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TC Ord. No. 1990-126 0 ORDINANCE NO. 90- 12 AN ORDINANCE AUTHORIZING EXECUTION OF A CERTAIN LEASE AGREEMENT BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. That certain Lease Agreement, a copy of which agreement is attached hereto as Addendum I, and the terms of this agreement is hereby approved and authorized. Section 2. The Mayor and Town Clerk are hereby authorized and directed to execute said Lease Agreement. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this 24th day of July , 1990, and a public hearing on this ordinance shall be held at the regular meeting of the Town Council of the Town of Avon, Colorado on the 14th day of August , 1990, at 7:30 p.m. in the Municipal Building of the Town of Avon, Colorado. TOWN OF AVON, COLORADO Allan R, ottin m, Mayor S atricia J//boy'i'e-, ToAn Clerk INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED this 14th day of August , 1990. Allan R. ting 7M yor A2071190 • • Addendum I LEASE AGREEMENT THIS LEASE AGREEMENT is entered into the 21st day of August , 1990, between HERB MIGNERY, Artist, and DRISCOL GALLERY AT VAIL, INC., Agent of Artist (collectively "Lessors") and TOWN OF AVON ("Lessee") with respect to Herb Mignery's sculpture titled "Checkmate" ("the Sculpture"). LEASE TERM. Lessors lease the Sculpture to Lessee for a term of three years commencing on September 15, 1990, and ending on September 15, 1993. LEASE PRICE. The lease price is $158,000, based upon a purchase price for the sculpture of $180,000, an artist's professional adjustment of $10,000 and an agent's additional adjustment of $12,000. The purchase price is based upon a maximum edition of three, the Sculpture being the second piece in the edition. The purchase price does not include the copyright to the Sculpture which copyright is retained by the artist. LEASE PAYMENTS. The first lease payment in the amount of $52,666.67 shall be made upon execution hereof. The second and third lease payments shall be made on Septem- ber 15, 1991, and September 15, 1992, respectively. COVENANTS OF LESSEE. Lessee represents, covenants and warrants that it is a public body corporate and politic and is authorized by the constitution and laws of the State of Colorado to enter into this Agreement and to carry out its obligations hereunder. Lessee has duly authorized the execution and delivery of this Agreement, and agrees that it will do or cause to be done all things necessary to preserve and keep it in full force and effect. Lessee further represents, covenants and warrants that all procedures have been met so that this Agreement is enforceable, that Lessee has sufficient appropriations or other funds available to pay all amounts due hereunder for its current fiscal year. ~J SECURITY AGREEMENT. • To secure the payments due hereunder and any and all liabilities, direct, indirect, absolute, contingent, due or to become due now existing or hereafter arising of the Lessee to Lessor, the undersigned Lessee grants to the Lessor as the Secured Party a security interest in and to the Sculpture. Lessee agrees, if re- quested by Lessor, to execute and deliver to Lessor financ- ing statements or other similar instruments furnished by Lessor. LIENS. Lessee shall not directly or indirectly, create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance or claim in or with respect to the Sculpture, except with respect to the respec- tive rights of Lessor and Lessee as herein provided. Lessee shall promptly, at its own expense, take such actions as may be necessary to duly discharge any such mortgage, pledge, lien, charge, encumbrance or claim not excepted above if the same shall arise at any time. MISCELLANEOUS. The waiver by Lessor of Lessee's breach of any term, covenant or condition hereof shall not be a waiver of any subsequent breach of the same or any other term, covenant or condition. This Agreement consti- tutes the entire agreement between the parties and shall not be modified, amended, altered or changed except in writing. This Agreement shall be governed by the laws of the State of Colorado and any provision of this Agreement found to be prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remainder of this Agreement. NONAPPROPRIATION. It is Lessee's intent to make lease payments for the full term. However, if Lessee does not budget for any successive fiscal period to continue making the lease payments, and it has no funds for such payments from other sources, Lessee may terminate this Agreement with respect to the Sculpture at the end of the then current fiscal period, and Lessee shall not, in this - 2 - ® • sole event, be obligated to make any payments beyond the end of the then current fiscal period, in which event Lessor shall have and may exercise all rights of a secured party to take possession of the Sculpture. CARE AND USE OF SCULPTURE. Lessee, at its own cost and expense, shall maintain the Sculpture in good condition, repair and appearance, and protect same from deterioration other than normal wear and tear and agrees that the Sculpture shall remain personal property at all times regardless of how attached or installed; and shall keep the Sculpture on the premises where delivered and shall not remove the Sculpture without the written consent of Lessor. ENJOYMENT OF SCULPTURE. Lessor hereby covenants to provide Lessee during the Agreement Term with quiet use and enjoyment of the Sculpture, without suit, trouble or hindrance from Lessor except as expressly set forth in this Agreement. Any assignee of Lessor shall not interfere with such quiet use and enjoyment during the Agreement Term so long as Lessee is not in default pursuant to this Agreement. EVENTS OF DEFAULT AND REMEDIES. Lessee shall be deemed to be in default hereunder upon the happening of any of the following events of default; (a) Lessee shall fail to make any payment required to be paid hereunder, or (b) Lessee shall fail to keep any such other term, covenant or condition contained herein. Upon the occurrence of an event of default as specified in (a) above, or upon the occurrence of an event of default as specified in (b) above which Lessee fails to remedy with all reasonable dispatch within a period of 30 days, Lessor shall have the right, at Lessor's option without any further demand or notice, to pursue any one or more of the following remedies with respect to the payments due hereunder and the Sculpture: (a) by written notice to Lessee, declare an amount equal to all payments due during Lessee's current fiscal period to be immediately due and payable, whereupon the same shall become immediately - 3 - 0 0 due and payable; (b) re-enter and take possession of the Sculpture enforcing the Agreement or terminating the Agree- ment, and sell the Sculpture for the account of Lessee, and apply the net proceeds of such sale to amounts payable by Lessee hereunder; and (c) take whatever action at law or in equity may appear necessary or desirable to collect the payments then due and thereafter to become due during Lessee's current fiscal period (or Lessee's possession of the Sculpture) and/or to enforce performance and observance of any obligation, agreement or covenant of Lessee under this Agreement. INSURANCE. At its own expense, Lessee shall cause casualty insurance to be carried and maintained with respect to the Sculpture and shall carry public liability and property damage insurance sufficient to protect the full value of the Sculpture and to protect Lessor from liability in all events. All insurance proceeds from casualty losses shall be payable solely to Lessee, subject to the terms of this Agreement. On acceptance of the Sculpture, Lessee shall have purchased a casualty insurance policy on the Sculpture, a copy of which will be furnished to Lessor. Lessee shall carry Workmen's Compensation insurance covering all employees working on, in, near or about the Sculpture and shall require any other person or entity working on, in, near or about the Sculpture to carry such coverage, and will furnish to Lessor certificates evidencing such coverage throughout the Agreement Term. DAMAGE OR DESTRUCTION OF EQUIPMENT. In the event the Sculpture is partially damaged or destroyed, Lessee shall have the option to terminate this Agreement upon payment of the payment due during the then current fiscal period. OPTION TO PURCHASE. Lessee shall have the option to purchase the Sculpture at any time during the lease term by payment of the remaining lease payments due. Payment of the final lease payment on or before September 15, 1993, - 4 - shall be deemed to be an exercise of this option. Upon exercise of this option, title to the Sculpture shall be deemed vested in the Lessee. TOWN OF AVON By Allan R. Nottin am, Mayor DRISCO GALLERY AT VAIL, INC. B ATTEST: By: Secretary ern Mianer A2071190 - 5 - E STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, AT 7:30 P.M. ON THE 14TH DAY OF AUGUST, 1990, AT THE TOWN HALL FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 90-12, SERIES OF 1990: AN ORDINANCE AUTHORIZING EXECUTION OF A CERTAIN LEASE AGREEMENT A copy of said Ordinance is attached hereto, and is also on file at the office of the Town Clerk, and may be inspected during regular business hours. Following this hearing the Council may consider final passage of this Ordinance. This notice is given and published by order of the Town Council of the Town of Avon, Colorado. Dated this 24th day of July, 1990. TOWN fQ`jAVON, COL BY: atricia ,y. Dbyl1e, /roWn Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON JULY 25, 1990: THE AVON POST OFFICE IN THE MAIN LOBBY THE CITY MARKET IN THE MAIN LOBBY THE COASTAL MART, INC.;` and THE AVON MUNICIPAL BUILDING IN THE MAIN LOBBY