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HomeMy WebLinkAboutC11-272 Eagle Valley Child Care LEASE AGREEMENT BETWEEN EAGLE COUNTY, COLORADO and EAGLE VALLEY CHILD CARE ASSOCIATION This Agreement is made and entered into the day of I , 2011 between Eagle County, Colorado by and through its Board of County Commissioners (hereinafter referred to as "Landlord" or "County ") and the Eagle Valley Child Care Association, a Colorado non - profit corporation (hereinafter referred to as " Tenant ") WITNESSETH: WHEREAS, County owns property commonly known as the Miller Ranch Child Care and Community Center located at 0025 Mill Loft Road in Edwards, Colorado (the "Facility "). WHEREAS, Eagle County desires to lease certain portions of the Facility for use by a non - profit child care organization benefiting the citizens of Eagle County. The portion of the Facility which is subject to this Agreement is the ground floor of the Miller Ranch Child Care and Community Center. WHEREAS, Tenant desires to lease the ground floor of the Miller Ranch Child Care and Community Center as an early childhood care center pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the terms and covenants stated herein, including the rental amount, the sufficiency of which is hereby acknowledged, Landlord and Tenant agree as follows: ARTICLE I Leased Premises Landlord hereby leases to Tenant, and Tenant hereby rents from the Landlord, the "Leased Premises ", described as approximately 7,711 square feet of space located on the ground floor of the Miller Ranch Child Care and Community Center. The Leased Premises shall be used as an early childhood care center. See Exhibit A which depicts the Leased Premises. ARTICLE II Term The term of this Lease is for one (1) year commencing January 1, 2011 and shall expire at 12:01 a.m. on December 31, 2011 unless terminated earlier as specified herein. This Agreement shall automatically be extended for five (5) additional one (1) year periods or until December 31, 2016. In the event that either party does not wish to extend the lease 1 0,1 43 agreement in any given year it shall provide the other party with ninety (90) days written notice before the end of the then current lease term. ARTICLE III Rent Tenant agrees to pay Landlord a fixed amount of One (1) dollar as the full annual rental amount for the term of this Agreement. By executing below, Landlord acknowledges receipt of this rental sum. ARTICLE IV Insurance Tenant agrees at Tenant's own expense to maintain in full force during the Lease term worker's compensation insurance as required by law, comprehensive commercial general liability and property insurance which will cover Tenant and Landlord against liability for injury to persons and/or property, and death of any person or persons occurring in or about the Leased Premises. Each policy shall be approved as to form by Landlord. The liability under such commercial general liability and property insurance shall not be less than $ 2,000,000 per occurrence; $2,000,000 for bodily injury and property damage liability; $2,000,000 for personal injury; and $2,000,000 in annual aggregate limits. The policy shall list as additional insureds Eagle County and any other person or entity Landlord shall designate. All policies must contain an endorsement affording an unqualified thirty (30) days' notice of cancellation to Landlord in the event of cancellation of coverage. Certificates of insurance with the required endorsements evidencing coverage must be delivered to Landlord upon execution of this Agreement. Tenant shall provide Landlord a complete copy of any policy of insurance required hereunder within five (5) business days of a written request from Landlord, and hereby authorizes Tenant's brokers, without further notice to or authorization by Tenant, to immediately comply with any written request by Landlord for a complete copy of any policy required hereunder. ARTICLE V Indemnification Tenant acknowledges that it uses the Leased Premises at its own sole risk. Tenant hereby releases Landlord from liability for any costs, losses or damages of any nature whatsoever which Tenant may suffer as a result of its use of or operation in the Leased Premises, except for the willful misconduct of Landlord. Additionally, Tenant will indemnify Landlord and save Landlord harmless from and against any and all liability for any costs, losses or damages of any nature whatsoever suffered or alleged to be suffered by any third party (including Tenant's members, clients, client's families, directors, officers, employees and agents) as a result of Tenant's use of or operation in the Leased Premises. In case Landlord shall be made a party to any litigation commenced by or against Tenant, then Tenant shall fully protect and hold Landlord harmless and pay all 2 costs, expense, and reasonable attorney's fees, incurred or paid by Landlord in connection with such litigation, to the extent allowed by law. ARTICLE VI Utilities and Operational Expenses 1. Tenant shall pay Landlord on the first day of each month a flat fee for certain utilities and operational expenses as more fully set forth herein. The monthly fee during the first lease year (2011) shall be $1,310.65 per month. See Exhibit B which is attached hereto and incorporated herein and reflects the flat fee due each month. In the event the flat fee is not received by Landlord by the fifth day of each month, then Tenant shall be responsible for past due interest which shall mean interest accruing at 1.5% per annum commencing on the fifth day of the month until all amounts due and owing are paid to Landlord. 2. Tenant shall not be responsible for payment of the flat fee for January, 2011 , February, 2011 and March 1 through 23, 2011. The parties agree that the flat fee for March shall be prorated such that Tenant is responsible for the flat fee from March 24, 2011 through March 31, 2011 or $338.16 Tenant shall pay the full amount of $1310.65 for the months of April, 2011 — December or a total of $11,795.85 upon execution of this Agreement. 3. The flat fee to be paid by Tenant each month includes 61% of utilities which includes gas, electric, water, sewer, and trash disposal utilities incurred at the Facility. The flat fee to be paid by Tenant each month shall also include 61% of fire, sprinkler and security alarm systems maintenance incurred at the Facility. Further, the monthly flat fee to be paid by Tenant includes 61% of all operating expenses at the Facility which shall include, but not be limited to, seasonal grounds maintenance including shoveling and snow removal, lawn or grounds upkeep and other maintenance. 4. Tenant shall not be responsible for and the flat fee shall not include costs associated with elevator maintenance. 5. In addition to the monthly flat fee, Tenant shall pay for cleaning the Leased Premises which cleaning shall include bi- annual carpet cleaning and hard floor care. 6. In the event that Landlord is able, in its sole discretion, to self - perform seasonal grounds or other maintenance, the same shall occur at no charge to Tenant. If, however, Landlord, in its sole discretion, elects to hire a third party to perform seasonal grounds or any other maintenance (by way of example only other maintenance might include, but not be limited to, drain cleaning and pest control) to the Facility then Tenant shall pay 61% of such costs which shall be invoiced as set forth in this Article VI, Paragraph 11. If maintenance is occurring on the Leased Premises only, Tenant shall pay 100% of such cost to be 3 invoiced as set forth in this Article VI, Paragraph 11. 7. At the end of each lease year, Landlord shall reconcile the utilities, operational and other expenses actually incurred by it, against the amounts due from Tenant under this Agreement and the monthly flat fee paid by Tenant. In the event the reconciliation shows that the flat fee paid by Tenant represents an overpayment against amounts actually incurred by Landlord and owed by Tenant, then Tenant shall be reimbursed within thirty days by Landlord. In the event the reconciliation shows that the flat fee paid by Tenant represents an underpayment against amounts actually incurred by Landlord and owed by Tenant, then Tenant shall pay the balance due within thirty days to Landlord. In the event that any reimbursement is not received by Landlord within thirty days of a notice establishing the reconciliation, then Tenant shall be responsible for past due interest which shall mean interest accruing at 1.5% per annum commencing 30 days after the notice of reconciliation is issued, until all amounts due and owing are paid to Landlord. 8. In the event the lease term is extended for an additional year as set forth herein, then no later than January 31, of each lease year Landlord shall establish a new monthly flat fee based on actual costs incurred during the prior lease year. Such new monthly flat fee shall be established by written notice to Tenant and tenant shall be responsible for paying the flat fee as established in the written notice subject to the terms of this Agreement including the annual reconciliation hereunder. 9. Tenant shall pay for all utility services not specified as part of this Agreement, e.g. telephone, cable, etc. for the Leased Premises. 10. In the event that the County elects to implement a policy whereby it will charge for its staff time and materials in performing maintenance of any nature, then Tenant shall be provided sixty (60) days advance notice of such policy and a rate sheet establishing the fees associated with such services. After such sixty (60) day notice Landlord may invoice Tenant for such costs. 11. Landlord shall bill Tenant for those expenses, fees and costs not included in the flat fee on a quarterly basis and the same shall be due and payable within thirty (30) days of Landlord mailing such invoice to Tenant. In the event Tenant fails to timely pay Landlord, Tenant shall be responsible for past due interest which shall mean interest accruing at 1.5% per annum commencing on the fifth calendar date after the date such amount is due and owing until paid to Landlord. 12. With regard to all utilities, it is mutually agreed that Landlord shall not be Iiable in damages or otherwise for any interruption or failure thereof. 13. Tenant agrees that it will not install any equipment which will exceed or overload the capacity of any utilities facility or in any way increase the amount of utilities 4 usually furnished or supplied for use of the Leased Premises as a child care center. If any equipment installed by Tenant shall require additional utility facilities, the same shall be installed and maintained at Tenant's expense (and not as part of the flat fee) in accordance with the plans and specification which shall be subject to advance written approval and authorization by Landlord. 14. Notwithstanding anything to the contrary, Tenant agrees to promptly pay all taxes, license and permit fees of whatever nature applicable to its operations hereunder and to take out and keep current all licenses required for the conduct of its business at and upon the Leased Premises. Tenant further agrees not to permit any of said taxes, license or permit fees to become delinquent. Tenant agrees to furnish to Landlord upon request, duplicate receipts or other satisfactory evidence showing the prompt payment of social security, unemployment insurance and worker's compensation insurance, and all taxes and licenses. Tenant further agrees to promptly pay when due all bills, debts and obligations incurred by it in connection with its operations her under and not to permit the same to become delinquent and to suffer no lien, mortgage, judgment or execution to be filed against the Leased Premises. ARTICLE VII Place and Manner of Payments All sums payable to Landlord hereunder shall be made without notice at the following: Eagle County c/o Jan Miller Post Office Box 850 500 Broadway Eagle, CO 81631 or at such other place as the Landlord or its authorized representative may hereafter designate by notice in writing to Tenant. Any check given to Landlord shall be received by it subject to collection and Tenant agrees to pay any charges, fees or costs incurred by Landlord for such collection, including reasonable attorney fees. ARTICLE VIII Operation and Use of the Leased Premises 1. The Leased Premises shall be used and operated as a licensed child care facility and for no other purpose. 2. Tenant agrees that it will keep the Leased Premises in a neat, clean, safe, sanitary and orderly condition at all times. 3. Tenant agrees not to use or permit use of the Leased Premises for any purpose prohibited by the laws of the United States, State of Colorado, Eagle County and 5 • • any rules or regulations adopted by Eagle County, all as amended from time to time, and not otherwise authorized hereunder. Tenant further agrees that it will use the Leased Premises in accordance with all applicable federal, state and local laws, ordinances, resolutions, and all rules and regulations adopted by County for the operation, management and control of the Facility or Leased Premises. 4. Tenant shall conduct its business in an orderly and proper manner so as not to commit any nuisance or annoy, disturb, or be offensive to others in the Facility. 5. Tenant agrees not to improve, change, alter, add to, remove or demolish any improvements in the Leased Premises without prior written consent of Landlord. Tenant must comply with all conditions which may be imposed by Landlord in its sole discretion. 6. Tenant will not use, occupy, or permit the Leased Premises or any part thereof to be used or occupied for any unlawful or illegal business. use or purposes deemed by Landlord to be disreputable, hazardous, or a nuisance of any kind, nor for any purpose or in any way in violation of any present or future laws, rules, requirements, orders, directions, ordinance, or regulations of the United States of America, State of Colorado, County of Eagle or other municipal, governmental, or lawful authority whatsoever having jurisdiction. 7. Tenant shall not do or permit anything to de done in or about the Leased Premises or bring or keep anything therein which will in any way increase the rate of fire insurance upon the Facility wherein the Leased Premises are situated. Tenant shall, at Tenant's sole cost and expense, comply with any and all requirements pertaining to the Leased Premises of any insurance company necessary for the maintenance of reasonable fire and public liability insurance covering the Leased Premises. 8. No hazardous substances or materials are allowed on the Premises. Hazardous substances or materials are those which are identified by the State of Colorado or Federal law or regulation as any substance with hazardous material classification greater than one (1) for heath, fire, or reactivity and/or specific hazard designation. 9. No storage of any items, including but not limited to, garbage, chairs, tables, etc. will be permitted outside of the Leased Premises, e.g. on sidewalks, in common areas, on parking surfaces, etc. 10. Parking shall occur on a first come first served basis. No overnight parking shall be allowed without advance notice to and approval of Landlord. ARTICLE IX Repairs,Alterations and Improvements 6 1. Tenant shall keep the Leased Premises in good order, condition and repair. 2. All reasonable alterations, improvements, and /or additions to the Leased Premises will only be done at Tenant's expense after obtaining Landlord's written consent. 3. Unless otherwise agreed to by Landlord, all alterations, improvements, partition, flooring, carpeting or fixtures, including but not limited to light fixtures, electrical fixtures, and plumbing fixtures, and other changes to the Leased Premises which may be made or installed by either of the parties hereto and which in any manner are attached to the floors, walls, windows, or ceilings are to become, at the option of and at no cost to Landlord, the property of Landlord upon the termination of this Agreement. If Landlord elects that any of the alterations, improvements or changes be removed by Tenant upon termination or expiration of this Agreement, Tenant shall remove the same at its cost prior to the termination hereof, and shall repair any damages caused by such removal. 4. At the expiration of the lease term, or earlier termination hereof, Tenant shall remove all of its movable trade fixtures which shall not be the property of Landlord. Tenant's obligations to perform the covenants contained in this paragraph of this Agreement shall survive the expiration or other termination of the Agreement. 5. Tenant shall retain title to and shall remove at its sole cost, prior to the termination or expiration of this Agreement, all of Tenant's movable trade fixtures, equipment and belongings. If such removal shall injure or damage the Leased Premises, Tenant agrees, at its sole cost, at or prior to the expiration or termination of this Agreement, to repair such injury or damage in a good and workmanlike manner and to place the Leased Premises in the same condition as the Leased Premises would have been if such Tenant's moveable trade fixtures, equipment and belongings had not been installed or used. If Tenant fails to remove any of its moveable trade fixtures, equipment or belongings by the expiration or termination of this Agreement, or fails to repair any injury or damage then Landlord shall be entitled to recover from Tenant any costs of Landlord removing and either disposing of or storing the same and restoring the Leased Premises. ARTICLE X Assignment and Subletting Tenant shall not assign this Agreement or any interest herein., or permit the use of the Leased Premises by any person or persons other than Tenant or sublet the Leased Premises in whole or in part without Landlord's prior written consent which may be withheld at Landlord's sole discretion. ARTICLE XI 7 Access to Premises Landlord and Landlord's authorized representative shall have the right to enter upon the Leased Premises at all reasonable hours (and in emergencies, at all times) to inspect the same, to make repairs, additions or alteration to the Premises and for any lawful purpose. Landlord agrees to provide Tenant with reasonable notice whenever Landlord deems necessary to enter upon the Leased Premises and agrees to protect the privacy rights and confidential information concerning Tenant's clients. ARTICLE XII Default Delinquency by Tenant in the performance of or compliance with any of the obligations of Tenant contained in this Agreement, for a period of ten (10) days after written notice thereof from Landlord, shall constitute a default of this Agreement by Tenant. ARTICLE XIII Remedies If Tenant defaults in any of the covenants, terms and conditions herein, the Landlord may exercise any one or more of the following remedies: 1. Landlord may elect to allow this Agreement to continue in full force and effect and to enforce all of Landlord's rights and remedies hereunder, including the right to collect all sums as they become due together with interest on past due amounts accruing at 1.5 % per annum commencing on the fifth calendar date after the date such amount is due and owing until paid to Landlord. 2. Landlord may cancel and terminate this Agreement and reposes the Leased Premises, with or without process of law, and without liability for so doing, upon giving ten (10) days written notice to Tenant of its intention to terminate, at the end of which time all rights hereunder of the Tenant shall terminate, unless the default, which shall have been stated in such notice, shall have been cured within such ten (10) days. Notwithstanding the foregoing, during the term herein, Tenant shall only be allowed two notices of default which it may cure within the time specified in this section. The third notice shall be final and without opportunity for cure and Landlord, in its sole discretion, may elect (a) to cancel and terminate all rights hereunder of the Tenant, and Landlord may, upon the date specified in such third notice, reenter the Leased Premise; and remove therefrom all property of the Tenant and store the same at the expense of Tenant, or (b) proceed to paragraph 3 of this Article XIII. if Landlord elects to terminate, Tenant shall be liable to Landlord for all amounts due and owing at the time of termination, plus past due interest at 1.5% per annum, damages, costs, including attorney fees caused by Tenant's failure to perform hereunder. 8 3. Landlord may elect to reenter and take possession of the Leased Premises and expel Tenant or any person claiming under Tenant, and remove all effects as may be necessary, without prejudice to any remedies for damages or breach. Such reentry shall not be construed as termination of this Agreement unless a written notice specifically so states; however, Landlord reserves the right to terminate the Agreement at any time after reentry. 4. The remedies provided in this Agreement shall be cumulative and shall in no way affect any other remedy available to Landlord at law or equity. ARTICLE XIV Termination 1. This Agreement may be terminated upon the occurrence of any of the following: a. Default of the Tenant in performance of its obligations hereunder pursuant to Article XIII hereof; b. Written notification by Landlord to Tenant that this Agreement will terminate for any reason whatsoever, with or without cause, specifying the date of termination. Said termination date shall be no sooner than sixty (60) days from the date of notification. 2. Upon the termination or expiration of this Agreement Tennant shall peacefully surrender the Leased Premises to Landlord, and Landlord at any time after any such termination or expiration, may, without further notice, peaceably reenter the Leased Premises and take control of the same. 3. No such termination of this Agreement shall relieve Tenant's liability and obligation under this Agreement. ARTICLE XV Damage, Destruction or Loss 1. If the Leased Premises, or any portion thereof, is destroyed or damaged by fire or otherwise to an extent that renders it unusable, Landlord may rebuild or repair any portions of the building structure destroyed or damaged, and, if the cause was beyond the control of Tenant, the obligation of Tenant to pay the utilities and operating expenses hereunder shall abate as to such damaged or destroyed portions during the time they are unusable. if Landlord elects not to proceed with the rebuilding or repair of the structure, it shall give notice of its intent within 90 clays after the destruction or damage. Tenant may then, at its option cancel and terminate this Agreement. 9 2. In the event Landlord elects to rebuild, Tenant must replace all of its moveable trade fixtures, equipment and personal property at its sole cost. 3. Landlord shall not be liable for any loss of property or theft or burglary from the Leased Premises or for any damage to person or property on the Leased Premises resulting from lightning, or water, rain or snow, which may come into or issue or flow from any part of the Facility, or from the pipes, plumbing, wiring, gas or sprinklers thereof and Tenant agrees to make no claim for any such loss or damage at any time. ARTICLE XVI Waiver No failure of Landlord to insist upon the strict performance of a erm, covenant or agreement contained in this Agreement, no failure by Landlord to exercise any right or remedy under this Agreement, and no acceptance of full or partial payment during the continuance of any default by Tenant shall constitute a waiver of any such term, covenant or agreement or a waiver of any such right or remedy or a waiver of any default. by Tenant. ARTICLE XVII Surrender of Leased Premises and Hold Over 1. Upon the expiration or earlier termination of this Agreement, or on the date specified in any demand for possession by Landlord after any default by Tenant, Tenant covenants and agrees to surrender possession of the Leased Premises to Landlord in the same condition as when first occupied, ordinary wear and tear excepted. 2. If Tenant should remain in possession of the Leased Prenises after the expiration of this Agreement for whatever reason and without executing any written renewal thereof, then such holding over shall not be deemed as a renewal or extension of this Agreement, but shall be construed as a tenancy from month to month that may be terminated at any time by Landlord or Tenant upon thirty (30) days written notice to the other. Such month to month tenancy shall be subject to all the conditions, provisions and obligations of this Agreement insofar as the same are applicable to a month to month tenancy. ARTICLE XVIII Notices 1. All notices to be given with respect to this Agreement shall be in writing. Each notice shall be sent by registered or certified mail, postage prepaid and return receipt requested, to the party to be notified at the following address or at such other address as either party may from time to time designate in writing. 10 Landlord/Lessor Tenant/Lessee Eagle County Eagle Valley Child Care Association Attn: Jan Miller c/o J.P. Powers P.O. Box 850 P.O. Box 1700 500 Broadway Vail, CO 81 658 Eagle, CO 81631 With a copy to: Eagle County Attorney Post Office Box 850 500 Broadway Eagle, CO 81631 2. Every notice shall be deemed to have been given at the time it shall be deposited in the United States mail in the manner prescribed herein. Nothing contain herein shall be construed to preclude personal service of any notice in the manner prescribed for personal service as a summons or other legal process. ARTICLE XIX Attorney's Fees & Waiver of Right to Jury In the event of any litigation or other action or proceeding between the parties hereto arising out of the performance or nonperformance of this Agreement, or enforcement of any rights or remedies hereunder, including any indemnities herein contained, the prevailing party shall be entitled in such litigation, action or proceeding to also recover as part of any judgment, award or other relief, its reasonable attorney's fees and costs incurred. Landlord and Tenant expressly waive any right which either may have to trial by jury of any dispute arising under the Agreement relating to the issues of termination of this Agreement and rights to possession of the Premises. ARTICLE XX Miscellaneous Provisions 1. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior oral or written statements, understandings or correspondences, if any, with respect thereto. This Agreement may be amended only by one or more amendments executed in the same manner as this Agreement 2. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect. 3. This Agreement and all agreements herein contained shall bind the parties hereto and their heirs, personal representatives, successors and a ;signs. 11 4. This Agreement shall be construed in accordance with tie laws of the State of Colorado. The Parties stipulate and consent to the exclusive jurisdiction and venue of the District Court, Eagle County, Colorado, in any civil action which might arise under this Agreement. 5. The signatories below hereby represent and warrant that they have full authority to enter into this Agreement on behalf of their respective entities. 6. The Tenant for itself, its personal representatives, succe;sors in interest, and assigns, as part of the consideration hereof, does hereby covenant and agree that no person on the sole ground of race, color, religion, national origin, gender, age, military status, marital status, or physical or mental disability shall be excluded from participation, denied the benefits of, or otherwise he subjected to discrimination in the use of the Leased Premises. 7. No agent, employee or volunteer of the Tenant shall be deemed an agent, employee or volunteer of the Landlord. Likewise, no agent, employee or volunteer of Landlord shall be deemed an agent, employee or volunteer of the Tenant. 8. Tenant acknowledges that the Leased Premises is not secure from entry by users of other space in the same building. 12 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. LANDLORD: COUNTY of EAGLE, STATE of COLORADO By and Through its Board of County Commissioners BY: I L ■I II IIMAI r i J . ' tavney, . ai an ATTEST: �' BY: e; A i Teak Simonton Clerk to the Board of County Commiss'o rei's TENANT: Eagle Valley Child Care Association BY: .k__ - li Name: A M Y b r L u,n,rr, e Title: Di I c c_ STATE of COLORADO ) )ss. COUNTY of EAGLE ) The foregoing instrument was acknowledged before me this ` ate da y of vs-V. , 2 01 1, bykcA 10- of Eagle Valley Child Care Association. 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