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HomeMy WebLinkAboutC04-286 Edwards Plaza LLCc~~ ~~- a~ LEASE AGREEMENT EDWARDS PLAZA, LLC EDWARDS, COLORADO TABLE OF CONTENTS PARAGRAPH PAGE 1 LEASE SUMMARY OF BUSINESS TERMS 3 . 2. PARTIES 4 4 3. PREMI5E5 5 4. TERM 5 5. RENT 6 6. SECURITY DEPOSIT 7 7. USE OF PREMISES 8 TENANT IMPROVEMENTS, MAINTENANCE, REPAIlZS AND . ALTERATIONS 9 11 9. COMMON AREA 12 10. COMMON AREA CHARGES 12 11. INSURANCE, INDEMNITY 14 1 Z. TAXES 15 13. UTILITIES 16 14 ASSIGNMENT AND SUBLETTING . 15. DAMAGE AND DESTRUCTION 16 19 16. DEFAULTS, REMEDIES ' 23 17. S SURRENDER OF PREMISES, TREATMENT OF LESSEE ALTERATIONS AT EXPIRATION OF LEASE 18. LESSOR'S LIEN 23 24 19 EMINENT DOMAIN, CONDEMNATION . 20. ESTOPPEL CERTIFICATE 24 25 2l. 22 SUBORDINATION DISPLAYS AND OTHER ADVERTISING MEDIA SIGNS 26 . 23. , QUIET POSSESSION 24 COVENANTS AND CONDITIONS 27 . 25. WAIVER 27 27 26. ATTORNEY' S FEES 27 27. LESSOR'S ACCESS 28 28. NOTICES 28 29. AUCTIONS 28 30. OPTIONS 29 31 MULTIPLE TENANT BUILDING . 32. SECURITY MEASURES 29 30 33. EASEMENTS 30 34. PERSONAL GUARANTY 30 35. HOLDING OVER 30 36 CUMULATIVE REMEDIES . 37 LESSOR'S LIABILITY 30 . 3 8. BINDING EFFECT; CHOICE OF LAW 31 39. SEVERABILITY 31 40. INTEREST IN PAST DUE OBLIGATIONS 31 41. INCORPORATION OF PRIOR AGREEMENTS, AMENDMENTS 31 42. PERFORMANCE UNDER PROTEST 32 43. AUTHORITY 32 44. CONFLICT 32 45. ENVIRONMENTAL CONDITION AND INDEMNITIES 32 46. LESSEE'S FIRST OPTION TO PURCHASE 33 47. TIME OF THE ESSENCE 33 SIGNATURE PAGE EXHIBIT "A" (LESSEE'S SIGNAGE) EXHIBIT "B" (OPTION TO RENEW) 34 35 36 f LEASE SUMMA,~t,~' OF THE ~U5INESS '1'~K,M~S This paragraph ] represents a Lease Sum~ontary of the business Terms of this Lease. ~.~ Date of Execution: August 24, 2004 T..2 Parties: (a) Lessor: Edwards Plaza, LLC (Notice): Fritz K, or Cecilia Schmidt Telephone Number: (970) 926-3777 oar (970) 926-3351 or 970!904-3777 (b) Lessee: Eagle County Trade Name: Attention : Joe Hay, Sheriff Address (Preiaaiises): Edwards Plaza, LLC Address (Notice): P. 4. Box 359 Eagle, CO.81632 ~'elephone Number: 970/328-8500 FAX 970-328-)448 (c) Guarantor: N/A, 1.3 Premises: (a} Building: Edwards Plaza (b) Unit Aescription: Unit # I Edwards PIa2a OQ69 Edwards Access Rd. Edwards, CO. $1632 © Lessees Prorated Share of Common Cost: 1300/1b173 or A-,pprox. 8% Eaccept Property Taxes 1.4 'T'erm: (a) Base Term: One Xear (b) Date of T)elivery of possession: September 1.2004 3 (e) Lease Commencet~ten,t Date: Septen~bez- 1, 2004 (d) Lease Expiration date: December 31, 2004 1.5 ,Rent: (a) Base Monthly $ .2,273.83 (b) Rent: $ 2,3 83.33 CAM 890.50 Total $ 3,273.83 Rent Commencement Date: September 1, 2004 (c) Base bade: ,As of 12/31/04 (d) l'xepaid rent $ 13,095.32 from Sept. 1st, to Dec. 31 ~`, 2004 Rent is for Foux 1V)Conths 1.6 Option to Renew: Three -One year renewal periods January 1 through Aeeembex 31 1.7 Seen~nity Deposit: N/A 1.8 Use of Premises: Sub-Station for Sheriff Office 1.9 Tenant Improvements: At tenant's cost 1.7.0 Brokerage Firm: N/A, (a) Lessor's Broker : ~T/,A, (b) Lessee's Broker: N/A Lessee has the approval to install Radio Antenna for Base Communication. 'Z'he parties recognize that Lessee is a governmental entity and that all obbigations beyond the current fiiscal year axe subject to fends bei~Qg budgeted and appropriated. 3A 1.5 Rent: (a) Bas onthly Rent: (b) Rent Commence ent Date: (c) Base Index: (d) Rent Adjustment: see paraQ (e) Prepaid Rent: $ 1.6 Ciptions to Renew: 1.7 Security Deposit: $ 1.8 Use of Premises: 1.9 Tenant Improvements: at tenant' 1.10 Brokerage Firm: (a) Lessor's Broker: (b) Lessee's Broker: 2. PARTIES. D8~31 Ion 2.1 This Lease dated (for reference purposes only), , is made by and between Edwards Plaza LLC a Colorado Limited Liabili Com an (herein called Lessor) and L C~,~ ~ J . (herein called Lessee) Lessor and Lessee are further described in Paragraph 1.2, the Lease Summary Terms. 3. PREMISES. 3.1 Leased Premises. Lessor hereby Leases to Lessee and Lessee leases from Lessor, the "Leased Premises" described in Paragraph 1.3 of the Lease Summary of Business Terms. 4 TERM. 4.1 Term. RENT. The initial term shall be for the period started in the Lease Summary of Business Terms unless terminated pursuant to any provisions hereof. The term "Lease Year" as used herein means each successive period of twelve (12) calendar months beginning on the date of commencement of this Lease (the commencement Date) and ending on each successive anniversary of such Commencement Date 5.1 Rent. The Lessee agrees to pay the Lessor a fixed minimum annual rental for each Lease Year during the term of the Lease, which rent is specified in Paragraph 1.5 (a) in the Lease Summary of Business Terms. This minimum rental is payable in equal monthly installments due on the first day of each calendar month during the term hereof without prior demand. 5.2 Rental increases -Initial Term. Commencing on January 1 following the first anniversary date of the Commencement Date of the Lease Period and annually thereafter, the minimum annual rental shall be adjusted upward, based on increases (if any) in the cost of living during the preceding year using the "Consumer Price Index" more particularly described in paragraph 5.3. 5.3 Consumer Price. "Price Index shall mean the Consumer Price Index All Urban Consumers (CPIU) - U.S. City Average, or a United States Department of Labor Bureau of labor Statistics. The "Base Index" for this Lease shall be as stated in Paragraph 1.5 (c), in the Lease Summary of Business terms. 5.4 Adjustment Formula. The following formula shall be used for determining the adjustment, if any, in the fixed minimum annual rent: Current Index Number = Base Index Number 5.5 Computing Increases. "Price Index" for the month immediately preceding the adjustment date" `Price Index" for the first month of the previous year. (a) As promptly as practicable after the commencement of the first adjustment year, and thereafter as promptly as practicable after the first year of each succeeding adjustment year Lessor shall compute the increase if any in the cost of living for the year imrriediately preceeding said adjustment year. Such computation shall be made by use of current and base index numbers provided for each adjustment year as set forth in Paragraph 1.5 in the Lease Summary of Business Terms, and Paragraph 5.4 above. (b) In computing increases for each adjustment year the current index number shall be divided by the base index number. From the quotient thereof, there shall be subtracted the integer l (one) and any resulting positive number shall be deemed to be the percentage of increase in the cost of living; the percentage of increase in the annual rental including increases for the year preceding the adjustment year for which the increase is being computed not withstanding the calculation set forth herein, the rental amount payable hereinafter shall never decrease. 5.6 Notification of Rental Increase. The Lessor shall, within a reasonable period of time after obtaining the appropriate data necessary for computing such increases, give the Lessee notice of any increase so determined. Lessee shall, within thirty (30) days after the receipt of such notice, notify the Lessor of any error in calculations and upon such notification, Lessor shall correct such error. However, nothing herein shall be construed to extend the time as provided in Paragraph 5.1 above when rents as determined by Lessor are due and payable by Lessee. 5.7 Minimum Rent. Minimum annual rent for each adjustment year together with increases calculated in accordance with Paragraph 5.4 through 5.6 of this Paragraph 5, shall be due and payable to the Lessor in equal installments due on the first day of each calendar month of each adjustment year, retroactively payable within thirty (30) days after giving notice thereof by Lessor to Lessee at the address set forth in the Lease Summary of Business Terms. 5.8 Publication of Consumer Price Index. If publication of the pertinent Consumer Price Index shall be discontinued, the parties hereto shall hereafter accept comparable statistics on the cost of living for the average of all U.S. cities, all items, as the same shall be computed and published by an agency of the United States or by a responsible financial periodical of recognized authority shall to be select by the parties hereto. In the event of (i) use of comparable statistics in place of the Consumer Price Index as above mentioned, or (ii) publication of the index figures at other than by-monthly intervals, there shall be made in the method of computation above provided revision as the circumstances may require to carry out the intent of this article. 5.9 Additional Rent. Any monetary obligation of Lessee to Lessor under the terms of this Lease shall be deemed to be additional rent. 6. SECURITY DEPOSIT 6.1 Security Deposit. As security for Lessee's faithful perforniance of Lessee's obligation Lessee has deposited with Lessor the sum as stated in Paragraph 1.7 of the Sununary of Lease Business Terms. If Lessee fails to pay rent or other charges hereunder, or otherwise defaults with respect 6 to any provision of this lease, Lessor may use, apply, or retain all or any portion of said deposit for the payment of any rent or other charge in default or for the payment of any other sum to which Lessor may become obligated by reason of Lessee's default or to compensate Lessor for any loss or damage which Lessor may suffer thereby. If Lessor uses or applies all or any portion of said deposit, Lessee shall within ten (10) days after written demand thereof deposit cash with Lessor in an amount sufficient to restore said deposit to the full amount herein above state and Lessee's failure to do so shall be a material breach of this Lease. If the monthly rent shall from time to time increase during the term of this Lease, Lessee shall thereupon deposit with the Lessor additional security deposit so that the amount of security deposit held by Lessor shall at all times bear the same proportion to current rent as the original monthly rent set forth in Paragraph 1.7, Lease Summary Business Terms. Lessor shall not be required to keep said deposit separate from his general accounts. If Lessee performs all of its obligations hereunder, said deposit, or so much thereof as has not theretofore been applied by Lessor, shall be returned, without payment of interest or other increment for its use, to Lessee (or, at Lessor's option, to the last assignee, if any, of Lessee's interest hereunder) at the expiration of the term hereof, and after Lessee has vacated the Premises. No trust relationship is created herein between Lessor and Lessee with respect to said Security Deposit. 7. USE OF THE PREMISES. 7.1 Use. T'he Premises shall be used and occupied for the use as stated in Paragraph 1.8, of the Summary of Business Terms attached hereto and made part hereof by this reference and any other use, which is reasonably comparable and approved by Lessor in writing and for no other purpose. 7.2 Compliance with Law. (a) Lessor warrants to Lessee that the Premises, in the state existing on the date that the Lessee term commences, but without regard to the use for which Lessee will use the Premises, do not violate any covenants or restrictions of record, or any applicable building code, regulations or ordinance in effect on such Lease term Commencement Date, Lessee shall comply with all laws, ordinances, orders, and regulations affecting the Premises and the cleanliness, safety and use of the same, including installation of additional facilities as required for the conduct and continuance of Lessee's business on the Premises. In the event it is detern~ined that this warranty has been violated, then it shall be the obligation of the Lessor to promptly, at Lessor's sole cost and expense, rectify any such violation. The warranty contained in this Paragraph 7.2 shall be of Force or Effect if, prior to the date of this Lease, Lessee was the owner or occupant of the Premises, and, m such event, Lessee shall correct any such violation at Lessee's sole cost. (b) Except as provided in Paragraph 7.2 (a) Lessee shall not use, occupy or permit the Premises or any part thereof to be used or occupied for any unlawful or illegal business use or purposes deemed by the Lessor to be disreputable or hazardous, nor in such manner as to constitute a nuisance of any kind, or in violation of any present or future laws, rules requirements, orders, directions, ordinances or regulations affecting the Premises or regulations of the United States of America, State of Colorado, County of Eagle, or other municipal, governmental or lawful authority whatsoever Lessor shall not create waste or nuisance, which shall lend to disturb other tenants. 7.3 No Insurance Rate Increases. Lessee shall not do or permit anything to be done on or about the Leased Premises or bring anything therein which will in any way increase the rate of fire or liability insurance upon the Building wherein the Premises are situated. Lessee shall, at its sole cost and expense, comply with any and all requirements pertaining to the Premises of any insurance company necessary for the maintenance of reasonable fire and public liability insurance covering the Leased Premises. 7.4 Auctions. No auction for fire or bankruptcy sales may be conducted on the Premises without Lessor's prior written consent. 7.5 Maintain Premises. Lessee covenants that it will exercise the highest duty of care to maintain the Leased Premises in a clean condition. 7.6 Acts of Lessee. Lessee shall not perform any act or carry on any practices which may injure the Building of which the Premises are a part or is a menace to other tenants in said building or Project. Lessee shall not permit excessive noise, noxious or offensive odors, waste, or other material to exist in and around the leased premises. Lessee shall compensate Lessor for the cost of curing these violations pursuant to paragraph 8.3. 7.7 Preparation and Acceptance of the Premises. (a) Lessor shall construct, at its own expense, the Building and the Premises according to the plans and specifications. All licenses, permits, and the like shall be obtained at Lessor's expense and the Premises shall be constructed in compliance with all applicable building codes and municipal and state and federal laws and regulations, Lessor shall substantially complete the Premises on or before the Commencement Date. The Premises shall be deemed to have been substantially completed when all of the following shall have occurred: (I) when the Premises have been entirely completed in accordance with the plans and specifications except for minor items such as touching up and finishing, the completion of which will not unreasonably interfere with Lessee's nornlal business operations on the Premises; (II) a temporary or permanent certificate of occupancy authorizing use of the Premises by Lessee shall have been issued by the appropriate governmental authorities, (III) Lessor shall have sent Lessee written notice at Lessee's address that all of the foregoing have occurred. The taking possession of the Premises by Lessee shall be conclusive evidence against Lessee that the Premises were m good and satisfactory condition when L possession was taken. Entry into the Premises by Lessee solely for the purpose of performing Lessee's work in finishing the Premises shall be deemed taking possession of the Premises by Lessee, but shall not be the Lease Commencement Date. 7.$ A breach of any of the terms or conditions contained to this Paragraph 7 shall constitute a material breach of this Lease. 8. TENANT IMPROVEMENTS, MAINTENANCE, REPAIRS AND ALTERATIONS. 8.1 Tenant Improvements. Lessee shall be responsible for all Tenant Improvements including fixtures, interior finishing, and interior demising walls, provided Lessor shall supply exterior (perimeter) walls. Lessor shall supply electrical, telephone, and television panels; gas, water and sewer stubbed to the Premises, Lessor must approve all tenant improvements submitted in writing by Lessee, prior to installation. 8.2 Lessor's Obligations. Subject to the provisions of Paragraph 7, 8.3 and 10 and except for damage caused by any negligent or intentional act or omission of Lessee, Lessee's agents, employees or invitees, in which event Lessee shall repair the damage, Lessor shall keep in good order, condition and repair the foundations, exterior walls and exterior roof of the Premises and common area of the Property, herein referred to as capital improvements. Lessor shall not be required to maintain the interior surface of exterior walls, windows, doors, skylights or plate glass of the Premises. 8.3 Lessee's Obligations. Subject to the provisions of Paragraph 1.3 (c), 7, 8.2 and 10, Lessee, at Lessee's expense, shall keep in good order, condition and repair the Premises and every part thereof including, without limiting the generality of the foregoing, all plumbing, heating, air conditioning system, electrical and lighting facilities and equipment within the Premises, fixture, interior walls and interior surface of exterior wall, ceilings, windows, doors, plate glass and skylights, located within the Premises. Lessee shall be responsible to pay to Lessor its pro-rata share of the cost to maintain all of the common area, landscaping, snow removal, driveways, parking lots, fences, signs, except for Tenant signs, located in the Project, and as specified in Paragraph 1.3 (c) and 10 below and all sidewalks adjacent to the Lessee's Premises. If Lessee fails to perform Lessee's obligations under this Paragraph 8.3 or under any other paragraph of this lease, Lessor may at Lessor's option enter upon the Premises after ten (10) days prior written notice to Lessee (except in the case of emergency, in which no notice shall be required), perform such obligations on Lessee's behalf and put the Premises in good order, condition and repair, and the cost thereof together with interest thereon at the rate of 18% Per annum shall be due and payable as additional rent to Lessor together with Lessee's next rental installment. Lessee shall repair any damage to the Premises occasioned by the installation and removal of its trade fixtures. Lessee shall leave power and telephone panels, electrical, telephone and television distribution systems, lighting fixtures, heating and air conditioning systems, plumbing in good operating condition. 8.7 Emer~ency. In the event of an emergency, if the Premises require immediate emergency work, Lessee may perform emergency work to the capital improvements necessary to protect property or life as long as said emergency work does not exceed two thousand five hundred dollars ($2,500.00). Lessee shall make all reasonable efforts to notify Lessor of the emergency but in no case shall Lessee fail to notify Lessor by more than one (I) business day from the date of the emergency. 8.8 Reimbursement. Lessor shall reimburse Lessee for the expenses of any repairs or emergency work performed which the Lessee may require to make which are occasioned by the acts or negligence of Lessor, its agents, employees, invitees or licensees and Lessee shall reimburse Lessor for any expenses of any repair which Lessor may be required to make which the acts or negligence occasions of Lessee, its agent, employees, invitees or licensees; provided, however, that the responsible party must be given notice of the maintenance or repair item and a reasonable time to repair the same before the other party shall be entitled to perform the necessary maintenance or repair. 8.9 Lessor Liability. Per this Paragraph 8, Lessor shall not be liable to Lessee or to any other person whatsoever for any damage arising from the leakage, obstruction, interruption, failure or discontinuance of all or any part of any utility or utility system in or about the Premises or the Building or from water being upon or coming through the roof or vents, due to causes other than gross negligence of Lessor, nor for any damage arising from any acts or negligence by co-tenants or other occupants of the Building or adjacent property, or the public. 9. COMMON AREA. 9.1 Common Area Use. Subject to the terms and conditions of this Lease and such rules and regulations as Lessor may from time to time prescribe, Lessee and Lessee's employees, invitees, and customers shall, in common with other occupants of the project and their respective employees, invitees and customers and others entitled to the use thereof, have the nonexclusive right to the use the access roads, parking areas, arcades and facilities provided and designated by Lessor for the general use and convenience of the occupants of the project, which areas and facilities are referred to herein as "Common Area". This right shall terminate upon the termination of this Lease. Lessor reserves the right from time to time to make changes to the shape, size location, amount and extent of the Common Area, provided however, that such changes do not adversely affect Lessee's ability to conduct its business in the Premises. Lessor further reserves the right to promulgate such rules and regulations relating to the use of the Common Area, and any parts thereof, as maybe reasonably appropriate for the best interest of the occupants of the Parcel. The rules and regulations shall be binding upon Lessee upon delivery of a copy of them to Lessee and Lessee shall abide by theirs and cooperate in their observance. Lessor from time to time may amend such rules and regulations, with or without advance notice, and all amendments shall be effective upon delivery of a ]1 copy, to Lessee. Lessor shall not permit the parking of Lessee's vehicles or trucks or the vehicles or trucks of Lessee's suppliers or other in any portion of the Common Area that are not designated by Lessor for such use by Lessee. Lessee shall not store any inoperative vehicles or equipment on any portion of the Common Area. Lessee shall make no alterations, improvements or addition to the Common Area. 9.2 Maintenance of Common Area. Lessor shall operate, manage, maintain and repair the Common Area in good order, condition and repair. The manner in which the Common Area shall be maintained shall be at the discretion of Lessor and expenditures for such maintenance shall be as reasonably determined by Lessor. The cost of such repair, maintenance, operation and management, including without limitation, maintenance and repair of landscaping, irrigation systems, paving, sidewalks, fences, interior walk ways, fences and lighting, shall be a Common Area Charge and Lessee shall pay its pro-rata share of such cost as specified in Paragraph 1.3 (c) and provided in Paragraph 10 below. 10. COMMON AREA CAARGES. 10.1 Lessee shall pay to Lessor, as additional rent, as defined in Paragraph 5.7, upon demand, but not more than once each calendar month, an amount equal to that percentage or pro-rata share of the Common Area Charges as stipulated in Paragraph 1.3 (c) of the Lease Summary of Business Terms. The amount of the Common Area Charges shall be estimated by Lessor in preparing an annual line item budget. Not later than ninety (90) days after year end, Lessor will prepare an accounting of the actual Common Area Charges and issue an invoice for additional rent if the actual charges exceeded the estimate; or issue a refund check if actual charges are less than the estimate. 10.2 Common area charges shall be levied by Lessor to Lessee at the beginning of each Calendar year based on estimates. At the end of each calendar year, but no later Than March 31, Lessor shall certify to lessee the amount of actual common area Charges paid during the previous calendar year and refund any overpayment Collected within 30 days of such determination or collect any undercharges from Lessee in the same 30-period. 11. INSURANCE, INDEMNITY. 11.1 Liability Insurance -Lessee. Lessee shall at Lessee's expense, obtain and keep in force during the term of this Lease a policy of Combined Single Limit Bodily Injury and Property Damage Insurance, written by one or more responsible insurance companies licensed to do business in the State of Colorado, insuring Lessee and Lessor against any Liability arising out of the use, occupancy or maintenance of the Premises and all other areas appurtenant thereto. Such insurance shall be in an amount not less than one million dollar ($1 000.000.00) per occurrence. The Policy shall insure performance by Lessee of the indemnity provisions of this Section 11. Lessor shall be named as additional insured. 11.2 Property Insurance -Lessee Property Lessee shall at Lessee's expense 12 obtain and keep in force during the term of this Lease a policy of Fire Insurance covering loss or damage to the Premises, its tenant improvements, furniture, fixtures and equipment in the Premises, with the extent of at least 80% of their insurable value, the proceeds of which will, so long as the Lease is in effect, be used for the repair or replacement of the properties so insured. It is understood that the Lessor shall have no interest in such insurance, and will sign all documents necessary and proper in connection with the settlement of any claim or loss by Lessee. 11.3 Lessor's Fire extended Coverage and Liability. (a) Lessor shall pay for the cost of fire and extended coverage insurance covering the Building and Project against loss or damage by fire and by other risks now or hereafter embraced by "extended coverage" in the amount of the full insurable value of the Building. Lessor at Lessor's expense, shall also maintain in full force during the Lease term, comprehensive general liability with respect to the Buildings, covering bodily injury, death and damage to the property of others. (b) For each Lease Year, Lessee shall pay Lessee's pro-rata share of the premiums for the above described insurance coverage, which amount shall be payable in equal monthly installments due on the same day as the minimum monthly rental payments are due hereunder without prior notice. As promptly as possible following receipt by Lessor of its annual insurance premium notice for the Building and/or Project, a copy of the same shall be sent to the Lessee together with a statement of any increase in Lessee's future pro-rata share, which maybe necessitated by said premium notice for the Building and/or Project. Lessee shall commence paying any such increased share on the day the next minimum monthly rental payment is due hereunder. 11.4 Insurance Policies. Lessee shall deliver to Lessor copies of policies of liability insurance required under Paragraph 11.1 or certificates evidencing the existence and amount of such insurance. No such policy shall be cancelable or subject to reduction of coverage or other modification except after thirty (30) days prior written notice to Lessor. Lessee shall, at least thirty (30) days prior to the expiration of such policies, furnish Lessor with renewals or "binders" thereof, or Lessor may order such insurance and charge the cost thereof to Lessee, which amount shall be payable by Lessee upon demand. Lessee shall not do or permit to be done anything, which shall invalidate the insurance policies, referred to in Section 11. 11.5 Waiver of Subrogation. Lessee and Lessor shall each hereby release and relieve the other, and waive their entire right of recovery against the other for loss or damage arising out of or incident to the perils insured against under Section 11, which perils occur in, on or about the Premises, whether due to the negligence of Lessor or Lessee or their agents, employees, contractors and/or invitees, Lessee and Lessor shall upon obtaining the policies of insurance required hereunder, give notice to the insurance carrier or carriers that the foregoing mutual waiver of 13 subrogation is contained in this Lease. 11.6 Indemnity. Lessee shall indemnify and hold harmless Lessor from and against any and all claims arising from Lessee's use of the Premises, or from the conduct of Lessee's business or firm any activity, works or things done, permitted or suffered by Lessee in or about the Premises or elsewhere and shall further indemnify and hold harmless Lessor from and against any and all claims arising from any breach or default in the performance of any obligation of Lessee's to be performed under the terms of this Lease, or arising from any act, omission or negligence of the Lessee, or any of Lessee's agents, attorney's fees and liabilities incurred in the defense of any such claim or action or proceeding brought thereon, and in case any action or proceeding be brought against Lessor by reason of any such claim, Lessee upon notice from Lessor shall defend the same at Lessee's expenses by counsel satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense. o+-1-ar ter. inii~rc~+nrwrc~nc i `rli .~f +1.o Teo L.:.. .'e...~. . Lessee's obligation to inderrulify the Lessor as provided above shall be limited to the sum that exceeds the amount of insurance proceeds, if any, received from Lessor's insurance carrier in payment of the claim. 11.7 Exemption of Lessor from Liability. Lessee hereby agrees that Lessor shall not be liable for injury to Lessee's business or any loss of income therefrom or for damage to the goods, wares, merchandise or other property of Lessee, Lessee's employees, invitees, customers, or any other person in or about the Premises or the Project, nor shall Lessor be liable for injury to the person of Lessee, Lessee's employees, invitees, agents or contractors, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water, rain, snow or other Acts of God or from the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures, or from any other cause, whether the said damage or injury results from conditions arising upon Premises, the Project or upon other portions of the building of which the Premises are a part of or from other sources or places. Notwithstanding the foregoing, Lessor shall be liable for such injury, loss or damage as set forth above if the act omission or negligence of the Lessor, his agents, employees or invitees, causes the same. Lessor shall not be liable for any damages arising from any act or negligence of any other tenant, occupant or user, if any, of the Project or Building in which the Premises are located. 12. 1 Lessor shall pay the real property licable to the Premises and the Project as defined in Paragraph owever, Lessee ay to Lessor Lessee's pro-rata share of all real a taxes, assessments and other govern l levies and charges, gener special, which are assessed or imposed upon the underlyi 1 roperty the Building or any part thereof, or become payable during the term o 14 13.3 Lessee's Facilities. Lessee further agrees that Lessee will not install any equipment which will exceed or overload the capacity of any Utility Facility and that if any equipment installed by Lessee shall require additional Utility Facilities, the same shall be installed and maintained at Lessee's expense in accordance with the plans and specifications which have received prior approval by Lessor. Such approval shall not be unreasonably denied. 14. ASSIGNMENT AND SUBLETTING. 14.1 Lessor's Consent Required. Except as provided herein, Lessee shall not assign neither this Lease nor any interest herein, or encumber, mortgage or hypothecate this Lease or any interest herein, or permit the use of the Premises by any person or persons other than Lessee, or sublet the Premises in whole or in part without the Lessor's prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Lessee shall have the absolute right to assign this Lease to any corporation in which Lessee owns not less than 50% of the stock or any Limited Liability Company Partnership or Limited Partnership in which Lessee has not less than a 50% interest. If Lessee is a corporation; any sale or other transfers of the stock of such corporation which results in the present shareholders therein owning less than 50% of the stock thereof shall be deemed an assignment of this Lease, requiring the prior written consent of Lessor. Lessor shall respond to the Lessee's request for consent hereunder in a timely manner and any attempted assignment, transfer, mortgage, encumbrance or subletting without such consent shall be null and void and without force or effect and shall constitute a breach of this Lease. Any assignee must acknowledge in writing compliance with all exclusive uses in the Building. 14.2 Release of Leases. Upon Lessor's consent, an assignment shall release the Lessee of Lessee's obligations to be performed by Lessee hereunder after an assignment; all such obligations shall become the responsibility of the Assignee. Consent to one assignment or subletting shall not be deemed consent to any subsequent assignment or subletting. 14.3 Attorney's Fees. In the event Lessee shall assign or sublet the Premises or request the consent of Lessor for what Lessee proposes to do, then Lessee shall pay Lessor's reasonable attorney's fees incurred in connection therewith. 15. DAMAGE AND DESTRUCTION. 15.1 Definitions. (a) "Premises Partial Damages". "Premises Partial Damages" shall herein mean damage or destruction to the Premises to the extent that the cost of repair is less than fifty percent (50%) of the fair market value of the Premises, immediately prior to such damage or destruction. "Premises Building Partial Destruction" shall mean damage or destruction to the 16 15.5 and 15.6, if any time during the term of this Lease there is damage which is an Insured Loss and which falls into the classification of Premises Partial Damage or Premises Building Partial Damage, then Lessor shall, at Lessor's sole cost repair such damage, but not Lessee's fixtures, equipment or Tenant improvements, as soon as reasonably possible and this Lease shall continue in full force and effect. 15.3 Partial Damage -Uninsured Loss. Subject to the provisions of Paragraph 15.4, 15.5, 15.6, if any time during the term of this Lease there is damage which is not an insured Loss, which falls within the classification of Premises Partial Damage or Premises Building Partial damage, unless caused by a negligent or willful act of the Lessee, Lessor may at Lessor's option either (1) repair such damage as soon as reasonably possible at Lessor's expense, in which case this Lease shall continue in full force and effect or (2) give written notice to Lessee within in thirty (30) days after the date of the occurrence of such damage of Lessor's intention to cancel and terminate this Lease, as of the date of the occurrence of such damage. In the event Lessor elects to give such notice of Lessor's intention to cancel and terminate this Lease, Lessee shall have the right within ten (10) days after the receipt of such notice to give written notice to Lessor of Lessee's intention to repair such damage at Lessee's expense, without reimbursement from Lessor, in which event this Lease shall continue in full force and effect, and Lessee shall proceed to make such repairs as soon as reasonably possible. If Lessee does not give such notice within such ten (10) day period this Lease shall be canceled and terminated as of the date of the occurrence of such damage. 15.4 Total Destruction. If at any time during the term of this lease there is damage, whether or not an Insured Loss, (including destruction required by any authorized public authority), which falls into the classification of Premises Total Destruction or Premises Building Total Destruction, the Lease shall automatically terminate as of the date of the total destruction. 15.5 Damage Near End of Term. (a) If at any time during the last six (6) months of the term of this Lease there is damage, whether or not an Insured Loss, which falls within the classification of Premises Partial Damage, Lessor or Lessee may cancel and terminate this Lease as of the date of occurrence of such damage by giving written notice to the other of their election to do so within thirty (30) days after the date of occurrence of such damage. (b) Notwithstanding Paragraph 15.5 (a), in the event that Lessee has an option to extend and renew this Lease, and the time within which said option may be exercised has not yet expired, Lessee shall exercise such option, if it is to be exercised at all, no later than twenty (20) days after the occurrence of an Insured Loss falling within the classification of Premises Partial Damage during the last six (6) months of the term of the Lease. If Lessee duly exercises such option during said twenty- (20) day period, Lessor shall at Lessor's expense, repair such damage as soon as reasonably possible and this Lease shall continue in full force and effect. If Lessee fails to exercise 18 .~ responsible or liable for any failure to collect any rent due upon such reletting, but Lessor shall be required to use his good faith effort to collect such rent as per the conditions and remedies previously stated in this lease. 17. SURRENDER OF PREMISES, TREATMENT OF LESSEE'S ALTERATIONS AT EXPIRATION OF LEASE. 17.1 All alterations, additions, improvements, partitions, flooring, carpeting or fixtures and plumbing fixtures which may be made or installed by either of the parties upon the Premises and which in any way or manner be attached to the floors, walls, windows, or ceilings (excepting coolers, compressors, cash registers, computers or other mechanical equipment installed by Lessee) shall be the property of the Lessor upon the expiration or other termination of this Lease, unless Lessor shall elect otherwise. In the event the Lessor shall so elect, such alterations, installations, additions or improvements made by Lessee upon the Premises, as the Lessor shall so elect, shall be removed by the Lessee and Lessee shall restore the Premises to its original condition at the commencement hereof, normal wear and tear excepted, at its own cost and expense prior to the expiration or termination of the term hereof; or if the Lessee fails to do so, Lessor, in addition to all of its other right and remedies hereunder, may do so at the Lessee's expense. Also, at the expiration or other termination of the Lease Term, Lessee shall remove all of his moveable trade fixtures that shall not be property of the Lessor under the foregoing provisions of this Section 17. The Lessee's obligations to perform the covenants contained in this Paragraph of this Lease shall survive the expiration or other termination of this Lease. (see Section 15.6 (a)) 18. LESSOR'S LIEN. 18.1 The parties expressly understand and agree that in order to secure payment of any such sums becoming due at any time to Lessor hereunder and to secure the proper performance of this Lease by Lessee, Lessor hereby has a security interest in and first lien upon all of the tenant improvements and fixtures owned by the Lessee (or to the extent Lessee has any other interest herein) which Lessee shall hereafter place or permit to be placed in, upon or about the Premises. Lessee hereby agrees to give Lessor an security interest in the subject tenant improvements and fixtures and agrees to execute, upon receipt of written request therefore from the Lessor, at any time during the term hereof, a Financing Statement evidencing said security interest to be filed and recorded in the manner provided by law. In the event of default by Lessee under this Lease, the Lessor shall have a right to all of the subject tenant improvements, personal property and fixtures as if Lessor were a creditor under the Colorado Uniform Commercial Code. 1n addition, in the event of a default by Lessee under this Lease, the Lessee authorizes the Lessor to enter upon the Premises and to sell (and to remove, if necessary) the tenant improvements and fixtures, which are the subject of this lien. Such action by Lessor shall not be deemed a breach of the Lease. Lessee agrees to pay the reasonable attorney's fees incurred the Lessor in the event the Lessor must foreclose upon the security interest and first lien 23 granted by Lessee herein. Notwithstanding the proceeding, Lessor agrees to, subordinate its security interest and lien granted hereunder to any purchase money mortgages or liens, other Lessee security interests and/or line of credit security interests covering any fixtures or inventory of Lessee in the Premises. 19. EMINENT DOMAIN, CONDEMNATION. 19.1 If the Premises or any portion thereof are taken under the power of eminent domain, or sold under the threat of the exercise of said power (all of which are therein are called "condemnation"), this Lease shall terminate as to the part so taken as of the date the condemning authority takes title or possession, whichever first occurs. If more than ten percent (10%) of the floor area of the building or the Premises, or more than twenty-five percent (25%) of the land area of the Project which is not occupied by any building, is taken by condemnation, Lessee may at Lessee's option, to be exercised in writing only within thirty (30) days after Lessor shall have given Lessee written notice of such taking (or in the absence of such notice, within thirty (30) days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority takes such possession. If Lessee does not terminate the Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the rent shall be reduced in the proportion that the floor area of the Building or Premises taken bears to the total floor area of the Building or Premises, as the case maybe. No reduction of rent shall occur if the only area taken is that which does not have a building located thereon, provided however, that the taking of such area does not interfere with Lessee's conduct of business on the Premises. Any reward for the taking of all or any part of the Premises or Project under the power of eminent domain or any payment made under threat of the exercise of such power shall be the property of Lessor, whether such award shall be made as compensation for diminution in value of the leasehold or for the taking of the fee, or as severance damages; provided, however, that Lessee shall be entitled to any award for loss of business, damage to Lessee's trade fixtures, Lessee's removable personal property, depreciation to, and cost of removal of stock and fixtures. In the event that this Lease is not terminated by reason of such condemnation, Lessor shall to the extent of severance damages received by Lessor in connection with such condemnation, repair any damage to the Premises caused by such condemnation except to the extent that Lessee has been reimbursed by the condemning authority. Lessee shall pay any amount in excess of such severance damages required to complete such repair. 19.2 Lessor and Lessee agree to execute and deliver to the other all instruments that may be required to effectuate the provision of this Section 19. 20. ESTOPPEL CERTIFICATE. 20.1 Lessee and Lessor shall at any time upon not less than ten (10) days' written notice from Lessor or Lessee execute, acknowledge and deliver to the other a statement in writing (i) setting forth the commencement of the Lease tern, and the rent provided 24 under the Lease, it being intended that such statement pursuant to this Paragraph 20, may be relied upon by any purchases, mortgagee, or assignee of any mortgagee of the Premises or Building (ii) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect) and the date to which the rent and other charges are paid in advance, if any, and (iii) acknowledging that there are not, to Lessee's or Lessor's knowledge, any non cured defaults on the part of Lessor or Lessee there under, or specifying such defaults if any are claimed. Any prospective purchaser or encumbrances of the Premises may conclusively rely upon any such statement. 20.2 At Lessor's or Lessee's option, Lessee's or Lessor's failure to deliver such statement within such time shall be a material breach of this Lease or shall be conclusive upon the other (i) that this Lease is in full force and effect, without modification except as maybe represented by Lessor, (ii) that there are no non cured defaults in Lessor's or Lessee's performance and (iii) that not more than one (1) month's rent has been paid in advance. 20.3 If Lessor desires to finance, refinance or sell the Premises, the Project, or any part thereof, Lessee hereby agrees to deliver to any lender or purchaser designated by Lessor, within ten (10) days written notice from Lessor, such financial statements of Lessee as may be reasonably required by such lender or purchaser. 21. SUBORDINATION. 21.1 This Lease, at Lessor's option, shall be subordinate to any ground Lease, mortgage, and deed of trust. or any other hypothecation or security now or hereafter placed upon the real property of which the Premises are a part and to any and all advances made on the security thereof and to all renewals, modifications, consolidations, replacements and extensions thereof. Notwithstanding such subordination, Lessee's right to quiet possession of the Premises shall not be disturbed if Lessee is not in default and so long as Lessee shall pay the rent and observe and perform all of the provisions of this Lease, unless this Lease is otherwise terminated pursuant to its terms. If any mortgagee, trustee or ground lessor shall elect to subordinate this Lease to the lien of its mortgage, deed of trust or ground lease, and shall give written notice thereof to Lessee, this Lease shall be deemed prior to such mortgage, deed of bust, or ground lease, whether this Lease is dated prior or subsequent to the date said mortgage, deed of trust or ground lease or the date of recording thereof. 21.2 Lessee agrees to execute an documents required to effectuate any attornment, a subordination or make this Lease prior to the lien of any mortgage, deed of trust or ground lease, as the case may be. Lessee's failure to execute such documents within ten (10) days written demand shall constitute a material default by Lessee hereunder, or at Lessor's option Lessor shall execute such documents on behalf of Lessee as Lessee's attorney in fact Lessee does hereby make, constitute and irrevocably appoint Lessor as Lessee's attorney-in-fact and Lessee's name place and stead to execute such documents in accordance with this Paragraph 21. 25 21.3 Lessee's refusal to execute any documents required to effectuate any attornment shall entitle the Lessor to at once terminate the Lease. Lessee agrees not to record or file this Lease or any memorandum thereof in the real estate records affecting the Building in which the Premises are located. Any such recording in violation hereof shall be considered a slander of Lessor's title and breach of this entire Lease. 22. SIGNS, DISPLAYS AND OTHER ADVERTISING MEDIA. 22.1 Lessee's signs. Lessee shall be entitled to exterior sign set forth on Exhibit "A" attached hereto. 22.2 Sign approvals. Lessee shall not erect or install any other exterior or interior window or door signs, advertising media, window or door lettering, or placards (herein referred to as Signs) without Lessor's written consent. Lessee agrees to install at least one exterior Sign that shall be in strict conformance with Lessor's Sign criteria as to design, material, colors, location, size and style of lettering. The cost shall be the Lessee's sole expense. Lessee shall not install any exterior lighting, decoration, painting, awning or make any changes to the exterior of the Premises without Lessor's written consent, provided however, that Lessee shall have the right to install a reasonable number of exterior lights sufficient to provide security for Lessee and his employees. Under no circumstances shall Lessee place any Sign on any roof of the Premises or Project. There shall be no newspaper sales dispensers or other vending machines on the exterior of the Premises, unless approved in writing by Lessor. In the event Lessor has approved said newspaper sale dispensers, Lessor may revoke such approval at any time without prior notice to Lessee. All Signs must comply with the rules and regulations of the jurisdiction in which the Premises resides, the county of Eagle or the P.U.D regulations. 22.3 Lessor's Signs. Lessor may at any time place on or about the Premises, Building or Project any ordinary "For Sale" signs and Lessor may at any time during the last one hundred twenty (120) days of the teen hereof place on or about the Premises, Building or Project and "For Lease" sign or place in any normal real estate publication any ordinary "For Lease" advertising as the case maybe, all without rebate of rent or liability to Lessee. 23. QUIET POSSESSION. 23.1 Upon Lessee paying rent for the Premises, and observing and performing all of the covenants and provisions on Lessee's part to be observed and performed, and as long as Lessee is not in default hereunder, Lessee shall have quiet possession of the Premises for the entire term, any renewal or extension hereof subject to the provisions of this Lease. The individuals executing this Lease on behalf of the Lessor represent and warrant to Lessee that they are duly authorized and legally capable of executing the Lease on behalf of Lessor, and that such execution is binding upon all parties holding an ownership interest in the Project. Lessor warrants and agrees to defend the title to the Premises and the Project. ~~ 27.2 "For Lease" sins. In accordance with this Paragraph 27, and Paragraph 22.3, Lessee agrees that Lessor has the right, after reasonable notice to the Lessee, to enter upon the Premises, for a period commencing one hundred twenty (120) days prior to the end of the Lease term, for the purpose of exhibiting the Premises for Lease, to prospective tenants, and to post any usual "For Lease" sign upon the Premises. 28. NOTICES. 28.1 Any notice required or permitted to be given hereunder shall either be (I) hand delivered, (ii) given by certified mail directed to the address of Lessor or Lessee set forth herein (iii) given by overnight courier directed to the address of Lessor or Lessee set forth herein (iv) by facsimile transmission to the number set forth herein. All notices so given shall be considered effective, (n if hand delivered when received, (ii) if by certified mail, three days after deposit, certified mail postage prepaid, with the United States Postal Service, (iii) if by overnight courier, one day after deposit with overnight courier company or, (iv) if by facsimile transmission, upon receipt of a machine generated confirmation of a complete transmission of all pages. Either Party may change the address or facsimile number to which future notice shall be sent by notice given in accordance with this section. 29. AUCTIONS. 29.1 Lessee shall not conduct nor permit to be conducted, either voluntarily or involuntarily, any auction upon the Premises, Building or the common areas without force having obtained Lessor's prior written consent. Notwithstanding anything to the contrary in this Lease, Lessor shall not be obligated to exercise any standard of reasonableness in determining whether to grant such consent. 30. OPTIONS. 30.1 Definition. As used in this Paragraph 30.1 the word "Option" shall mean the right or option to extend the base term of this Lease or to renew this Lease as set forth in Paragraph 1.6 in the Lease Summary of Business Terms and in exhibit "B" attached hereto. 30.2 Options Personal. Each Option granted to Lessee in this Lease are personal to Lessee and may not be exercised or be assigned, voluntarily or involuntarily, by or to any person or entity other than Lessee, provided, however, the Option may be excised by or assigned to any Lessee Affiliate defined in Paragraph 16.1 of this Lease or so granted, in writing, by Lessor. The Options herein granted to Lessee are not assignable separate and apart from this lease. 30.3 Effect of Default on Options. 7R (a) Lessee shall have no right to exercise an Option notwithstanding any provisions in the grant of Option to the contrary (I} during the time commencing from the date Lessor gives to Lessee a notice of default pursuant to Paragraph 16 and continuing until the default alleged in said notice of default is cured, or (ii) during the period of time commencing on the date after a monetary obligation to Lessor is due from Lessee and unpaid (without any necessity for notice thereof to Lessee) continuing until the obligation is paid, or (iii) at any time after an event of default described in Paragraph 16, without any necessity of Lessor to give notice of such default to Lessee. (b) All rights of Lessee under the provision of an Option shall terminate and be of no further force or effect, notwithstanding Lessee's due and timely exercise of the Option, if, after such exercise and during the term of this Lease, (i) Lessee fails to pay to Lessor a monetary obligation of Lessee for a period of thirty (30) days after such obligation becomes due (without any necessity of Lessor to give notice thereof to Lessee), or (ii) Lessee fails to commence to cure a default specified in Paragraph 16.1(c) within thirty (30) days after the date that Lessor gives notice to Lessee of such default and/or Lessee fails thereafter to diligently prosecute said cure to completion or (iii) Lessee commits a default described in Paragraph 16.1 (a), 16.1(d) or 16.1(e) (without any necessity of Lessor to give notice of such default to Lessee). 30.4 Extension Notification. Providing this Lease is in good standing, Lessee is not in default and has complied with Section 30 of this Lease, Lessee may exercise its option to extend the Lease Term, by giving Lessor written notice of Lessee's intent to extend the Lease, herein referred to as Extension Notification. The Extension Notification date shall be at least ninety (90) days prior to the end of the then current Lease Term or option period and in the event Lessee extends the Lease, all of the terms and conditions shall remain the same, except that the extended Lease terns and rent shall be as stated Paragraph 1.6, the Lease Summary of Business terms and Exhibit "B" attached hereto. 31. MULTIPLE TENANT BUILDING. 31.1 In the event that the Premises are part of a larger building or group of buildings then Lessee agrees that is will abide by, keep and observe all reasonable rules and regulations which Lessor may make from time to time for the management, safety, care and cleanliness of the Building and grounds, the parking of vehicles and the preservation of good order therein as well as for the convenience of other occupants and tenants of the building of the Project. The violations of such rules and regulations shall be deemed a material breach of this lease by Lessee. 32. SECURITY MEASURES. 32.1 Lessee hereby acknowledges that the rental payable to Lessor hereunder does not include the cost of guard service other security measures, and that Lessor shall have no obligation whatsoever to provide the same. Lessee assumes all responsibility for 29 the protection of Lessee, its agents and invitees from acts of third parties. In the event the Lessor, in its sole discretion, determines that a guard service is necessary, Lessee shall pay as Additional Rent, it's prorate share of said expense. 33. EASEMENTS. 33.1 Lessor reserves to itself the right, from time to time, to grant such easements, rights and dedications that Lessor deems necessary or desirable, and to cause the recordation of Parcel maps and restrictions, so long as such easements, rights, dedications, maps and restrictions do not unreasonably interfere with the use of the Premises by Lessee. Lessee shall sign any of the aforementioned documents within ten (10) days of Lessor's written request and failure to do so shall constitute a material breach of this lease. 34. PERSONAL GUARANTY. 34.1 As stated in Paragraph 1.2(c), the Summary of Lease Business Terms, the shareholders of the Lessee, if Lessee is a corporation, or the members of the Lessee, if Lessee is a LLC shall execute the Guaranty attached hereto, marked as Exhibit .~C„ 34.2 In the event there is a guarantor of this Lease, said guarantor shall have the same obligation as Lessee under this Lease. 35. HOLDING OVER. 35.1 If Lessee, with Lessor's consent, remains in possession of the Premises or any part thereof after the expiration of the term hereof and any remaining renewal periods, such occupancy shall be a tenancy from month to month upon all the provisions of this Lease pertaining to the obligations of Lessee, except that the monthly rental shall be at a rate of one and one-half (1 1/2) times the last monthly rental paid by Lessee. All options and rights of first refusal, if any, granted under the terms of this Lease shall be deemed terminate and be of no further effect during said month to month tenancy. 36. CUMULATIVE REMEDIES. 36.1 No remedy or election hereunder shall be deemed exclusive but shall, wherever possible be cumulative with all other remedies at law or in equity. 37. LESSOR'S LIABILITY. 30 the event of any transfer of such title or interest, Lessor herein named (and in the case of any subsequent transfers then the grantor) shall be relieved from and after the date of such transfer of all liability as respect to Lessor's obligations thereafter to performed, provided that any funds in the hands of Lessor or the grantor at the time of such transfer, in which Lessee has an interest, shall be delivered to the grantee. the obligations contained in this Lease to be performed by Lessor shall, subject as aforesaid, be binding on Lessor's successors and assigns, only during their respective periods of ownership. 38. BINDING EFFECT, CHOICE OF LAW. 38.1 Subject to any provision hereof restricting assignment or subletting by Lessee and subject to the provisions of Section 37, this Lease shall bind the parties, their heirs, personal representatives, successors and assigns. The laws of the State of Colorado Eagle County shall govern this Lease, and any litigation concerning this Lease between the parties hereto shall be initiated in the county in which the Project is located. 39. SEVERABILITY. 39.1 The invalidity of any provision of this Lease, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof. 40. INTEREST INPAST -DUE OBLIGATIONS. 40.1 Except as expressly herein provided any amount due to Lessor not paid when due shall bear interest at the rate of twelve percent (12%). Payment of such interest shall not excuse or cure any default by Lessee under this Lease provided, however, that interest shall not be payable on late charges incurred by Lessee nor on any amounts upon which late charges are paid by Lessee. 41. INCORPORATION OF PRIOR AGREEMENTS, AMENDMENTS. 41.1 This Lease, the Lease Summary of Business Tenns, and Exhibits attached hereto, contain all agreements of the parties with respect to any matter maintained herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Lease maybe modified in writing only, signed by the parties in interest at the time of modification. Except as otherwise stated in this lease, Lessee hereby acknowledges that neither the real estate broker nor any cooperating broker on this transaction nor the Lessor or any employee or agents of any of said persons has made any oral or written warranties or representations to Lessee relative to the condition or use by Lessee of the Premises or the Project and Lessee acknowledges that Lessee assumes all responsibility regarding the Occupational Safety Health Act, the legal use and adaptability of the Premises and the compliance thereof with all applicable laws an regulations in effect during the term of this Lease except as otherwise specifically stated in this lease. 31 ~ • 42. PERFORMANCE UNDER PROTEST. 42.1 If at any time a dispute shall arise as to any amount or sum of money to be paid by one party to the other under the provisions hereof, the party against whom the obligation to pay the money is asserted shall have the right to make payment "under protest" and such payments shall not be regarded as a voluntary payment, and there shall survive the right on the part of said party to institute suit for recovery of such sum. If it shall be adjudged that there was no legal obligation on the part of said party to pay such sums or any part thereof, said party shall be entitled to recover such sum or so much thereof as it was not legally required to pay under the provisions in this Lease. 43. AUTHORITY. 43.1 If Lessee is a corporation, trust, general or limited partnership, each individual executing this Lease on behalf of such entity represents and warrants that he or she its duly authorized to execute and deliver this Lease on behalf of said entity. If Lessee is a corporation, trust or partnership, Lessee shall, within thirty (30) days after execution of this Lease, deliver to Lessor evidence of such authority satisfactory to Lessor. 44. CONFLICT. 44.1 The typewritten or handwritten provisions shall control any conflict between the printed provision of this Lease and the typewritten or handwritten provisions. 45. ENVIRONMENTAL CONDITIONS AND INDEMNITIES. 45.1 Lessee shall use due care in storing, treating, processing and otherwise handling any hazardous or toxic substance, material, or waste on the Premises and shall conduct its operations in, on and about the Premises to prevent any leakage, spillage, contamination of the soil, water or air or pollution by Lessee, its agents, contractors, employees or invites from occurring in or on the Premises. Lessee shall promptly notify Lessor of any governmental proceeding, clean up requirement or other enforcement action involving the Premises. Lessor shall have reasonable access to the Premises in the event of any such governmental action in order to inspect the site and monitor any and all steps taken by Lessee or any other person to stop and/or clean up the contamination. Should any leakage, spillage, contamination of the soil, water or air, or pollution of any type occur in or on the Premises, or arise out of, result from or in any way be connected or associated with Lessee's operation or any other activities conducted by Lessee, its agents, contractors, employees or invitees, or any trespassers on the Premises, Lessee at its sole cost and expense, shall immediately clean the Premises of any and all such contamination, of whatever nature, caused or exacerbated by Lessee, its agents, contractors, employees or invitees, or any trespassers on the Premises, or otherwise occurring during the term ~~ s~ LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN AND BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES. SHOULD ANY PROVISION OF THIS LEASE VIOLATE ANY FEDERAL, STATE OR LOCAL LAW OR ORDINANCE, THAT PROVISION SHALL BE DEEMED AMENDED TO SO COMPLY WITH SUCH LAW OR ORDINANCE, AND SHALL BE CONSTRUED IN A MANNER SO AS TO COMPLY. THIS LEASE SHALL BE BINDING ON THE PARTIES, THEIR PERSONAL REPRESENTATNES, SUCCESSORS AND ASSIGNS. IN WITNESS WHEREOF, THE PARTIES HERETO HAVE DULY EXECUTED THIS AGREEMENT AS OF THE DAY AND YEAR FIlZST ABOVE WRITTEN. LESSEE: EAGLE COUNTY, COLORADO By and Through Its BOARD OF COUNTY COMMISSIONERS ATTEST: ,~,~.~ ~~<:~+a. ~~ ~. s, ,.~ ~~~~i~~ ~ {f ~ k< ~~~~~~~ Clerk to the Board of "~""""'~'~~ Tom ~ Stone, Chairm County Commissioners LESSOR: Edwards Plaza, LLC .~ e B ~ ~ ~~ Date 34 EXHIBIT "A" LESSEE'S SIGNAGE Lessee shall submit to Lessor the signage proposed package(s) prior to and once approved is shall become part installation of this Lease Agreement. 35