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HomeMy WebLinkAboutC24-104 Eagle Valley Childcare Center Corporation_lease1 LEASE AGREEMENT BETWEEN EAGLE COUNTY, COLORADO and EAGLE VALLEY CHILDCARE CENTER CORP. This Lease Agreement is made and entered into January 1, 2024 between Eagle County, Colorado by and through its Board of County Commissioners (hereinafter referred to as “Landlord” or “County”) and the Eagle Valley Childcare Center Corp., a Colorado non- profit corporation (hereinafter referred to as (“Tenant”). WITNESSETH: WHEREAS, County owns property commonly known as The Learning Tree, located at 502 Capitol Street in Eagle, Colorado (the “Facility”); and WHEREAS, Eagle County desires to utilize the Facility for early childhood care benefiting the citizens of Eagle County; and WHEREAS, Tenant, an early childhood care provider, desires to use the Facility as an early childhood care center pursuant to the terms and conditions of this Agreement; and WHEREAS, the parties now desire to enter into a lease agreement with a term commencing on January 1st, 2024 and continuing through January 1st, 2025 (the “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 1 Leased Premises Landlord hereby leases to Tenant, and Tenant hereby rents from the Landlord, the “Leased Premises” described as approximately 2,356 square feet of space located at 502 Capitol Street, the main floor of the house located at this address, the parking area and fenced in playground area outside the building located at 502 Capitol Street. The Leased Premises shall be used as an early childhood care center and related outdoor play area. The location of the Leased Premises is depicted on Exhibit A. ARTICLE 2 Term The term of this Lease is for one (1) year commencing January 1st, 2024 and shall expire on January 1st, 2025 unless terminated earlier as specified herein. The Agreement shall automatically be extended for five (5) additional one (1) year terms or until January 1st, DocuSign Envelope ID: AE469FE1-38B9-47A2-AB2A-4EA076A045A6 2 2030. In the event that either party does not wish to extend the lease agreement in any given year, it shall provide the other party with sixty (60) days written notice. ARTICLE 3 Rent and Operational Expenses Tenant agrees to pay Landlord a fixed amount of $18,000.00 per year as the full annual rental amount for each term of this Agreement. By executing below, Landlord acknowledges receipt of this rental sum. 1.The fixed amount covers rent. Tenant is additionally responsible for, gas, water, sewer, electric, and garbage removal utilities. 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 each month until all amounts due and owing are paid to the Landlord. 2.Tenant shall not be responsible for and the flat fee does not include costs associated with maintenance. 3.Tenant shall pay for all utility services not specified as part of this agreement, e.g. telephone, cable, etcetera for the Leased Premises. 4.Landlord shall bill Tenant for costs associated with maintenance as requested by Tenant. Maintenance costs, which are not included in the flat fee, will be billed on a quarterly basis at $45 per hour and the same shall be due and payable within thirty (30) days of the date on the quarterly invoice mailed 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 of such amount is due and owing until paid to Landlord. 5.With regard to all utilities, it is mutually agreed that Landlord shall not be liable in damages or otherwise for any interruption or failure thereof. 6.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 usually furnished or supplied for use of the Leased Premises as a child care facility. Tenant shall obtain permission from the Landlord if it installs any equipment that requires 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. The Tenant shall be responsible for any additional costs associated with the additionally installed utilities beyond what Landlord has originally furnished. DocuSign Envelope ID: AE469FE1-38B9-47A2-AB2A-4EA076A045A6 3 7. Notwithstanding anything to the contrary, Tenant agrees to promptly pay all 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 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 hereunder 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 4 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. Evidence of insurance is attached at Exhibit B. 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 5 Indemnification Tenant acknowledges that it uses the Leased Premises at its own sole risk. Tenant hereby releases Landlord, Landlord’s agents, contractors and employees from liability for any and all costs, demands, losses, damages of any nature whatsoever, and judgments including attorney’s fees 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 and hold harmless Landlord, Landlord’s agents, contractors and employees 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, DocuSign Envelope ID: AE469FE1-38B9-47A2-AB2A-4EA076A045A6 4 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, Landlord’s agents, contractors and employees shall be made a party to any litigation commenced by or against Tenant, then Tenant shall fully protect and hold Landlord, Landlord’s agents, contractors and employees harmless and pay all costs, expense, and reasonable attorney’s fees, incurred or paid by Landlord in connection with such litigation, to the extent allowed by law. Additionally, the parties mutually agree that no Commissioner or officer or employee of the Landlord nor any officer, manager, member, agent or employee of the Tenant shall be held personally liable under this Agreement or because of its enforcement or attempted enforcement. The parties agree that nothing contained herein waives or is intended to waive any protections that may be applicable to the County under the Governmental Immunity Act, C.R.S. § 24-10-101 et. seq., or any other rights, protections, immunities, defenses or limitations on liability provided by law, and subject to any applicable provisions of the Colorado Constitution and applicable laws. This paragraph shall survive expiration or termination hereof. ARTICLE 6 Place and Manner of Payments All sums payable to Landlord hereunder shall be made without notice at the following: Eagle County c/o Facilities Department 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 8 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 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 DocuSign Envelope ID: AE469FE1-38B9-47A2-AB2A-4EA076A045A6 5 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. 11. The parties acknowledge and agree that Tenant is the owner of all playground equipment currently located within the Leased Premises. Notwithstanding the foregoing, Tenant will be solely responsible for all routine maintenance, regulatory compliance and replacement of the Playground Equipment and any costs and expenses associated therewith during the term of the Lease Agreement and any amendments thereto. DocuSign Envelope ID: AE469FE1-38B9-47A2-AB2A-4EA076A045A6 6 Playground equipment funded and installed by Tenant shall be the property of Tenant and the same shall be removed upon termination or expiration of this Agreement and any injury or damage to the Leased Premises caused by such removal shall be addressed as set forth in Article 9, paragraph 5 hereof. Nothing herein shall obligate Landlord to pay for any upkeep, maintenance, repair, replacement or additions to the existing Playground Equipment or any replacement playground equipment. ARTICLE 9 Repairs, Alterations and Improvements 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 by Tenant 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. DocuSign Envelope ID: AE469FE1-38B9-47A2-AB2A-4EA076A045A6 7 ARTICLE 10 Assignment and Subletting Tenant shall not assign, in whole or in part, 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 11 Access to, Use and Quiet Enjoyment of Leased Premises 1. 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 Leased Premises and for any lawful purpose. Landlord agrees to provide Tenant with reasonable notice whenever Landlord deems necessary to enter upon the Leased Premises. Notwithstanding the foregoing, the County shall have no obligation to make repairs, additions or alterations to the Leased Premises or to any of the Tenant’s personal property. 2. If the Tenant complies with this Lease, the Landlord must provide the Tenant with undisturbed possession of the Leased Premises subject to the terms and conditions of this Agreement. ARTICLE 12 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 13 Remedies and 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; b. If the Tenant is in default under any other future agreement with the Landlord; c. If the Tenant becomes insolvent; d. If the Tenant gives permission to any person to use the Leased Premises for any illegal purpose or purpose contrary to this Agreement; and e. Written notification by Landlord to Tenant that this Agreement will terminate for any reason whatsoever, with or without cause, specifying the DocuSign Envelope ID: AE469FE1-38B9-47A2-AB2A-4EA076A045A6 8 date of termination. Said termination date shall be no sooner than thirty (30) days from the date of notification. 2. In the event of default, and prior to termination, County shall first give the Tenant written notice by registered or certified mail, postage prepaid and return receipt requested, specifying the nature of the default. Upon receipt of any such notice, the Tenant shall have sixty (60) days to cure any alleged default subject to additional time to cure in the event nature of default and time of year preclude Tenant from curing in sixty (60) day period. Any dispute regarding the adequacy of any cure shall be first referred by the parties to mediation. 3. Upon expiration of the sixty (60) day cure period and mediation as identified above, County may elect to (a) allow this Agreement to continue in full force and effect and to enforce all of County’s rights and remedies hereunder; or (b) County may elect to reenter and take possession of the Leased Premises and expel the Tenant and remove all effects as may be necessary, without prejudice to any remedies for damages or breach. Title to all improvements and fixtures located upon the Leased Premises shall pass to County free and clear of any liens or encumbrances upon termination as set forth in this Section. Upon the termination of this Agreement pursuant to this Section or pursuant to expiration of the term set forth in Article 2 hereof, the Tenant shall peacefully surrender the Leased Premises to the County, and County upon or at any time after any such termination or expiration, may, without further notice, peaceably reenter the Leased Premises and take control of the same. 4. As an alternative to the right of termination, in the event of default, the County may elect to treat this Agreement as being in full force and effect and shall have the right to specific performance or damages or both. 5. No failure of County to insist upon the strict performance of a term, covenant or agreement contained in this Agreement, no failure by County to exercise any right or remedy under this Agreement, 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 the Tenant. 6. Upon the termination or expiration of this Agreement, Tenant 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. 7. 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 8. No such termination of this Agreement shall relieve Tenant’s liability and obligation under this Agreement. DocuSign Envelope ID: AE469FE1-38B9-47A2-AB2A-4EA076A045A6 9 ARTICLE 14 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. 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 15 No Waiver The failure of Landlord to insist in any one or more instances upon a strict compliance with any of the obligations, covenants and agreements contained in this Agreement, or the failure of the Landlord on any one or more instances to exercise the option, privilege or right herein contained shall in no way be construed to constitute a waiver or relinquishment or release of such obligation, covenant or agreement and no forbearance by the Landlord or any default hereunder shall in any manner be construed as constituting a waiver of such default by the Landlord. ARTICLE 16 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 Premises 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 DocuSign Envelope ID: AE469FE1-38B9-47A2-AB2A-4EA076A045A6 10 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 17 Notices 1. All notices to be given with respect to this Agreement shall be in writing. Any notice required by this Agreement shall be deemed properly delivered when (i) personally delivered, or (ii) when mailed in the United States mail, first class postage prepaid, or (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed above. Either party may change its address for purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. Nothing contained herein shall be construed to preclude personal service of any notice in the manner prescribed for personal service of a summons or other legal process. Landlord: Eagle County Attn: Facilities Management P.O. Box 850 500 Broadway Eagle, CO 81631 Facsimile: With a copy to: Eagle County Attorney Post Office Box 850 500 Broadway Eagle, CO 81631 Tenant: Eagle Valley Childcare Center Corp 502 Capitol Street Eagle, CO 81631 970-328-5683 Attn: Pamela Green learningtreeeagle@gmail.com ARTICLE 18 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 DocuSign Envelope ID: AE469FE1-38B9-47A2-AB2A-4EA076A045A6 11 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 Leased Premises. Article 19 Entire Agreement and Amendments 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 written agreement of the parties executed in the same manner as this Agreement. ARTICLE 20 Miscellaneous Provisions 1. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect. 2. This Agreement and all agreements herein contained shall bind the parties hereto and their heirs, personal representatives, successors and assigns. 3. This Agreement shall be construed in accordance with the 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. 4. The signatories below hereby represent and warrant that they have full authority to enter into this Agreement on behalf of their respective entities. 5. The Tenant for itself, its personal representatives, successors 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 be subjected to discrimination in the use of the Leased Premises. 6. 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. 7. Time is of the essence for the performance of any obligation contained in this Lease. DocuSign Envelope ID: AE469FE1-38B9-47A2-AB2A-4EA076A045A6 12 8. Tenant acknowledges that the Leased Premises is not secure from entry by users of other space in the same building. [REST OF PAGE INTENTIONALLY LEFT BLANK] DocuSign Envelope ID: AE469FE1-38B9-47A2-AB2A-4EA076A045A6 DocuSign Envelope ID: AE469FE1-38B9-47A2-AB2A-4EA076A045A6 14 EXHIBIT A LEASED PREMISES Lots 13 and 14, Block 17, Town of Eagle, State of Colorado; also known by street and number as: 502 Capitol St., Eagle, Colorado 81631 DocuSign Envelope ID: AE469FE1-38B9-47A2-AB2A-4EA076A045A6 15 EXHIBIT B Certificate of Insurance DocuSign Envelope ID: AE469FE1-38B9-47A2-AB2A-4EA076A045A6 DocuSign Envelope ID: AE469FE1-38B9-47A2-AB2A-4EA076A045A6