04-20-2010 Accent Physical Therapy Lease AgreementLEASE AGREEMENT
THIS LEASE AGREEMENT ( "Lease ") is made and entered into as of April 20, 2010 by and
between the Town of Avon, a Colorado home rule municipality ( "Landlord ") and Accent
Physical Therapy, ( "Tenant ")(collectively, the "Parties "), for the operation of a rehabilitation
facility within a defined portion of the Avon Recreation Center located at 90 Lake Street, Avon,
Colorado (the "ARC "), upon the terms and conditions set forth in this Lease.
RECITALS
WHEREAS, Landlord owns and operates the ARC and desires to lease a portion of the ARC for
use as a physical therapy and rehabilitation service, described in Exhibit A as the premises
( "Premises ") and Tenant desires to lease the Premise according to the terms contained in this
Lease;
NOW THEREFORE, in consideration of the mutual promises and covenants herein contained,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Landlord and Tenant, the Parties do hereby agree as follows:
1. Term. The initial term of this Lease shall be for twelve (12) months, commencing
September 1, 2010, and ending August 31, 2011, unless terminated as hereinafter provided.
Extensions of this Lease may only occur through mutual consent of the Parties in writing.
2. Lease Payment. The Tenant shall pay to the Landlord rent each month in the amount of
Fourteen Hundred Dollars ($1,400.00) ( "Monthly Lease Payment "). The first and last Monthly
Lease Payment and the Security Deposit must be tendered and paid in full upon signing this
Lease. The Monthly Lease Payment shall be due and payable on the same date each month as
the day of signing this Lease stated above. Payment shall be tendered at the Avon Town Hall,
One Lake Street, Avon, CO 81620, or may be mailed to Town of Avon, P.O. 975, Avon, CO
81620, attention Meryl Jacob, Director of Recreation.
3. Late Payment, Interest. Any Monthly Lease Payment which is not paid prior to or on the
date it is due shall be subject to a penalty of One Hundred Dollars ($100.00) and the delinquent
Monthly Lease Payment and penalty shall thereafter bear interest at the rate of eighteen percent
(18 %) per annum, compounded monthly, from the due date therefor until such sum, with all
interest accrued thereon, has been paid in full.
4. Access. The Tenant shall have only limited access to the Premises during normal
business hours and as may be arranged with the Landlord outside of normal business hours..
5. Utility, Operation and Maintenance Expenses. Landlord shall provide and pay for water
and sewer service, electric, heating and parking during the Term of this Lease without additional
charge to Tenant. Tenant shall be responsible for telephone, internet, and other costs incurred
during the Term of this Lease. Tenant shall be responsible for cleaning the Premises.
6. Recreation Center Access. During the Term of this Lease the Tenant shall have the
privileges of one unlimited pass to the ARC for use by the Tenant and one patient per physical
therapist of the Tenant at a time shall have the privilege to access the ARC for use while
attending supervised and directed physical therapy sessions conducted by the Tenant.
7. Security Deposit. The Tenant shall also pay to Landlord a deposit of Fourteen Hundred
Dollars ($1,400.00) ( "Security Deposit "). The Security Deposit shall be returned to the Tenant
within thirty (30) days following the termination of this Lease, less the cost of any and all repairs
or other maintenance performed by the Landlord as required to return the Premises to the
condition it was in prior to the commencement date of this Lease.
8. Permitted Use. Tenant shall use and occupy the Premises for the Permitted Use
described as physical therapy clinic including physical therapy related retail sales, subject to any
applicable laws, rules and regulations, including those of the Town of Avon, and for no other
purpose. Tenant shall not alter its use of the Premises or its trade name without Landlord's
consent, which Landlord may withhold in its sole discretion. Tenant acknowledges that Tenant's
covenants in this Section are material considerations which have induced Landlord to enter into
this Lease. Tenant's physical therapy office shall be, at all times and in all respects, first -class
and of high quality at least equal to respected physical therapy clinics of comparable size and
nature in Eagle County, Colorado, as exist on the date of this Lease. The foregoing standards
shall apply, without limitation, to the furniture and furnishings of the Premises, the attire and
appearance of employees, and the management and operation of the Premises in general.
9. Personal Property Taxes. Tenant shall pay before delinquency all taxes, including
without limitation Town of Avon Sales taxes on tenant finish work, assessments, fees and other
charges levied, assessed or imposed and which become payable during the Term upon Tenant's
operations at, occupancy of or conduct of business at the Premises or upon Tenant's leasehold
improvements, equipment, inventory, furniture, appliances, trade fixtures and any other personal
property of any kind installed or located at the Premises. If the taxing authorities fail to render a
separate tax bill with respect to such property, Landlord, if appropriate, shall reasonably allocate
to such property a portion of such taxes attributable to the Premises. Tenant shall pay the
allocated amount to Landlord promptly upon receipt of a written statement of the allocation.
10. Default. The failure of Tenant to keep or perform any covenant or warranty, condition or
agreement on its part to be kept or performed according to the terms and provisions of this Lease
shall, upon the election of the Landlord, constitute a default. Upon an event of default the
Landlord may, at its discretion, terminate this Lease immediately by giving written notice of
such action to Tenant, and may exercise all or any remedies available to the Landlord at law or in
equity by virtue of such default. In addition, upon termination all right and interest of the Tenant
to the Premises shall be immediately forfeited to the Landlord without right of reimbursement,
compensation or set off. The failure of the Landlord to terminate this Lease upon a default by
Tenant shall not in any way constitute a waiver of the Landlord's right to terminate this Lease for
future defaults by Tenant of the same or different type.
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11. Landlord's Remedies. If Tenant defaults under this Lease, Landlord shall have the
following rights and remedies, in addition to all other remedies at law or equity, and none of the
following, whether or not exercised by Landlord, shall preclude the exercise of any other right or
remedy whether set forth in this Lease or existing at law or equity.
(a) Termination. Landlord shall have the right to terminate this Lease by giving Tenant
notice in writing at any time. No act by or on behalf of Landlord, such as entry in the Premises
by Landlord to perform maintenance and repairs and efforts to relet the Premises, other than
giving Tenant written notice of termination, shall terminate this Lease. Further, the service upon
Tenant of a statutory notice for payment of rent or possession of the Premises, regardless of
whether Tenant delivers possession of the Premises to Landlord in response to such notice, shall
not operate to terminate this Lease, unless the notice contains a statement calling for such
termination upon delivery of possession. Landlord shall have the right to give such notice of
termination at any time after service of the statutory notice for payment or possession.
(1) If Landlord gives such notice, this Lease and the Term shall wholly cease and
expire in the same manner and with the same force and effect (except as to Tenant's liability,
as expressly provided in this Lease) on the date specified in such notice as if such date were
the expiration date of the Term without the necessity of re -entry or any other act on
Landlord's part.
(2) If this Lease is terminated, Tenant shall remain liable to Landlord for (i) all rent
and damages which may be due or sustained by Landlord and all reasonable costs, fees and
expenses including, but not limited to, attorneys' fees, costs and expenses, incurred by
Landlord in pursuit of its remedies under this Lease, or in renting the Premises to others from
time to time (all such rent, damages, costs, fees and expenses being referred to in this Lease
as "Termination Damages "), and (ii) additional damages ( "Liquidated Damages "), which at
the election of Landlord, shall be either:
(i) An amount or amounts equal to the Base Rent and all other rent which, but for
termination of this Lease, would have become due during the remainder of the Term, less
the amount or amounts of reasonable rental if any, which Landlord shall receive during
such period from others to whom the Premises may be rented (other than any sums
received by Landlord as a result of any failure of such other person to perform any of its
obligations to Landlord), in which case such Liquidated Damages shall be computed and
payable at Landlord's option either in an accelerated lump sum payment in an amount
equal to the total rentals due for the period on which the Term would have ended, but for
the termination; or by payment in monthly installments, in advance, on the first day of
each calendar month following termination of the Lease and continuing until the date on
which the Term would have expired but for such termination, and any suit or action
brought to collect any such Liquidated Damages for any month shall not in any manner
prejudice the right of Landlord to collect any Liquidated Damages for any subsequent
month by a similar proceeding; or
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(ii) An amount equal to the present worth (as of the date of such termination) of the
Base Rent and other rent which, but for termination of this Lease, would have become
due during the remainder of the Term, less the fair rental value of the Premises, as
determined by an independent real estate appraiser named by Landlord, in which case
such Liquidated Damages shall be payable to Landlord in one lump sum on demand and
shall bear interest at the Maximum Rate until paid. For purposes of this clause (B),
"present worth" shall be computed by discounting such amount to present worth at a
discount rate equal to one percentage point above the discount rate then in effect at the
Federal Reserve Bank nearest to the location of the Building.
(3) Termination Damages shall be due and payable immediately upon demand by
Landlord following any termination of this Lease pursuant to this Section 1 L(a).
(4) If this Lease is terminated pursuant to this Section above, Landlord may relet the
Premises or any part thereof, alone or together with other premises, for such term or terms
(which may be greater or less than the period which otherwise would have constituted the
balance of the Term) and on such terms and conditions (which may include concessions or
free rent and alterations of the Premises) as Landlord, in its reasonable discretion, may
determine, but Landlord shall not be liable for, nor shall Tenant's obligations hereunder be
diminished by reason of, any failure by Landlord to relet the Premises or any reasonable
failure by Landlord to collect any rent due upon such reletting; provided that Tenant shall
only be responsible for costs incurred to bring the Premises into the condition that would be
required upon termination of this Lease.
(b) Re- entry. Landlord may, without demand or notice, re -enter and take possession of the
Premises or any part thereof, and repossess the same as Landlord's former estate and expel
Tenant and those claiming through or under Tenant, and remove the effects of any and all such
persons (forcibly, if necessary) without being deemed guilty of any manner of trespass, without
prejudice to any remedies for arrears of rent or preceding breach of covenants and without
terminating this Lease or otherwise relieving Tenant of any obligation hereunder provided such
actions are allowed by law. Should Landlord elect to re -enter as provided in this Section, or
should Landlord take possession pursuant to legal proceedings or pursuant to any notice
provided for by law, Landlord may, from time to time, without terminating this Lease, relet all or
any part of the Premises for such term or terms and at such rental or rentals, and upon such other
conditions as Landlord in its absolute discretion may deem advisable, with the right to make
alterations and repairs to the Premises. The amounts received by Landlord in such reletting will
offset any amounts owed by Tenant under this Lease.
(1) No such re- entry, repossession or reletting of the Premises by Landlord shall be
construed as an election on Landlord's part to terminate this Lease unless a written notice of
termination is given to Tenant by Landlord. No such re- entry, repossession or reletting of the
Premises shall relieve Tenant of its liability and obligation under this Lease, all of which
shall survive such re- entry, repossession or reletting.
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(2) Upon the occurrence of such re -entry or repossession, Landlord shall be entitled
to the amount of the monthly rent, and any other sums, which would be payable under this
Lease if such re -entry or repossession had not occurred, less the net proceeds, if any, of any
reletting of the Premises after deducting all of Landlord's expenses in connection with such
reletting, including, but without limitation, all repossession costs, brokerage commissions,
legal expenses, attorneys' fees, alteration costs and expenses of preparation for such reletting.
Tenant shall pay such amount to Landlord on the days on which the rent or any other sums
due under this Lease would have been payable under this Lease if possession had not been
retaken
(3) In no event shall Tenant be entitled to receive the excess, if any, of net rent
collected by Landlord as a result of such reletting over the sums payable by Tenant to
Landlord under this Lease, unless Tenant remains liable under the Lease.
(c) Payment on Account of Tenant. If Tenant shall default in making any payment required
to be made by Tenant (other than payments of rent) or shall default in performing any other
obligations of Tenant under this Lease, Landlord may, but shall not be obligated to, make such
payment or, on behalf of Tenant, expend such sum as may be necessary to perform such
obligation. Tenant shall repay to Landlord on demand all sums so expended by Landlord with
interest at the rate set forth in Avon Municipal Code Chapter 3.32. No such payment or
expenditure by Landlord shall be deemed a waiver of Tenant's default, nor shall it affect any
other remedy of Landlord by reason of such default.
12. Licenses and Permits. The Tenant shall obtain and maintain any and all vending licenses
and /or permits that may be required by local governmental entities having jurisdiction, including
without limitation the Town of Avon, Colorado prior to the utilization of the Premises for a
rehabilitation facility. Furthermore, Tenant shall maintain physical therapy licenses and
certificate in good standing and in active status at all times during the Term of this Lease.
13. Compliance with Law and Applicable Regulations. Tenant shall use the Premises and
Common Areas in a careful, safe and proper manner and shall not use or permit the Premises or
Common Areas to be used for any purposes prohibited by the rules and regulations of the
Association or any federal, state, county or municipal law, ordinance, rule, regulation or code
applicable to the Premises or the Building. Tenant shall not use or permit all or any part of the
Premises or Common Areas to be used in any immoral, illegal, lewd, objectionable or offensive
manner or for any such purposes. Tenant shall neither do nor permit to be done any act or thing
upon the Premises, the Commercial Space, or Common Areas which shall or might subject
Landlord to any liability or responsibility for injury to any person or persons or for damage to
property by reason of any business or operation carried on at, from or upon the Premises or
otherwise.
14. Premises Owned by the Landlord. The Premises, and any improvements made thereto by
the Landlord during the term of this Lease are and shall at all times remain the sole property of
the Landlord, and the Tenant shall have no right, title, or interest therein.
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15. Landlord's Right of Entry. Landlord and its agents shall have the right to enter the
Premises at all times, after reasonable advance notice to Tenant by telephone or otherwise
(except that no advance notice will be required in emergency circumstances), to examine them,
to show the Premises to prospective purchasers, managers, lenders or lessees, and to make and
perform such decorations, cleaning, maintenance, repairs, alterations, improvements or additions
as Landlord may be required to perform under this Lease or as Landlord may deem necessary or
desirable for the safety, improvement or preservation of the Premises or of other portions of the
Building. Landlord shall have the right from time to time to install, maintain, use, repair and
replace utility lines, unexposed pipes, ducts, conduits and wires in and through the Premises.
Landlord shall also be allowed to bring and keep upon the Premises all necessary materials,
supplies and equipment. No such action by Landlord shall constitute an eviction of Tenant in
whole or in part or entitle Tenant to any abatement of rent or damages, by reason of
inconvenience, annoyance, disturbance, loss or interruption of business or otherwise, and no such
action shall affect Tenant's obligations under this Lease in any manner whatsoever, except as
specifically provided in this Lease. If Landlord's work in the Premises makes all or a substantial
part of the Premises unusable and are in fact not used for more than three consecutive days, then
Tenant shall be entitled to an abatement of Base Rent commencing with the fourth day that the
Premises are unusable and not used. However, notwithstanding the preceding sentence, if the
Landlord's work arose directly or indirectly because of (i) any act or omission by Tenant or any
of Tenant's Personnel, or (ii) a request by Tenant for an alteration or addition to the Premises
which directly or indirectly necessitated the interruption, or (iii) a failure by Tenant to comply
with its obligations under this Lease, then Tenant shall not be entitled to any such abatement of
Base Rent. If Tenant is not personally present to permit Landlord to enter the Premises as
provided under this Lease, Landlord or Landlord's agents may forcibly enter the Premises,
without rendering Landlord or its agents liable (with the understanding that during such entry
Landlord or its agents shall accord reasonable care to Tenant's property), and without in any
manner affecting the obligations and covenants of Tenant under this Lease. Nothing in this
Lease, however, shall be deemed or construed to impose upon Landlord any obligation,
responsibility or liability whatsoever for the care, supervision or repair of the Premises other than
as provided in this Lease.
16. Acceptance of Possession. Taking possession of the Premises by Tenant shall be
conclusive evidence as against Tenant that the Premises and the Building were in good and
satisfactory condition when Tenant took possession; provided however, that Landlord will
replace or repair any defect in workmanship or materials in the Landlord's Work discovered by
Tenant within one year of the Delivery Date of the Premises; provided that Tenant must give
Landlord written notice of such defect within ten (10) days after Tenant discovers the defect.
17. Alterations by Tenant. Tenant shall make no alterations, additions or improvements in or
to the Premises without Landlord's prior written consent. Tenant understands that Landlord's
consent will be conditioned upon compliance with Landlord's requirements as in effect at the
time permission is requested, which requirements will include, but not be limited to, Landlord's
approval of plans, specifications, contractors, insurance and hours of construction. Upon
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Landlord's reasonable request, Tenant shall secure, at its cost, a completion and indemnity bond
satisfactory to Landlord, for such work. All such work shall be performed in a good and
workmanlike manner. Before beginning any work on the Premises, Tenant shall deliver to
Landlord on request, certificates issued by applicable insurance companies evidencing that the
contractor and all subcontractors engaged by Tenant to perform such work maintain workers'
compensation and public liability insurance and property damage insurance, all in amounts, with
companies and on forms satisfactory to Landlord. All alterations, additions or improvements
upon the Premises, including (without limitation) all installations included in Tenant's Work and
all paneling, partitions and the like (but excluding Tenant's trade fixtures), shall become the
property of Landlord, and shall remain upon and be surrendered with the Premises, as a part
thereof, at the end of the Term, unless the parties agree otherwise, or unless Landlord requires
Tenant to remove such items at the end of the Term.
18. Landlord's Right to Repair. If Tenant fails to perform any maintenance or make any
repairs, restorations or replacements required by this Lease, and if such failure continues for
more than 15 days after notice from Landlord (with the understanding that no notice will be
required in the event of an emergency), then Landlord may (but without any obligation to do so)
take the required action and charge Tenant the cost of the work, together with an administrative
fee equal to 10% of the cost of the work. Such charge, with interest at the Maximum Rate,
accruing from the date of Landlord's demand until reimbursement in full by Tenant, shall be due
as additional rent.
19. Interruption for Repairs. If the need for repairs or the making of repairs (or both) which
Landlord is obligated to effect at Landlord's expense renders a material portion of the Premises
unusable and such portion is actually left unused by Tenant for more than five consecutive days,
then Tenant shall be entitled to an abatement of Base Rent commencing with the sixth day that
the Premises are unusable and not used; provided, however, that Tenant shall not be entitled to
any such abatement if the repairs in question (i) arose directly or indirectly from any act or
omission by Tenant or any of Tenant's Personnel, or (ii) arose because of a request by Tenant for
an alteration or addition to the Premises which directly or indirectly necessitated the repair, or
(iii) were performed by Landlord on Tenant's account following a failure by Tenant to comply
with its obligations under this Lease. Landlord covenants in any event to use commercially
reasonable diligence to avoid disruption and inconvenience to Tenant's operations and patrons in
the course of any exercise of Landlord's right of entry under this Lease.
20. Insurance Requirements. Tenant agrees to obtain on or before the commencement date of
the Preliminary Term, and to keep in full force and effect during the Term, the following
insurance coverage:
(a) Liability Insurance. Commercial general liability insurance with respect to the operations
carried on, in or from the Premises and the use and occupancy thereof, covering bodily injury,
death and damage to property of others with endorsements for assumed contractual liability with
respect to the claims against which Tenant has agreed to indemnify Landlord as required in this
Lease below, personal injury insurance, premises operations insurance, products /completed
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operations hazard insurance, broad form property damage insurance and independent contractor's
insurance. If Tenant operates its business in various locations in addition to the Premises,
Tenant's policy shall include a Designated Locations General Aggregate Limit endorsement.
(b) Property Damage Insurance. Fire and extended coverage insurance, including sprinkler
damage, vandalism and malicious mischief, with respect all leasehold improvements in the
Premises, whether installed by Landlord or Tenant (including without limitation all ceilings,
interior walls, and floor coverings, and the portion of the HVAC, ventilating and cooling
equipment in, and for the exclusive use of, the Premises) and with respect to all of the Tenant's
furnishings, fixtures and personal property in the Premises. Any policy ,proceeds shall be used
for repair and replacement of the property damaged or destroyed unless this Lease.
(c) Workers Compensation Insurance. Workers compensation insurance in accordance with
the Workers Compensation Act of Colorado (Colo. Rev. Stat. §9 -40 -101 et seq. as amended from
time to time), covering all of Tenant's employees. If any services to be performed in Tenant's
operations are subcontracted, Tenant shall require the subcontractor to provide workers
compensation insurance for its employees to be engaged in such service.
(d) Insurance Amounts. Insurance obtained by Tenant under this Lease shall be not less than
$2,000,000 in respect to any one accident or occurrence, and Tenant shall carry property damage
insurance on a full replacement cost basis subject to only such deductibles and exclusions as
Landlord may reasonably approve.
(e) General Requirements. Except as otherwise approved in writing by Landlord, all
insurance obtained by Tenant shall be on forms and with insurers selected or approved by
Landlord, which approval shall not be unreasonably withheld; shall name Landlord; shall be
written as primary policies, not contributing with and not in addition to coverage that Landlord
may carry; and shall provide, by certificate of insurance or otherwise, that the insurance coverage
shall not be cancelled or altered except upon 30 days' prior written notice to Landlord. All
commercial general liability insurance policies shall contain a provision that Landlord although
named as additional insured, shall nevertheless be entitled to recover under such policies for any
loss sustained by either of them and their servants, agents and employees, notwithstanding any
negligence of Tenant.
21. Hold Harmless. The Tenant promises and covenants to hold harmless, defend and
indemnify the Landlord, its directors, employees, agents, representatives, successors and assigns,
from and against any and all liabilities, claims, penalties or damages of any nature, whether
present or future (including without limitation damages for personal injury, disease and death;
property damage; administrative or judicial penalties or fines; accountants fees, consultants fees
and attorneys fees associated with or necessary for the Landlord's defense of matters arising
under this Lease), arising out of, or related directly or indirectly to the use of the Premises by the
Tenant.
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22. No Other Encumbrances. Tenant covenants and agrees not to encumber the Premises or
the interest of Tenant in this Lease without the prior written consent of Landlord.
23. Notice. Any notice, demand, or other communication required or permitted to be given
by any provision of this Lease shall be given in writing, delivered personally or sent by certified
or registered mail, postage prepaid and return receipt requested, or by overnight courier, with
shipping charges prepaid, addressed as follows:
To the Landlord: Avon Recreation Center
Attn: Meryl Jacobs, Recreation Director
90 Lake Street
P.O. Box 975
Avon, CO 81620
Ph: (970) 748 -4060
To Tenant: [business information to be added]
All notices, demands, requests or other communications shall be effective upon such personal
delivery or one (1) business day after being deposited with Federal Express or other nationally
recognized overnight air courier service or three (3) business days after deposit in the United
States mail. By giving the other party thereto at least ten (10) days written notice thereof in
accordance with the provisions hereof, each of the Parties shall have the right from time to time
to change its address.
24. Assignment. Tenant shall not in any manner transfer or assign this Lease without the
prior written consent of the Landlord and any attempt to do so without the Landlord's prior
written consent shall be null and void and confer no rights on third persons.
25. Binding Effect. This Lease shall be binding upon and inure to the benefit of the Parties
hereto and their respective successors and permitted assigns.
26. Governing Law. This Lease shall be governed by and construed in accordance with the
laws of the State of Colorado. The Parties agree that venue for any dispute regarding this Lease
shall be proper in Eagle County, Colorado.
27. Attorneys' Fees. In the event either party to this Lease commences an action to enforce
any of the provisions hereof, each party shall be responsible for its own attorney fees and other
legal costs.
28. Relationship of the Parties. Nothing contained in this Lease shall be deemed or construed
by the parties hereto or by any third person to create the relationship of employer and employee,
principal and agent, or of a partnership or joint venture, or of any association between Landlord
and Tenant.
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29. Headings for Convenience Only. The headings, captions and titles contained herein are
intended for convenience and reference only and are not intended to define, limit, or describe the
scope or intent of any provision of this Lease.
30. Modification. This Lease and its attached exhibits set forth the entire understanding and
agreement between the parties hereto with respect to the Premises. Except as otherwise provided
herein, this Lease may be modified, amended, changed, or terminated, in whole or in part, only
by an agreement in writing and duly authorized and executed by the parties hereto.
31. No Partnership. Despite anything in this Lease to the contrary, each party is not and shall
not in any way or for any purpose become principal or partner of the other party in the conduct
of its business, operations, or otherwise, or a joint venturer or member of a joint enterprise with
the other party under this Lease.
LANDLORD:
Town of Avon, Colorado
BY: ATTEST:
AC. onaldWolfe, Mayor ]
TENANT:
[Name of Business]
BY: ATTEST:
a-' tick , TITLE
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.. �F
:SE
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y, T
, TITLE
EXHIBIT A
"Premises"
That certain area within the Avon Recreation Center, consisting of approximately 600 square feet
as described on the diagram.
[insert floor plan drawing]
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