined above.
2. RENT. (a) The base rent shall be at the annual rate as set forth in
Exhibit B attached hereto and made a part hereof, payable in advance in equal monthly
installments as set forth in Exhibit B on the first day of each and every calendar
month during the Lease Term; provided, however, if the date hereof or the date of
termination of the Lease Term as provided in Section 1 shall not be the first day of
a calendar month, the base rent shall be appropriately prorated, utilizing a daily
rent in the amount of one - thirtieth of the monthly base rent amount. The base
rent and other sums payable to Landlord shall be paid to Landlord at Landlord's
address set forth below or to such agent or person or persons or at such other
address as Landlord from time to time may designate in writing. The base rent
shall be absolutely net to Landlord so that this Lease shall yield to Landlord
the full amount of the installments of base rent throughout the Lease Term.
(b) In addition, Tenant agrees that the base rental shall, every
12 months during the term hereof, or any extension of the term Hereof, be adjusted
for the next succeeding 12 -month period in the same proportion by which the Consumer
Price Index (1967 = 100) (the "Index ") published by the Bureau of Labor Statistics
of the United States Department of Labor, and specifically that portion of the
Index relating to Denver, Colorado, published by the University of Denver from
data furnished by the Bureau of Labor Statistics, increases or decreases during
the preceding 12 -month period, on the closest date of the publication thereof
prior to the adjustment, from the Index on the closest date of the publication
thereof prior to the commencement date hereof. Such adjusted base rental shall be
the base rental for the next succeeding 12 -month period. The first adjustment to
base rental shall occur on the first day of the month of the date hereof in the
next year. However, notwithstanding the above, in no event shall the base rent
for any part of this Lease or any extension or renewal thereof be less than the
base rent set forth on Exhibit B. If publication of the Index or the portion thereof
relating to Denver, Colorado, shall be discontinued, the parties hereto shall
thereafter accept comparable statistics on the cost of living for the United States,
as they shall be computed and published by an agency of the United States, or by
a responsible financial periodical or recognized authority then to be selected by
Landlord. In the event of use of comparable statistics in place of the Index,
or publication of the Index figures at other than monthly intervals, there shall
be made, in the method of computation herein provided for, such revisions as the
circumstances may require to carry out the intent of these provisions.
(c) Tenant shall also pay on or before the commencement of the
Lease Term a sum equal to one monthly installment of base rent payable on the first
day of the last month period of the Lease Term. This sum shall be held by Landlord
until such last month period as security for the full performance by Tenant of
each and every provision and term of this Lease. In the event that before such
period Tenant shall default in respect of any provision or term of this Lease,
including but not limited to the payment of base rent and additional rent, Landlord
may use, apply, or retain the whole or any part of such sum for the payment of any
base rent and additional rent in default, or for any other sum which Landlord
may be required to expend by reasons of Tenant's default, or for any damages or
deficiencies or costs in the reletting of the Premises.
** It is hereby agreed that the term of this lease will run from month -to- month, it
being the intention that said lease shall most likely continue until such time
as the Town of Avon has its own garage, storage and /or warehouse facilities.
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(d) Tenant shall also pay, from time to time as provided in this
I.CaSC as additional rent: (i) all other amounts, liabilities and obligations
which Tenant herein assumes or agrees to pay; (ii) interest at the rate of 12
percent per year on such of the foregoing amounts, liabilities and obligations as
are payable to Landlord (including rent) and are not paid when due, from the due
date until payment thereof.
3. NO COUNTERCLAIM, ABATEMENT, ETC. The base rent, additional rent and all
other sums payable by Tenant hereunder shall be paid without notice, demand,
counterclaim, setoff, deduction or defense and without abatement, suspension,
deferment, diminution or reduction.
4. TAXES, ASSE=SSMENTS AND OTHER CHARGES. (a) Tenant shall pay (i) to
Landlord, monthly, with base rent, one - twelfth of the general real estate taxes or
special assessments shown by the latest available statement therefor and, unless
separately assessed, prorated on a square .foot basis between the Premises: and
other improved property covered by such statement; provided, however, that if
special assessments may be paid in installments over more than one year, Tenant
shall not be required to pay on such account more than one - twelfth of the annual
installment thereof in any month; (ii) ad valorem personal property taxes and all
other taxes, duties, charges, fees and payments required to be made to any
governmental or public authority, which shall be imposed, assessed or levied
upon, or arise in connection with the ownership, use, or presence of Tenant's
trade fixtures, merchandise inventory or other personal property located from
time to time in, on, upon or around the Premises all of which are herein called
"Governmental Impositions ". Within 30 days after Landlord's request, Tenant shall
deliver to Landlord receipts or other satisfactory evidence showing the payment
of any Governmental Imposition by Tenant, except those provided in (i) hereof,
unless payment is contested pursuant to Section 4(b).
(b) Tenant may contest any Governmental Imposition by appropriate
proceedings conducted promptly at Tenant's expense, in Tenant's name, or (whenever
necessary) in Landlord's name. Landlord agrees to cooperate fully with Tenant and
to execute any documents or pleadings reasonably required for such purpose, but
Landlord shall not be obligated to incur any expense or liability in connection
therewith. Tenant may defer payment of the contested Governmental Imposition (except
those provided in part (i) of subsection (a) hereof) pending such contest, if such
deferment shall not subject Landlord's interest in the Premises to forfeiture.
Tenant shall pay such contested items within 10 days after written notice from
Landlord stating that, in the reasonable judgment of Landlord, the protection of
the Premises or of Landlord's interest therein requires such payment. In lieu of
such payment, Tenant may, at its election, provide Landlord such protection by
furnishing a bond in a form, in an amount, and with surety reasonably satisfactory
to Landlord. All refunds of taxes and assessments shall be the property of Tenant
to the extent they may represent or be attributed to payments made by Tenant, any
balance being Landlord's property.
(c) Nothing herein shall require Tenant to pay any estate, gift,
inheritance or transfer tax assessed against Landlord or any income, excess profits
or revenue tax or any other tax, assessment, charge or levy upon the rent payable
by 'Tenant under this Lease; provided, however, that Tenant shall pay any tax on
rents specifically imposed in lieu of any taxes which would be payable by Tenant
pursuant to the provisions of Section 4(a).
S. CIDIRGES OF UTILITIES AND TRASH REMOVAL. (a) Tenant shall contract in its
own name and promptly pay all charges for gas, electricity, telephone, sewer, water,
and other services. (except sewer and water tap fees) .furnished to the Premises or
the occupants thereof, except those accruing after termination of the Lease Term.
(b) At Landlord's election made from time to time, Tenant shall
(i) contract in its own name and promptly pay all charges for the removal of trash
and waste material from the Premises or (ii) if Landlord contracts in its own name
for the removal of trash and waste from central locations for all of its tenants
renting building space on the Land, Tenant shall reimburse Landlord as additional
rent a pro rata share of the expense of such trash and waste removal, with said
pro rata share being determined by Landlord and payable within 10 days after receipt
by Tenant from Landlord of a bill therefor.
(c) Landlord shall not be liable in damages or otherwise for any
failure or interruption of any utility or service furnished to the Premises or
used by Tenant, and no such failure or interruption shall entitle Tenant to
withhold any rent or to terminate this Lease.
G. INSURANCE. (a) During the Lease Term, Tenant shall at its own cost
;ind expense: (i) keep all trade fixtures, merchandise inventory and other
personal property used in 'Tenant's trade or business insured against loss by
fire :ind so- called extended coverage perils (including vandalism and malicious
mischief) for their full insurable value. Tenant will, at Landlord's request,
which shall not be made more frequently than on an annual basis, obtain appraisals
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of such trade fixtures and personalty upon the Premises by a reliable insurance
appraiser, at Tenant's own expense, and in the event an appraisal shows the value
to be different from the value theretofore being used for insurance coverage
purposes under the provisions of this Section 6, Tenant shall increase, or it
may decrease, the insurance coverage so as to reflect such changed value.
(ii) keep in force, for the protection of Landlord and Tenant,
general public liability and property damage insurance against claims for bodily
injury or death or property damage occurring in, on or upon the Premises, in the
single limit amount of not less than $300,000.00 for bodily injury or death to
any number of persons arising out of one accident or disaster, and in limits of not
less than $100,000.00 for damage to Property; and
(iii) keep in force, for the protection of Landlord and
"Tenant, Workmen's Compensation Insurance Coverage as required by the statutes
of the State of Colorado or any applicable federal or minicipal laws or regulations
in effect at any time during the Lease Term.
(b) All insurance required to be carried by Tenant under this
Section 6 shall be carried in favor of Landlord and Tenant, as their respective
interests may appear. Upon demand, Tenant shall deliver to Landlord certificates
evidencing all insurance required to be carried under this Section 6, together with
evidence of the payment of premiums on such insurance. Landlord shall have the
right to inspect and copy all insurance policies required to be maintained by
Tenant under this Section 6. Tenant shall not violate or permit to be violated
any of the conditions or provisions of any of such policies, and Tenant shall perform
and satisfy the requirements of the companies writing such policies so that
companies of good standing reasonably acceptable to Landlord shall at all times
be willing to write and continue such insurance.
(c) Landlord shall at all times during the Lease Term maintain
in effect a policy or policies of insurance covering the building of which the
Premises is a part (the "Building "), including Tenant's leasehold improvements
therein, but not Tenant's trade fixtures, merchandise inventory, or other items
used in Tenant's trade or business, in an amount at least equal to eighty. percent
(80%) of full replacement cost (exclusive of cost of excavations, foundations
and footings) from time to time during the term of this Lease, providing protection
against fire and extended coverage perils, together with insurance against vandalism
and malicious mischief. Landlord's obligation to carry the insurance provided
for herein may be brought within the coverage of a so- called blanket policy or
policies of insurance carried and maintained by Landlord, provided that the
coverage afforded will not be reduced or diminished by reason of the use of such
blanket policy of insurance. Tenant shall not at any time, during the term of
this Lease, carry any stock of goods other than normal merchandise or do anything
in or about the Premises which will in any way tend to increase the insurance
rates upon the Building. Tenant shall pay to the Landlord, upon demand, the
amount of any increase in premiums for insurance carried pursuant to this paragraph (c)
that may be charged during the term of this Lease resulting from the foregoing or
from Tenant doing any act in or about the Premises which does so increase the
insurance rates, whether or not the Landlord shall have consented to such act.
(d) Landlord and Tenant shall cooperate with each other in collection
of insurance monies that may become due by reason of loss, or damage or destruction
to the Premises and shall execute and deliver such proofs of loss and other
instruments as may be required to recover insurance proceeds.
(e) Tenant shall pay to Landlord monthly with base rent, one -
twelfth of the insurance premiums attributable (on a square foot basis) to the
Premises according to the last premium notice received by Landlord.
7. CONDITION OF PROPERTY.
(a) Tenant accepts the Premises in its present condition and
will not call on Landlord for any repairs, improvements or alterations thereto.
(b) Unless Tenant shall first obtain Landlord's written approval,
Tenant may not: (i) replace, add to or alter the Premises, (ii) leave the
Premises vacant, temporarily or permanently, (iii) construct new Improvements, or
(iv) reconstruct, re -alter and replace any Improvement. This Section shall not
;effect Tenant's obligations to repair and maintain the Premises as set forth in
Section 8 hereof.
(c) All alterations, additions and improvements placed upon the
Premises by Tenant or any subtenant or other occupant (including, but not limited
to, doors, partitions, tile and wood floorings, lighting fixtures and the like)
as well as any fixtures at any time attached to the Building and used in connection
with the operation and maintenance thereof shall, upon installation, become part
of the Improvements and shall be deemed a part of the Building and property of
the Landlord.
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8. REPAIRS.
(a) Tenant shall at all times, at its own cost and expense, repair
and maintain in good and tenantable condition the Premises and every part thereof,
excluding the roof, exterior walls, structural parts of the Premises and floor,
and including without limitation the utility meters, pipes and conduits, all
fixtures, air conditioning and heating equipment serving the Premises, and other
equipment therein, all Tenant's signs, locks and closing devices, and all window
sash, casements or frames, doors and door frames, and all such items of repair,
maintenance and improvement or reconstruction as may at any time or from time to time
be required by a governmental agency having jurisdiction thereof. All glass,
both exterior and interior, is at the sole risk of Tenant, and any glass broken
shall be promptly replaced by Tenant with glass of the same kind, size and quality.
(b) Subject to the foregoing provisions hereof, Landlord shall
keep and maintain in good and tenantable condition and repair, the roof, exterior
walls, structural parts of the Premises and floor, pipes and conduits outside
the Premises for the furnishing to the Premises of various utilities (except to
the extent that the same are the obligation of the appropriate public utility
company); provided, however, that Landlord shall not be required to make repairs
necessitated in whole or in part by reason of the act, omission or negligence
of the Tenant, his agents, employees, servants or invitees, or anyone claiming
under the Tenant, or by reason of the failure of the Tenant to perform or observe
any conditions or agreements of this Lease, or caused.by alterations, additions, or
improvements made by the Tenant or anyone claiming under the Tenant. Notwithstanding
anything contained herein to the contrary, Landlord shall not in any way be liable
to the Tenant for failure to make repairs as herein specifically required of
it unless the Tenant has previously notified the Landlord, in writing, of the
need for such repairs and the Landlord has failed to commence and complete such
repairs within a reasonable period of time following receipt of the Tenant's
written notification. There shall be no abatement of rent and no liability of
Landlord by reason of any injury to or interference with Tenant's business arising
from the making of any repairs, alterations or improvements required herein.
Tenant waives the right to make repairs at Landlord's expense under any law,
statute or ordinance now or hereafter in effect.
(c) If Tenant refuses or neglects to make repairs and maintain
the Premises, or any part thereof, in a manner reasonably satisfactory to Landlord,
Landlord shall have the right, upon giving Tenant reasonable written notice of
its election to do so, to make such repairs or perform such maintenance on behalf
of and for the account of Tenant. In such event such work shall be paid for by
Tenant promptly upon receipt of a bill therefor.
(d) As used in this Section the expression "exterior walls"
shall not be deemed to include plate glass, window cases or window frames,
door or door frames. It is understood and agreed that the Landlord shall be under
no obligation to make any repairs, alterations, renewals, replacements or improvements
to and upon the premises on the mechanical equipment exclusively serving the
Premises at any time except as in this Lease expressly provided.
(e) Landlord or its authorized agents, including contractors,
may enter the Premises at reasonable times as may be necessary or convenient to
inspect, effect repairs or perform maintenance or remodeling of adjacent premises.
"Adjacent premises ", for the purpose of this paragraph, is defined to be any other
part of the Building which has any common wall with the Premises. Any such entry
shall be so as to cause no unreasonable inconvenience to Tenant and Landlord
shall cause any damage to the Premises as a result of such repairs, maintenance
or remodeling to be repaired without cost.to Tenant.
9. MECHANICS' LIENS.
(a) Landlord shall not under any circumstances be liable for
the payment of any expense incurred or for the value of any work done or material
furnished to the Premises by Tenant. All such work shall be at Tenant's expense
and Tenant shall be solely and wholly responsible to all contractors, laborers,
and materialmen furnishing labor and material to the Premises. Nothing herein
shall authorize Tenant to charge the Premises or any interests of Landlord therein
or this Lease with any mechanic's, materialman's or other statutory liens and,
on the contrary, the right and power to charge any lien or encumbrance of any
kind against Landlord or the Premises is hereby expressly denied. Tenant shall
notify Landlord in writing at least 10 days prior to commencing any work which
might give rise to such lien�so that Landlord may take advantage of any statute
protecting Landlord's interest against such liens. Nothing herein shall authorize
Tenant to construct or alter the Premises without Landlord's prior written consent.
(b) if because of any act or omission of Tenant, any mechanic's,
materialman's or other lien or order for the payment of money shall be filed
nainst Landlord (whether such lien or order is invalid or enforceable), Tenant
shall, at own cost and expense, cause the same to be cancelled and discharged
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of record and further shall indemnify and save harmless Landlord from and against
any and all costs, expenses, claims or damages, including reasonable attorney's
expenses, resulting therefrom. If Tenant shall desire to contest any claim of
lien, Tenant shall furnish Landlord the bond provided for in Section 38 -22 -131
of Colorado Revised Statutes (1973) or Such other security acceptable to Landlord
of the value or in the amount of the claim, plus estimated costs and interest.
If a final judgment establishing the validity or existence of a lien for any amount
is entered, Tenant shall pay and satisfy the same at once. If Tenant shall be in
default in paying any charge for which a mechanic's lien or suit to foreclose such
lien has been recorded or filed, and shall not have given Landlord security as
aforesaid, Landlord may (without being required so to do) pay such lien or claim
and any costs, and the amount so paid, together with reasonable attorney's fees
incurred in connection therewith, shall be immediately due and owing from Tenant
to Landlord with interest at the annual rate of 12 percent from the date of
Landlord's payments.
10. SURRENDER. Upon the expiration of termination of this Lease for any
reason whatsoever, or upon the re -entry by Landlord pursuant to Section 21 hereof,
Tenant shall peaceably and quietly leave, surrender and deliver up to Landlord
the Premises, except for property removable by Tenant pursuant to this Section 10,
in good order, condition and repair, except for reasonable wear and tear and loss
by any taking by condemnation or exercise of the right of eminent domain. By
the date of the expiration of the Lease Term, Tenant shall remove or cause to
be removed from the Premises all personal property and trade fixtures not belonging
to Landlord, except such property as is necessary to the general use and operation
of the Premises. Tenant shall repair any damage to the Premises caused by such
removal. If this Lease is terminated, by virtue of an event other than expiration
of the Lease Term, or if Landlord exercises its right of re -entry pursuant to
Section 21 hereof, Tenant shall remove such property w'i'thin 10 days after such
occurrence. All such property not so removed shall conclusively be deemed to have
been iband oned and may be appropriated, sold, stored, destroyed and otherwise
disposed of by Landlord without notice to Tenant or any other person and without
obligation to account therefor.
11. USE, COMPLIANCE WITII LAW.
(a) Tenant agrees that the Premises shall be used and occupied
only for the purposes set forth in Exhibit B. Tenant shall not use or occupy
the Premises for any other purpose without Landlord's prior written approval.
(b) Tenant shall, at Tenant's own cost and expense, promptly
comply with all present and future laws, rules, requirements, orders, directions,
ordinances and regulations of the United States of America and of the state,
county and municipal governments, and of all other governmental or lawful authority
whatsoever, affecting the Premises or any part thereof, and of all their departments,
bureaus, or officials (all of the foregoing being hereinafter called "Requirements
of Law "), whether such requirements may relate to: (i) alterations (other than
to the roof, exterior walls and structural parts of the Premises and floor) changes
and additions to the Premises; or (ii) repairs to the Premises; or (iii) the mannet
in which the Premises may be used or accupied, or (iv) any other matter affecting
the Premises, whether like or unlike the foregoing. _
(c) Tenant shall promptly, after the discovery of any violation
of a Requirement of Law which might subject Landlord to liability or forfeiture
of any interest, take all necessary steps, legal and equitable, to compel the
discontinuance thereof. 'Tenant shall indemnify and save harmless Landlord from
and against any and all liabilities and penalties incurred by reason of any
violation of this Section 11 ^and shall pay all costs and expenses, including
reasonable attorney's fees, that may in any manner arise out of the failure of
Tenant to comply with the provisions of this Section 11.
(d) Tenant may contest in good faith by appropriate proceedings
conducted promptly at its own expense, in its name, or (whenever necessary) in ,
Landlord's name, the validity or enforcement of any Requirement of Law and may defer
compliance therewith provided that M such noncompliance shall not constitute a crime
or misdemeanor on the part of the Landlord; (ii) Tenant shall diligently prosecute such
contest to final determination by the court, department or governmental authority or
body having final jurisdiction; and, (iii) if so requested, Tenant shall furnish to
Landlord a surety bond issued by a bonding company reasonably acceptable to Landlord
in an amount equal to the cost of such compliance as reasonably estimated by Landlord,
indemnifying Landlord against the cost thereof and all liability in connection there-
with. Landlord agrees to cooperate reasonably with Tenant, and to execute within 10
days after receipt all documents and pleadings required for the purpose of such contest,
provided Tenant shall discharge any expense or liability of Landlord in connection
therewith.
12. DAMAGE-' OR DESTRUCTION.
(a) In the event the Building is damaged by fire or other perils
covered by Landlord's fire and extended coverage insurance, the Landlord shall, provided
Tenant is not in default, within a reasonable period after notice of damage, commence
repair, reconstruction and restoration of the Building and prosecute the same dilegently
Lo completion, in which event this Lease shall continue in full force and effect.
(b) In the event the Building shall be damaged as a result of any other
•,:asualty not covered by Landlord's fire and extended coverage insurance, to any extent
whatsoever, the Landlord may within 90 days following the date of such damage, commence
repair, reconstruction restoration of the Building and prosecute the same diligently
to completion, in which event this Lease shall continue in full force and effect, or with-
in said 90 -day period elect not to so repair, reconstruct or restore said Building in
which event this Lease shall cease and terminate.
(c) In the event of any repair, reconstruction or restoration of the
Building by Landlord in accordance with the provisions of this Section 12, such repair,
reconstruction or restoration by Landlord shall be substantially to the condition that
existed immediately prior to the damage or destruction, including Tenant's leasehold
improvements, but excluding Tenant's trade fixtures and personal property located in the
Building.
(d) In the event of repair, reconstruction and restoration as herein
provided, if the same or the condition requiring the same renders 25% or more of the
floor area of the Premises unusable for Tenant's prior use thereof, the base rent shall
be abated proportionately with the degree in which the Tenant's use of the Premises is
impaired commencing from the date of destruction and continuing during the period of
such repair, reconstruction or restoration. If less than such area is unusable, there
shall be no abatement. The Tenant shall not be entitled to any compensation or damages
from Landlord for loss in the use of the whole or any part of the Premises, Tenant's
trade fixtures and personal property or any inconvenience or annoyance occasioned by
such damage, repair, reconstruction or restoration.
(e) Except as specifically provided hereinabove, this Lease shall not
terminate or be affected in any manner by reason of the destruction or damage in whole
or in part of the Premises, or by reason of the untenantability of the Premises from any
cause or hazard whatsoever, and the rent reserved in this Lease as well as all other
charges payable hereunder shall be paid by Tenant in accordance with the terms, covenants
and conditions of this Lease, without abatement, diminuition or reduction.
13. CONDEMNATION.
(a) If the entire Premises shall be taken for any public or quasi -
public use, under any law, by right of eminent domain or right of condemnation, or by
purchase by public authority in lieu thereof, this Lease shall automatically terminate
as of the date of such taking with the same force and effect as if such day had been
fixed as the expiration date of the Lease Term. All rent, taxes, insurance premiums and
other charges shall be prorated and paid to the date of such termination. If more than
25 percent of the floor space of the Premises is so taken, but the remainder thereof is
not, Tenant or Landlord may elect to terminate this Lease with the same effect as a
total taking. Such election shall be exercised by written notice given to Landlord by
Tenant or Tenant by Landlord to terminate and shall be effective on a date 30 days after
the date of receipt of such notice. If the election is not exercised by delivery of
the notice to either party within 60 days after the date of such taking, the right of
election to terminate shall wholly lapse and expire.
(b) If part of the Premises is taken for any public or quasi- public
;,se under any law, by right of eminent domain or right of condemnation, or by purchase
by public authority in lieu thereof, and if this Lease shall not be terminated, this
Lease shall remain unaffected except that within a reasonable time after such taking,
Landlord shall restore that part of the Premises not so taken to a complete architectural
unit which may be used for the purposes as set forth in Section 11. After such taking,
the base rent shall not be reduced.
(c) There shall be no division between Landlord and Tenant of the
award for any taking, whether total or partial, and Landlord shall be entitled to receive
the total award or compensation in such proceeding. Tenant's right to receive compensa-
tion or damages for its trade fixtures and personal property shall not be affected in
any manner by this Section.
(d) If less than a fee title to all or any portion of the Premises
shall be so taken for temporary use or occupancy, that is, for one j ^ear or less, the
foregoing provisions of this Section shall be inapplicable to such taking. This Lease
shall continue in full force and effect without reduction or abatement or rent and Tenant
shall be entitled to make claim for, recover and retain, so long as it shall not be in
default hereunder, any awards in the form of rent recoverable in respect to such taking,
except that if such taking shall be for a period extending beyond the expiration or
earlier termination of this Lease Term, Landlord shall be entitled to receive such portion
of the award as shall be attributable to the portion of such period occurring after such
expiration or temination.
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14. INDEMNITY. Tenant shall indemnify, defend and save Landlord harmless from any
and all liabilities, damages, penalties, costs, expenses, claims, suits or actions due
to or arising out of (a) any breach, violation or nonperformance of any obligation of
Tenant hereunder; (b) any contest by Tenant authorized by this Lease; and, (c) any damage
to property or any injury to persons (including death resulting at any time thereform)
occurring in, on, upon or about the Premises.
15. ASSIGNMENT AND SUBLETTING. Tenant may not assign, sublet or transfer any part
or his entire right, title and interest under this Lease without first obtaining the
written approval of Landlord. Upon approval by Landlord, the assignee or transferee
shall in writing expressly assume all the obligations of Tenant hereunder; and Tenant
shall deliver to Landlord a duplicate executed original of the instrument(s) whereby such
assignment is made and in which such assumption is contained. Upon the making by Tenant
of any assignment of this Lease which complies with all the requirements of this Section,
the assignee shall become the "Tenant" hereunder as of the date of such assignment, but,
without obtaining the written release of Landlord, the assignor shall not be released
from any and all liability arising or accruing under this Lease whether before or after
the date of such assignment.
16. MORTGAGING. Tenant may not at any time encumber its interest in the leasehold
estate created hereby by mortgage, deed of trust or other security instrument without
first obtaining the written approval of Landlord.
17. ESTOPPEL CERTIFICATES. Landlord and Tenant agree at any time and from time to
time, so long as this Lease shall remain in effect, within 10 days after receipt of a
written request from the other party, to execute, acknowledge and deliver to the other
party a statement in writing certifying that this Lease is unmodified and in full' force
and effect (or if there have been modifications, that the same is in full force and
effect as modified and stating the modifications); if such is the fact, and otherwise
specifying such defaults in detail; and the dates to which the rent and other charges
have been paid, it being intended that any such statement delivered pursuant to this
Section may be relied upon by the holder of any mortgage, deed of trust, or other instru-
ment of security covering the Premises or the leasehold estate created hereby or any
prospective purchaser of any such interest.
18. INSPECTION. Tenant shall permit Landlord or Landlord's agents to enter the
Premises at any reasonable time for the purposes of (a) inspecting the same; (b) perform-
ing obligations of Tenant hereunder which Tenant may neglect or refuse to perform; and,
(c) showing the Premises to persons wishing to purchase Landlord's interest therein.
The provisions contained in this Section shall not increase Landlord's obligations under
this Lease, and the right and authority hereby reserved does not impose upon Landlord
any responsibility for the repair, care or supervision of the Premises, which under any
provisions of this Lease Tenant is required to do, nor shall the performance of such
work constitute a waiver of Tenant't default in failing to do the same.
19. NO ABATEMENT. Except as otherwise specifically provided herein, there shall
be no abatement or reduction of any rent payable by Tenant for any reason, including,
but without limiting the generality of the foregoing: (a) by reason of any damage or
destruction of the Premises whether caused by fire, condemnation or other matters like
or unlike the foregoing, or during any period of restoration, or (b) by reason of diminu-
tion of the amount of usable space caused by legally required changes in the construction,
equipment, operation or use of the Premises.
20. QUIET ENJOYMENT. Landlord covenants that, if and so long as Tenant pays the
rent and other charges reserved by this Lease and performs all the obligations of Tenant
hereunder, Tenant shall quietly enjoy the Premises, subject, however to the terms of
this Lease.
21. DEFAULTS.
(a) Tile following shall constitute defaults under the terms of this
Lease (regardless of the pendency of any bankruptcy, bankruptcy reorganization., receiver-
ship, insolvency or other proceeding in law, in equity or before any administrative tri-
bunal which has or might have the effect of preventing Tenant from complying with the
terms of this Lease):
(i) the failure to make payment of any installment of rent (includ-
ing the tax, common costs and insurance payments herein required to be made with rent
payments) to Landlord within 5 days after the same may be due;
(ii) the failure to make payment when due of any other sum herein
specified to be paid by Tenant to Landlord or others, as the case may be, and such failure
to pay shall continue for a period of 30 days after written notice thereof has been given
by Landlord to Tenant;
(iii) the failure, within 30 days after written notice thereof has
been given by Landlord to Tenant to cure any default of Tenant in the observance or per-
formance of any of Tenant's covenants or obligations hereunder other than payments of
rent or any other sums due hereunder;
7 -
(iv) any of the persons who are or may be included within the
designation of "Tenant" under this Lease becomes involved in financial difficulties as
evidenced by:
(n) his or her admitting in writing his or her inability to
pay debts generally as they become due;
(B) his or her making an assignment of all or a substantial
part of his or her property for the benefit of his or her creditors;
(C) his or her seeking or consenting to or acquiescing in the
appointment of a receiver or trustee for all or a substantial part of
his or her property or of his or her interest in this Lease;
(D) the filing of a voluntary petition in bankruptcy or under
any insolvency law;
(C) the involuntary filing of such petition, which petition
shall not be set aside within 30 days after the filing thereof; or,
(r) the entry of a court order, with or without his or her
consent, appointing a receiver or trustee for all or a substantial part
of his or her property, which order shall not be vacated, set aside or
stayed within 30 days from the date of eaitry;
(v) a receiver, liquidator or trustee in bankruptcy shall be
appointed for all or substantially all of Tenant's business or assets because of Tenant's
insolvency; or,
(vi) if Tenant shall cause, suffer or permit any governmental agency
to attach, seize, "lockup" or otherwise exercise any direct control over the Premises, and
in such event, if Tenant shall fail to cause the dissolution of same within 10 days.
(b) The words "cure" or "cured" or "cause to be cured" as used in this
Lease are heteby defined as the correction of a default, or situation creating a default,
in the performance of the covenants under this Lease within the respective periods set
forth in this Lease during which such default may be cured, except that as to any default
under Section 21(a)(iii) which by its nature cannot be cured within the period of time
set forth in such section, the time for curing any such default shall be extended for
such period as may be required to cure such default by the exercise of reasonable
diligency and dispatch.
(c) In the event that Landlord shall contend that a default (other than
a default under Section 21(a)(i)) has occurred, Landlord shall give to Tenant a notice
setting forth such contention in sufficient detail to apprise the Tenant of the nature
and basis thereof.
(d) In the event of Tenant's default hereunder, Landlord shall have the
right at Landlord's option, at any time thereafter and while such default shall continue,
to: (i) terminate this lease and all of Tenant's rights hereunder by giving written notice
of election to terminate to Tenant, which notice shall specify the date of such termina-
tion; (ii) without resuming possession of the Premises or terminating this Lease, to sue
for and recover all rents and other sums, including damages, at any time and from time
to time accruing hereunder; (iii) without terminating this Lease, but subject to the
provisions hereinafter set forth in this Section 21(d), to enter and take-possession of
the Premises using such force as is necessary to dispossess Tenant thereof, to make
alterations to the Premises in such manner and to such extent as to Landlord may seem
desirable or advisable, and to relet or sublet the Premises or any part thereof for the
whole or any part of the remainder of the Lease Term in Landlord's name, or as agent of
Tenant, and to collect the rentals arising thereform, and out of any rents so collected
or received Landlord shall (1) first pay to itself the expense and cost of repossessing
the Premises, (2) pay to itself any cost or expense sustained in securing any new tenant
or- tenants, (3) pay to itself any amount remaining on account of the liability of Tenant
to Landlord for rent or other amounts due under this Lease, and (4) pay to Tenant any
balance remaining not applied as set forth above. If.the rents so collected by Landlord
after the payments aforesaid are not enough to pay to Landlord a sum equal to the total
of amounts already due under this Lease at such time, the same shall immediately be due
from Tenant, and to the extent any installment of such rent is not enough to pay to
Landlord a sum equal to the total amount due under the Lease on a current basis, the
balance of the deficiency shall be paid by Tenant on the dates hereinabove set forth for
payment of rent. Tenant agrees to be and remain liable for any such deficiency and the
liability of Tenant shall remain, whether or not there is a reletting.
(e) Upon termination of this Lease by Landlord as set forth in Section
21(d)(i), all rights granted Tenant hereunder shall cease and terminate, and Tenant here-
by covenants to yield up and surrender the Premises, peaceably and quietly to Landlord,
in the manner set forth in Section 10. Upon such surrender, the Premises shall be and
belong to Landlord free and clear of any claim whatsoever of Tenant and Tenant further
agrees to execute and deliver to Landlord such instrument or instruments as shall be
reasonably requested by Landlord properly to evidence termination of Tenant's rights
hereunder and its interest in the Premises. In the event of termination of this Lease
as provided in Section 21(d)(i), Landlord shall have the right to repossess the Premises
either without process of law or through any form of suit or proceeding as well as the
right to sue for and recover all rents and all other sums accrued up to the time of
such termination, including damages arising out of any breach on the part of the Tenant
(f) If Tenant shall default in making any payment required to be
made (other than Tenant's obligation to make payments of rent, including the tax,
common costs and insurance payments herein required to be made with rent payments) or
shall default in performing any other obligation hereunder, and such failure shall
continue after lapse of applicable notice periods, or if Landlord, on behalf of Tenant,
expends such sum as may be necessary to perform such obligation. All sums so paid or
expended by Landlord, with interest thereon at the rate of 12 percent per year from the
date of such payment or expenditure shall be payable by Tenant immediately upon demand
of Landlord. No payment or expenditure under the provisions of this Section shall be
deemed to be a waiver of the underlying default nor shall it affect any other remedy of
Landlord.
22. NO IMPLIED SURRENDER OR WAIVER. The receipt of rent by Landlord, with knowledge
of any default, shall not be deemed to be a waiver of any provision of this Lease. No
failure of Landlord to enforce the provisions of this Lease upon any default by Tenant
shall be construed as creating a custom of deferring payment or as modifying in any way
the.terms of this Lease or as a waiver of Landlord's right to terminate this Lease as
herein provided, or otherwise to enforce the provisions hereof for any subsequent default.
The receipt by Landlord of rent from any assignee, under- tenant or occupant of the Premises
shall not be deemed a waiver of the covenants contained herein against assignment and
subletting or an acceptance of the assignee, under- tenant or occupant as Tenant, or a
release of Tenant from the further observance or performance by Tenant of the covenants
contained herein on the part of Tenant to be observed and performed. No provision of this
Lease shall be deemed to have been waived by either party unless such waiver be in writing
and signed. No act or thing done by Landlord or Landlord's agents during the Lease Term
shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept
such surrender shall be valid unless in writing signed by Landlord. No employee of
Landlord or of Landlord's agents shall have any power to accept the keys to the Premises
prior to the termination of this Lease. The delivery of keys to any employee of Landlord,
or of Landlord's agents, shall not operate as a termination of this Lease or a surrender
of the Premises. No payment by Tenant, or receipt by Landlord, of a lesser amount than
the monthly base Pent herein stipulated, shall be deemed to be other than on account of
the earliest stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check, or payment as rent, be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's right to
recover the balance of such rent or pursue any other remedy available to Landlord. Time
is of the essence hereof.
23. FORCE MAJEURE. In any case where either party is required to perform any con-
struction work hereunder, delays caused by war, strike, riot, acts of God, shortages of
material or labor, governmental regulation, weather delay, or other cause beyond such
p,irty's reasonable control shall not be counted in determining the time during which such
work shall be completed. In any case where work shall be paid for out of insurance
proceeds or condemnation awards, due allowance shall be made, both to the party required
to perform such work and to the party required to make such payment, for delays in the
collection of such proceeds and awards.
24. NOTICES. All notices, demands and communications to the parties hereunder may
be delivered personally or, alternatively, may be served or given by certified mail,
return receipt requested, postage prepaid, and if intended for Landlord shall be addressed
to Landlord at P.O. Box S , Avon, Colorado 81620, or such other address as may be estab-
lished by Landlord in writing, and if intended for Tenant shall be addressed to Tenant
at the address set forth in Exhibit B. or such other address as may be established by
Tenant in writing. Any notice given shall be deemed effective when actually received or,
if mailed, three working days after deposit in any postal facility or post office box
reqularly maintained by the United States'Postal Service.
2S. LANDLORD. The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and include
only the owner or owners at the time in question of the Premises. In the event of any
transfer or transfers of the title to the Premises, Landlord herein named (and in case of
any subsequent transfers or conveyances, the then grantor) shall automatically be freed
and relieved from and after the date of such transfer or conveyance of all personal
liability for the performance of any covenants or obligations on the part of Landlord con-
tained in this Lease thereafter to be performed. Any funds in which Tenant has an
interest in the hands of Landlord or the then grantor at the time of any such transfer
shall be turned over to the grantee, and any amount then due and payable to
Tenant by Landlord or the then grantor under any provisions of this Lease shall be
paid to Tenant. Upon any transfer of title to the Premises, Landlord shall notify
Tenant as required in Section 24 herein and shall obtain a signed receipt from the
grantee acknowledging receipt of any funds in which the Tenant has an interest and a
copy of such receipt shall be delivered to Tenant.
26. SUCCESSORS AND ASSIGNS: JOINT AND SEVERAL LIABILITY. All terms, conditions
and covenants to be observed and performed by the parties hereto shall be applicable
to and binding upon their respective heirs, personal representatives, successors and
assigns, subject to the provisions of Section 15 herein. If more than one entity or
person nre 'Tenant under this Lease, the obligations imposed upon Tenant under this
Lease shall be joint and several.
27. CONSENT. Unless otherwise provided herein, whenever Landlord's consent or
approval is required under the terms of this Lease, such consent or approval shall not
unreasonably be withheld or delayed. In those instances in which Landlord's consent
or approval may not unreasonably be withhheld, Landlord shall, upon Tenant's request,
provide Tenant with the reasons for any such withholding of Landlord's consent or
approval.
28. ATTORNEY'S FEES. In the event of any litigation (but not including arbitra-
tion proceedings) between the parties hereto concerning this Lease and the enforcement
hereof, the prevailing party in such action shall be entitled to receive from the de-
faulting party all reasonable costs and expenses, including reasonable attorney's fees,
incurred by the prevailing party in such action.
29. SEVERABILITY. If any provisions, sentence, phrase, or word of this Lease,
or the application thereof to any person or circumstance shall be held invalid, the
remainder of this Lease or the application of such provisions, sentence, phrase, or word
to persons or circumstances other than those as to which it is held invalid, shall not
be affected thereby.
30. ENTIRE AGREEMENT. This Lease and the Exhibits attached hereto contain the
entire agreement between the parties and shall not be modified in any manner except
by an instrument in writing executed by the Parties.
31. SECTION HEADINGS. The section headings are inserted only as a matter of con-
venience and they shall in no way define, limit or prescribe the scope or.intent of this
Lease or in any way affect the interpretation hereof.
32. RELATIONSHIP OF PARTIES. This Lease shall not create a joint venture or part-
nership between the parties hereto and any such relationship is hereby expressly dis-
claimed.
33. CONSTRUCTION OF TERMS. When necessary for proper construction, the masculine
of any word used in this Lease shall include the feminine and neuter gender, and the
singular the plural, and vice versa.
34. COLORADO LAW. This Lease shall in all respects be governed by and construed
under the laws of Colorado.
35. COMMON COSTS. Landlord may, on behalf of Tenant and parties occupying other
portions of the Land, from time to time, provide certain services and facilities, includ-
ing but not limited to: parking, landscaping, gardening services, snow removal, exterior
maintenance and clean -up, signing, security services and other similar or dissimilar
services and facilities. If Landlord provides the same, Tenant shall monthly, together
with rental payments, pay such portion of the costs incurred for such services and facili-
ties as are attributable to the Premises apportioned on a square foot basis among the
improved portions of the Land benefited thereby.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the day
and year first above written.
LANDLORD:
Doyle & Associates, a Colorado
General Partnership, by its
M;unagement Coimnittcc
TENANT: TOWN OF AVON
BY-
TITLE: .
Mayor
Ivi 1 1 i :1111 T. D0y1c
f°
- 10 -
✓h°+ti
F YTTTRTT A
DOYLE & ASSOCIATES
LEASING FLOOR PLAN
WAREIIOUSE UTIITS
Lot 37, Block 1, as per the Official flat - Town of Avon, Eagle County,
Colorado, and Final Subdivision Plat - Amendment Number 4, Benchmark at
Beaver Creek, Eagle County, Colorado, recorded on September 5, 1978, in
Book 274 at page 701.
EXHIBIT B
(Attached to and made part of Lease Agreement dated as of June 1 1980,
between Doyle & Associates, a Colorado general partnership, and
Town of Avon )
BASE RENT:
Annual Rate . . . . . . . .
Monthly Installment . . . .
USE OF PREMISES:
. . . . . . . . . . . . . $ 9,669.48
. . . . . . . . . . . . . $ 805.79
Storage of vehicles and equipment
and supplies.
ADDRESS OF TENANT: Town of Avon
P. 0. Box D
Avon, CO. 81620
* Base Rent
Additional Rent for Ins.
Additional Rent for ad
valorem taxes
$790.00
15.79
(Not Yet known)
$805.79
INITIALS
January 17, 1980
Mr. Angelo V. Alpi, Mayor
Town of Avon
P. 0. Box D
Avon, Colorado 81620
Dear Al:
As you are aware, we have discussed the merits of Town of Avon using
the Benchmark barn for the storage of vehicles that need to be towed with
the provision that the Town assist Benchmark in moving the contents of the
barn to the warehouse in the Industrial Park. We have concluded, however,
that the contents of the barn are too great to be easily moved to and stored
in the warehouse.
Consequently, the owners of the warehouse, Doyle and Associates, of which
Benchmark at Beaver Creek is a general partner, propose to rent to the Town
of Avon Warehouse Number 2 as shown on the attached Exhibit A on the follow-
ing terms and conditions:
TERM: Month to month
RATE: $5.00 per day or any part thereof per vehicle stored
plus utilities. In other words, if the Town is not
storing any vehicles on a particular day or days,
their only cost would be for utilities.
INSURANCE: The Town of Avon shall at its own cost and expense
insure the property it stores in the warehouse and
shall hold Doyle and Associates harmless for any
damages that might occur to said contents.
It is my understanding that The Town of Avon will collect at least $5.00
per day from the owner of a stored vehicle before the vehicle is released.
Doyle and Associates, however, will look only to the Town for payment of
rent.
If this proposal is acceptable to you, please sign the attached copy of this
BENCIIMARk
Box S, Avon, Colorado 81620 Phone (303) 949 -5743
Page Two
Mr. Angelo V. Alpi
Avon, Colorado 81620
letter and return it to me.
Very truly yours,
Doyle & Associates
by Benchmark at Beaver Creek,
a general partner
a
t
by: `-_...
. J. Wca is
AJW: 1 r
January 17, 1980
' � V
I ,
F
N EXHIBIT A
DOYLE & ASSOCIATES
LEASING FLOOR PLAN
WAREHOUSE UNITS
Lot 37, Block 1, as per the Official Plat - Town of Avon, Eagle County,
Colorado, and Final Subdivision Plat - Amendment Number 4, Benchmark at
Beaver Creek, Eagle County, Colorado, recorded on September 5, 1978, in
Book 274 at page 701.
r
7N ( /_
AMENDMENT
TO LEASE OF WAREHOUSE #4
140 METCALF ROAD 'Ole AVON, COLORADOr
This is an amendment to the lease dated August 31, 1989 between
The Town of Avon, Tenant; and Doyle & Associates, Landlord.
Metcalf U -Stor It is the successor to Doyle & Associates.
The parties hereby agree that Section I "Term" of the lease for
warehouse #4 is amended to read as follows:
" 1.. Term. Subject to the terms and conditions.hereof, Tenant
shall have and hold the premises for a period (the "Lease Term ")
co=encing on the first day of August 1989 and ending at 12:00
P.M. midnight on September 30, 1996. The words "Lease Term"
shall include any renewal or extension of such initial period
defined above."
All other terms-and conditions of the above referenced lease
shall remain in full force and effect.
Executed this 16 day of May 1991.
TENANT:
The Town of Avon
by
Mana , Town of Avon
LANDLORD:
Metcalf U -Sto t
by �Ie
Prope 'ty Manager
-i
r
AMENDMENT • '
AMENDNEN'P to Lease effective October 1, 1989, for Unit _A of Doyle &
Associates Warehouses, Avon, Colorado, wherein Doyle & Associates, a
Colorado general partnership, is Landlord and the Town of Avon is Tenant.
The parties hereby agree that Section 1 "TERM" of the above - described lease
is an-ended to read as follows:
441. "TERM ". Subject to the terms and conditions hereof, Tenant shall have
and hold the premises for a period (the "Lease Term ") camTencing on the
lst day of October 1, 1989 and ending at 12:00 P.M. midnight September 30,
1991. (A "Lease Term" of 2 years). The words "Lease Term" shall include
any renewal or extension of such initial period defined above."
All other terms and conditions of the above referenced lease shall reTrain
in full force & effect.
Executed this day of October, 1989.
TENANT:
Town of Avon
By : —
Manager, Zba jn of Awn
LANDLORD:
Doyle & Associates, a Colorado
general partnership, By its Manage -
mer
t
LEASE AGREEMENT
THIS INDENTURE OF LEASE, is dated as of the 1st day of August 1989,
by and between DOYLE & ASSOCIATES, a Colorado general partnership ( "Landlord ") and
TOWN OF AVON ( "Tenant "',
RECITALS
1. Landlord owns the real estate (the "Land ") described in Exhibit A
attached hereto and made a part hereof, and the buildings thereon.
2. Landlord and Tenant desire to enter into a lease of a certain part of a
building located on the Land (the "Premises ") as depicted in Exhibit A attached
hereto and made a part hereof, on the terms and conditions contained herein.
LEASE
In consideration of the recitals and the mutual covenants and obligations
hereinafter set forth, Landlord hereby leases to Tenant and Tenant hereby rents froc
Landlord the Premises upon the terms and conditions hereinafter set forth.
1. TERM. Subject to the terms and conditions hereof, Tenant shall have and
hold the Premises for a period (the "Lease Term ") commencing on the date of this
Lease and ending at 12:00 p.m. midnight on J1J1 .31 , 19 90• The words
"Lease Term" shall include any renewal or extension of such initial period defined above.
2. RENT. (a) The base rent shall be at the annual rate as set forth in
Exhibit B attached hereto and made a part hereof, payable in advance in equal monthly
installments as set forth in Exhibit B on the first day of each and every calendar
month during the Lease Term; provided-, however, if the date hereof or the date of
termination of the Lease Term as provided in Section 1 shall not be the first day of
a calendar month, the base rent shall be appropriately prorated, utilizing a_daily
rent in the amount of one - thirtieth of the monthly base rent amount. The base
rent and other sums payable to Landlord -shall be Paid to Landlord at Landlord's
address set forth below or to such agent or person or persons or at such other
address as Landlord from time to time may designate in -writing. The base rent
shall be absolutely net to Landlord so that this Lease shall yield to Landlord
the full amount of the installments of base rent throughout the Lease Term.
(b) In addition, Tenant agrees that the base rental shall, every
12 months during the term hereof, or any extension of the term Hereof, be adjusted
for the next succeeding 12 -month period in the same proportion by which the Consumer
Price Index (1961 = 100) (the "Index ") published by the Bureau of Labor Statistics
of the United States Department of Labor, and specifically teat portion of tile
Index relating to Denver, Colorado, published by the University of Denver from
data furnished by the Bureau of Labor Statistics, increases or decreases during
the preceding 12 -month period, on the closest date of the publication thereof
prior to the adjustment, from the Index on the closest date of the publication
thereof prior to the commencement date hereof. Such adjusted base rental shall be
the base rental for the next succeeding 12 -month period. The first adjustment to
base rental shall occur on the first day of the month of the date hereof in the
next year. However, notwithstanding the above, in no event shall the base rent
for any part of this Lease or any extension or renewal thereof be less than the
base rent set forth on Exhibit B. If publication of the Index or the portion thereof
relating to Denver, Colorado, shall be discontinued, the parties hereto shall
thereafter accept comparable statistics on the cost of living for the United States,
as they shall be computed and published by an agency of the United States, or by
a responsible financial periodical or recognized authority then to be selected by
Landlord. In the event of use of comparable statistics in place of the Index,
or publication of the Index figures at other than monthly intervals, there shall
be made, in the method of computation herein provided for, such revisions as the
circumstances may require to carry out the intent of these provisions.
(c) Tenant shall also pay on or be?:'ore the commencement of the
Lease :'erm a sum eQual to one monzaly install. ;nent or base rent payable on the first
day of the last month period of the Lease Term. This sum shall be held by Landlord
until such last :month period as security for the full per:ormance by Tenant of
each and every provision and term or this Lease. :n the event that before such
period Tenant shall default in respect of any provision jr term of this Lease,
including but not limited _o he oavment of base rent and additional rent, Landlord
may use, apply, or retain the whole or any ?ar- of such sum or .he payment or any
base rent and additional rent is !e aui_, -Dr :or anv or.�er sum •ihlch _andlord
may be required to expend oy reasons of Tenant's ieraul_, or _or any damages or
deficiencies or costs in the reletting of the Premises.
(d) Tenant shall also pay, from time to tine as Provided in this
Lease as additional rent: (i) all other amounts, liabii.ties and obligations
which Tenant herein assumes or agrees to pay; (ii) interest at the rate of 12
percent per year on such of the foregoing ;amounts, liabi:ities ;Ind obligations as
are payable to Landlord (including rent) and are not Pais, .then due, from the due
date until payment thereof.
3. NO COUNTERCLAI "1, : \B :1TD!CNT, The base rent, additional rent and all
other sums payable by Tenant hereunder shall be paid ivit :gout notice, demand,
counterclaim, setoff, deduction or defense and without aoatement, suspension,
deferment, diminution or reduction.
4. TAXES, ASSESSMENTS AND OTHER CHARGES. (a) Tenant shall pay (i) to
Landlord, monthly, with base rent, one - twelfth of the general real estate taxes or
special assessments shown by the latest available statement therefor and, unless
separately assessed, prorated on a square foot basis bet,.ccn the premises ;and
other improved property covered by such statement; provided, however, that if
special assessments may be paid in installments over more than one year, Tenant
shall not be required to pay on such account more than one - twelfth of the annual
installment thereof in any month; (ii) ad valorem personal property taxes and all
other taxes, duties, charges, fees and payments required to be made to any
governmental or public authority, which shall be imposed, assessed or levied
upon, or arise in connection with the ownership, use, or presence of Tenant's
trade fixtures, merchandise inventory or other personal property located from
time to time in, on, upon or around the Premises all of which are herein called
"Governmental Impositions ". Within 30 days after Landlord's request, Tenant shall
deliver to Landlord receipts or other satisfactory evidence showing the payment
of any Governmental Imposition by Tenant, except those provided in (i) hereof,,
unless payment is contested pursuant to Section 4(b).
(b) Tenant may contest any Governmental Imposition by appropriate
proceedings conducted promptly at Tenant's expense, in Tenant's name, or (whenever
necessary) in Landlord's name. Landlord agrees to cooperate fully with Tenant and
to execute any documents or pleadings reasonably required for such purpose, but
Landlord shall not be obligated to incur any expense or liability in connection
therewith. Tenant may defer payment of the contested Governmental Imposition (except
those provided in part (i) of subsection (a) hereof) pending such contest, if such
deferment shall not subject Landlord's interest in the Premises to forfeiture.
Tenant shall, pay such contested items within 10 days after written notice from
Landlord stating that, in the reasonable judgment of Landlord, the protection of
the Premises or of Landlord's interest therein requires such payment. In lieu of
such payment, Tenant may, at its election, provide Landlord such protection by
furnishing a bond in a form, in an amount, and ..ith surety reasonably satisfactory
to Landlord. All refunds of taxes and assessments shall 'be the property of Tenant
to the extent they may represent or be attributed to payments .made by Tenant, any
balance being Landlord's property.
(c) Nothing herein shall require Tenant to pay any estate, gift,
inheritance or transfer tax assessed against Landlord or any income, excess prorits
or revenue tax or any other tax, assessment, charge or ic:y upon the rent payable
by Tenant under this Lease; provided, however, that Tenant shall pay any tax on
rents specifically imposed in lieu of any taxes which would be payable by Tenant
pursuant to the provisions of Section 4(a).
S. CHARGES OF UTILITIES AND TRASH R U10VAL. (a) Tenant shall contract in its
own name and promptly pay all charges for gas, electricity, telephone
and other services (except sewer and water tap fees) furnished to the Premises or
the occupants thereof, except those accruing after termination of the Lease Term.
(b) At Landlord's election made from time to time, Tenant shall
(i) contract in its own name and promptly pay all charges for the removal of trash
and waste material from the Premises or (ii) if Landlord contracts in its own name
for the removal of trash and waste from central locations for all of its tenants
renting building spuce on the Land, Tenant shall reimburse Landlord as additional
rent a pro rata share of the expense -ir such trash and ; :_ :e removal, with said
pro rata share being etarrnined by Lanulord any► pay.anl :: .._:_al a ,d days afte r receipt
by Tenant from Landlord of a bL11 therefor.
(_) Landlord s;aali not be liable In d ama ges 3r at`ierwi_e :or any
failure or interruption of any utility it se rvic_ -urn is, to the Premises or
used by Tenant, and no such failure or interr•lpt_,on shall entitle Tenant to
withhold any rent or to terminate *_his Lease.
o. INSURANCE. all During the Lease Term, - ,anant s.;a;: at its own cost
and expense: ; i; keep a_, :lave ._xtureS, met_ : ;anu :se _.., ata ^v and ot`ae:
personal property used in Tenant's trace or bus_ness insureu against loss by
fire and so- called extended coverage perils (including vandalism and :malicious
mischief) for their full insurable value. Tenant will, at Landlord's request,
which shall not be made more frequently than on an annual ''Jasis, obtain appraisals
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of such trade fixtures and personalty upon the Premises by a reliable insurance
appraiser, at Tenant's own expense, and in the event an appraisal shows the value
to be different from the value theretofore being used for insurance coverage
purposes under the provisions of this Section 6, Tenant shall increase, or it
may decrease, the insurance coverage so as to reflect such changed value.
(ii) keep in force, for the protect:;,n if Landlord and Tenant,
general public liability and property damage insurance ag :,;n;t claims for bodily
injury or death or property damage occurring in, on or upon the Premises, in the
single limit amount of not less than $300,000.00 for bod,l,v injury or death to
any number of persons arising out of one accident or disaster, and in limits of not
less than $100,000.00 for damage to property; and
(iii) keep in force, for the protection of Landlord and
Tenant, Workmen's Compensation Insurance Coverage as required by the statutes
of the State of Colorado or any applicable federal or municipal laws or regulations
in effect at any time during the Lease Term.
(b) All insurance required to be carried by Tenant under this
Section 6 shall be carried in favor of Landlord and Tenant, as their respective
interests may appear. Upon demand, Tenant shall deliver to Landlord certificates
evidencing all insurance required to be carried under this Section 6, together with
evidence of the payment of premiums on such insurance. Landlord shall have the
right to inspect and copy all insurance policies required to be maintained by
Tenant under this Section 6. Tenant shall not violate or permit to be violated
any of the conditions or provisions of any of such policies, and Tenant shall perform
and satisfy the requirements of the companies writing such policies so that
companies of good standing reasonably acceptable to landlord shall at all times
be willing to write and continue such insurance.
(c) Landlord shall at all times during the Lease Term maintain
in effect a policy or policies of insurance covering the building of which the
Premises is a part (the "Building "), including Tenant's leasehold- improvements
therein, but not Tenant's trade fixtures, merchandise inventory, or other items
used in Tenant's trade or business, in an amount at least equal to eighty percent
(80 %) of full replacement cost (exclusive of cost of excavations, foundations
and footings) from time to time during the term of this Lease, providing protection
against fire and extended coverage perils, together pith insurance against vandalism
and malicious mischief. Landlord's obligation to carry the insurance provided
for herein may be brought within the coverage of a so- called blanket policy or
policies of insurance carried and maintained by Landlord, provided that the
coverage afforded will not be reduced or diminished by reason of the use of such
blanket policy of insurance. Tenant shall not at any time, during the term of
this Lease, carry any stock of goods other than normal merchandise or do anything
in or about the Premises which will in any way tend to increase the insurance
rates upon the Building. Tenant shall pay to the Landlorl, upon demand, the
amount of any increase in premiums for insurance carried pursuant to this paragraph 'c)
that may be charged during the term of this Lease resul :ing from the foregoing or
from Tenant doing any act in or about the Premises which does so increase the
insurance rates, whether or not the Landlord shall have consented to such ac*_.
(d) Landlord and Tenant shall cooperate -with each other in collection
of insurance monies that may become due by reason of loss, or damage or destruction
to the Premises and shall execute and deliver such proofs of loss and other
instruments as may be required to recover insurance proceeds.
(e) Tenant shall pay to Landlord monthly with base rent, one -
twelfth of the insurance premiums attributable (on a square foot basis) to the
Premises according to the last premium notice received by Landlord.
7. CONDITION OF PROPERTY.
(a) Tenant accepts the Premises in its present condition and
will not call on Landlord for any repairs, improvements or alterations thereto.
(b) Unless Tenant shall first obtain Landlord's written approval,
Tenant may not: M replace, add to or alter the Premises, (ii) leave the
Premises vacant, temporarily or permanently, (iii) construct new Improvements, or
(iv) reconstruct, re -alter -arid replace any Im rovement. This
affect ' � p � Section shall not
Tenant's ob'. ioar ions to repair and mainta :n ::le p-_:1113les as
Section 8 hereon. set for :h in
(c) All air_erations, additions and i:nproV- 2meats placed upon the
Premises by Tenant or any subtenant or other accunant (inc_ud -ng, but not imi :ed
to, doors, partitions, the and wood floorings, 1; 411t :n
g *_xtures and the 1ikel
as well as any fixtures at any -me attachea to the 'iuildin; Inc: used in cnnnec *_ on
wi :h the aper3tion and maintenance thereof sha? 1, upon = as:,_an, be;,
of the improvements and sila11 be teemed a par: o. the Bui' :ia, become far:
the Landi ord. inu pro?er:v ,�f
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i�
S. REPAIRS.
(a) Tenant shall at all times, at its own cost and expense, repair
and maintain in good and tenantable condition the Premises and every part thereof,
excluding the roof, exterior walls, structural parts of t!�e Premises and floor,
and including without limitation the utility meters, pipes and conduits, all
fixtures, air conditioning and heating equipment serving the Premises, and other
equipment therein, all Tenant's signs, locks and closing devices, and all window
sash, casements or frames, doors and door frames, and all such items of repair,
maintenance and improvement or reconstruction as may at any time or from time to time
be required by a governmental agency having jurisdiction thereof. All glass,
both exterior and interior, is at the sole risk of Tenant, and any glass broken
shall be promptly replaced by Tenant with glass of the same kind, size and quality.
(b) Subject to the foregoing provisions hereof, Landlord shall
keep and maintain in good and tenantable condition and repair, the roof, exterior
walls, structural parts of the Premises and floor, pipes and conduits outside
the Premises for the furnishing to the Premises of various utilities (except to
the extent that the same are the obligation of the appropriate public utility
company); provided, however, that Landlord shall not be required to make repairs
necessitated in whole or in part by reason of the act, omission or negligence
of the Tenant, his agents, employees, servants or invitees, or anyone claiming
under the Tenant, or by reason of the failure of the Tenant to perform or observe
any conditions or agreements of this Lease, or caused by alterations, additions, or
improvements made by the Tenant or anyone claiming under the Tenant. Notwithstanding
anything contained herein to the contrary, Landlord shall not in any way be liable
to the Tenant for failure to make repairs as herein specifically required of
it unless the Tenant has previously notified the Landlord, in writing, of the
need for such repairs and the Landlord has failed to commence and complete such
repairs within a reasonable period of time following receipt of the Tenant's
written notification. There shall be no abatement of rent and no liability of
Landlord by reason of any injury to or interference with Tenant's business arising
from the making of any repairs, alterations or improvements required herein.
Tenant waives the right to make repairs at Landlord's expense under any law,
statute or ordinance now or hereafter in effect.
(c) If Tenant refuses or neglects to make repairs and maintain
the Premises, or any part thereof, in a manner reasonably satisfactory to Landlord,
Landlord shall have the right, upon giving Tenant reasonable written notice of
its election to do so, to make such repairs or perform such maintenance on behalf
of and for the account of Tenant. In such event such work shall be paid for by
Tenant promptly upon receipt of a bill therefor.
(d) As used in this Section the expression "exterior walls"
shall not be deemed to include plate glass, window cases or window frames,
door or door frames. It is understood and agreed that the Landlord shall be under
no obligation to make any repairs, alterations, rene %vals, replacements or improveme:ts
to and upon the premises on the mechanical equipment exclusively serving the
Premises at any time except as in this Lease expressly provided.
(e) Landlord or its authorized agents, including - ontractors,
may enter the Premises at reasonable times as may be necessary or convenient to
inspect, effect repairs or perform maintenance or remodeling of adjacent premises.
"Adjacent premises ", for the purpose of this paragraph, is defined to be any other
part of the Building which has any common wall with the Premises. Any such entry
shall be so as to cause no unreasonable inconvenience to Tenant and Landlord
shall cause any damage to the Premises as a result of such repairs, maintenance
or remodeling to be repaired without cost to Tenant.
9. MECHANICS' LIENS.
(a) Landlord shall not under any circumstances be liable for
the payment of any expense incurred or for the value of any work done or material
furnished to the Premises by Tenant. All such work shall be at Tenant's expense
and Tenant shall be solely and wholly responsible to all contractors, laborers,
and materialmen furnishing labor and material to the Premises. Nothing herein
shall authorize Tenant to charge the Premises or any interests of Landlord *herein
or this Lease ,pith any mechanic's, materialman's or other statutory liens and,
on the contrary, the right and power to charge any lien or encumbrance of any
kind against Landlord or the Premises'-is hereby expressly .lenied. 'enant shall
notify Landlord in writing at least 10 .lays prior to zommencin� inv work which
might give rise to such lien so that Landlord may take advantage oc any statute
protecting Landlord's interest against such :fens. Noth;Zg :ierein shall authori_--
Tenant to construct or alter the Premises wi_hout :.andiori's prior gr=_ten consent.
(bi If because o any act or omission o_ - onant, �nv�nec'ian_c's,
naterialman's or other 1_ea Jr order for the payment of money sfi;;li be filad
against Landlord whether such lien or order is invalid or enforceable), Tenant
shall, at own cost and expense, cause the same to be cancelled and discharged
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r
of record and further shall indemnify and save harmless Landlord from and against
any and all costs, expenses, claims or damages, including reasonable attorney's
expenses, resulting therefrom. If Tenant shall desire to contest any claim of
lien, Tenant shall furnish Landlord the bond Provided for in Section 38 -2 -131
of Colorado Revised Statutes (1973) or such other security acceptable to Landlord
of the value or in the amount of the claim, plus estimated costs and interest.
If a final judgment establishing the validity or existence of a lien for any amount
is entered, Tenant shall pay and satisfy the same at once. If Tenant shall be in
default in Paying any charge for which a mechanic's lien or suit to foreclose such
lien has been recorded or filed, and shall not have given Landlord security as
aforesaid, Landlord may (without being required so to do) pay such lien or claim
and any costs, and the amount so paid, together with reasonable attorney's fees
incurred in connection therewith, shall be immediately due and owing from Tenant
to Landlord with interest at the annual rate of 12 percent from the date of
Landlord's payments.
10. SURRENDER. Upon the expiration of termination of this Lease for any
reason whatsoever, or upon the re -entry by Landlord pursuant to Section 21 hereof,
Tenant shall peaceably and quietly leave, surrender and deliver up to Landlord
the Premises, except for property removable by Tenant pursuant to this Section 10,
in good order, condition and repair, except for reasonable wear and tear and loss
by any taking by condemnation or exercise of the right of eminent domain. By
the date of the expiration of the Lease Term, Tenant shall remove or cause to
be removed from the Premises all personal property and trade fixtures not belonging
to Landlord, except such property as is necessary to the general use and operation
of the Premises. Tenant shall repair any damage to the Premises caused by such
removal. If this Lease is terminated, by virtue of an event other than expiration
of the Lease Term, or if Landlord exercises its right of re -entry pursuant to
Section 21 hereof, Tenant shall remove such property within 10 days after such
occurrence. All such property not so removed shall conclusively be deemed to have
been abandoned and may be appropriated, sold, stored, destroyed and otherwise
disposed of by Landlord without notice to Tenant or any other person and without
obligation to account therefor.
11. USE, COMPLIANCE WITH L-VV.
(a) Tenant agrees that the Premises shall be used and occupied
only for the purposes set forth in Exhibit B. Tenant s;iall not use or occupy
the Premises for any other purpose without Landlord's prior written approval.
(b) Tenant shall, at Tenant's own cost and expense, promptly
comply with all present and future laws, rules, requirements, orders, directions,
ordinances and regulations of the United States of America and of the state,
county and municipal governments, and of all other governmental or lawful authority
whatsoever, affecting the Premises or any part thereof, and of all their departments,
bureaus, or officials (all of the foregoing being he:einaft-2r called "Requirements
of Law "), whether such requirements may relate to: (i) alterations (other than
to the roof, exterior walls and structural parts of the --'r'emises and floor) changes
and additions to the Premises; or (ii) repairs to the Premises; or (iii) the manner
in which the Premises may be used or occupied, or (iv) any other ;natter affecting
the Premises, whether like or unlike the foregoing.
( nh subject o liabili
after the discovery any violation
of a Requirement ofgLaw which might
of any interest, take all necessary steps, legal and equitable, too compel ethe
re
discontinuance thereof. Tenant shall indemnify and save harmless Landlord from
and against any and all liabilities and penalties incurred by reason of any
violation of this Section li and shall pay all costs and expenses, including
reasonable attorney's fees, that may in any manner arise out of the failure of
Tenant to comply with the provisions of this Section 11.
(d) Tenant may contest in good faith by appropriate proceedings
conducted promptly at its own expense, in its name, or (whenever necessary) in
Landlord's name, the validity or enforcement of any Requirement of Law and may defer
compliance therewith provided that (i) such noncompliance shall not constitute a crime
or misdemeanor on the part of the Landlord; ,il enant seal. 3i,_,
Dntesz to iina ietermination by the court, department .or o gently prosecute such
body having Final jurisdiction; and; (iii) if so re uested, ° °vernmental authority or
Landlord a surety bond issued by a bonding company geaSOnaDl.fe1CnP shall furnish to
in an amount equal to the cost of such compliance as reasonably estimatedtSyLLandlor.,
indemnifying Landlord against the cDSt thereof and all Ti
ability t ablllty in connection there-
with. Landlord agrees o cponeraze reasona
days aster receipt all aocumenzs ind pj� bay 'w= "h tenant, and zo execute within l0
�d;ngs equi-ed or zn e purpose of such _onta_z,
provided Tenant shall! discharge any expense Jr _11D1!_LV ,=
therewith. Land -arn in connection
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12. DMACE OR DESTRUCTION.
(a) In the event the Building is damages: by fire or other perils
covered by Landlord's fire and extended coverage insurance, the Landlord shall, provide.'
Tenant is not in default, within a reasonable period after Notice of damage, commence
repair, reconstruction and restoration of the Building and prosecute the same dilegea_ly
to completion, in which event this Lease shall continue in full force and effect.
(b) In the event the Building shall be damaged as a result of any other
casualty not covered by Landlord's fire and extended coverage insurance, to any extent
whatsoever, the Landlord may within 90 days following the date of such damage, commence
repair, reconstruction restoration of the Building and prosecute the same diligently
to completion, in which event this Lease shall continue in full force and effect, or with
in said 90 -day period elect not to so repair, reconstruct or restore said Building in
which event this Lease shall cease and terminate.
(c) In the event of any repair, reconstruction or restoration of the
Building by Landlord in accordance with the provisions of this Section 12, such repair,
reconstruction or restoration by Landlord shall be substantially to the condition that
existed immediately prior to the damage or destruction, including Tenant's leasehold
improvements, but excluding Tenant's trade fixtures and personal property located in the
Building.
(d) In the event of repair, reconstruction and restoration as herein
provided, if the same or the condition requiring the same renders 2S% or more of the
floor area of the Premises unusable for Tenant's prior use thereof, the base rent shall
be abated proportionately with the degree in which the Tenant's use of the Premises is
impaired commencing from the date of destruction and continuing during the period of
such repair, reconstruction or restoration. If less than such area is unusable, there
shall be no abatement. The Tenant shall not be entitled to any compensation or damages
from Landlord for loss in the use of the whole or any part of the Premises, Tenant's
trade fixtures and personal property or any inconvenience or annoyance occasioned by
such damage, repair, reconstruction or restoration.
(e) Except as specifically provided hereinabove, this Lease shall not
terminate or be affected in any manner by reason of the destruction or damage in whole
or in part of the Premises, or by reason of the untenantability of the Premises from any
cause or hazard whatsoever, and the rent reserved in this Lease as well as all other
charges payable hereunder shall be paid by Tenant in accordance with the terms, covenants
and conditions of this Lease, without abatement, diminuition or reduction.
13. CONDEMNATION.
(a) If the entire Premises shall be taken for any public or quasi -
pubbic use, under any law, by right of eminent domain or right of condemnation, or by
purchase by public authority in lieu thereof, this Lease shall automatically terminate
as of the date of such taking with the same force and effect as if such day had been
fixed as the expiration date of the Lease Term. all rent, taxes, insurance premiums and
other charges shall be prorated and paid to the date of such termination. If more than
25 percent of the floor space of the Premises is so taker., but the remainder thereof is
not, Tenant or Landlord may elect to terminate this Lease with the same effect as a
total taking. Such election shall be exercised by written notice given to Landlord by
Tenant or Tenant by Landlord to terminate and shall be effective on a date 30 days aria;
the date of receipt of such notice. If the election is not exercised by delivery of
the notice to either party within 60 days after the date of such taking, the right of
election to terminate shall wholly lapse and expire.
(b) If part of the Premises is taken for any public or quasi - public
use under any ldw, by right of eminent domain or right of condemnation, or by purchase
by public authority in lieu thereof, and if this Lease shall not be terminated, this
Lease shall remain unaffected except that within a reasonable time after such taking,
Landlord shall restore that part of the Premises not so taken to a complete architectural
unit which may be used for the purposes as set forth in Section 11. After such taking,
the base rent shall not be reduced.
(c) There shall be no division between Landlord and Tenant of the
award for any taking, whether total or partial, and Landlord shall be entitled to receive
the total award or compensation in such proceeding. Tenant's right to receive compensa-
tion or damages for its trace fixtures and personal proper:-: sha'_l not be affected in any manner by this Section.
(d) If less than a fee title to all or _-nv portion of the Premises
shall be so taken for temporary use or occupancy, that is, for one year or less, the
foregoing provisions of this Section shall be to'such tak.:ng. This :.ease
shall continue in full force and ef_ec= without reduction -r abatement or rent and ':'enar_t
shall be entitl --d to :Hake claim for, recover ano retain, sa i�ong as it snail aot be .n
default hereunder, any aw aras in the 'Form of rent recover,_ :e in respect to such :ak:ng,
except that if such taking snai! be for a period extendin; beyond the expiration or
earlier termination of this Lease Term, Landlord shall be entitled to receive such portion
of the award as shall be attributable to the portion of such period occurring after such
expiration or temination.
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_1 f^_1\
14. INDEMNITY. Tenant shall indemnify, defend and save Landlord harmless from any
and all liabilities, damages, penalties, costs, expenses, claims, suits or actions due
to or arising out of (a) any breach, violation or nonperformance of any obligation of
Tenant hereunder; (b) any contest by Tenant authorized b this Lease; and (� . /a�� /d�aa/g/e/
i ti al s FP /�'�'P�'F ��' /Ph/ h'l % 1'Y�iyY /Yq /g 0v� I Qdh,/,�kb�E�i/�- /tl fafcl fad //tl> e�/ aloe I
1S. ASSIGNMENT AND SUBLETTING. Tenant may not assign, sublet or transfer any part
or his entire right, title and interest under this Lease without first obtaining the
written approval of Landlord. Upon approval by Landlord, the assignee or transferee
shall in writing expressly assume all the obligations of Tenant hereunder; and Tenant
shall deliver to Landlord a duplicate executed original of the instrument(s) whereby such
assignment is made and in which such assumption is contained. Upon the making by Tenant
of any assignment of this Lease which complies with all the requirements of this Section,
the assignee shall become the "Tenant" hereunder as of the date of such assignment, but,
without obtaining the written release of Landlord, the assignor shall not be released
from any and all liability arising or accruing under this Lease whether before or after
the date of such assignment.
16. MORTGAGING. Tenant may not at any time encumber its interest in the leasehold
estate created hereby by mortgage, deed of trust or other security instrument without
first obtaining the written approval of Landlord.
17. ESTOPPEL CERTIFICATES. Landlord and Tenant agree at any time and from time to
time, so long as this Lease shall remain in effect, within 10 days after receipt of a
written request from the other party, to execute, acknowledge and deliver to the other
party a statement in writing certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full force and
effect as modified and stating the modifications); if such is the fact, and otherwise
specifying such - defaults in detail; and the dates to which the rent and other charges
have been paid, it being intended that any such statement delivered pursuant to this
Section may be relied upon by the holder of any mortgage, deed of trust, or other instru-
ment of security covering the Premises or the leasehold estate created hereby or any
prospective purchaser of any such interest.
18. INSPECTION. Tenant shall permit Landlord or Landlord's agents to enter the
Premises at any reasonable time for the purposes of (a) inspecting the same b
perform-
ing obligations of Tenant hereunder which Tenant may neglect or refuse to perform; and,
(c) showing the Premises to persons wishing to purchase Landlord's interest therein.
The provisions contained in this Section shall not increase Landlord's obligations under
this Lease, and the right and authority hereby reserved does not impose upon Landlord
any responsibility for the repair, care or supervision of the Premises, which under any
provisions of this Lease Tenant is required to do, nor shall the performance of such
work constitute a waiver of Tenant't default in failing to do the same.
19. NO ABATEMENT. Except as otherwise specifically pro v;ded herein, there shall
be no abatement or reduction of any rent payable by Tenant for any reason, including,
but without limiting the generality of the -foregoing: (a) by reason of any damage or
destruction of the Premises whether caused by fire, condemnation or other matters 'Like
or unlike the foregoing, or during any period of restoration, or (b) by reason of diminu-
tion of the amount of usable space caused by legally required changes in the construction,
equipment, operation or use of the Premises.
20. QUIET ENJOYMENT. Landlord covenants that, if and so long as Tenant pays the
rent and other charges reserved by this Lease and performs all the obligations of Tenant
hereunder, Tenant shall quietly enjoy the Premises, subject, however to the terms of
this Lease.
21. DEFAULTS.
(a) The following shall constitute defaults under the terms of this
Lease (regardless of the pendency of any bankruptcy, bankruptcy reorganization, receiver-
ship, insolvency or other proceeding in law, in equity or before any administrative tri-
bunal which has or might have the effect of preventing Tenant from complying with the L
terms of this Lease):
(i) the failure to make payment of any installment of rent (includ-
ing the tax, common costs and insurance payments herein required to be made with rent
payments) to Landlord 4ithin 5 lays after the same may be due; -
(ii) the failure to make payment when due of any other sum herein
specified to be paid by Tenant to Landlord or others, as the case nay be, and such failure
to pay shall continue for a period of 30 days after written notice thereof has been riven
by Landlord to Tenant;
;,iii' the ai.ur °, within _`0 lays a = =e- '.vritt�n notice -hereof has ,
been given by - analord to Tenant fo c--ire any de:au:_ 'or' Want :n o
r =ze obszr�anc� or ?er -'
formance of 3nv of Tenant's covenants or obligations hereunder other than payments of
rent or any other sums due hereunder;
— 7 —
s
�j
(iv) any of the persons who are or may be included within the
designation of "Tenant" under this Lease becomes involved in financial difficulties as
evidenced by:
(A) his or her admitting in writing his or her inability to
pay debts generally as they become due;
(8) his or her making an assignment of all or a substantial
part of his or her property for the benefit of his or her creditors;
(C) his or her seeking or consenting to or acquiescing in the
appointment of a receiver or trustee for all or a substantial part of
his or her property or of his or her interest in this Lease;
(D) the filing of a voluntary petition in bankruptcy or under
any insolvency law;
(E) the involuntary filing of such petition, which petition
shall not be set aside within 30 days after the filing thereof; or,
(F) the entry of a court order, with or without his or her
consent, appointing a receiver or trustee for all or a substantial part
of his or her property, which order shall not be vacated, set aside or
strayed within 30 days from the date of entry;
(v) a receiver, liquidator or trustee in bankruptcy shall be
appointed for all or substantially all of Tenant's business-or assets because of Tenant's
insolvency; or,
(vi) if Tenant shall cause, suffer or permit any governmental agency
to attach, seize, "lockup" or otherwise exercise any direct control over the Premises, and
in such event, if Tenant shall fail to cause the dissolution of same within 10 days.
(b) The words "cure" or "cured" or "cause to be cured" as used in this
Lease are hereby defined as the correction of a default, or situation creating a default,
in the performance of the covenants under this Lease within the respective periods set -
forth in this Lease during which such default may be cured, except that as to any default
under Section 21(a)(iii) which by its nature cannot be cured within the period of time
set forth in such section, the time for curing any such default shall be extended for
such period as may be required to cure such default by the exercise of reasonable
diligency and dispatch.
(c) In the event that Landlord shall contend that a default (other than
a default under Section 21(a)(i)) has occurred, Landlord shall give to Tenant a notice
setting forth such contention in sufficient detail to apprise the Tenant of the nature
and basis thereof.
(d) In the event of Tenant's default hereunder, Landlord shall have the
right at Landlord's option, at any time thereafter and while such default shall continue,
to: (i) terminate this lease and all of Tenant's rights hereunder by giving -written notice
of election to terminate to Tenant, which notice shall specify the date of such termina-
tion; (ii) without resuming possession of the Premises or terminating this Lease, to sue
for and recover all rents and other sums, including damages, at any time and from time
to time accruing hereunder; (iii) without terminating this Lease, but subject to the
provisions hereinafter set forth in this Section 21(d), to enter and take possession of
the Premises using such force as is necessary to dispossess Tenant thereof, to make
alterations to the Premises in such manner and to such extent as to Landlord may seem
desirable or advisable, and to relet or sublet the Premises or any part thereof for the
whole or any part of the remainder of the Lease Term in Landlord's name, or as agent of
Tenant, and to collect the rentals arising thereform, and out of any rents so collected
or received Landlord shall (1) first pay to itself the expense and cost of repossessing
the Premises, (2) pay to itself any cost or expense sustained in securing any new tenant
or tenants, (3) pay to itself any amount remaining on account of the liability of Tenant
to Landlord for rent or other amounts due under this Lease, and (4) pay to Tenant any
balance remaining not applied as set forth above. If the rents so collected by Landlord
after the payments aforesaid are not enough to pay to Landlord a sum equal to the total
of amounts already due under this Lease at such time, the same shall immediately be due
from Tenant, and to the extent any installment of such rent is not enough to pay to
Landlord a sum equal to the total amount due under the Lease on a current basis, the
balance of the deficiency shall be paid by Tenanc on the .hates zereinabove set forth for
`payment of rent. Tenant agrees to be and remain Liable for any such deficiency and the
liability of Tenant shall remain, whether or not :here is a reletting.
(e) Upon termination of this Haase by :.andlord as set forth in Section
21(d)(i), all rights granted Tenant hereunder shall cease and terminate, and Tenant here-
by covenants to yield up and surrender the Premises, peaceably and quietly to Landlord,
in the manner set forth in Section 10. Upon such surrender, the Premises shall be and
belong to Landlord free and dear )f any :Iaim •.na= soever of Tenant and Tenant further
agrees to execute and deliver to Landlord such Instrument or instruments as shall be
reasonably requested by Landlord properly to evidence termination of Tenant's rights
hereunder and its interest in the Premises. In the event of termination of this Lease
as provided in Section 21(d) (i) , Landlord shall have the right to repossess the Premises
either without process of law or through any form of suit or proceeding as well as the
right to sue for and recover all rents and all other sums accrued up to the time of
such termination, including damages arising out of any breach on the part of the Tenant.
M-M
M If Tenant shall default in making any payment required to be
made (other than Tenant's obligation to make payments of rent, including the tax,
common costs and insurance payments herein required to be made with rent payments) or
shall default in performing any other obligation hereunder, and such failure shall
continue after lapse of applicable notice periods, or if Landlord, on behalf of Tenant,
expends such sum as may be necessary to perform such obligation. All sums so paid or
expended by Landlord, with interest thereon at the rate of 12 percent per year from the
date of such payment or expenditure shall be payable by Tenant immediately upon demand
of Landlord. No payment or expenditure under the provisions of this Section shall be
deemed to be a waiver of the underlying default nor shall it affect any other remedy of
Landlord.
22. NO IMPLIED SURRENDER OR WAIVER. The receipt of rent by Landlord, with knowledge
of any default, shall not be deemed to be a waiver of any provision of this Lease. No
failure of Landlord to enforce the provisions of this Lease upon any default by Tenant
shall be construed as creating a custom of deferring payment or as modifying in any way
the terms of this Lease or as a waiver of Landlord's right to terminate this Lease as
herein provided, or otherwise to enforce the provisions hereof for any subsequent default.
The receipt by Landlord of rent from any assignee, under - tenant or occupant of the Premise
shall not be deemed a waiver of the covenants contained herein against assignment and
subletting or an acceptance of the assignee, under - tenant or occupant as Tenant, or a
release of Tenant from the further observance or performance by Tenant of the covenants
contained herein on the part of Tenant to be observed and performed. No provision of thi!
Lease shall be deemed to have been waived by either party unless such waiver be in writinj
and signed. No act or thing done by Landlord or Landlord's agents during the Lease Term
shall be deemed an acceptance -of a surrender of the Premises, and -no agreement to accept
such surrender shall be valid unless in writing signed by Landlord. No employee of
Landlord or of Landlord's agents shall have any power to accept the keys to the Premises
prior to the termination of this Lease. The delivery of keys to any employee of Landlord,
or of Landlord's agents, shall not operate as a termination of this Lease or a surrender
of the Premises. No payment by Tenant, or receipt by Landlord, of a lesser amount than
the monthly base rent herein stipulated, shall be deemed to be other than on account of
the earliest stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check, or payment as rent, be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's right to
recover the balance or such rent or pursue any other remedy available to Landlord. Time
is of the essence hereof.
23. FORCE MAJEURE. In any case where either party is required to perform any con-
struction work hereunder, delays caused by war, strike, riot, acts of God, shortages of
material or labor, governmental regulation, weather delay, or other cause beyond such
party's reasonable control shall not be counted in determining the time during which such
work shall be completed. In any case where work shall be paid for out of insurance
proceeds or condemnation awards, due allowance shall be made, both to the party required
to perform such work and to the party required to make such payment, for delays in the
collection of such proceeds and awards.
24. NOTICES. All notices, demands and communications to the parties hereunde_ may
be delivered personally or, alternatively, may be served or given by certified mail,
return receipt requested, postage prepaid, and if intended for Landlord shall be addressed
to Landlord at P.O. Box 5070, Avon, Colorado 81620, or such other address as may be estab-
lished by Landlord in writing, and if intended for Tenant shall be addressed to Tenant
at the address set forth in Exhibit B. or such other address as may be established by
Tenant in writing. Any notice given shall be deemed effective when actually received or,
if mailed, three working days after deposit in any postal facility or post office box
reqularly maintained by the United States Postal Service.
25. LANDLORD. The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and include
only the owner or owners at the time in question of the Premises. In the event of any
transfer or transfers of the title to the Premises, Landlord herein named (and in case of
any subsequent transfers or conveyances, the then grantor) shall automatically be freed
and relieved from and after the date of such transfer or conveyance of all personal
liability for the performance of any covenants or obligations on the part of Landori con-
tained in this Lease thereafter to be performed. Any funds in which Tenant has an
interest in the hands of Landlord or the then grantor at the time of any such transfer
shall be turned over to the grantee, and any amount then due and payable to
i11 �__
y
Tenant by Landlord or the then grantor under any provisions of this Lease shall be
paid to Tenant. Upon any transfer of title to the Premises, Landlord shall notify
Tenant as required in Section 24 herein and shall obtain a signed receipt from the
grantee acknowledging receipt of any funds in which the Tenant has an interest and a
COPY of such receipt shall be delivered to Tenant.
26. SUCCESSORS AND ASSIGNS: JOINT :X.'VD SEVELIL L !AB ILITY. all terms, conditions
and covenants to be observed and performed by the parties
to and binding upon their respective heirs, 'personal representatives, successors applicable
assigns, subject to the provisions of Section 15 herein. If more than one entity or
person are Tenant under this Lease, the obligations imposed upon Tenant under this
Lease shall be joint and several.
27. CONSENT. Unless otherwise provided herein, whenever Landlord's consent or
approval is required under the terms of this Lease, such consent or approval shall not
unreasonably be withheld or delayed. In those instances in which Landlord's consent
or approval may not unreasonably be withhheld, Landlord shall, upon Tenant's request,
provide Tenant with the reasons for any such withholding of Landlord's consent or
approval.
28. ATTORNEY'S FEES. In the event of any litigation (but not including arbitra-
tion proceedings) between the parties hereto concerning this Lease and the enforcement
hereof, the prevailing party in such action shall be entitled to receive from the de-
faulting party all reasonable costs and expenses, including reasonable attorney's fees,
incurred by the prevailing party in such action.
29. SEVERABILITY. If any provisions, sentence, phrase, or word of this Lease,
or the application thereof to any person or circumstance shall be held invalid, the
remainder of this Lease or the application of such provisions, sentence, phrase, or word
to persons or circumstances other than those as to which it is held invalid, shall not
be affected thereby.
30. ENTIRE AGREEMENT. This Lease and the Exhibits attached hereto contain the
entire agreement between the parties and shall not be modified in any manner except
by an instrument in writing executed by the Parties.
31. SECTION HEADINGS. The section headings are inserted only as a matter of con-
venience and they shall in no way define, limit or prescribe the scope or intent of this
Lease or in any way affect the interpretation hereof.
32. RELATIONSHIP OF PARTIES. This Lease shall not create a joint venture or part-
nership between the parties hereto and any such relationship is hereby expressly dis-
claimed.
33. CONSTRUCTION OF TEiUMS. When necessary for proper construction, the masculine
of any word used in this Lease shall include the feminine and neuter gender, and the
singular the plural, and vice versa.
34. - COL - ORADO LAW. This Lease shall in all respects be governed by and construed
under the law of Colorado.
35. COMMON COSTS. Landlord may, on behalf of Tenant and parties occupying other
portions of the Land, from time to time, provide certain services and facilities, includ-
ing but not limited to: parking, landscaping, gardening services, snow removal, exterior
maintenance and clean -up, signing, security services and other similar or dissimilar
services and facilities. If Landlord provides the same, Tenant shall monthly, together
with rental payments, pay such portion of the costs incurred for such services and facili-
ties as are attributable to the Premises apportioned on a square foot basis among the
improved portions of the Land benefited thereby.
IN WITNESS VHEREOF, Landlord and "tenant have duly executed this Lease as of the day
and year first above written.
a
LANDLORD:
3ovle i Associatas, 3 ';Jlotado
.;eneral 'artnership by
Management :ommi_:ee
William T. Doyle
A.J. We is
TENANT:
.
TOWN OF AVON
3Y :
TITLE:
EXHIBIT A
DOYLE S ASSOCIATES
LEA3INC FLOOR PLAN
W,"kRETIOUSE L' *; I ^S
Lot 37, Block 1, as per the Official Plat - Town of ,.on, Ea,
Colorado, and Final Subdivision Plat - Amendment Number 4, Benchmarktat
Beaver Creek, Eagle County, Colorado, recorded on September 5, 197
Book 274 at page 701. 8, in
Note:
Eacz unit has '-,=-30 scua_a f`e _.
.NITIALS
U- STOR -IT
EXHIBIT R
(Attached to and made part of Lease \greement date:i as of August 1, 1 -t9,
between Doyle G Associates, a Colorado general pa:•tnershii), and
TOWN OF :AVON
BASE RENT:
Annual Rate . . . . . . . . . . . . . . . . . . . . . . .S 14,123.88
Monthly Installment . . . . . . . . . . . . . . . . . . .$ 1,176.99*
USE OF PREMISES:
Storage 6 Maintenance of vehicles, equipment and supplies.
Base Rent
$1,000.00
Pro -rata
share
real estate taxes
123.99
Pro -rata
share
insurance
23.08
Pro -rata
share
sewer /water and
snow
removal
29.92
$1,176.99
*Base rent for
months 10, 11 and
12 of this lease term shall be waived.
ADDRESS OF TENANT:
Town of Avon
P. 0. Box 975
Avon, CO 81620
INITIALS
AMENDMENT
TO LEASE OF WAREHOUS
140 METCALF ROAD
AVON, COLORADO
This is an amendment to the lease dated September 28, 1982 between
The Town of Avon, Tenant; and Doyle & Associates, Landlord.
Metcalf U -Stor It is the successor to Doyle & Associates.
The parties hereby agree that Section I "Term" of the lease for
warehouse #5 is amended to read as follows:
" 1. Term. Subject to the terms and conditions hereof, Tenant
shall have and hold the premises for a period (the "Lease Term ")
commencing on the 28th day of September 1982 and ending at
12:00 P.M. midnight September 30, 1996. The words "Lease Term"
shall include any renewal or extension of such initial period
defined above.
All other terms and conditions of the above referenced lease
shall remain in full force and effect.
Executed this. �G d 1
y of May 1991.
TENANT:
The Town of Avon
by e4A�
Manaa own of Avon
Y
LANDLORD:
Metcalf -Sto
by��
Proper y Manager
4
AMENDMENT to Lease dated October 1, 1983, and as further amended the 1st day of
June, 1987 for UnLt_a of Doyle & Associates Warehouses, Awn, Colorado, wherein
Doyle & Associates, a Colorado general partnership, is Landlord and the Town of
Avon is Tenant.
The parties agree hereby that Section 1 "TERM" of the above described lease is
amended to read as follows:
"1. "TERM ". Subject to the terms and conditions hereof, Tenant shall have and
hold the premises for a period (the "Lease Term ") co n encing on 1st day of
June, 1987 and ending at 12:00 P.M. midnight May 31, 1991. The words "Lease
Term" shall include any renewal or extension of such initial period defined
above."
All other terms and conditions of the above referenced lease shall remain in
full force and effec
L
Executed this 00. day of October, 1989.
TENANT:
Town of Avon
BY:
Planager, Awn
Doyle & Associates, a Colorado general
partnership, By its Management Committee
0
By:
r
#
qU
AME NIME NT
Amendment to Lease dated September 28, 1982 for Unit 5 of Doyle & Associates
Warehouses, Avon, Colorado, wherein Doyle & Associates, a Colorado general
partnership, is Landlord and the Town of Avon is Tenant.
The parties agree hereby that Section 1 "TERM" of the above — described lease is
amended to read as follows:
111. "TERM ". Subject to the terms and conditions hereof, Tenant shall have and hold
the premises for a period (the "Lease Term ") commencing on the date of this
Amendment and ending at 12:00 Y.M. midnight May 31 , 1990. (A "Lease
Term" of 3 years) . The words "Lease Term" shall include any renewal or extension
of such initial period defined above."
All other terms and conditions of the above referenced lease shall remain in ful l
force & effect.
Executed this lst day of June 1987.
TENANT:
Town of Avon
By:
Manager, T - of Awn
LW1011941 1�
ODoyle & Associates, a Colorado general
partnership, By its Management Committee
By
By
1
f�
LEASE AGREEMENT
THIS INDENTURE OF LEASE, is hated as of the 28 day of September , 1982,
by and between DOYLE $ ASSOCIATES, a Colorado general partnership ( "Landlord ") and
TOWN OF AVON ( "Tenant ").
RECITALS
1. Landlord owns the real estate (tile "Land ") described in E ?xhibit A
attached hereto and made a part hereof, and the buildings thereon.
2. Landlord and Tenant desire to enter into a lease of a certain part of a
building located on the Land (the "Premises ") as depicted in Exhibit A attached
hereto and made a part hereof, on the terms and conditions contained herein.
LIiASE
In consideration of the recitals and the mutual covenants and obligations
hereinafter set forth, Landlord hereby Leases to 'Tenant and Tenant hereby rents from
Landlord the Premises upon the terms and conditions hereinafter set forth.
1. TERM. Subject to the terms and conditions hereof, Tenant shall have and
hold the Premises for a period (the "Lease Term ") commencing on the date of this
Lease and ending at 12:00 p.m. midnight on " , 19 The words
"Lease Term" shall include any renewal or extension of such initial period defined above.
2. RENT. (a) The base rent shall be at the annual rate as set forth in
Exhibit B attached hereto and made a part hereof, payable in advance in equal monthly
installments as set forth in Exhibit B on the first day of each and every calendar
month during the Lease Term; provided, however, if the date hereof or the date of
termination of the Lease Term as provided in Section 1 shall not be the first day of
a calendar month, the base rent shall be appropriately prorated, utilizing a daily
rent in the amount of one - thirtieth of the monthly hose rent amount. The base
rent and other sums payable to Landlord shall be paid to Landlord at Landlord's
address set forth below or to such agent or person or persons or at such other
address as Landlord from time to time may designate in writing. The base rent
shall be absolutely net to Landlord so that this Lease shall yield to Landlord
the full amount of the installments of base rent throughout the lease Term.
(b) In addition, 'Tenant agrees that the base rental shall, every
12 months during the term hereof, or any extension of the term hereof, be adjusted
for the next succeeding 12 -month period in the same proportion by which the Consumer
Price Index (1967 = 100) (the "Index ") published by the Bureau of Labor Statistics
of the United States Department of Labor, and spcciFically that portion of the
Index relating to Denver, Colorado, published by the University of Denver from
data furnished by the Bureau of Labor Statistics, increases or decreases during
the preceding 12 -month period, on the closest date of the publication thereof
prior to the adjustment, from the Index on the closest date of the publication
thereof prior to the commencement date hereof. Such adjusted base rental shall be
the base rental for the next succeeding 12 -month period. The first adjustment to
base rental shall occur on the first day of the month of the date hereof in the
next year. However, notwithstanding the above, in no event shall the base rent
for any part of this Lease or any extension or renewal thereof be less than the
base rent set forth on Exhibit B. If publication of the Index or the portion thereof
relating to Denver, Colorado, shall be discontinued, the parties hereto shall
thereafter accept comparable statistics on the cost of living for the United States,
as they shall be computed and published by an agency of the United States, or by
a responsible financial periodical or recognized authority then to be selected by
Landlord. In the event of use of comparable statistics in place of the Index,
or publication of the Index figures at other than monthly .intervals, there shall
be made, in the method of computation herein provided for, such revisions as the
circumstances may require to carry out the intent of these provisions.
(c) Tenant shall also pay on or be Fore the commencement of the
Lease Term a sum equal to one monthly installment of base rent payable on the first
day of the last month period of the Lease Term. This sum shall be held by Landlord
until such last month period as security for the full performance by Tenant of
each and every provision and term of this Lease. In the event that before such
period Tenant shall default in respect of any provision or term of this Lease,
including but not limited to the payment of base rent and additional rent, Landlord
may use, apply, or retain the whole or any part of such sum for the payment of any
base rent and additional rent in default, or for any other sum which Landlord
may be required to expend by reasons of Tenant's default, or for any damages or
deficiencies or costs in the reletting of the Premises.
* It is hereby agreed that the term of this lease will run from month —to— month, it being
the intention that said lease shall most likely continue until such time as the Town
of Avon has its own garage, storage and /or warehouse facilities. Furthermore, it is
agreed that tenant shall have the right to occupy said premises rent free (other than
deposit, upon the signing hereof) and that rental payments shall commence on December 1,
1982.
f
(d) Tenant shall also pay, from time to time as provided in this
Lease as additional rent: (i) all other amounts, liabilities and obligations
which Tenant herein assumes or agrees to pay; (ii) interest at the rate of 12
percent per year on such of the foregoing amounts, liabilities and obligations as
are payable to Landlord (including rent) and are not paid when due, from the due
date until payment thereof.
3. NO COUNTERCLAIM, ABATEMENT, I:TC. The base rent, additional rent and all
other sums payable by Tenant hereunder shall be paid without notice, demand,
counterclaim, setoff, deduction or defense and without abatement, suspension,
deferment, diminution or reduction.
4. TAXES, ASSESSMENTS AND OTHER CHARGES. (a) 'Tenant shall pay (i) to
Landlord, monthly, with base rent, one- twelfth of the general real estate taxes or
special assessments shown by the latest available statement therefor and, unless
separately assessed, prorated on a square foot basis between the Premises and
other improved property covered by such statement; provided, however, that if
special assessments may be paid in installments over more than one year, Tenant
shall not be required to pay on such account more than one - twelfth of the annual
installment thereof in any month; (ii) ad valorem personal property taxes and all
other taxes, duties, charges, fees and payments required to be made to any
governmental or public authority, which shall be imposed, assessed or levied
upon, or arise in connection with the ownership, use, or presence of Tenant's
trade fixtures, merchandise inventory or other personal property located from
time to time in, on, upon or around the Premises all of which are herein called
"Governmental Impositions ". Within 30 days after Landlord's request, Tenant shall
deliver to Landlord receipts or other satisfactory evidence showing the payment
of any Governmental Imposition by Tenant, except those provided ill (i) hereof,
unless payment is contested pursuant to Section 4(b).
(b) Tenant may contest any Governmental. Imposition by appropriate
proceedings conducted promptly at 't'enant's expense, in Tenant's name, or (whenever
necessary) in Landlord's name. landlord agrees to cooperate fully with 'Tenant and
to execute any documents or pleadings reasonably required for such purpose, but
Landlord shall not be obligated to incur any expense or liability in connection
therewith. Tenant may deFer payment of the contested Governmental Imposition (except
those provided in part (i) of subsection (a) hereof) pending such contest, if such
deferment shall not subject Landlord's interest in the Premises to forfeiture.
Tenant shall pay such contested items within 10 days after written notice from
Landlord stating that, in the reasonable judgment of Landlord, the protection of
the Premises or of Landlord's interest therein requires such payment. In lieu of
such payment, Tenant may, at its election, provide Landlord such protection by
furnishing a bond in a form, in an amount, and with surety reasonably satisfactory
to Landlord. All refunds of taxes and assessments shall be the property of Tenant
to the extent they may represent or be attributed to payments made by Tenant, any
balance being Landlord's property.
(c) Nothing herein shall require Tenant to pay any estate, gift,
inheritance or transfer tax assessed against Landlord or any income, excess profits
or revenue tax or any other tax, assessment, charge or levy upon the rent payable
by Tenant under this Lease; provided, however, that Tenant shall pay any tax on
rents specifically imposed in lieu of any taxes which would be payable by Tenant
pursuant to the provisions of Section 4(a).
S. CHARGES Or UTILITIES AND 'TRASH REMOVAL. (a) Tenant shall contract in its
own name and promptly pay all charges for gas, electricity, telephone, sewer, water,
and other services (except sewer and water tap fees) furnished to the Premises or
the occupants thereof, except those accruing after termination of the Lease Term.
(b) At Landlord's election made from time to time, 'Tenant shall
(i) contract in its own name and promptly pay all charges for the removal of trash
and waste material from the Premises or (ii) if Landlord contracts in its own name
for the removal of trash and waste from central locations for all of its tenants
renting building space on the Land, Tenant shall reimburse Landlord as additional
rent a pro rata share of the expense of such trash and waste removal, with said
pro rata share being determined by Landlord and payable within 10 days after receipt
by Tenant from Landlord of a bill therefor.
(c) Landlord shall not be liable in damages or otherwise for any
failure or interruption of any utility or service furnished to the Premises or
used by Tenant, and no such failure or interruption shall entitle Tenant to
withhold any rent or to terminate this Lease.
6. INSURANCE. (a) During the Lease Term, Tenant shall at its own cost
and expense: (i) keep all trade fixtures, merchandise inventory and other
personal property used in Tenant's trade or business insured against loss by
fire and so- called extended coverage perils (including vandalism and malicious
mischief) for their full insurable value. Tenant will, at Landlord's request,
which shall not be made more frequently than on an annual basis, obtain appraisals
- 2 -
of such trade fixtures and personalty upon the Premises by a reliable insurance
appraiser, at Tenant's own expense, and in the event an appraisal shows the value
to be different from the value theretofore being used for insurance coverage
purposes under the provisions of this Section 6, Tenant shall increase, or it
may decrease, the insurance coverage so as to reflect such changed value.
(ii) keep in force, for the protection of Landlord and Tenant,
general public liability and property damage insurance against claims for bodily
injury or death or property damage occurring in, on or upon the Premises, in the
single limit amount of not less than $300,000.00 for bodily injury or death to
any number of persons arising out of one accident or disaster, and in limits of not
less than $100,000.00 for damage to property; and
(iii) keep in force, for the protection of Landlord and
Tenant, Workmen's Compensation Insurance Coverage as required by the statutes
of the State of Colorado or any applicable federal or minicipa.l laws or regulations
in effect at any time during the Lease Term.
(b) All insurance required to be carried by Tenant under this
Section 6 shall be carried in favor of Landlord and Tenant, as their respective
interests may appear. Upon demand, Tenant shall deliver to Landlord certificates
evidencing all insurance required to be carried under this Section 6, together with
evidence of the payment of premiums on such insurance. Landlord shall have the
right to inspect and copy all insurance policies required to be maintained by
Tenant under this Section 6. Tenant shall not violate or permit to be violated
any of the conditions or provisions of any of such policies, and Tenant shall perform
and satisfy the requirements of the companies writing such policies so that
companies of good standing reasonably acceptable to Landlord shall at all times
be willing to write and continue such insurance.
(c) Landlord shall at all times during the Lease Term maintain
in effect a policy or policies of insurance covering the building of which the
Premises is a part (the "Building "), including Tenant's leasehold improvements
therein, but not Tenant's trade fixtures, merchandise inventory, or other items
used in Tenant's trade or business, in an amount at least equal to eighty percent
(800) of full replacement cost (exclusive of cost of excavations, foundations
and footings) from time to time during the term of this Lease, providing protection
against fire and extended coverage perils, together with insurance against vandalism
and malicious mischief. Landlord's obligation to carry the insurance provided
for herein may be brought within the coverage of a so- called blanket policy or
policies of insurance carried and maintained by Landlord, provided that the
coverage afforded will not be reduced or diminishes] by reason of the use of such
blanket policy of insurance. Tenant shall not at any time, during the term of
this Lease, carry any stock of goods other than normal merchandise or do anything
in or about the Premises which will in any way tend to increase the insurance
rates upon the Building. Tenant shall pay to the Landlord, upon demand, the
amount of any increase in premiums for insurance carried pursuant to this paragraph (c)
that may be charged during the term of this Lease resulting from the foregoing or
from Tenant doing any act in or about the Premises which does so increase the
insurance rates, whether or not the Landlord shall have consented to such act.
(d) Landlord and Tenant shall cooperate with each other in collection
of insurance monies that may become due by reason of loss, or damage or destruction
to the Premises and shall execute and deliver such proofs of loss and other
instruments as may he required to recover insurance proceeds.
(e) Tenant shall pay to Landlord monthly with base rent, one -
twelfth of the insurance premiums attributable (on a square foot basi.$) to the
Premises according to the last premium notice received by Landlord.
7. CONDITION OF PROPERTY.
(a) 'Tenant accept s the 1) I -CI11 i SOS i n i t s present coed i t ion and
will not call on Landlord for any repairs, improvements or alterations thereto.
(b) Unless Tenant shall first obtain Landlord's written approval,
Tenant may not: (i) replace, add to or alter the Premises, (ii) leave the
Premises vacant, temporarily or permanently, (iii) construct new Improvements, or
(iv) reconstruct, re -alter and replace any Improvement. This Section shall not
affect Tenant's obligations to repair and maintain the Premises as set forth in
Section 8 hereof.
(c) All alterations, additions and improvements placed upon the
Premises by Tenant or any subtenant or other occupant (including, but not limited
to, doors, partitions, tile and wood floorings, lighting fixtures and the like)
as well as any fixtures at any time attached to the Building and used in connection
with the operation and maintenance thereof shall, upon installation, become part
of the Improvements and shall be deemed a part of the Building and property of
the Landlord.
- 3 -
AAWAk
r
8. REPAIRS.
(a) Tenant shall at all times, at its own cost and expense, repair
and maintain in good and tenantable condition the Premises and every part thereof,
excluding the roof, exterior walls, structural parts of the Premises and floor,
and including without limitation the utility meters, pipes and conduits, all
fixtures, air conditioning and heating equipment serving the Premises, and other
equipment therein, all Tenant's signs, locks and closing devices, and all window
sash, casements or frames, doors and door frames, and all such items of repair,
maintenance and improvement or reconstruction as may at any time or from time to time
be required by a governmental agency having juri.sdicti.on thereof. All glass,
both exterior and interior, is at the sole risk of 'Tenant, and any glass broken
shall be promptly replaced by 'Tenant with glass of the same kind, size and quality.
(b) Subject to the foregoing provisions hereof, Landlord shall
keep and maintain in good and tenantable condition and repair, the roof, exterior
walls, structural parts of the Premises and floor, pipes and conduits outside
the Premises for the furnishing to the Premises of various utilities (except to
the extent that the same are the obligation of the appropriate public utility
company); provided, however, that Landlord shall not be required to make repairs
necessitated in whole or in part by reason of the act, omission or negligence
of the Tenant, his agents, employees, servants or invitees, or anyone claiming
under the Tenant, or by reason of the failure of the 'Tenant to perform or observe
any conditions or agreements of this Lease, or caused by alterations, additions, or
improvements made by the Tenant or anyone claiming tinder the Tenant. Notwithstanding
anything contained herein to the contrary, Landlord shall not in any way be liable
to the Tenant for failure to make repairs as herein specifically required of
it unless the Tenant has previously notified the Landlord, in writing, of the
need for such repairs and the Landlord has failed to commence and complete such
repairs within a reasonable period of time following receipt of the Tenant's
written notification. There shall be no abatement of rent and no liability of
Landlord by reason of any injury to or interference with Tenant's business arising
from the making of any repairs, alterations or improvements required herein.
Tenant waives the right to make repairs at Landlord's expense under any law,
statute or ordinance now or hereafter in effect.
(c) If Tenant refuses or neglects to make repairs and maintain
the Premises, or any part thereof, in a manner reasonably satisfactory to Landlord,
Landlord shall have the right, upon giving Tenant reasonable written notice of
its election to do so, to make such repairs or perform such maintenance on behalf
of and for the account of Tenant. In such event such work shall be paid for by
Tenant promptly upon receipt of a bill therefor.
(d) As used in this Section the expression "exterior walls"
shall not be deemed to include plate glass, window cases or window frames,
door or door frames. It is understood and agreed that the Landlord shall be under
no obligation to make any repairs, alterations, renewals, replacements or improvements
to and upon the premises on the mechanical equipment exclusively serving the
Premises at any time except as in this Lease expressly provided.
(e) Landlord or its authorized agents, including contractors,
may enter the Premises at reasonable times as may be necessary or convenient to
inspect, effect repairs or perform maintenance or remodeling of adjacent premises.
"Adjacent premises ", for the purpose of this paragraph, is defined to be any other
part of the Building which has any common wall with the Premises. Any such entry
shall be so as to cause no unreasonable inconvenience to Tenant and Landlord
shall cause any damage to the Premises as a result of such repairs, maintenance
or remodeling to be repaired without cost to 'Tenant.
9. MECHANICS' LIENS.
(a) Landlord shall not under any circumstances be liable for
the payment of any expense incurred or for the value of any work done or material
furnished to the Premises by Tenant. All such work shall be at Tenant's expense
and 'Tenant shall be solely and wholly responsible to all contractors, laborers,
and materialmen furnishing labor and material to the Premises. Nothing herein
shall authorize Tenant to charge the Premises or any interests of Landlord therein
or this Lease with any mechanic's, materialman's or other statutory liens and,
on the contrary, the right and power to charge any lien or encumbrance of any
kind against Landlord or the Premises is hereby expressly denied. 'Tenant shall
notify Landlord in writing at least 10 days prior to commencing any work which
might give rise to such lien;so that Landlord may take advantage of any statute
protecting Landlord's interest against such liens. Nothing herein shall authorize
Tenant to construct or alter the Premises without Landlord's prior written consent.
(b) If because of any act or omission of Tenant, any mechanic's,
materialman's or other lien or order for the payment of money shall be filed
against Landlord (whether such lien or order is invalid or enforceable), Tenant
shall, at own cost and expense, cause the same to be cancelled and discharged
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of record and further shall indemnify and save harmless Landlord from and against
any and all costs, expenses, claims or damages, including reasonable attorney's
expenses, resulting therefrom. If Tenant shall desire to contest any claim of
lien, Tenant shall furnish Landlord the bond provided for in Section 38 -22 -131
of Colorado Revised Statutes (1073) or such other security ,acceptable to Landlord
of the value or in the amount of the claim, plus estimated costs and interest.
If a final judgment establishing the validity or existence of a lien for any amount
is entered, Tenant shall pay and satisfy the same at once. If Tenant shall be in
default in paying any charge for which a mechanic's lien or suit to foreclose such
lien has been recorded or filed, and shall not have given Landlord security as
aforesaid, Landlord may (without being required so to do) pay such lien or claim
and any costs, and the amount so paid, together with reasonable attorney's fees
incurred in connection therewith, shall be immediately clue and owing from Tenant
to Landlord with interest at the annual rate of 12 percent from the date of
Landlord's payments.
10. SURRENDER. Upon the expiration of termination of this Lease for any
reason whatsoever, or upon the re -entry by Landlord pursuant to Section 21 hereof,
Tenant shall peaceably and quietly leave, surrender and deliver up to Landlord
the Premises, except for property removable by Tenant pursuant to this Section 10,
in good order, condition and repair, except for reasonable wear and tear and loss
by any taking by condemnation or exercise of the right of eminent domain. By
the date of the expiration of the Lease Term, Tenant shall remove or cause to
be removed from the Premises all personal property and trade fixtures not belonging
to Landlord, except such property as is necessary to the general use and operation
of the Premises. Tenant shall repair any damage to the Premises caused by such
removal. If this Lease is terminated, by virtue of an event other than expiration
of the Lease Term, or if Landlord exercises its right of re -entry pursuant to
Section 21 hereof, Tenant shall remove such property within 10 days after such
occurrence. All such property not so removed shall conclusively be deemed to have
been abandoned and may be appropriated, sold, stored, destroyed and otherwise
disposed of by Landlord without notice to 'Tenant or any other person and without
obligation to account therefor.
11. USE, COMPLIANCE WITH LAID.
(a) Tenant agrees that the Premises shall be used and occupied
only for the purposes set forth in Exhibit B, Tenant shall not use or occupy
the Premises for any other purpose without Landlord's prior written approval.
(b) Tenant shall, at Tenant's own cost and expense, promptly
comply with all present and future laws, rules, requirements, orders, directions,
ordinances and regulations of the United States of America and of the state,
county and municipal governments, and of all other governmental or lawful authority
whatsoever, affecting the Premises or any part thereof, and of all their departments,
bureaus, or officials (all of the foregoing being hereinafter called "Requirements
of Law "), whether such requirements may relate to: (i) alterations (other than
to the roof, exterior walls and structural parts of the Premises and floor) changes
and additions to the Premises; or (ii) repairs to the Premises; or (iii) the manner
in which the Premises may be used or occupied, or (iv) any other matter affecting
the Premises, whether like or unlike the foregoing.
(c) Tenant shall promptly, after the discovery of any violation
of a Requirement of Law which might subject Landlord to liability or forfeiture
of any interest, take all necessary steps, legal and equitable, to compel the
discontinuance thereof. Tenant shall indemnify and save harmless Landlord from
and against any and all liabilities and penalties incurred by reason of any
violation of this Section 11 and shall pay all costs and expenses, including
reasonable attorney's fees, that may in any manner arise out of the failure of
Tenant to comply with the provisions of this Section 11.
(d) 'Tenant may contest in good faith by appropriate proceedings
conducted promptly at its own expense, in its name, or (whenever necessary) in
Landlord's name, the validity or enforcement of any Requirement of Law and may defer
compliance therewith provided that (i) such noncompliance shall not constitute a crime
or misdemeanor on the part of the Landlord; (ii) Tenant shall diligently prosecute such
contest to final determination by the court, department or governmental authority or
body having final jurisdiction; and, (iii) if so requested, Tenant shall furnish to
Landlord a surety bond issued by a bonding company reasonably acceptable to Landlord
in an amount equal to the cost of such compliance as reasonably estimated by Landlord,
indemnifying Landlord against the cost thereof and all liability in connection there-
with. Landlord agrees to cooperate reasonably with Tenant, and to execute within 10
days after receipt all documents and pleadings required for the purpose of such contest,
provided Tenant shall discharge any expense or liability of Landlord in connection
therewith.
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12. DAMAGE OR DESTRUCTION.
(a) In the event the Building; is damaged by fire or other perils
covered by Landlord's fire and extended coverage insurance, the Landlord shall, provided
Tenant is not in default, within a reasonable period after notice of damage, commence
repair, reconstruction and restoration of the Building and prosecute the same diligently
to completion, in which event this Lease shall continue in full force and effect.
(b) In the event the Building shall be damaged as a result of any othe
casualty not covered by Landlord'sfire and extended coverage insurance, to any extent
whatsoever, the Landlord may within 90 days following the date of such damage, commence
repair, reconstruction restoration of the Building and prosecute the same diligently
to completion, in which event this Lease shall continue in full force and effect, or wit;
in said 90 -day period elect not to so repair, reconstruct or restore said Building in
which event this Lease shall cease and terminate.
(c) In the event of any repair., reconstruction or restoration of the
Building by Landlord in accordance with the provisions of this Section 12, such repair,
reconstruction or restoration by Landlord shall be substantially to the condition that
existed immediately prior to the damage or destruction, including Tenant's leasehold
improvements, but excluding Tenant's trade fixtures and personal property located in the
Building.
(d) In the event of repair, reconstruction and restoration as herein
provided, if the same or the condition requiring the same renders 25% or more of the
floor area of the Premises unusable for Tenant's prior use thereof, the base rent shall
be abated proportionately with the degree in which the Tenant's use of the Premises is
impaired commencing from the date of destruction and continuing during the period of
such repair, reconstruction or restoration. If less than such area is unusable, there
shall be no abatement. The Tenant shall not be entitled to any compensation or damages
from Landlord for loss in the use of the whole or any part of the Premises, Tenant's
trade fixtures and personal property or any inconvenience or annoyance occasioned by
such damage, repair, reconstruction or restoration.
(e) Except as specifically provided hereinabove, this Lease shall not
terminate or be affected in any manner by reason of the destruction or damage in whole
or in part of the Premises, or by reason of the untenantability of the Premises from any
cause or hazard whatsoever, and the rent reserved in this Lease as well as all other
charges payable hereunder shall be paid by Tenant in accordance with the terms, covenant
and conditions of this Lease, without abatement, diminuition or reduction.
13. CONDEMNATION.
(a) If the entire Premises shall be taken for any public or quasi-
public use, under any law, by right of eminent domain or right of condemnation, or by
purchase by public authority in lieu thereof, this Lease shall automatically terminate
as of the date of such taking with the same force and effect as if such day had been
fixed as the expiration date of the Lease Term. All rent, taxes, insurance premiums and
other charges shall be prorated and paid to the date of such termination. If more than
25 percent of the floor space of the Premises is so taken, but the remainder thereof is
not, Tenant or Landlord may elect to terminate this Lease with the same effect as a
total taking. Such election shall be exercised by written notice given to Landlord by
Tenant or Tenant by Landlord to terminate and shall be effective on a date 30 days after
r the date of receipt of such notice. If the election is not exercised by delivery of
the notice to either party within 60 days after the date of such taking, the right of
election to terminate shall wholly lapse and expire.
3 (b) If part of the Premises is taken for any public or quasi- public
use under any ldw, by right of eminent domain or right of condemnation, or by purchase
by public authority in lieu thereof, and if this Lease shall not be terminated, this
Lease shall remain unaffected except that within a reasonable time after such taking,
Landlord shall restore that part of the Premises not so taken to a complete architectura
unit which may be used for the purposes as set forth in Section 11. After such taking,
' the base rent shall not be reduced.
(c) There shall be no division between Landlord and Tenant of the
award for any taking, whether total or partial, and Landlord shall be entitled to receiv
the total award or compensation in such proceeding. Tenant's right to receive compensa-
tion or damages for its trade fixtures and personal property shall not be affected in
any manner by this Section.
(d) If less than a fee title to all or any portion of the Premises
shall be so taken for temporary use or occupancy, that is, for one year or less, the
foregoing provisions of this Section shall be inapplicable to such taking. This Lease
shall continue in full force and effect without reduction or abatement or rent and Tenan
shall be entitled to make claim for, recover and retain, so long as it shall not be in
default hereunder, any awards in the form of rent recoverable in .respect to such taking,
except that if such taking shall be for a period extending beyond the expiration or
earlier termination of this Lease Term, Landlord shall be entitled to receive such porti
of the award as shall be attributable to the portion of such period occurring after such
expiration or temination.
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14. INDEMNITY. Tenant shall indemnify, defend and save Landlord harmless from any
and all liabilities, damages, penalties, costs, expenses, claims, suits or actions due
to or arising out of (a) any breach, violation or nonperformance of any obligation of
Tenant hereunder; (b) any contest by Tenant authorized by this Lease; and, (c) any damage
to property or any injury to persons (including death resulting at any time thereform)
occurring in, on, upon or about the Premises.
15. ASSIGNMENT AND SUBLETTING. Tenant may not assign, sublet or transfer any part
or his entire right, title and interest under this Lease without first obtaining the
written approval of Landlord. Upon approval by Landlord, the assignee or transferee
shall in writing expressly assume all the obligations of Tenant hereunder; and Tenant
shall deliver to Landlord a duplicate executed original of the instrument(s) whereby such
assignment is made and in which such assumption is contained. Upon the making by Tenant
of any assignment of this Lease which complies with all the requirements of this Section,
the assignee shall become the "Tenant" hereunder as of the date of such assignment, but,
without obtaining the written release of Landlord, the assignor shall not be released
from any and all liability arising or accruing under this Lease whether before or after
the date of such assignment.
16. MORTGAGING. Tenant may not at any time encumber its interest in the leasehold
estate created hereby by mortgage, deed of trust or other security instrument without
first obtaining the written approval of Landlord.
17. ESTOPPEL CERTIFICATES. Landlord and Tenant agree at any time and from time to
time, so long as this Lease shall remain in effect, within 10 days after receipt of a
written request from the other party, to execute, acknowledge and deliver to the other
party a statement in writing certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full force and
effect as modified and stating the modifications); if such is the fact, and otherwise
specifying such defaults in detail; and the dates to which the rent and other charges
have been paid, it being intended that any such statement delivered pursuant to this
Section may be relied upon by the holder of any mortgage, deed of trust, or other instru-
ment of security covering the Premises or the leasehold estate created hereby or any
prospective purchaser of any such interest.
18. INSPECTION. Tenant shall permit Landlord or Landlord's agents to enter the
Premises at any reasonable time for the purposes of (a) inspecting the same; (b) perform-
ing obligations of Te�,nant hereunder which Tenant may neglect or refuse to perform; and,
(c) showing the Premises to persons wishing to purchase Landlord's interest therein.
The provisions contained in this Section shall not increase Landlord's obligations under
this Lease, and the right and authority hereby reserved does not impose upon Landlord
any responsibility for the repair, care or supervision of the Premises, which under any
provisions of this Lease Tenant is required to do, nor shall the performance of such
work constitute a waiver of Tenant't default in failing to do the same.
19. NO ABATEMENT. Except as otherwise specifically provided herein, there shall
be no abatement or reduction of any rent payable by Tenant for any reason, including,
but without limiting the generality of the foregoing: (a) by reason of any damage or
destruction of the Premises whether caused by fire, condemnation or other matters like
or unlike the foregoing, or during any period of restoration, or (b) by reason of diminu-
tion of the amount of usable space caused by legally required changes in the construction,
equipment, operation or use of the Premises.
20. QUIET ENJOYMENT. Landlord covenants that, if and so long as Tenant pays the
rent and other charges reserved by this Lease and performs all the obligations of Tenant
hereunder, Tenant shall quietly enjoy the Premises, subject, however to the terms of
this Lease.
21. DEFAULTS.
(a) The following shall constitute defaults under the terms of this
Lease (regardless of the pendency of any bankruptcy, bankruptcy reorganization, receiver-
ship, insolvency or other proceeding in law, in equity or before any administrative tri-
bunal which has or might have the effect of preventing Tenant from complying with the
terms of this Lease):
(i) the failure to make payment of any installment of rent (includ-
ing the tax, common costs and insurance payments herein required to be made with rent
payments) to Landlord within 5 days after the same may be due;
(ii) the failure to make payment when due of any other sum herein
specified to be paid by Tenant to Landlord or others, as the case may be, and such failure
to pay shall continue for a period of 30 days after written notice thereof has been given
by Landlord to Tenant;
(ii.i) the failure, within 30 days after written notice thereof has
been given by Landlord to Tenant to cure any default of Tenant in the observance or per-
formance of any of Tenant's covenants or obligations hereunder other than payments of
rent or any other sums due hereunder;
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r1
(iv) any of the persons who are or may be included within the
designation of "Tenant" under this Lease becomes involved in financial difficulties as
evidenced by:
(A) his or her admitting in writing his or her inability to
pay debts generally as they become due;
(B) his or her making an assignment of all or a substantial
part of his or her property for the benefit of his or her creditors;
(C) his or her seeking or consenting to or acquiescing in the
appointment of a receiver or trustee for all or a substantial part of
his or her property or of his or her interest in this Lease;
(D) the filing of a voluntary petition in bankruptcy or under
any insolvency law;
(E) the involuntary filing of such petition, which petition
shall not be set aside within 30 days after the filing thereof; or,
(F) the entry of a court order, with or without his or her
consent, appointing a receiver or trustee for all or a substantial part
of his or her property, which order shall not be vacated, set aside or
strayed within 30 days from the date of entry;
(v) a receiver, liquidator or trustee in bankruptcy shall be
appointed for all or substantially all of Tenant's business or assets because of Tenant's
insolvency; or,
(vi) if Tenant shall cause, staffer or permit any governmental agency
to attach, seize, "lockup" or otherwise exercise any direct control over the Premises, and
in such event, if Tenant shall fail to cause the dissolution of same within 10 days.
(b) The words "cure" or "cured" or "cause to be cured" as used In this
Lease are hereby defined as the correction of a default, or situation creating a default,
in the performance of the covenants under this Lease within the respective periods set
forth in this Lease during which such default may be cured, except that as to any default
under Section 21(a)(iii) which by its nature cannot be cured within the period of time
set forth in such section, the time for curing any such default shall be extended for
such period as may be required to cure such default by the exercise of reasonable
diligency and dispatch.
(c) In the event that Landlord shall contend that a default (other than
a default under Section 21(a)(i)) has occurred, Landlord shall give to Tenant a notice
setting forth such contention in sufficient detail to apprise the Tenant of the nature
and basis thereof.
(d) In the event of Tenant's default hereunder, Landlord shall have the
right at Landlord's option, at any time thereafter and while such default shall continue,
to: (i) terminate this lease and all of Tenant's rights hereunder by giving written notice
of election to terminate to Tenant, which notice shall specify the date of such termina-
tion; (ii) without resuming possession of the Premises or terminating this Lease, to sue
for and recover all rents and other sums, including damages, at any time and from time
to time accruing hereunder; (iii) without terminating this Lease, but subject to the
provisions hereinafter set forth in this Section 21(d), to enter and take-possession of
the Premises using such force as is necessary to dispossess Tenant thereof, to make
alterations to the Premises in such manner and to such extent as to Landlord may seem
desirable or advisable, and to relet or sublet the Premises or any part thereof for the
whole or any part of the remainder of the Lease Term in Landlord's name, or as agent of
Tenant, and to collect the rentals arising thereform, and out of any rents so -collected
or received Landlord shall (1) first pay to itself the expense and cost of repossessing
the Premises, (2) pay to itself any cost or expense sustained in securing any new tenant
or tenants, (3) pay to itself any amount remaining on account of the liability of Tenant
to Landlord for rent or other amounts due under this Lease, and (4) pay to Tenant any
balance remaining not applied as set forth above. if the rents so collected by Landlord
after the payments aforesaid are not enough to pay to Landlord a sum equal to the total
of amounts already due under this Lease at such time, the same shall immediately be due
from Tenant, and to the extent any installment of such rent is not enough to pay to
Landlord a sum equal to the total amount due under the Lease on a current basis, the
balance of the deficiency shall be paid by Tenant on the dates hereinabove set forth for
payment of rent. Tenant agrees to be and remain liable for any such deficiency and the
liability of Tenant shall remain, whether or not there is a reletting.
(e) Upon termination of this Lease by Landlord as set forth in Section
21(d)(i), all rights granted Tenant hereunder shall cease and terminate, and Tenant here-
by covenants to yield up and surrender the Premises, peaceably and quietly to Landlord,
in the manner set forth in Section 10. Upon such surrender, the Premises shall be and
belong to Landlord free and clear of any claim whatsoever of Tenant and Tenant further
agrees to execute and deliver to Landlord such instrument or instruments as shall be
reasonably requested by Landlord properly to evidence termination of Tenant's rights
hereunder and its interest in the Premises. In the event of termination of this Lease
as provided in Section 21(d)(i), Landlord shall have the right to repossess the Premises
either without process of law or through any form of suit or proceeding as well as the
right to sue for and recover all rents and all other sums accrued up to the time of
suA4_,tftination, including damages arising out of any breach on the part of the Tenant.
�M
M If Tenant shall default in making any payment required to be
made (other than Tenant's obligation to make payments of rent, including the tax,
common costs and insurance payments herein required to be made with rent payments) or
shall default in performing any other obligation hereunder, and such failure shall
continue after lapse of applicable notice periods, or if Landlord, on behalf of Tenant,
expends such sum as may be necessary to perform such obligation. All sums so paid or
expended by Landlord, with interest thereon at the rate of 12 percent per year from the
date of such payment or expenditure shall be payable by Tenant immediately upon demand
of Landlord. No payment or expenditure under the provisions of this Section shall be
deemed to be a waiver of the underlying default nor shall it affect any other remedy of
Landlord. _
22. NO IMPLIED SURRENDER OR WAIVER. The receipt of rent by Landlord, with knowledge
of any default, shall not be deemed to be a waiver of any provision of this Lease. No
failure of Landlord to enforce the provisions of this Lease upon any default by Tenant
shall be construed as creating a custom of deferring payment or as modifying in any way
the terms of this Lease or as a waiver of Landlord's right to terminate this Lease as
herein provided, or otherwise to enforce the provisions hereof for any subsequent default.
The receipt by Landlord of rent from any assignee, under - tenant or occupant of the Premises
shall not be deemed a waiver of the covenants contained herein against assignment and
subletting or an acceptance of the assignee, under- tenant or occupant as Tenant, or a
release of Tenant from the further observance or performance by Tenant of the covenants
contained herein on the part of Tenant to be observed and performed. No provision of this
Lease shall be deemed to have been waived by either party unless such waiver be in writing
and signed. No act or thing done by Landlord or Landlord's agents during the Lease Term
shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept
such surrender shall be valid unless in writing signed by Landlord. No employee of
Landlord or of Landlord's agents shall have any power to accept the keys to the Premises
prior to the termination of this Lease. The delivery of keys to any employee of Landlord,
or of Landlord's agents, shall not operate as a termination of this Lease or a surrender
of the Premises. No payment by Tenant, or receipt by Landlord, of a lesser amount than
the monthly base rent herein stipulated, shall be deemed to be other than on account of
the earliest stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check, or payment as rent, be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's right to
recover the balance of such rent or pursue any other remedy available to Landlord. Time
is of the essence hereof.
23. FORCE MAJEURE. In any case where either party is required to perform any con-
struction work hereunder, delays caused by war, strike, riot, acts of God, shortages of
material or labor, governmental regulation, weather delay, or other cause beyond such
party's reasonable control shall not be counted in determining the time during which such
work shall be completed. In any case where work shall be paid for out of insurance
proceeds or condemnation awards, due allowance shall be made, both to the party required
to perform such work and to the party required to make such payment, for delays in the
collection of such proceeds and awards.
24. NOTICES. All notices, demands and communications to the parties hereunder may
be delivered personally or, alternatively, may be served or given by certified mail,
return receipt requested, postage prepaid, and if intended for Landlord shall be addressed
to Landlord at P.O. Box S , Avon, Colorado 81620, or such other address as may be estab-
lished by Landlord in writing, and if intended for Tenant shall be addressed to Tenant
at the address set forth in Exhibit B. or such other address as may be established by
Tenant in writing. Any notice given shall be deemed effective when actually received or,
if mailed, three working days after deposit in any postal facility or post office box
reqularly maintained by the United States Postal 5e1'ViCe.
25. LANDLORD. The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and include
only the owner or owners at the time in question of the Premises. In the event of any
transfer or transfers of the title to the Premises, Landlord herein named (and in case of
any subsequent transfers or conveyances, the then grantor) shall automatically be freed
and relieved from and after the date of such transfer or conveyance of all personal
liability for the performance of any covenants or obligations on the part of Landlord con-
tained in this Lease thereafter to be performed. Any funds in which Tenant has an
interest in the hands of Landlord or the then grantor at the time of any such transfer
shall be turned over to the grantee, and any amount then due and payable to
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r=te
Tenant by Landlord or the then grantor under any provisions of this Lease shall be
paid to Tenant. Upon any transfer of title to the Premises, Landlord shall notify
Tenant as required in Section 24 herein and shall obtain a signed receipt from the
grantee acknowledging receipt of any funds in which the Tenant has an interest and a
copy of such receipt shall be delivered to Tenant.
26. SUCCESSORS AND ASSIGNS: JOINT AND SEVERAL LIABILITY. All terms, conditions
and covenants to be observed and performed by the parties hereto shall be applicable
to and binding upon their respective heirs, personal representatives, successors and
assigns, subject to the provisions of Section 15 herein. If more than one. entity or
person are Tenant under this Lease, the obligation,; imposed upon Tenant under this
Lease shall be joint and several.
27. CONSENT. Unless otherwise provided herein, whenever Landlord's consent or
approval is required under the terms of this Lease, such consent or approval shall not
unreasonably be withheld or delayed. In those instances in which Landlord's consent
or approval may not unreasonably be withhheld, Landlord shall, upon Tenant's request,
provide Tenant with the reasons for any such withholding of Landlord's consent or
approval.
28. ATTORNEY'S FEES. In the event of any litigation (but not including arbitra-
tion proceedings) between the parties hereto concerning this Lease and the enforcement
hereof, the prevailing party in such action shall be entitled to receive from the de-
faulting party all reasonable costs and expenses, including reasonable attorney's fees,
incurred by the prevailing party in such action.
29. SEVERABILITY. If any provisions, sentence, phrase, or word of this Lease,
or the application thereof to any person or circumstance shall be held invalid, the
remainder of this Lease or the application of such provisions, sentence, phrase, or word
to persons or circumstances other than those as to which it is held invalid, shall not
be affected thereby.
30. ENTIRE AGREEMENT. This Lease and the Exhibits attached hereto contain the
entire agreement between the parties and shall not be modified in any manner except
by an instrument in writing executed by the Parties.
31. SECTION HEADINGS. The section headings are inserted only as a matter of con-
venience and they shall in no way define, limit or prescribe the scope or intent of this
Lease or in any way affect the interpretation hereof.
32. RELATIONSHIP OF PARTIES. This Lease shall not create a joint venture or part-
nership between the parties hereto and any such relationship is hereby expressly dis-
claimed.
33. CONSTRUCTION OF TERMS. When necessary for proper construction, the masculine
of any word used in this Lease shall include the feminine and neuter gender, and the
singular the plural, and vice versa.
34. COLORADO LAW. This Lease shall in all respects be governed by and construed
under the laws of Colorado.
ON COSTS. Landlord may, on behalf of Tenant her
ortions of the Land, from t me c ovid n services and facilities, includ-
ing but not limited to: parking, lan injg t~; nfi services, snow removal, exterior
maintenance and clean -up, si n security services and _53 similar or dissimilar
�^I services and facilitie, Landlord providesthe same, 'Tenant shad thly, together
/(III/ with rental pa s, pay such portion of the costs incurred for such serv1 nd facili-
/ ties as attributable to the Premises apportioned on a square foot basis among
i ved portions of the Land benefited thereby.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the day
and year first above written.
LANDLORD: TI ?NANT :
Doyle & Associates, a Colorado
BY: Town of Avon
10 -
Mayo
EXIIIBIT A
DOYLE & ASSOCIATES
LEASING FLOOR PLAN
WAREIiOUSE UPIITS
Lot 37, Block 1, as per the Official Plat - Town of Avon, Eagle County,
Colorado, and Final Subdivision Plat - Amendment Number 4, Benchmark at
Beaver Creek, Eagle County, Colorado, recorded on September 5, 1978, in
Book 274 at page 701.
T
1
EXll[61'r B
(Attached to and made part of Lease Agreement dated as of September 28 1982,
between Doyle $ Associates, a Colorado general partnership, and
T014N OF AVON
BASE RENT:
Annual Rate . . . . . . . . . . . . . . . . . . . . . . . 12,198.24
Monthly Installment . . . . . . . . . . . . . . . . . . .$ 1,016.52
USE OF PREMISES:
* Base Rent -
Pro Rata Share
Pro Rata Share
Pro Rata Share
Pro Rata Share
Storage and maintenance of vehicles, equipment, and
supplies.
$941.17
of Property Taxes- ' 40.61
of Insurance - 27.63
of Sewer Charges - 1.78
of Water Charges -----5.33
$1,016.52
ADDRESS OF TENANT: Town of Avon
Box 975
Avon, CO 81620
TNITTALS
AMENDMENT
TO LEASE OF WAREHOUS 1E6
140 METCALF ROAD
AVON, COLORADO
This is an amendment to the lease dated October 1, 1983 between
The Town of Avon, Tenant; and Doyle & Associates, Landlord.
Metcalf U -Stor It is the successor to. Doyle & Associates.
The parties hereby agree that Section I "Term" of the lease for
warehouse #6 is amended to read as follows:
" 1. Term. Subject to the terms and conditions hereof, Tenant
shall have and hold the premises for a period (the "Lease Term ")
commencing on the lst day of October 1983 and ending at 12:00
P.M. midnight September 30,.1996. The words "Lease Term" shall
include any renewal or extension-of such initial period defined
above."
All other terms and conditions of the above referenced lease
shall remain in full force and effect.
Executed this e day of May 1991.
TENANT:
The Town of Avon
by
Manager, own. of Avon
LANDLORD:
Metcalf Stor t
by
Property Manager
AM 2M4H: T to Lease dated October 1, 1983, and as further anended the lst day of
June, 1987 for Unit 6 of Doyle & Associates Warehouses, Avon, Colorado, wherein
Doyle & Associates, a Colorado general partnership, is Landlord and the Town of
Avon is Tenant. n
The parties agree hereby that Section 1 "TERM" of the above described lease is
amended to read as follows:
"l. "TERM ". Subject to the terms and conditions hereof, Tenant shall have and
hold the premises for a period (the "Lease Term ") commncing on lst day of
June, 1987 and ending at 12:00 P.M. midnight May 31, 1991. The words "Lease
Term" shall include any renewal or extension of such initial period defined
above."
All other terms and conditions of the above referenced lease shall remain in
full force and effe t.
Executed this day of October, 1989.
TENANT:
Torn of Avon
BY:�I
rariaQer of Avon
LANDLORD:
Doyle & Associates, a Colorado general
partnership, By its Management Comunittee
By: J
A. J. 6 We is
By:
William T. Dov:
ter:
AME NIME NT
Amendment to Lease dated October 1, 1983 for Unit 6 of Doyle & Associates
Warehouses, Avon, Colorado, wherein Doyle & Asaoc.iates, a Colorado general
partnership, is Landlord and the Town of Avon is Tenant.
The parties agree hereby that Section 1 "TERM" of the above — described lease is
amended to read as follows:
"1. "TEtcM ". Subject to the terms and conditions hereof, Tenant shall have and hold
the premises for a period (the "Lease Term ") commencing on the date of this
Amendment and ending at 12:00 P.M. midnight May 31 , 19 90. (A "Lease
Term" of 3 years). The words "Lease Term" shall include any renewal or extension
of such initial period defined above."
All other terms and conditions of the above referenced lease shall remain in full
force & effect.
Executed this 1st day of June , 1987.
TENANT:
Town of Avon
By:
r
Manager, Town Avon
LANDLO RD:
Doyle & Associates, a Colorado general
o partnership, By its Management Committee
B
B
r � y
THIS INDENTURE OF
by and between DOYLE F,
TOWN OF AVON
I,IiASIi AGItI:I:MI:N'I'
LEASE, is dated as of the 1st
ASSOCIA'T'ES, :i Colorado nencri l
RECITALS
clay of October 19 83
partnership ( "Landlord ") and
( "Tenant ").
1. Landlord owns the real estate (tile "Land ") described in Exhibit A
attached hereto and made a part hereof, and the buildings thereon.
2. Landlord and Tenant c.lesire to enter into a lease of a certain part of a
building located on the Lind (the "Premises ") ns depicted in lixhibi.t A attached
hereto and made a part hereoF, on the terms and conditions coil ta:i_ncd herein.
LI --- ASE
In consideration of the recitals and the Mutual covenants and obligations
hereinafter set forth, Landlord hcrchy leases to Tenant and Tenant hereby rents from
Landlord the Premises upon the terms and conditions hereinafter set forth.
1. 'TERM. Subject to the terms and conditions hereof, Tenant shall have and
hold the Premises for a period (the "Lease Term ") commencing on the date of this
Lease and ending at 12:00 p.m. midnight on ,� _ , 1.9 The words
"Lease Term" shall include any renewal or extension of such initial period defined above.
2. RENT. (a) The base rent shall be at the annual rate as set forth in
Exhibit 13 attached hereto and made :i part hereof, pay :ihle :in advance in equal monthly
installments as set forth in Exhibit B on the first day of each and every calendar
month during the Lease Term; provided, however, if the date her.cof or the date of
termination of the Lease Term as provided in Section 1 shall not be the first day of
a calendar month, the base rent shall be appropriately prorated, utilizing a daily
rent in the amount of one-thirtieth of- the monthly hasc rent amount. The base
rent and other sums payable to Landlord shah. be paid to Landlord at Landlord's
address set forth below or to such agent or person or persons or at Such other
address as Landlord from time to time may desi.gnatc in writing. The base rent
shall be absolutely net to 1andlord so that this l.casc Shall yi.cld to Landlord
the full. amount of the installments of base rent tha'oughout the Lease 'Perm.
(b) In addition, 'Tenant agrees that the base rental shall, every
12 months during the term hereof, or any extension of the term hereof, be adjusted
for the next succeeding 12 -month period in the same proport i.on by which the Consumer.
Price Index (1967 = 100) (the "Tndex ") published by the Bureau of Labor Statistics
of the United States Department of Labor, and specifically that portion of the
Index relating to Denver, Colorado, published by the University of Denver from
data furnished by the Bureau of Labor Statistics, :increases or decreases during
the preceding 12 -month period, on the closest date of the publication thereof
prior to the adjustment, from the Index on the closest date of the publication
thereof prior to the commencement date hereof. Such adjusted base rental shall be
the base rental for the next succeed:i.ng 12 -month period. The first adjustment to
base rental shall occur on the first clay of the month of the date hereof in the
next year. However, notwithstanding the above, in no event shall the base rent
for any part of this Lease or any extension or renewal thereof be less than the
base rent set :forth on 1.xh:ib i t B. If publication o F the Index or the portion thereof
relating to Denver, Color.:rdo, shall be d.i.scontinucd, the parties hereto shall
thereafter accept conlpa.rable statistics on the cost of.li.ving for the United States,
as they shall be computed and published by an agency of the United States, or by
a responsible financial periodical or recognized authority then to be selected by
Landlord. In the event of use of comp:irnbl.e statistics in place of the Index,
or publication of the Index figures at other than monthly intervals, there shall
be made, ill the method of computation Irer-e.in prov:i.ded :For., such revisions as the
circumstances may require to carry out the intent- or these prov is:i.ons .
(c) Tenant shall also pay on or before the commencement of the
Lease 'Perm a sum equal to one monthly installment of lase rent payable on the first
day of the last month period of the ],case 'Perm. This sum shall beheld by Landlord
until such last month period as security for the full performance by Tenant of
each and every provision and term of this L,casc. In the event that before such
period Tenant shall de Fault in respect of nny provision or term of this Lease,
including but not limited to thc'pa.yment of hrisc rent and additional. rent, Landlord
may 'use, apply, or retain the whole or any part old such sum for the payment of any
base rent and additional. ]rent in default, or for any other Sum which Landlord
may be required to expend by reasons of 't'enant's default, or for any damages or
deficiencies or costs in the reletting of the Premises.
itials *It is hereby agreed that the term of this Lease will run from month -to- month, it being
the intention that said Lease shall most likely continue until such time as the Town of
Avon has its own garage, storage and /or warehouse facilities. Furthermore, it is agreed
that tenant shall have the right to occupy said premises sometime after September,], 1983,
f but that rental payments shall not commence until October 1, 1983. Also, it is hereby
agreed that the deposit of $790.00 paid by the Town on the previously occupied Unit #2
is transferred to Unit #6 as a deposit pursuant to this Lease and that the Lease Agreement
on Unit #2 is hereby terminated.
a
(d) 'Tenant shN I I also pay , Tlym time to time as prov i clot] in this
Lease as additional :rent:: (i) all other amounts, l0bi_l it.ies and obligations
which Tenant herein assumes or agrees to pay: (iil interest at the rate of 12
percent per year on such of the foregoing Nmounts , l i rrh i l it i es and obligations as
are payable to Landlord (including rent) and are not paid when clue, from the clue
date until payment: thereof.
3. NO COUNTERCLAIM, ABA'I'IiMIyr, HTC. The base rent, additional rent and all
other sums payable by 'Tenant hereunder shall he paid without notice, demand,
counterclaim, setoff, deduction or defense and without abatement, suspension,
deferment, diminution or reduction.
4. TAXES, ASSESSMENTS AND O'l'I11 R CHARGES, (a) 'Tenant shall pay (i) to
Landlord, monthly, with base rent, one- twelfth of the general real estate taxes or
special assessments shown by the latest available statement therefor ;and, unless
separately assessed, prorated on a square foot basis between the Premises and
other improved property covered by such statement; provided, however, that if
special assessments may be paid in installments over more than one year, Tenant
shall not be required to pay on such account more than one - twelfth of the annual
installment thereof in any month; (ii.) ad valorem personal property taxes and all
other taxes, duties, charges, fees and payments required to be made to any
governmental or public authority, which shall be imposed, assessed or levied
upon, or arise in connection with the ownership, rise, or presence of Tenant's
trade fixtures, merchandise inventory or other personal property located from
time to time in, on, upon or around the Premises all of which are herein called
"Governmental Impositions ". Within 30 days after Landlord's request, Tenant shall
deliver to Landlord receipts Or other" satisfactory evidence showing the payment
of any Governmental Imposition by Tenant, except those provided in (i.) hereof,
unless payment is contested pursuant to Section 4(h).
(b) Tenant: may contest any Governmental Imposition by appropriate
proceedings conducted promptly at 't'enant's expense, in 'Tenant's name, or (whenever
necessary) in Landlord's name. Landlord agrees to cooperate fully with 'Tenant and
to execute any documents or pleadings reasonably required for such purpose, but
Landlord shall not be obligated to incur any expense or liability in connection
therewith. Tenant may defer payment of the contested Governmental Imposition (except
those provided in part (.i) of subsection (:r) hereof) pending such contest, if such
deferment shall not subject Landlord's interest in the Promises to forfeiture.
Tenant shall pay such contested items within 10 days after written notice from
Landlord stating that, in the reasonable judgment of Landlord, the protection of
the 'Premises or of Landlord's interest therein requires such payment. In lieu of
such payment, Tenant may, at its election, provide Landlord such protection by
furnishing a bond in a :form, in an amount, and with surety reasonably satisfactory
to Landlord. All refunds of taxes and assessments shall be the property of Tenant
to the extent they may represent or be attributed to payments made by 'tenant, any
balance being Landlord's property.
(c) Nothing herein shall require Tenant to pay any estate, gift,
inheritance or transfer tax :assessed against Landlord or any income, excess profits
or revenue tax or any other tax, assessment, charge or levy capon the :rent payable
by Tenant render this Lease; provided, however, that Tenrnrt shall bray any tax on
.rents specifically imposed in lieu of any taxes which would he payable by Tenant
pursuant to the provisions of Section 4(a).
S. CHARGES Or Ul'ILITIES AND TRASH REMOVAL. (a) 'Tenant shall contract in its
own name and promptly pay all charges for gas, electricity, telephone, sewer., water,
and other services (except sewer and water trip fees) furnished to the Premises or
the occupants thereof, except those accruing ;after• termination of the Lease 'Perm.
(b) At Landlord's election made from time to time, Tenant shall
(i) contract in its own name and promptly pay all charges for the removal of trash
and paste material from the Premises or (i.i) if Landlord contracts in its own name
for the removal of trash and waste from central locations for all of its tenants
renting building space on the Land, "Tenant shall reimburse Landlord as additional
rent a pro .rata share of the expense of such trash and waste removal, with said
pro .rata share being determined by Landlord and payable within 10 clays after receipt
by Tenant from Landlord of a bill therefor.
(c) Landlord shall not be liable in damages or otherwise for any
failure or interruption of any utility or service furnished to the Premises or
used'by Tenant, and no such failure or interruption shall entitle 'Tenant to
withhold any rent or to terminate this Lease.
16. INSURANCE. (a) During the Lease 'Perm, 'Tenant shall at its own cost
and expense: (i.) keep all trade fixtures, merchandise inventory and other
personal property used in 't'enant's trade or business insured against loss by
fire and so- called extended coverage perils (including vandalism and malicious
mischief) for their :full insurable value. 'Tenant will, at landlord's request,
which shall not be made more frequently than on an annual basis, obtain appraisals
2 -
of such trade fixtures and personalty upon the Premises by a reliable insurance
appraiser, at Tenant's own expense, and in the event an appraisal shows the value
to be different from the value theretofore being used For insurance coverage
purposes under the provisions or this Section 6, 'Tenant shall increase, or it
may decrease:, the . insurance: coverage so as to ruriect such changed value.
J i) keep in force, for the protection of Landlord and Tenant,
general public liability and property damage insurance against claims for bodily
injury or death or property damage occurring; in, on or upon the Premises, in the
single limit amount of not less than ,`300,000.00 For bodily injury or death to
any number of persons arising out of one accident or disaster, and in limits of not
less than .`,5100,000.00 for damage to property; and
(iii) keep in force, for the protection of Landlord and
Tenant, Workmen's Compensation Insurance Coverage as required by the statutes
of the State of Colorado or any applicable Fide ra I or m i n i c i pa l laws or regulations
in effect at any time during the Lease `term.
(b) 1111 insurance required to be carried by Tenant under this
Section 6 shall be carried in favor of Landlord and Tenant, as their respective
interests may appear. Upon demand, 'Tenant shall deliver to Landlord certificates
evidencing all insurance required to be carried under this Section 6, together with
evidence of the payment of premiums on such insurance. Landlord shall have the
right to inspect and copy all insurance policies required to be maintained by
Tenant under this Section 6. 'Tenant shall not violate or permit to be violated
any of the conditions or provisions of any of such policies, and Tenant shall perform
and satisfy the requirements of the companies writing such policies so that
companies of good standing reasonably acceptable to landlord shall at all times
be willing to write and continue such insurance.
(c) Landlord shall at all times during the Lease "Perm maintain
in effect a policy Or policies of :insurance covering the building of which the
Premises is a part (the "Building"), including 'T'enant's leasehold improvements
therein, but not Tenant's trade fixtures, merchandise inventory, or other items
used in 'Tenant's trade or business, in an amount at least equal to eighty percent
(80=x) of full replacement cost (exclusive or cost OF excavations, Foundations
and footings) from time to time during the term of this Lease, providing protection
against fire and extended coverage perils, together with insurance against vandalism
and malicious mischief. Landlord's obligation to carry the insurance provided
for herein may be brought within the coverage Of a so- called blanket policy or
policies of insurance carried and maintained by Landlord, provided that the
coverage afforded will not be reduced or diminished by reason of the use of such
blanket policy of insurance. Tenant shall not at any time, during the term of
this Lease, carry any stock of goods other than normal merchandise or do anything
in or about the Premises which will in any way tend to increase the insurance
rates upon the Building. Tenant shall pay to the Landlord, upon demand, the
amount of any increase in premiums for :insurance carried pursuant to this paragraph (c)
that may be charged during the term of this Lease resulting from the foregoing or
from Tenant doing any act in or about the Premises which does so increase the
insurance rates, whether or not the Landlord shall have consented to such act.
(d) Landlord and Tenant shall cooperate with each other in collection
of insurance monies that may become due by reason of loss, or damage or destruction
to the Premises and shall execute and deliver such prooFs of loss and other
instruments as may be required to recover insurance proceeds.
(e) Tenant shall pay to Landlord monthly with base rent, one -
twelfth of the insurance premiums attributable (on a square foot basis) to the
Premises according to the last premium notice received by Landlord.
7. CONDITION OF PR01'Ewry.
(a) Tenant accepts the Premises in its present condition and
will not call on Landlord for any repairs, =improvements or alterations thereto.
(b) Unless Tenant shall first obtain Landlord's written approval,
Tenant may not: (i) replace, add to or alter the Premises, (ii) leave the
Premises vacant, temporarily or permanently, (iii) construct new Improvements, or
(iv) reconstruct, re -alter and replace any Improvement. This Section shall not
affect Tenant's obligations to repair and maintain the Premises as set forth in
Section S hereof.
(c) All alterations, additions and Llllpr'OVCIIICrrtS placed upon the
Premises by Tenant or any subtenant or other occupant (including, but not limited
to, doors, partitions, the and wood floorings, lighting fixtures and the like)
as well as any fixtures at any time attached to the Building and used in connection
with;the operation and maintenance thereof shall, upon installation, become part
of the Improvements and shall be deemed a part of the Building and property of
the Landlord.
- 3 -
5. REPAIRS.
(a) 'I -errant shall at all tames, at its own cost and expense, repair
and maintain in good and tenantable condition the I'rcinises and every part thereof,
excluding the roof, exterior walls, structural parts of the Premises and floor,
and including without limitation the utility meters, pipes and conduits, alt
:fixtures, air cond:i t.i.on i ng and he :l l i ng egrr i pment sc:ry i ng the Premises, and other. -
equipment therein, all 'T'enant's signs, locks and closing devices, and all window
sash, casements or frames, doors and door frames, and all such items of repair,
maintenance and improvement or reconstruction as may at any time or from time to time
be required by a governmental agency having jur•:isdicti.on thereof. All glass,
both exterior and interior, is at the sole risk of 'Tenant, and any glass broken
shall be promptly replaced by 'Tenant with glass ol* the same kind, size and quality.
(b) Subject to the foregoing p►•ovisiorrs hereof, Landlord shall
keep and maintain in good and tenantable condition and repair, the roof, exterior
walls, structural parts of the Premises and floor, pipes and conduits outside
the Premises for the furnishing to the Premises of various utilities (except to
the extent that the same are the obligation of the appropriate public utility
company); provided, however, that Landlord shall not be required to make repairs
necessitated in whole or in part by reason of the act, omission or negligence
of the Tenant, his agents, employees, servants or invitees, or anyone claiming
under the Tenant, or by reason of the failure of the Tenant to perform or observe
any conditions or agreements of this Lease, or caused by alterations, additions, or
improvements made by the Tenant or anyone claiming under the Tenant. Notwithstanding
anything contained herein to the contrary, Landlord shall not in any way be liable
to the Tenant for failure to make repairs as herein specifically required of
it unless the Tencrrrt has previously notified the Landlord, in writing, of the
need for such repairs and the Landlord has failed to commence and complete such
repairs within a reasonable period of time Col lowing receipt of the 'T'enant's
written notification. 'There shall be no abatement of rent and no liability of
Landlord by reason of any injury to or- inter - Terence with 'Tenant's business arising
from the making of any repairs, al.terati.ons or impi,ovemonts required herein.
Tenant waives the right to make repairs at Landlord's expense under any law,
statute or ordinance now or hereafter in effect.
(c) If Tenant refuses or neglects to make repairs and maintain
the Premises, or any part thereof, :in a m,'inner rousonahly satisfactory to Landlord,
Landlord shall have the right, upon giving 'Tenant roasonable written notice of
its election to do so, to make such repairs or por•Torur Stich maintenance on behalf:
of and for the account of Tenant. 171 such event such work shall be paid for by
Tenant promptly upon receipt of a bill therefor.
(d) As rrsed :in this Section the. expression "exterior wa].ls"
shall not be deemed to include plate glass, window cases or window frames,
door or door frames. It is understood and agreed that the landlord shall be under
no obligation to make any repairs, alterations, renewals, replacements or improvements
to and upon the premises on the mechanical equipment exclusively serving the
Premises a.t any time except as ill this Lease expressly provided.
(e) Landlord or its authorized agents, including contractors,
may enter the Premises at reasonable times as may be necessary or convenient to
inspect, effect repairs or perform maintenance or remodeling of adjacent premises.
"Adjacent premises ', for the purpose of this paragraph, is defined to be any other
part of the Building which has any common wall with the Premises. Any such entry
shall be so as to cause no unreasonable inconvenience to Tenant and i.andlor.d
shall cause any damage to the Premises as a result of such :repairs, maintenance
or remodeling to be repaired without cost to Teacart.
9. MECHANICS' L ll."NS.
(;:r) Landlord shall not. under any c i rcuurstcurces be liable for
the payment of any expense :incur•r-ed or Tor• the value off' any work clone or material
furnished to the Premises by 'Tenant. All such work shall be at 'Tenant's expense
and Tenant shall he solely and wholly responsible to all contractors, laborers,
and materialmen furnishing labor and material to the Premises. Nothing herein
shall authorize Tenant to charge the Premises or any i.ntcrests of Landlord therein
or this Lease with any mechanic's, materialman's or other statutory liens and,
on the contrary, the right and power- to charge ;ray 1 ion or oncurnbrance of any
kind against Landlord or the Premises is hereby expressly denied. 'Tenant shall
notify Landlord in writing at ]cast 10 days prior to commencing .ray Work which
might give rise to such lien,so that Landlord may take advantage of any statute
protecting Landlord's interest against Such liens. Nothing tre.rei.n shall authorize
Tenant to construct or alter the Premises Without Landlord's prior written consent.
(b) I:f because of any act or omission of 'tenant, any mechanic's,
materialman's or other lien o:r order for the payment of money shall be filed
against Landlord (Whether such l.:i.en or order is invalid or enforceahle), Tenant
shall, at own cost and expense, cause the same to he cancelled and discharged
- d -
of record and further shall inde.nuli.Cy and save harmless Landlord from and against
any and all costs, expenses, claims or damages, including rcrisonable attorney's
expenses, resulting therei'rom. 1 f 'Tenant shell 1 Iles i re to contest any claim of
lien, Tenant shall fcrrnish LancllOrd the hond provided for in Section 38 -22 -1.31
of Colorado Revised Statutes (1973) Or such other security acceptable to Landlord
of the value or in the remount of tile claim, plus estimated costs and :interest.
If a final judgment establishing the validity or existence of a lien for any amount
is entered, Tenant shall pay and satisfy the same at once. If Tenant shall be in
default in Paying ;any charge for w1l.ich a nu:chnni.c's lien or suit to foreclose such
lien has been recorded or failed, and shall not have given Lnncllord security as
aforesaid, Landlord may ( without being recl!!ired sO to (1o) hay such :lien or claim
and any costs, and the amount so P,"id, togcthcl' with rcasonnhlc attorney's fees
incurred in connection thercl%rith, shrill be :immediately clue and owing from Tenant
to Landlord with interest at the ;rrulur!1 rate of 12 Percent from the date of
Landlord's payments.
10. SURRENDER. Upon file expiration Of' term:iMition OF this Lease for any
reason whatsoever, or upon the re-entry by L;uldlord pursu ;ant to Section 21 hereof,
Tenant shall peaceably and quietly leave, surrender and deliver up to Landlord
the Premises, except for property removable by 'Tenant pursuant to this Section 10,
in good order, condition and repair, except for reasonable wear and tear and loss
by any taking by condcnnlnt:i.on or excrc :isc Of the right of eminent domain. By
the date of the expiration of the L,oase 'Term, 'Tenant sha l remove or cause to
be removed from the: Premises all personal property and trade fixtures not belonging
to Landlord, except such property as is necessary to the general use and operation
of the Premises. Tenant shall repair any damage to the Premises caused by such
removal. If this Lease is terminated, by virtue of ;!n event other than expiration
of the Lease Term, or if L ;nldlorcl cxerc:iscs its right of ire -entry pursuant to
Section 21 hereof, Tenant shall remOve such property within 10 clays after such
occurrence. All such property not so removed sh;!II conclusively be deemed to have
been abandoned and may be nPPrOPri,1t0d, sold, stOrrd, destroyed and otherwise
disposed of by Landlord Without notice tO 'Tenant, or any other' person and without
obligation to account therefor.
11. USE, COMPLIANCE WITH LAIV.
(a) "Tenant agrees that tile. P1'CmiSOS shall. he used and occupied
only for the purposes set forth in Exhibit B- 'Tenant sliall not use or occupy
the Premises for any other purpose without Landlord's prior written approval.
(b) Tenant shnl I , at. Tonnnt's own cost and expense, promptly
comply with all present and future 1,1W5, rules, requi.re!!!cnts, orders, directions,
ordinances and regulations of the United Stntos Of America of the state,
county and municipal governments, and of all other, governmental or lawful authority
whatsoever, affecting the Premises or a.ny part thereof, and of all their departments,
bureaus, or officials (all of the foregoing being hereinafter called "Requirements
of Law ") , whether such rcqu_i.:reu!cnts 111;1y rcl ito to: ( i ) alterations (other than
to the roof, exterior wal s and structural parts of the Premises and floor) changes
and additions to the Premises; or (iJ) repairs to the Premises; or (iii) the manner
in which the Premises may be used or accuPi.ed, or (iv) any other_ matter affecting
the Premises, whether like or unlike the foregoing.
(c) Tenant shall promptly, after the discovery of any violation
of a Requirement of Law which might subject Landlord to liability or forfeiture
of any interest, take ill necessary steps, leg.11 and equitable, to compel the
discontinuance thereof. 'Tenant shall indemnify and save harmless Landlord from
and against any and all l iabi l i to cs rlrld Penal tares "i nurred lly reason Of any
violation of this Section 11 and shall pay all costs ;nd expenses, including
reasonable attorney's fees, that may in any manner arise out OF the :failure of
Tenant to comply with the prov.is:i.ons of this Section 11.
(d) Tenant may contest in good faith by appropriate proceedings
conducted promptly at its own expense, in its name, or (whenever necessary) in
Landlord's name, the validity or enforcement: of any 1'equi.rcn!ont of Law and may defer
compliance therewith provided that (i) such noncompl iancc s11a11 not constitute a crime
or misdemeanor on the part of the Landlord; (ii) Tenant shall diligently prosecute such
contest to final determination by the court, department or governmental authority or
body having final jurisdiction; and, (iii) if so requested, Tenant shall furnish to
Landlord a surety bond issued by a bonding company reasonably acceptable to Landlord
in an amount equal to the cost of such compliance as reasonably estimated by Landlord,
indemnifying Landlord against the cost thereof and all liability in connection there-
with. Landlord agrees to cooperate reasonably with 'Tenant, and to execute within 10
clays after receipt all documents and plcadi.ngs required for the prrPose of such contest,
provided Tenant shall d:ischaa -go rrny expense or 1 i;th i 1 i ty of Landlord in connection
therewith.
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12. DAMAGE OR DESTRUCTION.
(a) In the event the Bui-lding is damaged by fire or other perils
covered by Landlord's fire and extended coverage insurance, the Landlord shall, provided
Tenant is not in default, within a reasonable period after notice of damage, commence
repair, reconstruction and restoration of the Building and prosecute the same diligently
to completion, in which event this [.case shall continue in -full force and effect.
(b) In the event the Building shall be damaged as a result of any other
casualty not covered by Landlord's fire and extended coverage insurance, to any extent
whatsoever, the Landlord may within 90 (lays fO11Owing the date of such damage, commence
repair, reconstruction restoration of the Building and prosecute the same diligently
to completion, in which event this 1,00SC sh;rll continue in full. force and effect, or with-
in said 90 -clay period elect not to so repair, reconstruct or restore said Building in
which event this Lease shall cease and terminate.
(c) In the event of any rep; r, reconstruction or restoration of the
Building by Landlord in accordance with the provisions of this Section 12, such repair,
reconstruction or restoration by Landlord shall be substantially to the condition that
existed immediately prior to the damage or destruction, including Tenant's' leasehold
improvements, but excluding Tenant's trade :fixtures and personal property located in the
Building.
(d) In the event of repair, reconstruction and restoration as herein
provided, if the same or the condition requiring the same renders 25% or more of the
floor area of the Premi.sCS unusable for Tenant's prior use thereof, the base rent shall
be abated proportionately with the degree in which the `t'enant's use of the Premises is
impaired commencing from the date of destruction and continuing during the period of
such repair, reconstruction or restoration. If less than such area is unusable, there
shall be no abatement. The Tenant shall not he entitled to any compensation or damages
from Landlord for loss in the use of the whole or ;lily part of the Premises, Tenant's
trade fixtures and personal. property Or any inconvenience or annoyance occasioned by
such damage, repair, reconstruction or restoration.
(e) Except as specifically provided hcrcinabove, this Lease shall not
terminate or be affected in any manner by reason of the destruction or damage in whole
or in part of the Premises, or by reason of the untenantability of the Premises from any
cause or hazard whatsoever, and the rent reserved in this Lease as well as all other
charges payable hereunder shall be paid by Tenant in accordance with the terms, covenants
and conditions of this Lease, w_LtIIOUt abatement, dim_rnuition or reduction.
13. CONDEMNATION.
(a) If the entive Premises shall. he taken for any public or quasi -
public use, under any law, by r:i.ght of eminent domain or right of condemnation, or by
purchase by public authority in lJCU thoroof, this Lease shall automatically terminate
as of the date of such taking with the same Force and effect as if such day had been
fixed as the expiration date of the Lease Term. A1.1 rent, taxes, insurance premiums and
other charges shall be prorated and paid to the date of such termination. If more than
25 percent of the floor space of the Premises is so taken, but the remainder thereof is
not, 'Tenant or Landlord may elect to terminate this L,easc with the same effect as a
total taking. Such election shall be exercised by written notice given to Landlord by
Tenant or Tenant by Landlord to terminate and shall. be effective on a date 30 days after
the date of receipt of such notice. If the election is not exercised by delivery of
the notice to either party within 60 days after the (late of such taking, the right of
election to terminate shall wholly :lapse and exp.i.rc.
(b) If part of the Premises is taken for any public or quasi - public
use under any hdw, by right of eminent domain or ri.t;ht of condemnation, or by purchase
by public authority in lieu thereof, and if this Leasc shall not be terminated, this
Lease shall remain unaffected except that within a re;rsonable time after such taking,
Landlord shall restore tlilt part of the Premises not so taken to a complete architectural
unit which may be used for the purposes as set forth in Section 11. After such taking,
the base rent shall not he reduced.
(c) ]'here shall be no division between Landlord and Tenant of the
award for any taking, whether total or partial, and landlord shall be entitled to receive
the total award or compensation in such proceeding. Tenant's right to receive compensa-
tion or damages for its trade fixtures and personal property shall not be affected in
any manner by this Section.
(d) If less than a fee title to all or any portion of the Premises
shall be so taken for temporary use or occupancy, that is, for one year or less, the
foregoing provisions of this Section shall be inapplicable to such taking. This Lease
shall continue in full force and effect without -reduction or abatement or rent and Tenant
shall be entitled to make claim for, recover and retain, so long as it shall not be in
default hereunder, any awards in the form Of rent recoverahl.e in respect to such taking,
except that if such taking shall he for ;i period extending beyond the expiration or
earlier termination of this Lease 'Torun, Landlord shall be entitled to receive such portion
of the award as shall be attrihUl-ahle to the portion of such period occurring 'after such
expiration or temination.
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n
14. INDEMNITY. Tenant shral.l indemnify, defend and save Landlord harmless from any
and all liabilities, damages, penalties, costs, expenses, claims, suits or actions due
to or arising out of (a) any breach, violation or nonperformance of any obligation of
Tenant hereunder; (b) any contest by Tenant authorized by this Lease; and, (c) any damage
to property or any injury to persons (:including death resulting at any time ther.eform)
occurring in, on, upon or about the Promises.
1S. ASSIGNMENT AND SUBLETTING. Tenant may not assign, sublet or transfer any part
or his entire right, title and interest under this Lease without first obtaining the
written approval of Landlord. Upon approval by Landlord, the assignee or transferee
shall in writing expressly assume all the obligations of Tenant hereunder; and Tenant
shall deliver to Landlord a duplicate executed original of the instrument(s) whereby such
assignment is made and in which such assumption is contained. Upon the making by Tenant
of any assignment of this Lease which complies with all the requirements of this Section,
the assignee shall become the "Tenant" hereunder as of the date of such assignment, but,
without obtaining the written release of Landlord, the assignor shall not be released
from any and all liability arising or accruing under this Lease whether before or after
the date of such assignment.
16. MORTGAGING. Tenant may not at any time encumber its interest in the leasehold
estate created hereby by mortgage, deed of trust or other security instrument without
first obtaining the written approval of Landlord.
17. ESTOPPEL CERTIFICATES. Landlord and Tenant agree at any time and from time to
time, so long as this Lease shall remain in effect, within 10 days after receipt of a
written request from the other party, to execute, acknowledge and deliver to the other
party a statement in writing certifying that this l,e,.ase is unmodified and in full force
and effect (or if there have been modifications, that the same is in full force and
effect as modified and stating the modifications); if such is the fact, and otherwise
specifying such defaults in detail; and the elates to which the rent and other charges
have been paid, it being :intended that any such statement delivered pursuant to this
Section may be relied upon by the holder of any mortgage, deed of trust, or other instru-
ment of security covering the Premises or the Leasehold estate created hereby or any
prospective purchaser of any such :interest.
18. INSPECTION. Tenant shall permit Landlord or Landlord's agents to enter the
Premises at any reasonable time for the purposes of (a) inspecting the same; (b) perform-
ing obligations of Tenant hereunder which A nant may neglect or refuse to perform; and,
(c) showing the Premises to persons washing to purchase Landlord's interest therein.
The provisions contained in this Section shall not increase Landlord's obligations under
this Lease, and the right and authority hereby reserved does not impose upon Landlord
any responsibility for the repair, care or supervision of the Promises, which under any
provisions of this Lease Tenant: is required to do, nor shall the performance of such
work constitute a waiver of Tenant't default in failing to do the same.
19. NO ABATEMENT. Except as otherwise specifically provided herein, there shall
be no abatement or reduction of any rent payable by Tenant for any reason, including,
but without limiting the generality of the foregoing: (a) by reason of any damage or
destruction of the Premises whether caused by fire, condemnation or other matters like
or unlike the foregoing, or during any period of restoration, or (b) by reason of diminu-
tion of the amount of usable space caused by legally required changes in the construction,
equipment, operation or use of the Premises.
20. QUIET ENJOYMENT. Landlord covenants that, if and so long as Tenant pays the
rent and other charges reserved by this Lease and performs all the obligations of Tenant
hereunder, Tenant shall quietly enjoy the Premises, subject, however to the terms of
this Lease.
21. DEFAULTS.
(a) The following shall constitute defaults under the terms of this
Lease (regardless of the pendency of any bankruptcy, bankruptcy reorganization., receiver-
ship, insolvency or other proceeding in law, in equity or before any administrative tri-
bunal which has or might have the effect of preventing Tenant from complying with the
terms of this Lease) :
(i.) the failure to make payment of any installment of rent (includ-
ing the tax, common costs and :insurance payments herein required to be made with rent
payments) to Landlord within S days after the same may be clue;
(ii) the failure to make payment when due of any other sum herein
specified to be paid by Tenant to Landlord or others, as the case may be, and such failure
to pay shall continue for a period of 30 days after written notice thereof has been given
by Landlord to Tenant;
(iii) the failure, within s"0 days after written notice thereof has
been given by Landlord to Tenant to came any defa"it. of 'Tenant in the observance or per-
formance of any of Tenant's covenants or obligations hereunder other than payments of
rent or any other sums clue hereunder;
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(iv) any of the persons who are or may be included within the
designation of "Tenant" under this Lease becomes involved in Financial difficulties as
evidenced by:
(A) his or her nclnrittinl; in writing his or her inability to
pay debts generally as they become clue;
(11) his or her making ;in assignment OF all. or a substantial
part of his or her pl- operty for the benefit of his or her creditors;
(C) his or her- seeking or consenting to or acquiescing in the
appointment of a receiver or t-crstce for ;ill or- a substantial part of
his or her property or of his or her- interest in this Lease;
(D) the filing of a voluntary petition in bankruptcy or under
any insolvency law;
(L'•) tile involuntary Filing of such petition, which petition
shall not be set aside within 30 drys after- the filing thereof; or,
(r) the entry of a court order, with or without his or her
consent, appointing a receiver or trustee for all or a substantial part
of his or her property, which order shall not be vacated, set aside or
stayed within 30 clays from the date of entry;
(v) a receiver, liquidator or trustee in bankruptcy shall be
appointed for all or substantially all of 'Tenant's business or assets because of Tenant's
insolvency; or,
(vi) if 'renant shall cause, stiffer or permit any governmental agency
to attach, seize, "lockup" or otherwise exercise any direct control over the Premises, and
in such event, if Tenant shall fail to cause the dissolution of same within 10 days.
(b) The words "cure" or "cured" or "cause to be cured" as used in this
Lease are hereby defined as the correction of a cletnu]t, or si.tuation creating a default,
in the performance of the covenants under this Lease within the respective periods set
forth in this Lease during which such default may be cured, except that as to any default
under Section 21(a)(ii.i) which by i.ts natul•e cannot he cored within the period of time
set forth in such section, the time for curing ;Illy such default shall be extended for
such period as may be required to cure such default by the exercise of reasonable
diligency and dispatch.
(c) In the event that Landlord shall contend that a default (other than
a default under Section 21(a)(i)) has occurred, Landlord shall give to Tenant a notice
setting forth such contention in sufficient detail to apprise the Tenant of the nature
and basis thereof.
(d) In the event of Tenant's default hereunder, Landlord shall have the
right at Landlord's option, at any time thereafter and while such default shall continue,
to: (i) terminate this lease and all. of Tenant's riglus 11ei•e1-Incicr by giving written notice
of election to terminate to Tenant, which notice shall specify the date of such termina-
tion; (ii) without resuming possession of the Premises or terminating this Lease, to sue
for,and recover all rents and other sums, including clamages, at any time and. from time
to time accruing hereunder; (iii) without terminating this Lease, but subject to the
provisions hereinafter set forth in this Section 21(d), to enter and take possession of
the Premises using such force as is necessary to dispossess 'renant thereof, to make
alterations to the Premises in such manner and to such extent as to Landlord may seem
desirable or advisable, and to relct or sublet the Premises or any part thereof for the
whole or any part of the remai-nder of the Lease "Perm :in Landlord's name, or as agent of
Tenant, and to collect the rentals arising thereform, and out of any rents so collected
or received Landlord shall (1) first pay to itself the expense and cost of repossessing
the Premises, (2) pay to itself any cost. 01- expense sust;rincd hl securing any new tenant
or tenants, (3) pay to itself any amount .rcmaininl; On account of the liability of 'Tenant
to Landlord for rent or other amounts due tinder this Lease, and (4) pay to Tenant any
balance remaining not applied as set forth shove. if the rents so collected by Landlord
after the payments aforesaid are not enough to pay to Landlord a sum equal to the total
of amounts already due under this Lease at such time, the same shall immediately be due
from Tenant, and to the extent any installment of such rent is not enough to pay to
Landlord a sum equal to the total amount due under the Lease on a current basis, the
balance of the deficiency shall be paid by Tenant on the dates hereinabove set forth for
payment of rent. Tenant agrees to be and remain liable for any such deficiency and the
liability of Tenant shall remain, whether or not there is a reletting.
(e) Upon termination of this Lease by Landlord as set forth in Section
21(d)(i), all rights granted Tenant hereunder shall cease and terminate, and Tenant here-
by covenants to yield up and surrender the Premises, peaceably and quietly to Landlord,
in the manner set forth in Section 10. Upon such surrender, the Premises shall be and
belong to Landlord free and clear of any claim whatsoever of Tenant and Tenant further
agrees to execute and deliver to Landlord such instrument or -instruments as shall be
reasonably requested by Landlord properly to evidence termination of Tenant's rights
hereunder and its interest in the Premises. In the event of termination of this Lease
as provided in Section 21(d)(i), Landlord shall have the r.:igllt to repossess the Premises
either without process of law or through any form of suit or proceeding as well as the
right to sue for and recover all rents and n01. other surns ar.cr.Ued up to the time of
such termination, including damages arising nut of -iny breach on the Part of the Tenant.
-- 8 -
(f) If Tenant shall default in making any payment required to be
made (other than Tenant's obligation to make payments of rent, including the tax,
common costs and insurance payments herein required to be made with rent payments) or
shall default in performing any other obligation hereunder, and such failure shall
continue after lapse of applicable notice periods, or if Landlord, on behalf of Tenant,
expends such sum as may be necessary to perform such obligation. All sums so paid or
expended by Landlord, with interest thereon at the rate of 12 percent per year from the
date of such payment or expenditure shall be payable by Tenant immediately upon demand
of Landlord. No payment or expenditure under the provisions of this Section shall be
deemed to be a waiver of the underlying default nor shall it affect any other remedy of
Landlord.
22. NO IMPLIED SURRFNDFR OR WAIVER. The receipt ofd rent by Landlord, with knowledge
of any default, shall not be dccmed to be a waiver of any provision of this Lease. No
failure of Landlord to enforce the provisions o f this I,crase upon any default by Tenant
shall be construed as creating a custom of deferring payment or as modifying in any way
the terms of this Lease or as a waiver of Landlord's right to terminate this Lease as
herein provided, or otherwise to enforce the provisions hereof for any subsequent default.
The receipt by Landlord of rent from any assignee, under- tenant or occupant of the Premises
shall not be deemed a waiver of the covenants contained herein against assignment and
subletting or an acceptance of the assignee, under - tenant or occupant as Tenant, or a
release of Tenant from the further observance or performance by Tenant of the covenants
contained herein on the part of Tenant to be observed and performed. No provision of this
Lease shall be deemed to have been waived by either party unless such waiver be in writing
and signed. No act or thing done by Landlord or Landlord's agents during the Lease Term
shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept
such surrender shall be valid unless in writing signed by Landlord. No employee of
Landlord or of Landlord's agents shall have any power to accept the keys to the Premises
prior to the termination of this Lease. The delivery of keys to any employee of Landlord,
or of Landlord's agents, shall not operate as a termination oC this Lease or a surrender
of the Premises. No payment by Tenant, or receipt by landlord, of a. lesser amount than
the monthly base rent herein stipulated, shall be deemed to be other than on account of
the earliest stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check, or payment as rent, be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's right to
recover the balance of such rent or pursue any other remedy available to Landlord. Time
is of the essence hereof.
23. FORCE MAJEURE. In any case where either party is required to perform any con-
struction work hereunder, delays caused by war, strike, riot, ,lets of Cod, shortages of
material or labor, governmental regulation, weather delay, or other cause beyond such
party's reasonable control shall not be counted in determining the time during which such
work shall be completed. In any case where work shall be paid for out of insurance
proceeds or condemnation awards, duo allowance shall be made, both to the party required
to perform such work and to the party required to make such payment, for delays in the
collection of such proceeds and awards.
24. NOTICES. All notices, demands and communications to the parties hereunder may
be delivered personally or, alternatively, may be served or given by certified mail,
return receipt requested, postage prepaid, and if intended for Landlord shall be addressed
to Landlord at P.O. Box S , Avon, Colorado 81620, or such other address as may be estab-
lished by Landlord in writing, and if intended for Tenant shall be addressed to Tenant
at the address set forth in Exhibit B. or such other address as may be established by
Tenant in writing. Any notice given shall be deemed effective when actually received or,
if mailed, three working days after deposit in any postal facility or post office box
reqularly maintained by the United States Postal Service.
25. LANDLORD. The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and include
only the owner or owners at the time in question of the Promises. In the event of any
transfer or transfers of the title to the Promises, Landlord herein named (and in case of
any subsequent transfers or conveyances, the then grantor) shall automatically be freed
and relieved from and after the date of such transfer or conveyance of all personal
liability for the performance of any covenants or obligations on the part of Landlord con-
tained in this Lease thereafter to be performed. Any funds in which Tenant has an
interest in the hands of Landlord or the then grantor at the time of any such transfer
shall be turned over to the grantee, and any amount then due and payable to
- 9 -
i
Tenant by Landlord or the then }cantor under any provisions of this Lease shall be
paid to Tenant. Upon any transfer of title to the Premises, Landlord shall notify
Tenant as required in Section 24 herein and shall_ obtain a signed receipt from the
grantee acknowledging receipt of any funds in which the 'Tenant has an interest and a
copy of such receipt shall be delivered to Tenant.
26. SUCCESSORS AND ASSIGNS:_ _ JOINT AND SEVERAL LIABILITY. All terms, conditions
and covenants to be observed and performed by the parties hereto shall be applicable
to and binding upon their respect=ive heirs, personal representatives, successors and
assigns, subject to the provisions of Section 15 herein. If more than one entity or
person are Tenant under this Lease, the obligations -imposed upon Tenant under this
Lease shall be joint and several.
27. CONSENT. Unless otherwise provided herein, whenever Landlord's consent or
approval is required under the terms of this Lease, such consent or approval shall not
unreasonably be withheld or delayed. In those instances in which Landlord's consent
or approval may not unreasonably be withhheld, Landlord shall, upon Tenant's request,
provide Tenant with the reasons for any such withholding of Landlord's consent or
approval.
28. ATTORNEY'S PEES. In the event of any litigation (but not including arbitra-
tion proceedings) between the parties hereto concerning this Lease and the enforcement
hereof, the prevailing party in such action shall be entitled to receive from the de-
faulting party all reasonable costs and expenses, including reasonable attorney's fees,
incurred by the prevailing party in such action.
29. SEVERABILITY. 11 any prov:is:i.ons, sentence, phrase, or word of this Lease,
or the application thereof to any person or circumstance shall be held invalid, the
remainder of this Lease or the application of such provisions, sentence, phrase, or word
to persons or circumstances other than those as to which it is held invalid, shall not
be affected thereby.
30. ENTIRE AGREEMENT. This Lease and the Exhibits attached hereto contain the
entire agreement between the parties and shall not be modified in any manner except
by an instrument in writing executed by the Parties.
31. SECTION HEADINGS. The section headings are inserted only as a matter of con-
venience and they shall in no way define, limit or prescribe the scope or.intent of this
Lease or in any way affect the interpretation hereof.
32. RELATIONSHIP OF PARTIES_ This Lease shall not create a joint venture or part-
nership between the parties hereto and any such relationship is hereby expressly dis-
claimed.
33. CONSTRUCTION OF TERMS. When necessary for proper construction, the masculine
of any word used in this Lease shall include the femin.in.e and neuter gender, and the
singular the plural, and vice versa.
34. COLORADO_ LAW. This 1.easc shall. ill a1 1- r( ,pre is be governed by and costt rued
under the laws of Colorado.
35 - _C'&MON COSTS.
.nitials portions of the i L an -r
ing but not limited to:
maintenance and clean -up
services and facilities.
with rental payments,
ties as are ' utable
e portions of the
L ;.u1daord may, on heh;tl f of 'Cen:tnt and parties occupyin�in
time to time, provide certain services an hies, ud-
pa rking:d11uxZ-1rrb5vides in gardeninsex. es, snow removal, eior
signing, secur.i.ty s i other similar or dissimilar
If La the same, Tenant s thly, together
�-s-crni pion of the costs incurred for such services iii-
to the Premises apportioned on a square foot basis among the
Land benefited thereby.
IN WITNESS WHEREOF, Landlord and 1'enant have duly executed this Lease as of the day
and year first above written.
LANDLORD:
Doyle & Associates,
a Colorado
TENANT: TWN OF A'
BY
!T ':1'1'1,1;•` � /a� .
h. ;. `., /
i EXHIBIT A •
DOYLL & ASSOCIATE'S
LEASING FLOOR PLAN
WAREHOUSE UNITS
Lot 37, Block 1, as per the Official flat - Town of Avon, ti:igIc County,
Colorado, and Final Subdivision flat - Amendment Number 4, Benchmark at
Beaver Creek, 1?agle County, Colorado, recorded on September S, 1978, in
Book 274 at page 701.
UNIT 5
UNIT 4
UNIT
UNIT 2
UNIT 1
Note:
Each unit has 1 .9RO sminrn foot-
- INITIALS
U- STOR -IT
IiXiIIR 'I' li
(Attached to and made part of Lease Agreement d,itcd as of October 1
between Doyle 6 Associotes, a Colorado general partnership, and
TOWN OF AVON
, 1983 ,
13ASL REN "I':
Annual Rate . . . . . . . . . . . . . . . . . . . . . .
Monthly Installment . . . . . . . . . . . . . . . . . •$x,078.64*
USE 01= PREMISE'S:
Storage and maintenance of vehicles, equipment and supplies.
*Base Rent $ 1,003.29
Pro Rata Share of Property Taxes 40.61
Pro. Rata Share of Insurance 27.63
Pro Rata Share of Sewer Charges 1.78
Pro Rata Share of Water Charges 5.33
$ 1,078.64
ADDRESS OF TENANT:
Town of Avon
P.O. Box 975
Avon, CO 81620
INITJALS
MINI WAREHOUSE LEASE
AND RECEIPT
RECEIVED from the following Occupant:
Name: Town of Avon
Mailing Address: P.O. Box 975_ Avon CO 81620
Residence Street Address: 400 Benchmark Road
Residence Phone: N/A
Business Phone: 949-4280
Driver's License No.: N/A
Credit Card No :
Company:
Local Contact:__ JoyrP Fvans
Bank Reference: Fi,, Rank of Aeon
The sum of $ 230.00 ,.being rental fee, from the 1st day of
January , 19__5_6_, to the first day of February 1986 ,
and the sum of $ 230.00 for security deposit.
By Doyle & Associates, a partnership, of P.O. Box 5070, Avon, Colorado
81620, (303/949 - 5743), "Owner ".
With respect to Mini Warehouse Unit k, 9 h 10 , located on Lot 37,
Block 1, Benchmark at Beaver Creek Subdivision, County of Eagle, State of
Colorado (the "Premises ").
Under the following terms and conditions:
1. Grant. Owner hereby grants to Occupant the use of the premises for the
term and on the conditions herein stated.
2. Amount. After the last day of December 19 _B5_, the rental fee
shall be $ 230.00 per month.
3. Term. Unless terminated, the term of this agreement shall be from
month -to- month.
4. Access. Occupant may place a lock on the access to the unit. Occupant
may have access to the unit during posted hours. Owner will not be responsible
for acts of Occupant, or other persons entering premises.
5. Rent. Occupant agrees to pay the rental at the office of the Owner.
Each month's rent will be paid in advance or prorated in the case of first month's
rent. Security deposit shall be paid at time of execution of this lease and will
be refunded to Occupant when unit is vacated if unit is empty of all items, broom
clean, no damage has occurred, and all rental has been paid. If not so returned,
the security deposit will be retained in full by Owner. Any rent paid more than
five days after it is due will be subject to a 10% late charge and additional
charges may be made for payments more than 20 days late including but not limited
to, attorney's fees, legal expenses and /or putting the premises in good order, or
for preparing the same for re- rental. If Owner should accept a check for fee,
then the following shall be deemed a term and condition of this agreement: If the
check is returned or refused by ar:y bank for whatsoever reason, the Owner shall
have the right to add to the fees otherwise hereunder, a penalty of $20.00.
Owner reserves the right to demane cash, cashier's check or valid money order in
lieu of any check tendered by User.
6. Use and Compliance with Law. The unit shall be used only for lawful pur-
poses and will be kept in good condition. No property shall be stored in the unit
unless Occupant legally has the right to have that property in his possession.
Occupant may from time to time during the duration of this agreement place in
the unit personal or commercial properties, but it is expressly agreed that Owner
is under no duty to maintain any records of contents so placed. Owner is not en-
gaged in the business of storing goods for hire nor the warehouse business, but
only an Owner providing a unit for hire. The storage of welding equipment or
flammables, explosives or other inherently dangerous material is prohibited.
Occupant shall not store in the unit any items which shall be in violation of any
order or requirement imposed by any appropriate governmental bodies or do any
act or cause to be done any act which creates or may create a nuisance in or upon
the premises during the term of this agreement or any renewal or extension thereof.
OCCUPANT SHALL AT THE TIME OF EXECUTION OF THIS LEASE, AND UPON ANY FURTHER
CHANGES, DISCLOSE IN WRITING TO OWNER ALL LIEN HOLDERS WITH AN INTEREST IN PROPERTY
THAT IS, OR WILL BE, STORED IN THE SUBJECT UNIT.
7. Prohibitions. Occupant shall not: (a) do any painting or decorating
in the unit or mark, paint, cut or drill into, drive nails or screws into, or in
any way deface any part of the unit or premises without the prior written consent
of Owner; (b) Make installations, alterations or additions to the premises; (c)
Operate any electrical device in the unit without prior written consent of Owner,
and Occupant understands that electrical power to the unit may be shut off for
extended periods at any time.
8. Owner's Right to Enter, Inspect and Repair the Unit. Occupant agrees
that Owner or Owner's representatives shall have the right without notice to enter
into and upon the unit for the purposes of examining the same for lease violation
or condition thereof or making repairs or alterations thereto. Owner reserves
the right to remove contents to another unit.
9. Non - Liability of Owner and Insurance Obligations of Occupant. OWNER
CARRIES NO INSURANCE WHICH IN ANY WAY COVERS ANY LOSS WHATSOEVER THAT OCCUPANT
MAY SUFFER IN ANY WAY WITH RESPECT TO THE UNIT OR PREMISES AND HENCE OCCUPANT
MUST OBTAIN ANY INSURANCE DESIRED AT HIS EXPENSE. OWNER STRONGLY RECOMMENDS THAT
OCCUPANT SECURE HIS OWN INSURANCE TO PROTECT HIMSELF AND HIS PROPERTY AGAINST
ALL PERILS.
OWNER SHALL NOT BE LIABLE FOR PERSONAL INJURIES OR PROPERTY DAMAGE, OR LOSS
FROM THEFT, VANDALISM, FIRE, WATER, RAIN, EXPLOSION, OR ANY OTHER CAUSES WHATSO-
EVER.
OWNER SHALL NOT BE LIABLE TO OCCUPANT OR OCCUPANT'S INVITEES, FAMILY, EM-
PLOYEES, AGENTS, OR SERVANTS FOR ANY PERSONAL INJURIES OR DAMAGE TO PERSONAL PRO-
PERTY CAUSED BY ANY ACT OF NEGLIGENCE OF ANY OTHER PERSON Oil SAID PREMISES. OCCU-
PANT HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS THE OWNER FROM AND AGAINST ANY
AND ALL CLAIMS FOR DAMAGE TO PROPERTY OR PERSONAL INJURY AND COSTS INCLUDING
ATTORNEY'S FEES ARISING FROM OCCUPANTS USE OF THE UNIT OR PREMISES.
OCCUPANT MUST TAKE WHATEVER STEPS ARE NECESSARY TO SAFEGUARD WHAT IS ON OR
IN THE PREMISES.
10. Default, Owner's Remedies and Lien_. Time is of the essence in the per-
formance of this agreement and in the payment of each and every payment and charge
herein covenanted to be paid. If any payment or charge shall be due and unpaid,
or if Occupant shall fail or refuse to perform any of the covenants, conditions or
terms of this agreement, Occupant shall be conclusively deemed in default in the
performance of this agreement. In addition to such liens and remedies provided by
law to secure and collect fees and cumulative therewith, Owner is hereby given a
"lien upon Occupant's property, now or at any time hereafter, stored in said unit
to secure the timely performance of this agreement by Occupant and to secure the
payment of all fees, charges and costs incident to Occupant's default. In case
of default by Occupant, Owner, at its option may (a) terminate this agreement, or
(b) re- enter, seize and /or take possession of said property for arrears of rent
or other payments or breach of covenant or by reason of abandonment, without being
deemed guilty of any manner of trespassing or conversion, and without prejudice
to any other remedies of Owner. At the time of such re -entry and seizure the
Owner shall give notice in writing thereof to Occupant at the address of Occupant
indicated hereon or at such address as Occupant shall hereafter designate in
writing to Owner. Such notice shall be by regular mail and shall be deemed re-
ceived by Occupant when deposited in the United States mail, postage prepaid,
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addressed as described above. At any date after THIRTY days from the date of
giving such note, the Owner may sell said property at public or private sale. In
the event proceeds of the sale are greater than necessary to pay his lien, in-
cluding accrued and unpaid fees, charges, appraisal, moving, storage, and expenses
of collection, re -entry and sale, the balance shall be paid to Occupant at the
address described above. Notwithstanding anything to the contrary herin, Occupant
expressly grants the right of disposition, disposal and destruction of any personal
property including, but not limited to, all papers, pictures and documents.
ALL ARTICLES STORED UNDER THE TERMS OF THIS AGREEMENT MAY BE SOLD OR OTHER-
WISE DISPOSED OF IF NO PAYMENT HAS BEEN RECEIVED FOR A CONTINUOUS THIRTY (30)
DAY PERIOD.
11. Holding Over. In the case of holding over by the Occupant after the
expiration of any stated term, without written agreement, such holding over
will be construed to be a renewal from month -to- month.
12. Change of Terms. All terms of this agreement, charges and conditions of
occupancy are SUBJECT TO CHANGE at any monthly renewal date upon written notice
to Occupant. If changed, the Occupant may terminate this agreement on the effective
date of the change. If Occupant does not elect to terminate this agreement, the
change shall become effective and apply to this agreement.
13. Entire Agreement Clause. This agreement constitutes the sole and only
agreement of the parties hereto and supersedes any prior understanding or written
or oral agreements between the parties respecting the within subject matter. No
amendment, or alteration of the terms hereof shall be binding unless the same
be in writing.
14. Notices. Notices shall be in writing, and shall be deemed to be
delivered, whether actually received or not, when deposited in the United States
Mail, postage prepaid, addressed as described herein.
15. This agreement may be terminated by either party on the first day of
any month hereafter.
16. Occupancy after the first day of any month shall require payment for that
month's rent in full.
17. This agreement shall be binding on the heirs, successors, and assigns of
the parties.
18. The subject Unit and real property is a self- service storage facility as
such term is defined in 038- 21.5 -101, C.R.S., 1973, as amended, and subject to the
terms of §38- 21.5 -100 et. seq.
J
Dated this 11-5 74 day of vL�G 19
U
UP T
67NE
DOYLE & ASSOCIATES, a partnerships by its
Management Committer -- —, 7
5
William T. Doyle
A. J. W
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EXHIBIT A
DOYLE & ASSOCIATES
MINI WAREHOUSE
LEASING FLOOR PLAN
SELF- SERZTICE STORAGE UNITS
Lot 37, Block 1, as per the Official Plat - Town of Avon, Eagle County,
Colorado, and Final Subdivision Plat - Amendment Number 4, Benchmark at
Beaver Creek, Eagle County, Colorado, recorded on September 5, 1978, in
Book 274 at page 701.