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HomeMy WebLinkAbout2016 Ordinance No. 018BY AUTHORITY CONTRACT NO, "2:>3-7-u/� ORDINANCE NO. j...J SERIES OF 2016 COUNCIL BILL NO. 12 INTRODUCED BY COUNCIL MEMBER GILLIT AN ORDINANCE APPROVING A LEASE WITH AN OPTION TO PURCHASE AFfER 20 YEARS ENGLEWOOD MCLELLAN RESERVOIR FOUNDATION AND SHEA PROPERTIES d.b.a. CENTRAL PARK HIGHLANDS RANCH, LLC. IN PLANNING AREA 81 (PA 81). WHEREAS, THE Englewood McLellan Reservoir Foundation was fonned to oversee the development of the McLellan Reservoir property; and WHEREAS, The Englewood City Council authorized the creation of the Englewood Reservoir Foundation, a non-profit corporation charged with furthering the development of the McLellan Reservoir property and transferred the property to Englewood McLellan Reservoir Foundation by the passage of Ordinance No. 41, Series of 1999; and WHEREAS, the imposition of covenants or use restrictions on all lands within the development area ensure a consistent high level of development; and WHEREAS, leasing for no less than 20 years prior to the sale of the property will provide even greater protection to the McLellan Reservoir's water quality when compared to development without the restrictions; and WHEREAS, the Englewood McLellan Reservoir Foundation and Shea Properties d.b.a. Central Park Highlands Ranch, LLC. have agreed to lease approximately 33.3 acres, with a future option to purchase as outlined: •A lease term of 20 years, with extensions up to 65 years. •An initial net annual rental rate based on a $6/sq. ft. value with a capitalization rate of 4.5%, or approximately $460,000 on average per year. •An annual inflation rate increase of 2% for years 2-10, with an adjustment for years 11 -20 based on appraisal. •A purchase option at the expiration of the lease term, based on a fair market appraisal of the land in an improved, vacant condition. •The lease, if executed, would take down the property in a time frame to be detennined. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section I. The City Council of the City of Englewood, Colorado, hereby approves the Lease with an Option to Purchase after 20 years between Shea Properties d.b.a. Central Park Highlands Ranch, LLC. and the Englewood McLellan Reservoir Foundation, atta ched hereto as Exhibit 1. Section 2. The President of the Englewood Mclellan Reservoir Foundation is hereby authorized to sign said Lease for and on behalf of the City of Englewood. Introduced, read in full, and passed on first reading on the 14th day of March, 2016. Published by Title as a Bill for an Ordinance in the City's official newspaper on the 17th day of March, 2016. Published as a Bill for an Ordinance on the City's official website beginning on the 16th day of March, 2016 for thirty (30} days. Read by title and passed on final reading on the 4th day of April, 2016. Published by title in the City's official newspaper as Ordinance No./L Series of 2016, on the 7th day of April, 2016. Published by title on the City's official website beginning April, 2016 for thirty (30) days. L Loucrishia A. Ellis, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is 1J�e copy of the Ordinance passed on final reading and published by title as Ordinance No/j Series of 2016. �� GROUND LEASE between CENTRAL PARK AT HIGHLANDS RANCH, LLC as Tenant and ENGLEWOOD/MCLELLAN RESERVOIR FOUNDATION as Landlord dated as of ----- E X H I B I T l TABLE OF CONTENTS Article 1 Fundamental Lease Terms Article 2 Ground Lease of Premises 1.Definitions2.Premises3.Condition of Premises; Tenant Release4.Improvements5.Easements6.Possession7.Signage Article 3 Lease Term; Entry; Title Insurance 1.Term; Effective Date; Commencement Date2.Extension Option3.Tenant's Right of Entry4.Title Insurance Article 4 Rent 1.Rent2.Rent Adjustments3.Net Lease Article 5 Taxes 1.Real Estate Taxes2.Proration of Taxes3.Personal Property Taxes Article 6 Utilities 1.Utility Usage Article 7 Use, Subletting and Assignment 1.Use2.Assignment and Subletting Article 8 Ownership of the Buildings and Other Improvements Article 9 Mechanics Liens 1.Liens 2.Protection of Landlord's Interest in Premises Article 10 Indemnity and Insurance 1.Indemnity 2.Appear and Defend 3.Insurance - 1 - 1 2 5 6 7 8 8 9 9 IO • - Article 11 Article 12 Article 13 Article 14 Article 15 Article 16 Article 17 Article 18 Article 19 Damage or Destruction 13 Eminent Domain 14 1.Definition of Taking and Substantial TaJcing2.Tenant's Rights Upon Taking or Substantial Taking 3.Tenant's Rights Upon Less Than Substantial Taking 4.Rights Upon Temporary Takings.Award Default 15 1.Events of Tenant's Default2.Landlord's Remedies 3.Landlord's Default4.Attorneys' Fees5.Waiver of Consequential Damages Covenant of Quiet Enjoyment 19 Subordination; Landlord's Right to Mortgage and Convey Premises 19 Transfers by Landlord 20 Miscellaneous 20 1.Non-Waiver of Default 2.Recording 3.Notice4.Successors and Assignss.Partial Invalidity6.Interpretation7.Headings, Captions and References 8.Governing Law 9.Execution of Documents 10.Force Majeure 11.Authority 12.Estoppel Certificate 13.Holding Over 14.Broker Leasehold Financing 23 1.Mortgage by Tenan� 2.Notice To and Rights of Leasehold Mortgagees Representations of Landlord and Tenant 26 1.Representations of Landlord 2.Representations of Tenant - ii - Article 20 Exhibit A Exhibit B Option to Purchase 1.Notice of Exercise 2.Title Examination 3.Purchase Price 4.Closing Costs 5.Survey 6.Closing Depiction and Proposed Legal Description of Premises Memorandum of Lease - lU - 29 GROUND LEASE This GROUND LEASE (the "Lease") is made as ofthe __ dayof _, 2016, by and between ENGLE\VOOD/MCLELLAN RESERVOIR FOUNDATION, a Colorado nonprofit corporation ("Landlord"), and CENTRAL PARK AT ffiGHLANDS RANCH t LLC, a Colorado limited liability company (''Tenant", Landlord and Tenant are sometimes herein referred to individually as a "f!r!y' and collectively as the "Parties"). The date this Lease is executed and delivered by both parties hereto shall be referred to hereinafter as the "Effective Date." WITNESS ETH: For and in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to the terms and conditions as hereinafter provided:· Article 1 Fundamental Lease Terms For convenience, this Article 1 summarizes certain fundamental economic and business terms of this Lease. Effective Date: Premises: Landlord ----� 2016 .. The Real Property, Appurtenances and improvements defined in and described in Article 2.2A below .. ENGLEWOOD/MCLELLAN RESERVOIR FOUNDATION 1000 Eng lewood Parkway Englewood, CO 80110 At tention: President With a copy to: City of Englewood 1000 Englewood Parkway Englewood, CO 80110 Attention: City Attorney Tenant Term: Option: Rent: Central Park at Highlands Rench, , LLC 6380 South Fiddlers Green Circle Suite400 Greenwood Village, CO 80111 Attention: Peter A. Culshaw With a copy to: Shea Properties 63 80 South Fiddlers Green Circle Suite400 Greenwood Village, CO 80111 Attention: Jeffrey H. Donelson, Esq. Regional Counsel Twenty (20) years from the Commencement Date, plus any extension option properly exercised by Tenant pursuant to Article 3.2. Four (4) renewal options of ten (10) years each and one (1) final option of five (5) years. Annual amount of$391,448, calculated at the rate of $6.00 per square foot multiplied times a capitalization rate of four and one half percent (4.5%), as Rent commencing as provided in Article 4, increased two percent (2%) each year for each of the second through the tenth Lease Year, and thereafter adjusted as provided in Article 4. This is a Net Lease. Deposit $200,000 as provided in Article 4.4. Article 2 Ground Lease of Premises 1.Definitions. For purposes of this Lease, the following terms shall have the following meanings: A."Buildings" shall mean the buildings which may be constructed by Tenant on the Premises. B."Casualty" shall have the meaning set forth in Article 11.1. C."Commencement Date11 shall have the meaning set forth in Article 3.1. 2 D."Default Rate" shall mean interest accruing at the rate equal to the Prime Rate plus three percent (3%), which rate shall be adjusted with each change in the Prime Rate. However, in no event shall the Default Rate be less than ten percent (10%) per annum. For purposes of this Lease, "Prime Rate" shall mean the prime rate as published in the Wall Street Journal. If the prime rate published by The Wall Street Journal becomes unavailable, Landlord shall use the prime rate as announced or published by such other organization or publication as reasonably detennined by Landlord to be comparable to the prime rate now published in The Wall Street Journal. E."Effective Date" shall mean the date this Lease is signed by both Parties. F."Environmental Law" shall have the meaning set forth in Article 19 .1.J. G."Event of Default" shall have the meaning set forth in Article 13.1. H."Exercise Notice" shall have the meaning set forth in Article 20.1. I."Excusable Delay" shall mean any of the following events that prevents, delays, retards or hinders a Party's performance of its duties hereunder: act of God; fire; earthquake; flood; explosion; war; invasion; insurrection; riot; mob violence; sabotage; vandalism; inability to procure or general shortage oflabor, equipment, facilities, materials or supplies in the open market; failure of transportation; strikes; lockouts; any material delay caused by the non-performing Party without fault of the perfonning Party; or any delays due to causes beyond the control of the 2erfonning Party and without its fault or negligence. • · ---· · J."Extension Option" shall have the meaning set forth in Article 3.2. K."Fair Market Value" shall have the meaning set forth in Article 4.2.B. L."First Extension Option" shall have the meaning set forth in Article 3.2. M."First Extension Option Period" shall have the meaning set forth in Article 3.2. N."Improvements" shall mean the Buildings and any other improvements constructed on or under the Premises. 0."Initial Term" shall mean the first twenty (20) Lease Years as more specifically described in Article 3.1. P."Landlord11 is Englewood/McLellan Reservoir Foundation. Q."Leasehold Mortgage" shall have the meaning set forth in Article 18.1. R."Leasehold Mortgagee" shall have the meaning set forth in Article 18.1. S."Lease Year" shall have the meaning set forth in Article 3.1. 3 4.2.B. T. u. V. w. X. Y. z. M. "Market Value Adjustment" shall have the meaning set forth in Article "Memorandum of Lease" shall have the meaning set forth in Article 17 .2. "Monetary Default" shall have the meaning set forth in Article 13 .1. ''Non�Monetary Default" shall have the meaning set forth in Article 13 .1. "Permitted Exceptions" shall have the meaning set forth in Article 19. "Premises" shall have the meaning set forth in Article 2.2.A. "Purchase Option" shall have the meaning set forth in Article 20. "Qualified Assignee" shall have the meaning set forth in Article 7.2.A. BB. "Real Estate Taxes" shall mean all taxes, however named, assessed, levied, or collected, whether on an ad valorem basis or other taxing method on the Premises, Improvements, Buildings, and assessments for land, betterments, and improvements that are levied or assessed on the Premises or the Improvements by any lawful authority, as finally determined in accordance with law, net of any applicable abatements, refunds, or rebates. CC."Rent" shall mean the amount set forth in Article 4. DD."Shea Related Entity" shall have the meaning set forth in Article 7.2.A. EE. "Tenant" is Central Park at Highlands Ranch, LLC, and its permitted successors or assigns. FF. "Tenn" shall have the meaning set forth in Article 3.2. GG. "Title Commitment shall have the meaning set forth in Article 3.4. HH. "Title Company'' shall mean Fidelity National Title Company, or such other title company mutually agreed upon by Landlord and Tenant. 2.Premises. A.Lease of Premises. For the term, uses, rent, and in consideration of the covenants and agreements contained herein, and for other valuable consideration, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, upon the following terms, stipulations, provisions, and conditions, (i) that certain real property consisting of 33.283 acres depicted on Exhibit A attached hereto and incorporated herein by this reference (the "Real Property"), (ii) all of Landlord's right, title and interest in and to (a) all appurtenances to or used in connection with the Real Property, including but not necessarily limited to all rights of ingress, egress, and use of adjoining alleys, easements, rights of way, and streets (collectively, the "Appurtenances"), and (b) all improvements, if any, currently located on, appurtenant to, or used in connection with the 4 Real Property. Upon recordation of the Replat, as described in Article 3.5.A below, the Real Property shall be legally described as Lot 4, Highlands Ranch Filing No. 156, 1st Amendment, and following such recordation, the description of the Real Property hereunder shall be deemed to be amended to be the final lega l description of the Real Property as shown on the recorded Replat. The Real Property, the Appurtenances and such improvements are herein sometimes collectively referred to as the "Premises". B.Title. Landlord hereby warrants to Tenant that it has good, marketableand insurable title to the Premises, free and clear of any mortgages, pledges, liens, and other encumbrances, subject only to the exceptions to title shown in the Title Commitment. 3.Condition of Premises; Tenant Release. Except as otherwise expressl y providedherein, the Premises are being leased in their as-is condition. Except for Landlord's representa­tions and warranties expressly set forth in this Lease, Tenant hereby waives, releases, acquits and forever discharges Landlord and its officers, directors, shareholders, employ ees, agents, successors and assigns, of and from any and all suits, causes of action, claims, demands, damages (actual and punitive), losses, costs, liabilities, and expenses, including attorneys' fees, of any kind or nature, in law or in equity, known or unlmown, which Tenant shall or may have or acquire or possess in any way directly or indirectly coMected with, based upon, or arising out of (i)Landlord's use, maintenance, leasing, ownership, operation, and demolition of improvementsupon the Premises prior to the Effective Date of this Lease; or (ii) the condition (includingenvironmental condition and structural fitness), status, quality, or nature of the Premises. Exceptas otherwise expressly provided herein, it is the intention of this Lease that any and allresponsibilities and obligations of Landlord, and any and all rights or claims of Tenant againstLandlord its successors and assigns and affiliates, arising by virtue of the physical condition ofthe Premises, are by this release declared null and void and of no present or future effect as tosuch parties. 4.Improvements. Tenant, at its sole cost and expense, with its own forces or thoseof its contractors, may construct Improvements on the Premises. All of the Improvements shall comply in all material respects with all applicable governmental requirements. 5.Easements: Subdivision Cooperation. Landlord and Tenant agree, upon the reasonable request of either Party to this Lease, the applicable governmental agency, or a public ut ility, to execute documents which are reasonably required to create utility easements, temporary construction easements, or other easements required to construct the Improvements, maintain and service the Improvements or any other improvements to be developed on the adjoining lands owned by Tenant, and any easements as Tenant may require to conduct its business, provided such easements do not unreasonably interfere with either Party's use of its property. Each Party will undertake to obtain the consent of its mo rtgagee, if any, to any easements required under this paragraph. To the extent an easement agreement is reasonably required in accordance with this Section, to the extent possible, Tenant shall be the Grant or and Landlord shall consent to such easement. In addition, to the extent that Tenant requires a further subdivision of the Real Property in order to accommodate Tenant's development of the Premises, Landlord shall reasonably cooperate with such further subdivision, and shall execute any plats or replats required in connection therewith. 5 6. Possession. Landlord shall deliver possession of the Premises to Tenant on the Commencement Date (as hereinafter defined). 7. Signage. Tenant shall have the right, at Tenant's expense, to erect and use pylons or monument signs on the Premises to the extent permitted by applicable government ordinances, rules and regulations. Article 3 Lease Term; Entry; Title Insurance; Contingencies 1. Term: Effective Date: Commencement Date. This Lease shall become legally binding on the Effective Date. However, the lease term ("Initial Term") shall commence on the date that is six (6) months from the date of the Replat Approval, as such term is defined in that certain Exchange Agreement between Landlord and Tenant with an Effective Date the same as the Effective Date under this Lease (the "Exchange Agreement", such date to be the "Commencement Date"). Unless extended as provided below, the Initial Term shall expire at 11:59 p.m. on the last day of the last calendar month of the twentieth (20th) Lease Year. For purposes of this Lease, the term "Lease Year" shall mean each twelve (12) month period beginning on the Commencement Date, if the Initial Tenn commences on the first day of a calendar month, and on the first day of the calendar month subsequent to the Commencement Date, if the Initial Term does not commence on the first day of a calendar month. 2. Extension Options. Tenant shall have an option to extend the Initial Term (41 First Extension Option'') for an additional ten ( 10) years ("First Extension Option Period "). If the First Extension Option is exercised, Tenant shall have three additional options to extend the Term for three additional consecutive terms, each consisting of ten (10) years, and one final additional option tenn of five (5) years. The First Extension Option and each additional extension option {each, an "Extension Option") shall be on the same terms and conditions as set forth herein (there shall be no options beyond the Extension Options granted in this Article 3.2), except the Rent at the comm encement of the First Extension Option Period will be increased as provided in Article 4.2.B, and will increase at the start of each additional Extension Option period as provided in Article 4.2.B. Tenant shall have the right to exercise its Extension Options by providing Landlord written notice exercising its option to extend not less than one hundred eighty (180) days prior to the expiration of the then-current Term. As a condition of Tenant's right to exercise one or more Extension Options to extend the tenn, at the time of the giving of its notice of exercise there shall be no uncured Event of Default. 3. Tenant's Right of Entry. Before the Commencement Date, Tenant, its agents, employees, contractors, or subcontractors, prospective lenders and investors shall have been given the right of access to the Premises to test, inspect, and evaluate the Premises as Tenant deems appropriate. Tenant shall promptly restore any alterations made to the Premises by Tenant, or at Tenant's instance or request, and Tenant shall pay for all work performed by Tenant, or at Tenant's instance or request. Any and all liens on any portion of the Premises resulting from the actions or requests or otherwise at the instance of Tenant shall be removed by Tenant at its expense within thirty (30) days after notice thereof is given to Tenant. Tenant shall, at Tenant's expense, defend, indemnify, and hold harmless Landlord from and against any and all obligations, claims, loss, and damage, including costs and attorneys' fees, to the extent the same are caused by Tenant's entry upon or inspection of the Premises. Tenant shall provide 6 Landlord in a commercially reasonable timeframe with copies of tests and reports obtained by Tenant. Tenant's obligations un der this Section to restore, to pay for all work, to remove liens, and to defend, indemnify and hold Landlord harmless shall smvive the termination of this Lease. 4.Title Insurance. Tenant, prior to the Effective Date, shall have obtained a Title Insurance Commitment from the Title Company (''Title Commitment''), and Tenant shall have until the date that is thirty (30) days from the Effective Date to have reviewed and either objected to or approved in writing the exceptions to title disclo sed in the Title Commitment. If Tenant objects to any such exceptions disclosed in the Title Commitment, and if Landlord has not cured Tenant;s objection to such exceptions or Tenant has not waived its objection to such exceptions prior to the date that is sixty (60) days from the Effective Date, Tenant may terminate this Lease without any liability or obligation to Landlord hereunder. In addition, prior to the Commencement Date, Tenant shall obtain an update to the original Title Commitment, and Tenant shall have the right to object in writing to any additional ex ceptions to title revealed by such updated Title Commitment that were not contained in the original Title Commitment, other than any exceptions that arise by, through or under Tenant (the "Additional Exceptions"). If Tenant objects to any such Additional Exceptions disclosed in the updated Title Commitment and if Landlord has not cured Tenant's objection to the Additional Exceptions or Tenant has not waived its objection to the Additional Exceptions prior to the Commencement Date, Tenant may terminate this Lease without any liability or obligation to Landlord hereunder. Following the Effective Date, Tenant, at its option and sole cost and expense, may obtain a Leasehold Title Insurance Policy. 5.Contingencies to Tenant's Obligations. Ten ant's obligations under this Lease are expressly contingent upon the following: A.Tenant shall have until 5:00 P.M. on the date that is thirty (30) days from the Effective Date ("Inspection Period") to inspect and evaluate the Premises to determine their suitability for Tenanfs intended use. Tenant may, for any reason and in its sole discretion, terminate this Lease by written notice to Landlord given on or before the last day of the Inspection Period. In the event Tenant delivers the te rmination notice during the Inspection Period, the Deposit, including accrued interest, shall be promptly paid to Tenant. Upon Tenant giving such termination notice, and upon return of the Deposit to Tenant, and except to the extent Tena nt's obligations survive as provided above in Article 3.3, this Lease shall terminate and be of no further force and effect and each Party shall be relieved of all further obligations hereunder. If Tenant does not deliver to Landlord written notice of termination resulting from its inspection prior to the expiration of the Inspection Period, Tenant shall be deemed to have waived its right of termination under this Paragraph A, and this Lease shall continue in full force and effect. B.On or before the date that is six (6) months from the Effective Date (the "Contingency Satisfaction Date,,), each of the following shall have occurred: (1)The Replat Approval (as defined in the Exchange Agreement) shall have been obtained, and the Replat (as defined in the Exchange Agreement) shall have been executed by both Landlord and Tenant and recorded in the records of Douglas County, Colorado; 7 (2) The Exchange Closing ( as defined in the Exchange Agreement} shall have occurred, so that Landlord shall have acquired title to all of the Premises; and (3) Central Park at Highlands Ranch, LLC, as the original Tenant hereunder, shall have assigned its rights and obligations as Tenant to a Qualified Assignee, such Qualified Assignee shall have executed and delivered the assumption agreement described in Article 7 .2.A below, and Landlord shall have delivered the estoppel certificate regarding such assignment described in Article 7.2.A. In the event that any of the contingencies set forth above in this Paragraph B have not been satisfied for any reason on or before the Contingency Satisfaction Date, Tenant may terminate this Lease by written notice to Landlord, given on or before 5:00 p.m. on the Contingency Satisfaction Date. In the event Tenant timely delivers the described tennination notice, the Deposit, including accrued interest, shall be promptly paid to Tenant. Upon Tenant giving such tennination notice , and upon return of the Deposit to Tenant, and except to the extent Tenant's obligations survive as provided above in Article 3.3, this Lease shall tenninate and be of no further force and effect and each Party shall be relieved of all further obligations hereunder. 6. Contingency to Both Parties' Obligations. The obligations of both Landlord and Tenant under this Lease are expressly contingent upon the final passage of a resolution by the Englewood City Council approving the inclusion of the Purchase Option in this Lease, and the expiration of the applicable thirty (30)-day referendum period allowed by applicable law with respect to such resolution. In the event that such contingency has not been satisfied for any reason on or before the date that is sixty (60) days from the Effective Date, either Party may terminate this Lease by written notice to the other Party, given on or before 5:00 p.m. on the date that is sixty (60) days from the Effective Date. In the event either Party timely delivers the described termination notice, the Deposit, including accrued interest, shall be promptly paid to Tenant. Upon either Party giving such termination notice , and upon return of the Deposit to Tenant, and except to the extent Tenant's obligations survive as provided above in Article 3.3, this Lease shall terminate and be of no further force and effect and each Party shall be relieved of all further obligations hereunder. Article 4 Rent 1. Rent. Tenant shall pay to Landlord, in United States Dollars, beginning on the Commencement Date, Rent in the annual amount of$391,448.00 payable monthly in the amount of $36,620.67. Rent shall be payable in monthly installments, in advance on the first day of each calendar month, with appropriate proration for any partial calendar month or Lease Year, at the address given for Landlord in Article 17 hereof, as such address may be changed in accordance with Article 17. Rent shall be adjusted as provided in Article 4.2. 8 2 Rent Adjustments. A.Rent shall be adjusted during the Initial Tenn as follows: Rent during Lease Years two (2) through twenty (20)-Rent shall be equal to one hundred two percent (102%) of the prior Lease Year's Rent. B.In the event Tenant exercises the First Extension Option, at the start of Lease Year 21, Rent shall be adjusted to equal the product of the then Fair Market Value of the Premises multiplied by a capitalization rate equal to the ten ( 10) year Treasury rate plus an additional two and one half percent (2.5%) ("Market Value Adjustment"), but in no event shall the Rent be less than the Rent that was payable during the preceding Lease Year. The calculation of the Market Value Adjustment shall be made as of the first day of Lease Year 21. In the event Tenant exercises any additional Extension Options, Rent payable during each such additional Extension Option period shall be adjusted by the Market Value Adjustment defined above calculated as of the first day of each such add itional Extension Option period, but in no event shall Rent be less than Rent for the preceding Lease Year. Rent during Lease Years 2 through 10 of each additional Extension Option period ( or Lease Years 2 through 5 of the final Extension Option period) shall be equal to one hundred two percent (102%) of the prior Lease Year's Rent. For purposes of this Article 4, the term "Fair Market Value" shall be the value of the Premises as of the date of the Market Value Adjustment agreed by Landlord and Tenant, which shall be calculated based on the Premises being vacant land only without assigning any value to any Improvements then constructed, or proposed to be constructed, on or under the Premises. In the event Landlord and Tenant are unable to agree on such Fair Market Value, the Premises shall be appraised in accordance with the procedure set forth in Article 20.3 (but in no event shall Rent be less than Rent in the immediately preceding Lease Year). 3.Net Lease. This Lease is a net lease. Except as may be expressly provided otherwise in this Lease, all costs incurred in connection with the construction, operation, maintenance and leasing, if applicable, of the Improvements and all Real Estate Taxes and other costs incurred in connection with and in relation to the Premises shall be paid by Tenant. Landlord shall have no obligation to make any repairs, replacements or renewals of any kind, nature or description whatsoever to the Improvements or the Premises. 4.Deposit. Simultaneously with the execution of this Lease by Landlord and Tenant, Tenant shall deliver to the Title Company, as Escrow Agent, the Deposit (as defined in Article 1), and Escrow Agent shall invest the Deposit in an interest bearing account. Escrow Agent, upon written confirmation from the Parties that the Commencement Date has occurred, shall pay to Landlord the Rent for the first month of the first Lease Year from the escrow fund, and shall continue such monthly payments until such time as the escrow fund, including accrued interest, is exhausted. Landlord and Tenant shall each execute Escrow Agent's standard escrow instructions in connection with the escrow, with such reasonable modifications thereto as either Party shall request, and Tenant shall pay the escrow fee charged by Escrow Agent in connection therewith at the time that the escrow is established . ·9 1.Real Estate Taxes. Article 5 Taxes A.During the term of this Lease, Tenant shall assume, pay, bear, and discharge any and all Real Estate Taxes with respect to the Premises, or any part thereof, and all other taxes in any manner app licable to or assessed against the Premises or Buildings or any part thereof, or against any of the machinery, fixtures, equipment, or other property or items belonging to Tenant and located on the Premises. Tenant shall pay all Real Estate Taxes directly to the taxing authorities and Tenant shall be receive all reimbursements on account of abatements , refunds, or rebates of Real Estate Taxes during the term of this Lease. Landlord hereby authorizes Tenant to file and pursue any protest of the valuation of the Premises and abatement petitions for abatement of taxes for any reason, as Tenant may deem to be appropriate. Landlord agrees to execute any form of agreement as may be necessary in connection therewith. B.In the event the Premises are now included in a larger tax parcel owned by Landlord, Landlord shall take such actions as may be necessary to make the Premises a separate tax parcel. Tenant shall cooperate with La ndlord in such action. C.In the event a special assessment is included within the definition of Real Estate Taxes, and such assessment may be paid in periodic in stallments, Tenant may either pay such periodic installments, or may prepay or retire the entire special assessment indebtedness. Tenant shall be responsible only for those installments relating to the period included within the Tenn, based upon the maximum number of in stallments in which the same may be paid. In the event any proposed special assessment would provide for payment extending beyond the Term (excluding any extension options), unless Tenant agrees to pay for all of such assessment, Landlord shall have the right to participate in the process of accepting or rejecting such assessment. Otherwise Tenant shall have the sole right to accept or con test such assessment. D.Landlord shall cooperate with Tenant so that all invoices for Real Estate Taxes shall be sent directly by the taxing authority to Tenant. E.Landlord agrees to submit to Tenant any invoices for Real Estate Taxes and notices of special assessments with respect to the Premises which are sent to Landlord within thirty (30) days after receipt by Landlord. Landlord shall furnish Tenant with copies of all Notices of Valuation of the Premises which are sent to Land lord within ten (10) days after receipt thereof and in sufficient time to allow Tenant to determine whether or not to contest any increase in Real Estate Troces or valuation. If Tenant desires to contest such increase, Tenant shall protest such valuation or file an abatement petition within applicable statutory time periods. Landlord shall fully cooperate with Tenant in any such proceeding. 2.Proration of Taxes. If the Tenn shall expire on any date other than December 31st of any year, the amount payable by Tenant during the calendar year in which such tennination occurs shall be prorated on the basis which the number of days from the 10 furnishings, equipment or any other personal property belonging to Tenant. Tenant may contest any such personal property taxes, assessments or valuations; provided, however, Tenant shall do so within the time period permitted by applicable statutes. Article 6 Utilities 1.Utility Usage. Tenant shall assume, bear, pay, and discharge as its sole and separate obligation all of the applicable charges for all utilities consumed on the Premises. Except in the event of an emergency, neither Landlord nor Tenant shall take any action which shall interrupt or interfere with any electric, gas, water, sewage, or telephone service to the Premises or to the adjoining property owned by Landlord. Article 7 Use, Subletting, and Assignment 1.Use. Tenant may use and occupy the Premises during the Term for all lawful uses in accordance with the requirements of this Lease (the "Permitted Uses"). 2 Assignment and Subletting A.Tenant shall have the right to sublet all or any part of the Premises or assign this Lease to a Shea Related Entity or a Qualified Assignee without the prior written consent of Landlord. For purposes of this Lease, a "Shea Related Entity" shall mean either (i) any entity directly or indirectly owned or controlled by John Shea or Peter Shea or the children or grandchildren of John Shea, Peter Shea or the late Edmund Shea, the members of their respective families, or trusts for their benefit, or (ii) any entity directly or indirectly controlling, controlled by or under the common control with any of the J.F. Shea Co., Inc., Shea Properties LLC or Shea Homes Limited Partnership. A "Qualified Assignee" shall mean a party which provides evidence reasonably satisfactory to Landlord that it has a net worth in excess of $100,000,000.00 and has liquid assets at least equal to the Rent payable under this Lease during the twenty-four (24) months following such assignment. Upon the execution by a Shea Related Entity or a Qualified Assignee of a document reasonably satisfactory to Landlord whereby the Shea Related Entity or the Qualified Assignee, as assignee, assumes all of Tenant's obliga tions hereunder arising from and after the date of the assignment, Tenant shall be relieved of the obligations hereunder, and Landlord shall accept performance of such obligations by assignee. Such assignment shall be effective only on the condition that (x) at least ten (l 0) days prior to the effective date of such assignment, Tenant gives Landlord written notice of such assignment, and provides Landlord with evidence reasonably satisfactory to Landlord that the assignee is a Shea Related Entity or a Qualified Assignee, and (y) the assignee delivers the signed assumption agreement described in the preceding sentence. Upon the delivery of such evidence and such assumption agreement to Landlord, Landlord shall execute and deliver to Tenant and such assignee an estoppel certificate, certifying to the fact that Landlord acknowledges that (i) such assignee is either a Shea 11 commencement of said tax fiscal year to and including said termination date bears to 365. A similar proration shall be made for the tax fiscal year in which the Tenn commences. 3. Personal Property Taxes. Tenant shall pay all taxes charged against trade fixtures. Related Entity or a Qualified Assignee, (ii) the assigning Tenant shall be relieved of its obligations hereunder from and after the date of the assignment, and Landlord shall accept performance of such obligations by such assi gnee from and after that date, and (iii)unless the entire Deposit has been previously applied against Rent in accordance with Article 4.4 above, the Deposit (or the remaining portion thereof) is held by Escrow Agent, and such assignee shall succeed to the rights of the assigning Tenant with respect to the Deposit from and after the date of the assignment. B.Except for an assignment or sublease to a Shea Related Entity or a Qualified Assignee as provided in subparagrap h A above, Tenant shall have the right to sublet all or any part of the Premises or assign this Lease only upon Landlord's prior written consent which shall not be unreasonably withheld, delayed or conditioned. C.Except for an assignment to a Shea Related Entity or a Qualified Assignee as provided in subparagraph A above, no assignment of this Lease shall relieve the assignor of any obligation under this Lease unless otherwise agreed to in writing by Landlord. In the event of any pennitted assi gnment of this Lease to a Shea Related Entity or to any other assignee, other than a Qualified Assignee, any guaranty of this Lease shall continue and remain in full force and effect and the guarantor thereunder shall remain obligated in accordance with the terms of any such guaranty unless otherwise agreed to by Landlord in writing. In the event of any permitted assignment of this Lease to a Qualified Assignee, any guaranty of this Lease shall terminate, and the guarantor thereunder shall be released from its obligations thereunder, unless other wise agreed to by the Parties in writing. Article 8 Ownership of the Buildings and Other Improvements Landlord agrees and aclmowledges that Tenant intends to construct Buildings and other Improvements on or under the Premises. Notwithstanding Landlord's ownership of the Real Property, Tenant shall own the Buildings and all of the other Improvements constructed or installed by Tenant on or under the Real Property until expiration or earlier tennination of the Tenn, subject to Tenant's exercise of the Purchase Option. Article 9 Mechanics Liens 1.Liens. Tenant shall promptly pay when due the entire cost of all work done to the Premises by or at the request of Tenant (including but not limited to work done prior to the Effective Date) and Tenant shall keep the Premises free ofliens for labor or materials as a result of Tenant's work or work performed on behalf of or at the request of Tenant. Should mechanics', materialmen's, or other liens be filed against the Premises as a result of Tenant's work or work perfonned on behalf of or at tl1e request of Tenant, Tenant shall cause the lien to be canceled and discharged ofrecord, or shall file a bond in substitution of the mechanic's lien in accordance with the provisions of Colorado Revised Statute 38-22-131, et. seq., within forty. five ( 45) days of Tenant's receipt of notice of such lien . Notwithstanding the foregoing, Tenant 12 •may contest, in good faith and with reasonable diligence, the validity of any such lien or claimed lien, provided that Tenant shall give to Landlord such security as Landlord may reasonably request to ensure the payment of any amounts claimed. If Tenant contests a lien or claimed lien, then on final determination of the validity of such lien or claimed lien, Tenant shall cause the lien to be released and, in the event of an adverse judgm ent, satisfy suchjudgment. 2.Protection of Landlord's Interest in Premises. Nothing in this Lease shall be construed as giving Tenant or any other person any right, power or authority to act as agent of or to contract for, or permit the rendering of, any services or the furnishing of any materials in such manner as would give rise to the filing of any mechanics' liens or other claims against Landlord's fee interest in the Premises. Landlord shall have the right at all reasonable times to post, and keep posted, on the Premises any notices which Landlord may deem necessary for the protection of Landlord and its interest in the Premises from mechanics' liens or other claims. Article 10 Indemnity and Insurance 1.Indemnity. From and after the Effective Date and continuing at all times thereafter during the Term hereof: A.Tenant assumes all risk ofloss, damage, or destruction to the Premises, Improvements, Buildings to be constructed on the Premises and their contents, or to any other property brought upon the Premises, Improvements, and Buildings by Tenant, or by any other person, with or without the consent or knowledge of Tenant. Tenant hereby indemnifies and agrees to protect and defend Landlord from all such loss, damage, or destruction including claims and causes of action asserted against Landlord (the "Claims") in connection with such loss, damage or destruction. B.Tenant shall indemnify and save harmless Landlord from any and all Claims, on account of injuries to or death of any and all persons whomsoever while on the Premi ses, and any and all loss or destruction of or damage to the Premises, the Improvements, the Buildings and any contents and personal property located upon the Premises and owned by, rented to, or in the care, custody, or control of the parties hereto, or any of Tenant's subtenants, (i) arising or growing out of, or in any manner connected with, any use and occupancy of the Premises by Tenant or any subtenants for a Pennitted Use or otherwise; (ii) caused or occasioned, in whole or in part, by reason of or arising during the presence upon the Premises of the person or the property of Tenant, its officers, employees, agents, subtenants, renters, customers, invitees, licensees, servants, contractors, subcontractors, materialmen, suppliers, worlanen, laborers, and the employees and agents of each of the foregoing, or any and all other persons, invited or otherwise, with or without Tenant's consent, while on the Premises; (iii) arising out of or resulting from Tenant's development, sale or marketing of the Premises and/or the Improvements; and (iv) arising out of or resulting from any plans or designs for the Improvements prepared by or on behalf of Tenant. C.Tenant hereby indemnifies and saves hannless Landlord and any of its officers, members, contractors and agents from any and all Claims, on account of injuries to or death of any and all persons whomsoever, and any and all loss or destruction of or damage to any real or personal property adjacent to the Premises, caused by Tenant or 13 any of its employees, managers, members, officers, contractors, subcontractors, materialmen, suppliers, workmen, laborers, subtenants, renters, licensees, servants or agents. D.The foregoing indemnities shall not apply to any injuries, death, claims,losses, damages and expenses to the extent arising as a result of any negligence or intentional acts of Landlord or its officers, employees, contractors or agents. E.Landlord hereby indemnifies and saves hannless Tenant, to the extent permitted by law, from any and all claims, losses, damages, or expenses, on account of injuries to or death of any and all persons whomsoever while on the Premises, and any and all loss or destruction of or damage to the Premises, the Improvements, the Building and any contents and personal property located upon the Premises and owned by, rented to, or in the care, custody, or control of the parties hereto, or any of Tenant's subtenants, arising from the negligence or willful misconduct of Landlord, its officers, employees, or agents. 2.Appear and Defend. Landlord and Tenant further agree, that if it is theindemnifying party, that it will appear and defend at its own expense, in the name and on behalf of the indemnified party, all claims or suits for injuries to or death of persons or loss or destruction of or damage to property arising or growing out of or in any manner connected with or caused or occasioned by or in connection with its indemnities set forth in Section 1 of this Article 10. 3.Insurance. A Property Damage. During the period of construction of the Improvements,Tenant shall keep or require its general contractor to keep, a policy of builders risk insurance covering loss or damage to the Improvements for the full replacement cost of all such construction, naming Tenant's Leasehold Mortgagee, if any, as a loss payee. During the Term, Tenant shall keep in full force and effect a policy of all risk, special form or equivalent fonn property insurance covering loss or damage to the Premises in the amount of the full replacement cost of the Building and other Improvements on the Property, in an amount at least equal to the hard costs of construction, with a deductible that is commercially reasonable in light of Tenant's financial strength, naming Tenant's Leasehold Mortgagee, if any, as a loss payee. B.Liability Insurance. During the Term, Tenant shall keep in full force commercial general liability insurance ("CGV'), with bodily injury and property damage coverage with respect to the Premises and business operated by Tenant, which shall list Landlord and, at Landlord's written request, Landlord's first mortgagee as additional insureds as their respective interests may appear. The limits of such CGL policy shall be not less than $2,000,000.00 in coverage through primary and/or excess insurance, with a deductible that is commercially reasonable in light of Tenant's financial strength. The required CGL policy limit for bodily injury and property damage requirement may be increased by Landlord, but not more than once in any three (3} year period, to a commercially prudent and reasonable amount, based upon the then current general liability insurance conditions prevailing in the metropolitan Denver market. 14 C.Workers' Compensation Insurance. To the extent required by law, Tenantshall maintain workers' compensation insurance covering its employees in statutory limits, naming Tenant's Leasehold Mortgagee, if any, as a loss payee. D.Automobile Liability. Tenant shall maintain at all times during the Tennliability insurance covering liability arising out of the use of (i) all Tenant owned vehicles, (ii)all vehicles hired or leased by Tenant and (iii) all non-owned and borrowed vehicles. E.Form of Policies. All insurance required by this Section shall be withinsurers licensed or otherwise permitted to conduct business in the state in which the Premises are located. Any insurance hereunder may be provided under blanket policies of insurance. During the last two (2) Lease Years of any Extension Option period following the expiration of the First Extension Option Period, property insurance maintained by Tenant pursuant to Article 10.3.A shall list Tenant as insured and Landlord as ad ditional insured, as their interests may appear in accordance with Section 11.3, and, so long as the Premises are mortgaged pursuant to a mortgage of which Tenant has received written notice, shall be subject to a standard mortgagee clause in favor of Landlord's first mortgagee. All insurance maintained by Tenant pursuant to subparagraph B of this Section shall list Tenant as insured and Landlord as additional insured, as their interests may appear, and, so long as the Premises are mortgaged pursuant to a mortgage of which Tenant has received written notice, shall be subject to a standard mortgagee clause in favor of Landlord's first mortgagee. F.Policy Provisions. All policies of insurance (other than self-insurance)enumerated above shall be provided by insurance carriers having at policy commencement a Best rating of not less than A-VIII; provided, howeve r, that if the rating of any such insurer falls below such level, such rating reduction shall not constitute a default hereunder provided all renewals of such policies shall be with carriers with a Best rating of not less than A-VIII at the time of such renewal. An increased coverage or "umbrella" policy may be provided and utilized by either Party to increase the cove rage provided by individual or blanket policies in lower amounts, and the aggregate coverage provided by all such policies with respect to the Premises and Tenant's liability hereunder shall be satisfactory provided that such policies otherwise comply with the provisions of this Article 10. G.Waiver of Right of Recovery and Subrogation. With respect to any loss covered by insurance or required to be covered by insurance hereunder, Landlord and Tenant hereby waive any and all rights of recovery against each other for any loss or damage to the Premises or the contents contained therein, or for loss of income on account of fire or other casualty; and each Party's aforesaid policies of insurance shall, to the extent available, contain appropriate provisions recognizing this mutual release and waiving all rights of subrogation by the respective insurance carriers. H.Evidence of Insurance. On or before the Commencement Date, Tenant shall cause to be issued to Landlord certificates of insurance evidencing compliance with the applicable covenants of this Article 10. Tenant shall use commercially reasonable efforts to obtain from the insurer a certificate which provides that the certificate holder will be given at least thirty (30) days' notice prior to cancellation; provided, however, if Tenant is unable 15 to obtain such provisi on, then Tenant agrees to provide to Landlord at least thirty (30) days' notice of any anticipated cancellation of an existing insurance policy. Article 11 Damage or Destruction 1.Subject to Landlord's right as provided in Section 11.3, if the Premises or any ofthe Improvements are damaged or destroyed during the Initial Tenn or any Extension Option period by a fire or other casualty ("Casualty"), this Lease shall continue in effect, and Tenant shall continue to pay the Rent without abatement. Tenant shall remove and dispose of all hazardous materials in accordance with applicable legal requirements and take such action as may be required under applicable municipal ordinances and other laws, rules and regulations with respect to any damage or destruction of Tenant's hnprovements. Tenant shall not have any obligation to repair and/or rebuild Tenant's Improvements damaged by fire or oth er casualty or cause. Tenant shall promptly provide a sightly barrier and shall remove all debris from the damaged portion of Tenant's Improvements and use diligent efforts to place the Premises in an orderly and safe condition. If requested by Landlord should Tenant elect not to rebuild, Tenant shall, at its sole cost and expense, raze and remove any remaining portion of Tenant's Improvements and fill and grade the Premises in a safe and sightly manner as near as practicable to its condition on the Commencement Date, or seed such portion of the Premises as designated by Landlord. 2.In the event Tenant elects to repair and/or rebuild the Improvements, if the cost of such repair or restoration shall be less than the insurance proceeds paid as a result of the Casualty, Tenant shall be entitled to retain the balance of such proceeds to the extent not required to be applied to any Leasehold Mortgage. Tenant shall complete all work promptly after the occurrence of the Casualty. All repair and/or restorat ion work shall be performed in a good and workmanlike manner and shall be subject to all provisions of this Lease applicab le to construction of the Improvements. 3.In the event the Casualty occurs during the last two Lease Years of any Additi onalExtension Option period, if Tenant elects not to repair and/or rebuild and gives written notice of such election to Landlord within one hundred twenty (120) days of the date of the Casualty, Landlord shall have the option, exercised by written notice to Tenant on or before the earlier of (a)one hundred twenty (120) days following written notice from Tenant of its election not to repair and/or rebuil� or (b) two hundred forty (240} days following the date of the Casualty, to(i)continue the Lease to the end of the then-current additional Extension Option period, in which case there shall be no abatement of Rent, and the insura nce proceeds shall be paid to Tenantexcept to the extent required to pay off and discharge any Leasehold Mortgage, or (ii) to tennina te the Lease effective as •of one hundred twenty (120) days following the date of theCasualty, in which case the insurance proceeds shall be paid to Landlord except to the extent required to pay off and discharge any Leasehold Mortgage. Promptly following the Casualty, Tenant shall promptly provide a sightly barrier and shall remove and dispose of all hazardous materials in accordance with applicable legal requirements, take such action as may be required under applicable mu nicipal ordinances and other laws, rules and regulations with respect to any damage to or destruction of Tenant's Improvements, and shall use diligent efforts to place the Premises in an orderly, clean and safe condition. If Tenant does not elect to repair and/or 16 rebuild, Tenant shall, if requested by Landlord, at its sole expense (using any insurance proceeds to the extent applicable), remove and raze the portion of the Premises which is damaged, remove and dispose of all hazardous materials in accordance with applicable legal requirements, and, at Landlord's election, fill and grade the Premises in a safe, clean and sightly manner. Any remaining insurance proceeds shall then be used to pay off and discharge any Leasehold Mortg age, and the balance, if any, shall be paid to Landlord. In the event Landlord enters into a subordination agreement with Tenant's Leasehold Mortgagee, notwithstanding any provision in the agreement to the contrary, in no event shall the right of Landlord or Tenant to use insurance proceeds to remove and raze the damaged portion or remove and dispose of hazardous materials be deemed subordinated to the rights of such Leasehold Mortgagee. Article 12 Eminent Domain 1.Definition of Takin g and Substantial Taking. For purposes of this Lease, a 11Taking" shall mean any condemnation or exercise of the power of eminent domain by any authority vested with such power or any other taking for public use, including a private purchase in lieu of condemnation by an authority vested with the power of eminent domain; the "Date of Taking" shall mean the earlier of the date upon which title to the Premises or any portion thereof or any right appurtenant thereto so taken is vested in the condemning authority or the date upon which possession of the Premises or any portion thereof is taken by the condemning authority; and "Substantially All of the Premises" shall mean so much of the Premises or the rights appurtenant thereto as, when taken, leaves the untaken portion unsuitable in Tenant's reasonable opinion for the continued feasible and economic operation and use of the Premises by Tenant as existed immediat ely prior to such Taking or as contemplated herein. 2.Tenant's Rights Upon Taking or Substantial Taking. Each Party agrees to furnish the other a copy of any notice of a threatened or proposed Taking received by such Party. In the event of a Taking of Sub stantially All of the Premises, this Lease shall terminate and both Landlord and Tenant shall be relieved from all further obligations hereunder from and after the Date of Taking. All Rent and other sums payable by Tenant hereunder shall be apportioned and paid through and including the Date of Taking, and neither Landlord nor Tenant shall have any rights in any compensation or damages payable to the other in connection with such Taking. 3.Tenant's Rights Upon Less Than Substantial Taking. In the event of a Taking of less than Substantially All of the Premises, Rent and other charges shall be reduced fairly and equitably in accordance with the portion condemned or taken, effective as of the Date of Taking, and Tenant shall make all necessary rest orations to the Improvements so that the portions of the Improvements not taken constitute a complete architectural unit, and the proceeds of the award attributable to the value of the Improvements Taken shall be retained by Tenant. If any Taking of less than Substantially All of the Premises occurs following the expiration of the First Extension Option and such Taking has a material impact on Tenant's ability to conduct its operations in the Premises as reasonably determined by Tenant, this Lease shall terminate at Tenant's option, which option shall be exercised by Tenant giving not less than thirty (30) days' prior written notice to Landlord, such notice to be given not more than sixty (60) days after Tenant's receipt of notice of the impending Taking. 17 4. Rights Upon Temporary Talcing. Notwithstanding the foregoing, in the event of a Talcing of the Premises or any portion thereof, for temporary use (specifically one not exceeding one hundred eighty (180) days in duration), without the talcing of the fee simple title thereto, this Lease shall remain in full force and effect, and there shall be no abatement of Rent during such period. All awards, damages, compensation and proceeds payable by the condemnor by reason of such Taking relating to the Premises for periods prior to the expiration of the Lease shall be payable to Tenant. All such awards, damages, compensation and proceeds for periods after the expiration of the Lease shall be payable to Landlord. Anything contained in this Section 12.4 to the contrary notwithstanding, a temporary Taking for any period in excess of one hundred eighty (1 80) days may, at Tenant's option, be deemed a permanent Taking and shall be governed by Article 12.2 or 12.3 above, as applicable. 5. Award. The award paid by the condemning authority ( other than a Taking for temporary use) shall be allocated as follows: a) First to the Landlord in an amount equal to the value of the Premises (on the basis of unimproved land not encumbered by this Lease) b) Next to Tenant in an amount equal to the value of Tenant's leasehold interest and Improvements, subject to the rights of any Leasehold Mortgagee. If this Lease is not tenninated, the award for the cost of restoring the Improvements shall be payable to Tenant, subject to the rights of any Leasehold Mortgagee. c) Any other award permitted by law shall be payable to Landlord and Tenant as their respective interests may appear. Landl ord and Tenant shall each have the right to represent their respective interests in each proceeding or negotiation with respect to a taking or intended taking by power of condemnation and to make full proof of their claims. Tenant shall have the sole right to control the defense, prosecution and settlement of its claim to the extent the condemnation proceeding or negotiation affects Tenant's leasehold interest hereunder and/or the Improvements, subject to the consent of any Leasehold Mortgagee. Landlord shall have the sole right to control the defense, prosecution and settlement of its claim to the extent the condemnation proceeding or negotiation affects Landlord's reversionary interest in the Premises and/or Improvements. Landlord and Tenant each agrees to execute and deliver to the other any instruments that may be reasonably required to effectuate or facilitate the provisions of this Lease relating to condemnation. Article 13 Default 1. Events of Tenant's Default. Any of the following occurrences, conditions or acts by Tenant shall constitute an "Event of Default" under this Lease: A. Failure to Pay Rent: Breach. (i) Tenant's failure to make any payment of money required by this Lease (including without limitation Rent or Real Estate Taxes) (subject to Tenant's right of good faith contest with respect to Real Estate Taxes, as set forth in and as limited by Article 5), within thirty (30) days after the receipt of written notice from 18 Landlord to Tenant that same is overdue ("Monetary Def a ult"), in which event such delinquent amount shall accrue interest at the Default Rate; or (ii) Tenant's failure to observe or perfonn any other material provision of this Lease within thirty (30) days after receipt of written notice from Landlord to Tenant specifying such default and demanding that the same be cured ("Non-Monetary Default"); provided that, if such default cannot with due diligence be wholly cured within such thirty (30) day period, Tenant shall have such longer period as is reasonably necessary to cure the default, so long as Tenant proc eeds promptly to commence the cure of same within such thirty (30) day period and diligently prosecutes the cure to completion. In no event shall Landlord be required to give more than one notice of a monetary default during any twelve (12) month period, and in the event one such notice has been given, Tenant shall be in default if any payment is not made when due, no notice shall be required, and interest shall accrue at the Default Rate from the date such payment was due until paid. B.Bankruptcy. Any petition is filed by or against Tenant under any section orchapter of the Federal Bankruptcy Code, and, in the case of a petition filed against Tenant, such petition is not dismissed within sixty ( 60) days after the date of such filing. C.Insolvency. Tenant becomes insolvent or transfers property in fraud ofcreditors. D.Assignment for Benefit of Creditors. Tenant makes an assignment for thebenefit of creditors . E.Receivership. A receiver is appointed for any of Tenant's assets. F.Attachment This Lease or Tenant's interest in the Premises or any partthereof is taken by attachment, execution or other process of law, and such attachment, execution or other process has not been released within sixty (60) days thereafter. G.Lien. Tenant fails to obtain a release of any lien against the Premises asrequired under the terms of this Lease. In the event Tenant continues to pay Rent as required under the terms of this lease, no Event of Default shall occur solely as a result of Tenant's bankruptcy, insolvency, assignment for benefit of its creditors, or the appointment of a receiver for any of Tenant's assets. 2.Landlord's Remedies. After the occurrence of an Event of Default by Tenant, Landlord shall haye the right to institute from time to time an action or actions (i) to recover damages ( exclusive of consequential or special damages), (ii) for injunctive and/or other equitable relief, and (iii) in the event of Monetary Default only, to recover possession of the Premises and terminate this Lease. A.Monetary Default.In the event of a Monetary Default: (i)Continue Lease. Landlord may, at its option, continue this Lease in full force and effect, without terminating Tenant's right of possession of the Premi ses, in which event Landlord shall have the right to collect Rent and other charges when due, including 19 any sums due for any option period for which an extension option has been exercised, together with Landlord's reasonable attorneys' fees and interest at the Default Rate from the date such payment was due until the date paid by Tenant. In the alternative, Landlord shall have the right, at its option to make any payment, such as taxes, otherwise required to be made by Tenant, in which event such payment shall not be deemed a cure of Tenant's default, and Tenant shall reimburse Landlord for any such payment, together with reasonable attorneys' fees and interest at the Default Rate from the date Landlord makes such payment to the date Landlord receives such reimbursement. Landlord shall have the right to peaceably re-enter the Premises, without such re-entry being deemed a termination of the Lease or an acceptance by Landlord of a surrender thereof. Landlord shall also have the right, at its option, from time to time, without terminating this Lease, to relet the Premises, or any part thereof, with or without legal process, as the agent, and for the account, of Tenant upon such terms and conditions as Landlord may deem advisable, in which event the rents received on such reletting shall be applied (i) first to the reasonable and actual expenses of such reletting and collection, including without limitation necessary renovation and alterations of the Premises, reasonable and actual attorneys' fees and any reasonable and actual real estate commissions and consulting fees paid, and (ii) thereafter toward payment of all sums due or to become due to Landlord hereunder. If a sufficient amount to pay such expenses and sums shall not be realized, in Landlord's exercise of commercially reasonable efforts to mitigate its damages (which Landlord hereby agrees to make), then Tenant shall pay Landlord any such deficiency monthly, and Landlord may bring an action or actions therefor as such monthly deficiency shall arise and accrue. Landlord shall not, in any event, be required to pay Tenant any sums received by Landlord on a reletting of the Premises in excess of the rent provided in this Lease, but such excess shall reduce any accrued present or future obligations of Tenant hereunder. Landlord's re­entry and reletting of the Premises without termination of this Lease shall not preclude Landlord from subsequently tenninating this Lease as set forth below. (ii)Terminate Lease. Landlord may terminate this Lease by writtennotice to Tenant specifying a date therefor, which shall be no sooner than thirty (30) days following receipt of such notice by Tenant, and this Lease shall then terminate on the date so specified as if such date had been originally fixed as the expiration date of the Term. In the event of such tennination, Landlord shall be enti tled to recover from Tenant all of the following as damages: (A)The "worth at the time of the award payment" (definedbelow) of any obligation which has accrued prior to the date of termination. (B)The "worth at the time of the award payment" of the amount by which the unpaid Rent and all other charges which would have accrued after tennination until the time of award payment exceeds the amount of any sums (net of reletting costs and expenses) actually received by Landlord from the Premises after tennination. Landlord shall have an affinnative obligation to attempt to mitigate its damages following tennination, until the time of the award payment. (C)The "worth at the time of the award payment" of the amount by which the Rent and all other charges which would have accrued after the time 20 of the award payment for the remaining tenn of this Lease exceeds the Fair Market Rent {"FMR"), determined in the manner set forth below, for the remaining Tenn of this Lease. The FMR, as used in this Lease, shall be the fair market rent of the Premises, net of market brokerage commissions and consulting fees, as of the time of the award for a term equal to the remaining term of this Lease subsequent to the time of the award payment {assuming this lease had not been terminated) on an "as is" basis, as detennined by a licensed MAI appraiser selected by Landlord. At Tenant's option, Tenant may select an additional licensed MAI appraiser to estimate FMR and Tenant's appraiser and Landlord's appraiser shall select a third MAI appraiser to estimate the FMR, in which case the FMR shall be the median of the three appraisals. Tenant shall bear the cost of the appraisal process. As used in this Article 13.2, the term, "worth at the time of the award payment", shall be computed by allowing simple interest at an accrual rate equal to the Default Rate for past due obligations, and a discount rate to net present value at the time of the award payment of five percent (5%) per annum on anticipated future obligations or revenues, and mitigation amounts, with no interest or discount, on the amount of the obligations payable on the date of such calculation. In the event this Lease shall be tenninated as provided above, by summary proceedings or otherwise, Landlord, its agents, servants or representatives may immediately or at any time thereafter peaceably re-enter and resume possession of the Premises and, at Tenant's expense, remove all persons and property therefrom, by summary dispossession proceedings. (iii)Reimbursement of Landlord's Costs in Exercising Remedies. Landlord may recover from Tenant, and Tenant shall pay to Landlord upon demand, as Additional Rent, such reasonable and actual expenses as Landlord may incur in recovering possession of the Premises, placing the same in good order and condition and repairing the same for reletting, and all other reasonable and actual expenses, commissions and charges incurred by Landlord in exercising any remedy provided herein or as a result of any Event of Default by Tenant hereunder (including without limitation reasonable attorneys' fees), provided that in no event shall Tenant be obligated to compensate Landlord for any speculative or consequential damages caused by Tenant's failure to perfonn its obligations under this Lease. B.Remedies Are Cumulative. The various rights and remedies reserved to Landlord herein are cumulative, and Landlord may pursue any and all such rights and remedies, in addition to any other rights or remedies available at law or in equity, whether at the same time or otherwise (to the extent not inconsistent with specific provisions of this Lease). Notwithstanding anything herein to the contrary, Landlord expressly waives its right to forcibly dispossess Tenant from the Premises, whether peaceably or otherwise, without judicial process, such that Landlord shall not be entitled to any "commercial lockout" or any other provisions of applicable law which permit landlords to dispossess tenants from commercial properties without the benefit of judicial review. C.Mitigation of Damages. In the event Landlord elects to terminate the Lease and seek damages from Tenant as provided herein, Landlord will use reasonable efforts to mitigate its damages. Landlord shall have the option but not the obligation to list the Premises for lease with a real estate broker. In the event Landlord elects not to so list the 21 property but instead elects to itself market the Property for lease, such election shall not be deemed to constitute a failure by Landlord to mitigate. Landlord will not be obligated to accept less than the then current market rent for the Premises; deviate from its then established guidelines for tenants including without limitation use, experience, reputation, and creditworthiness; lease less than all of the Premises; extend the term of this Lease; or expend any money on behalf of a new tenant. Tenant will not have any independent, affirmative claim against Landlord on account of Landlord's failure to mitigate its damages; however, such failure to mitigate may be asserted by Tenant as a defense to a claim by Landlord to the extent allowed by law. D.Waiver of Landlord's Lien. Landlord hereby waives any statutory liens andany rights of distress with respect to Tenant's Property (as defined below) from time to time located on the Premises. This Lease does not grant a contractual lien or any other security . interest to Landlord or in favor of Landlord with respect to Tenant's Property. Landlord further agrees, without cost to Tenant, to execute and deliver such instruments reasonably requested by Tenant from time to time to evidence the aforesaid waiver of Landlord. As used herein the term "Tenant's Property" shall mean all movable partitions, business and trade fixtures, machinery and equipment, automobiles, computers, furniture, satellite dish{s), sigriage, communications equipment and office equipment, and all furniture, furnishings and other articles of personal property owned by Tenant and locat ed in the Premises. 3.Landl ord's Default. In the event Landlord shall at any time be in default in theobservance or performance of any of the covenants and agreements required to be perfonned and observed by Landlord hereunder and any such default shall continue for a period of sixty ( 60) days after written notice to Landlord {or if such default is incapable of being cured in a reasonable manner within sixty {60) days and if Landlord has not commenced to cure the same within said sixty {60) day period and thereafter diligently prosecutes the same to completion), and Landlord shall not thereafter cure such default, Tenant shall be entitled, at its election, to bring suit for the collection of any amounts for which Landlord may be in default, or for the performance of any other covenant or agreement devolving upon Landlord, in addition to all remedies otherwise provided in this Lease and otherwise available at law or in equity under the laws of the United States or the State of Colorado. 4.Attorneys' Fees In the event that either Landlord or Tenant commences any suit for the collection of any amounts for which the other may be in default or for the performance of any other covenant or agreement hereunder, the prevai ling Party in any such action shall be awarded its costs and expenses, including, but not limited to, all attorneys' fees and expenses incurred in enforcing such obligations and/or collecting such amounts, from the other Party to such action. 5.Waiver of Consequ ential Damages. In no event shall either Landlord or Tenant have the right to recover consequential damages of any kind from the other. Except as limited herein above, all rights and rem edies may be exercised and enforced concurrently and whenever and as often as Landlord or Tenant shall deem necessary. In the event of a default by Tenant, nothing contained herein shall preclude, or be deemed a waiver, of Landlord's right to recover damages arising from its ownership or operation of the property owned by it adjacent to the Premises. 22 Article 14 Covenant of Quiet Enjoyment Landlord agrees that Tenant shall quietly and peaceably hold, possess, and enjoy the Premises, without any hindrance or molestation by the agents or employees of Landlord, and further, Landlord shall, subject to any additional exceptions created by Tenant or created by Landlord and approved by Tenant, defend the title to the Premises and the use and occupancy of the same by Tenant against the lawful claims of all persons whosoever, except those claiming by or through Tenant. Article 15 Subordination; Landlord's Right to Mortgage and Convey Premises Landlord may mortgage its interest in the Premises, provided such mortgage expressly provides that the rights and interests of the mortgagee thereunder are subject and subordinate to the rights and interests of Tenant hereunder and the rights of any Leasehold Mortgagee under any Leasehold Mortgage then or thereafter existing. Should Landlord sell, convey, or transfer its interest in the Premi ses or should any mortgagee of Landlord succeed to Landlord's interest through foreclosure or deed in lieu thereof, Tenant shall attom to such succeeding party as its landlord under this Lease promptly upon any such succession, provided such succeeding party assumes all of Landlord's duties and obligations under this Lease. Such succeeding party shall not be liable for any of Landlord's obligations and duties hereunder prior to its assumption of Landlord's duties and obligations hereunder. Article 16 Transfers by Landlord No transfer or sale of Landlord's interest hereunder shall release Landlord from any of its obligations or duties hereunder prior thereto. Landlord shall be released of any ongoing obligations hereunder from and after the date of such transfer and only upon the assumption of all such obligations and duties by the transferee of Landlord. Notwiths tanding anything contained herein to the contrary, in no event shall Landlord have the right to transfer, in any manner whatsoever, or to sell its interest hereunder prior to delivery of possession of the Premises to Tenant. Article 17 Miscellaneous 1.Non-Waiver of Default. No acquiescence by either Party to any default by the other Party shall operate as a waiver of its rights with respect to any other breach or default, whether of the same or any other covenant or condition. 2.Recording. This Lease shall not be recorded. The parties shall execute, acknowledge, and deliver to each other duplicate originals of a short fonn or memorandum of this Lease ("Memorandum of Lease") in substantially the fonn of Exhibit B attached hereto and incorporated herein, describing the Premises and setting forth the Term of this Lease. The Memorandum of Lease shall be recorded at Tenant's expense. In the event Tenant records this Lease, this Lease shall automatically be deemed terminated and of no further force or effect. If 23 this Lease is terminated, upon request of Landlord, Tenant will execute and deliver to Landlord a termination of the Memorandum of Lease suitable for recording. 3.Notice. Any notice, request, offer, approval, consent, or other communication required or permitted to be given by or on behalf of either Party to the other shall be given or communicated in writing by personal delivery, reputable overnight couri er service which keeps receipts of deliver ies (i.e., Federal Express}, or United States certified mail (return receipt requested with postage fully prepaid) or express mail service addressed to the other Party as follows: If to Tenant: With copies to: If to Landlord: With copies to: And copies to: Central Park at Highlands Ranch, LLC 6380 South Fiddlers Green Circle Suite400 Greenwood Village, CO 80111 Attention: Peter A. Cutshaw Shea Properties 6380 South Fiddlers Green Circle Suite400 Greenwood Village, CO 80111 Attention: Jeffrey H. Donelson, Esq. Englewood/McLellan Reservoir Foundation 1000 Englewood Parkway Englewood, Colorado 80110 Attention: President B erenbaum Weinshienk PC 370 17 th Street, 48th Floor Denver, Colorado 80202 Attention: H. Michael Miller, Esq. City of Englewood 1000 Englewood Parkway Englewood, Colorado 80110 Attention: City Attorney or at such other address as may be specified from time to time in writing by either Party. All such notices hereunder shall be deemed to have been given on the date personally delivered or the date marked on the return receipt, unless delivery is refused or cannot be made, in which case the date of postmark shall be deemed the date notice has been given. 4.Successors and Assigns. All covenants, promises, conditions, representations, and agreements herein contained shall be binding upon, apply to, and inure to the benefit of the Parties hereto and their re spective heirs, executors, administrators, successors (including subtenants), and permitted assigns. 5.Partial Invalidity. If any provision of this Lease or the application thereof to any person or circumstance shall to any extent be held invalid, the remainder of this Lease or the 24 application of such provision to persons or circumstances other than those as to which it is held invalid shall not be affected thereby, and each provision of this Lease shall be valid and enforceable to the fullest extent permitted by law. 6.Interpretation. In interpreting this Lease in its entirety, any additions written or typed thereon shall be given equal weight, and there shall be no inference, by operation oflaw or otherwise, that any provision of this Lease shall be construed against either Party hereto. This Lease shall be construed without regard to any presumption or other rule requiring construction against the Parties causing this Lease to be drafted. 7.Headings. Captions. and References. The section captions contained in this Lease are for convenience only and do not in any way limit or amplify any tenn or provision hereof. The use of the terms "hereof," "hereunder," and "herein" shall refer to this Lease as a whole, inclusive of the Exhibits, except when noted otherwise. The terms "include," "includes," and "including" incorporate the meaning "without limitation." The use of the masculine or neuter genders herein shall include the masculine, feminine, and neuter genders and the singular form shall include the plural when the context so requires. 8. Colorado. Governing Law. This Lease shall be construed under the laws of the State of 9.Execution of Documents. Landlord and Tenant shall each cooperate with the other and execute such documents as the other Party may reasonably require or request so as to enable it to conduct its operations, so long as the requested conduct or execution of documents does not derogate or alter the powers, rights, duties, and responsibilities of the respective Parties. 10.Force Majeure. Whenever a Party is required to perform an act under this Lease by a certain time, unless specifically provided otherwise in this Lease, such Party may extend the deadline in the event of Excusable Delay. In the event a Party elects to so extend a deadline, such Party shall first give writ ten notice to the other Party within twenty (20) days following the commencement of the Excusable Delay setting forth the event giving rise to the Excusable Delay. The Party electing to extend the deadline shall within twenty (20) days following the end of the Excusable Delay give an additional written notice to the other Party setting forth the number of days the period has been extended as a result of the Excusable Delay and the details of such delay. 11.Authority. No agreement, including but not limited to an agreement to amend or modify this Lease or to accept surrender of the Premises, shall be deemed binding upon either Party, unless in writing and signed by an officer of the Party against whom the agreement is to be enforced or by a person designated in writing by such Party as so authorized to act. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment of Rent be deemed an accord and satisfaction unless expressly agreed to by Landlord acting through its authorized representative, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy then available to Landlord . 12.Estoppel Certificate. Each Party agrees, from time to time, within twenty (20) days following written request from the other Party, to execute and deliver an estoppel stating 25 that this Lease is in full force and effect, and if modified or amended, setting forth such modification or amendment, that no default exists, or if a default, setting forth the same, and such other factual matters regarding the Lease as may be reasonably requested, provided such estoppel does not obligate the Party to acknowledge or consent to any modifications or interpretations of this Lease not previously agreed upon by both parties in writing. 13.Holding Over. Should Tenant hold over, without Landlord's consent, after the Lease Term has expired and continue to pay Rent, Tenant shall become a month-to-month tenant only. In no event shall such hold over constitute an extension of the Tenn of this Lease. During such hold over, the Rent shall be an amount equal to one hundred fifty percent (150%) of the Rent during the last month of the Term of the Lease, together with all other amounts payable by Tenant under the terms of the Lease. None of the terms of this Paragraph or the holding over by Tenant shall constitute a waiver of any rights of Landlord to terminate the Lease at any time and to re-enter and talce possession of the Premises. Tenant shall reimburse Landlord and indemnify Landlord against all damages incurred by Landlord resulting from any delay by Tenant in surrendering poss ession of the Premises. 14.Broker. Each Party warrants and represents to the other that they have not engaged any broker or finder with regard to the transactions contemplated by this Lease. Each Party hereby indemnifies and agrees to hold the other Party hannless from all damages, claims, liabilities or expenses, including reasonable and actual attorneys' fees {through all levels of proceedings}, resulting from any claims that may be asserted ag ainst the other Party by any real estate broker or finder with whom the indemnifying Party either has or is purported to have dealt 15.Reasonable Consent. Except as expressly provided otherwise in this Lease, in all cases where consent or approval shall be required pursuant to this Lease, the giving of each consent or approval shall not be unreasonably withheld, conditioned or delayed by the Party from whom such consent is required or requested. 16.No Annexation of Fee Interest Without Landlord Consent. Tenant shall be entitled, without the necessity for any consent by Landlord, to annex the leasehold interest in the Premises created by this Lease to: {i) the Community Declaration for Highlands Ranch Community Association, Inc., dated September 1, 1981, and recorded September 17, 1981 in Book 421 at Page 924 of the records in the office of the Clerk and Recorder of Douglas County, Colorado, as the same has been, and hereafter may be, amended from time to time (the "Community Declaration"}; and (ii} the Subass ociation Declaration for Highlands Ranch Business Park, Inc. of Highlands Ranch Community Association, Inc. dated February 14, 1989, recorded February 21, 1989 in Book 841 at Page 1115 of those records, as amended by the Amendment of Subassociation Declaration for Highlands Ranch Business Park, Inc., dated June 7, 1990, recorded June 11, 1990, in Book 916 at Page 49 of those recor ds, as the same has been, and hereafter may be, amended from time to time (the "Business Park Declaration"). However, Tenant shall have no authority to annex the fee interest in the Premises to either the Community Declaration or the Business Park Declaration without the prior written consent of Landlord, which may be given or withheld in Landlord's sole discretion. 26 Article 18 Leasehold Financing 1.Mortgage by Tenant. Tenant may, from time to time, hypothecate, mortgage,pledge, or alienate the Improvements and/or Tenant1s leasehold estate and rights her eunder. Such lien shall be referred to herein as a 11Leasehold Mortgage" and the holder or holders of any such lien shall be referred to herein as a 11Leasehold Mortgagee." The Leasehold Mortgagee's interest in the Premises and this Lease shall be subordinate, junior and subject to Landlord 's ownership of the Premises and interest in this Lease. A Leasehold Mortgage shal l encumber no interes t in the Premises other than Tenant's interest in the Lease and the Improvements located on the Premises, including any personal property of Tenant, and any subleases of portions of the Premises. A Leasehold Mortgagee or its assigns may enforce such lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of such lien, the Leasehold Mortgagee may take possession of and operate the Premises, performing all obligations performable by Tenant, and upon foreclosure of such lien by power of sale, judicial foreclosure, or acquisition of the leasehold estate by assignment in lieu of foreclosure, the Leasehold Mortgagee may sell and assign the leasehold est ate hereby created. Notwithstanding anything herein contained to the contrary, the Leasehold Mortgagee or any person or entity acquiring such leasehold estate shall be liable to perform the obligations imposed on Tenant by this Lease only during the period such person has ownership of said leasehold estate or possession of the Premises; provided further that, except as expressly provided herein, in no event shall Landlord's rights be impaired to exercise its remedies following an Event of Default prior to Leasehold Mortgagee's possession or ownership. Landlord agrees to provide an estoppel to any Leasehold Mortgagee upon written reque�t therefor, provided such estoppel does not obligate Landlord to acknowledge or consent to any modifications or inter pretations of this Lease not previously agreed upon by both parties in writing. 2.Notice To and Rights Of Leasehold Mortgagees. A.When giving notice to Tenant with respect to any default hereunder, Landlord shall also serve a copy of such notice upon any Leasehold Mortgagee who shall have given Landlord a written notice specifying its name and address. No such notice shall be effective against any Leasehold Mortgagee unless and until served on any Leasehold Mortgagee as herein provided. In the event Tenant shall default in the performance of any of the tenns, covenant s, agreements, and conditions of this Lease to be performed on Ten ant's part, any Leasehold Mortgagee shall have the right, within the grace period available to Tenant for curing such default or such ad ditional time as may be granted to any Leasehold Mortgagee herein, to cure or make good, such default or to cause the same to be cured or made good, whether the same consists of the failure to pay Rent or the failure to perform any other obligation, and L andlord shall accept such performances on the part of any Leasehold Mortgagee as though the same had been done or pe1formed by Tenant. B.In the case of a Monetary Default by Tenant, Landlord will take no action to effect a tennination of this Lease by reason thereof unless such default has continued beyond forty-five (45} days after Landlord shall have served a copy of notice of such default upon Tenant and any Leasehold Mortgagee who has given Landlord notice as provided in Article 18.2.A, it being the intent hereof and the understanding of the parties 27 that any Leasehold Mortgagee shall be allowed not less than fifteen (15) days in addition to the thirty (30) days granted to Tenant to cure any Monetary Default of Tenant. C.In the case of any Non-Monetary Default by Tenant, a Leasehold Mortgagee shall be allowed, in addition to any grace period granted to Tenant, an additional time as hereinafter specified to cure such Non�Monetary Default within which either: a)if such default is capable of being cured by the payment of money or is otherwise susceptible of being cured by the Leasehold Mortgagee without obtaining possession of the Premises, to commence and diligently proceed to cure such Non-Monetary Default within thirty (30) days following the expiration of any grace period granted to Tenant, or if such default cannot reasonably be cured within thirty (30) days, to commence such cure within thirty (30) days following the _expiration of any grace period granted to Tenant and to diligently prosecute the cure to completion; b)if such default is not susceptible of being cured by the Leasehold Mortgagee without obtaining possession of the Premises, to commence proceedings to obtain possession of the Premises within thirty (30) days following the expiration of any grace period granted to Tenant and diligently prosecute such action to completion (including possession by a receiver) and to cure such default within thirty {30) days following possession or the appointment of a receiver in the case of a default which is susceptible of being cured within thirty (30) days when the Leasehold Mortgagee has obtained possession thereof. If such default can not reasonably be cured within thirty (30) days following possession or appointment of a receiver, to commence such cure within thirty (30) d ays following possession or appointment of a receiver and to diligently prosecute the cure to completion. D.In the event that this Lease is terminated by Landlord on account of any default, Landlord shall give prompt notice thereof to each Leasehold Mortgagee who has given notice to be notified. Landlord, within thirty (30) days after receiving a written request therefor, which shall be given within sixty (60) days after such termination, will execute and deliver a new lease of the Premises to the Leasehold Mortgagee or its nominee or to the purchaser, assignee, or transferee, as the case may be, for the remainder of the Term, containing the same covenants, agreements, terms, provisions, and limitations as are contained herein, provided that the Leasehold Mortgagee shall (i) pay to Landlord, simultaneously with the delivery of such new lease, all unpaid rental due under this Lease up to and including the date of the commencement of the term of such new lease and all expenses including, without limitation, reasonable attorneys' fees and disbursements and court costs incurred by Landlord in connection with the default by Tenant and the termination and the preparation of the new lease, and (ii) the Leasehold Mortgagee shall commence and diligently proceed to cure all defaults existing under this Lease which are susceptible to cure. E.The time available to a Leasehold Mortgagee to initiate foreclosure proceedings as aforesaid shall be deemed extended by the number of days of delay of 28 occasioned by judicial restriction against such initiation or occasioned by other circumstances beyond the Leasehold Mortgagee's control. F.During the period that a Leasehold Mortgagee shall be in possession of the Premises and/or during the pendency of any foreclosure proceedings instituted by a Leasehold Mortgagee, the Leas ehold Mortgagee shall pay or cause to be paid all charges of whatsoever nature payable by Tenant hereunder which have been accrued and are unpaid and which will thereafter accrue during said period. Following the acquisition of Tenant's leasehold estate by the Leasehold Mortgagee or its designee, either as a result of foreclosure or acceptance of an assignment in lieu of foreclosure, Landlord1s right to effect a termination of this Lease based upon the default in que stion shall be deemed waived. Any default not susceptible of being cured by the Leasehold Mortgagee or party acquiring title to Tenant's leasehold estate shall be and shall be deemed to have been waived by Landlord upon completion of the foreclosure proceedings or acquisition of Tenant's interest in this Lease by any purchaser (who may, but need not be, the Leasehold -Mortgagee) at the foreclosure sale, or who otherwise acquires Tenant's interest from the Leasehold Mortgagee or by virtue of a Leasehold Mortgagee's exercise of its remedies. Any such purchaser, or successor of purchaser, shall assume Ten ant's obligations under this Lease which accrue subsequent to acquiring such interest, but shall not be liable to perform the obligations imposed on Tenant by this Lease incurred or accruing after such purchaser or successor no longer has ownership of the leasehold estate or possession of the Premises. G.Nothing herein shall preclude Landlord from exercising any of Landlord's rights or remedies with respect to any other default by Tenant during any period of any such forbearance, subject to the rights of any Leasehold Mortgagee as herein provided. H.In the event two or more Leasehold Mortgagees each exercise their rights hereunder and there is a conflict which renders it impossible to comply with all such requests, the Leasehold Mortgagee whose leasehold mortgage would be senior in priority if there were a foreclosure shall prevail. In the event any Leasehold Mortgagee pays any rental or other sums due hereunder which relate to periods other than during its actual ownership of the leasehold estate, such Leasehold Mortgagee shall be subrogated to any and all rights which may be asserted against Landlord with respect to such period of time. I.Upon the reasonable request of any Leasehold Mortgagee, Landlord and Tenant shall cooperate in including in this Lease by suitable amendment or separate agreement from time to time any provision for the purpose of implementing the protective provisions contained in this Lease for the benefit of such Leasehold Mortgagee in allowing such Leasehold Mortgagee reasonable means to protect or preserve the lien of its proposed Leasehold Trust Deed on the occurrence of an Event of Default under the terms of this Lease. Landlord and Tenant shall execute, deliver, and acknowledge any amendment or separate agreement reasonably necessary to effect any such require ment; provided, however, that any such amendment or separate agreement shall not in any way affect the Term or Rent under this Lease nor otherwise in any material respect adversely affect any rights of Landlord under this Lease. 29 J. Tenant shall reimburse Landlord any attorneys' fees or other direct out of pocket costs incurred in connection with any lease amendments or other documentation or review in connection with Tenant's proposed Leasehold Mortgage. Article 19 Representations of Landlord and Tenant 1. Representations of Landlord. Except as otherwise disclosed on Schedule 1 attached hereto, Landlord represents and warrants to Tenant that, as of the Effective Date: A. Landlord is a non-profit corporation validly organized and existing under the laws of the State of Colorado. Landlord has the full right, power and authority to enter into this Agreement and to perform Landlord's obligations hereunder. B. This Agreement (i) has been duly authorized, executed, and delivered by Lan dlord; and (ii) is the binding obligation of Landlord; C. Landlord has not granted, other than to Tenant, any outstanding option, right of first refusal or any preemptive right with respect to the purchase of all or any portion of the Premises. D. To the best of Landlord's knowledge, the Premises an d use and occup ancy thereof is not in violation of any laws and no written notice of such violation has been received by Landlord and is not the subject of any existing, pending, or threatened investigation or inquiry by any governmental authority or subject to any remedial obligations under any laws pertaining to or relating to hazardous materials or other environmental conditions. E.No lawsuit has been filed against Landlord regarding the Premises. F. There are no other leases, agreements or contracts in existence relating to the Premises, including, without limitation, tenant leases, service contracts, or management agreements. G. Landlord has received no notice from any insurance company with respect to the cancellation of any policy concerning the Premises or refusal of the insurance company to insure the Premises. H.There are no oral agreements affecting the Premises. I. There is no litigation pending with respect to the Premises relating to any Environmental Law violations. Except as disclosed in writing by Landlord or disclosed in environmental reports delivered to Tenant, Landlord has no actual knowledge of an Environmental Law violation and has received no notice or other written communication from a governmental agency or any other person or entity alleging or suggesting an Environmental Law violation on the Premises. The term "Environmental Law," as used in this Agreement, shall include: (1) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C.A. §9601, et seq. ("CERCLA"); (2) Solid 30 Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C.A. §6901, et seq.; (3) Federal Water Pollution Control Act of 1972, as amended by the CleanWater Act of 1977, as amended, 33 U.S.C.A. §1251, et seq.; (4) Toxic Substances Control Act of 1976, as amended, 15 U.S.C.A. §2601, et seq.; (5) Emergency Planningand Community Right-to-Know Act of 1986, 42 U.S.C.A. §11001, et seq.; (6) Clean AirAct of 1966, as amended by the Clean Air Act Amendments of 1990, 42 U.S.C.A. §7401, et seq.; (7) National Environmental Policy Act of 1970, as amended, 42 U.S.C.A. §4321,et seq.; (8) Rivers and Harbors Act of 1899, as amended, 33 U.S.C.A. §4 01, et seq.; (9)Endangered Species Act of 1973, as amended, 16 U.S.C.A. §1531, et seq.; (10) Occupational Safety and Health Act of 1970, as amended, 29 U.S.C.A. §651, et seq.; (11)Safe Drinking Water Act of 1974, as amended, 42 U.S.C.A. §300(f}, et seq.; and (12) allapplicable standards, rules, policies and other governmental requirements. J.Landlord owns the Premises free and clear of any mortgage or deed of trust or other encumbrance or lien and no third party has any right to possess or occupy the Premises. There are no unrecorded easements or rights-of-way affecting the Premises. K.Landlord has not caused or permitted, and has no knowledge that anythird party has caused or pennitted, any "Hazardous Substances" (as hereinafter de:l;ined) to be placed, held, located or disposed of in, on or at the Premises or any part thereof except in accordance with all applicable laws, statutes, ordinances, and regulations. L.Landlord hereby agrees to indemnify Tenant and hold Tenant harmlessfrom and against any and all losses, liabilities, damages, injuries, expenses (including any costs required to Remediate, as hereinafter defined, the Premises incurred by Tenant}, including reasonable attorneys' fees, costs of any settlement or judgment and claims of any and every kind whatsoever paid, incurred or suffered by, or asserted against, Tenant by any person or entity or governmental agency as a result of the escape, seepage, leakage, spillage, discharge, emission, discharging or release from, the Premises of any Hazardous Substance; provided, however, that the foregoing indemnity is limited to matters arising solely from Landlord's violation of the representation contained in Article 19.1.K. M.There are no agreements, commitments or understandings by or between Landlord and any third party pursuant to which (i) Landlord agrees to make the Premises part of any special assessments, special district, or taxing district ("Assessments"), or (ii} Landlord or its successors in interest are required to sell, grant or dedicate any part of the Premises or to grant any easement, water rights, rights-of-way, road or license for ingress and egress or other use in respect to any part of the Premises, whether on account of the development of adjacent or nearby real property or otherwise. Landlord has no knowledge of any Assessments being contemplated. N.Landlord has no knowledge of any fact, condition, or action, present, contemplated, or threatened, which would or may result in the tennination or impa innent of access to and from the Premises as such access presently exists, and Landlord is not in 31 that: violation of any easements, rights-of-way, conditions, covenants and restrictions, licenses, or other agreements burdening the Premises. 2.Representations of Tenant. Tenant represents, warrants and covenants to Landlord A. Tenant's Authority. Tenant is a duly constituted limited liability company organized under the laws of the State of Colorado, it has the power to enter into this Lease and perform Tenant's obligations hereunder; and the person executing this Lease on Tenant's behalf has the right and lawful authority to do so. B.Tenant's Covenants as to Hazardous or Toxic Materials. i. Tenant hereby covenants that Tenant shall not cause or permit any "Hazardous Substances" (as hereinafter defined) to be placed, held, located or disposed of in, on or at the Premises or any part thereof except in accordance with all applicable laws, statutes, ordinances, and regulations. ii. Tenant hereby agrees to indemnify Landlord and hold Landlord harmless from and against any and all losses, liabilities, damages, injuries, expenses, including reasonable attorneys' fees, costs of any settlement or judgment and claims of any and every kind whatsoever paid, incurred or suffered by, or asserted against, Landlord by any person or entity or governmental agency as a result of the escape, seepage, leakage, spillage, discharge, emission, discharging or release from, the Premises of any Hazardous Substance, provided, however, that the foregoing indemnity is limited to matters arising solely from Tenant's violation of the covenant contained in Article 19.2.B.i. m. For purposes of this Lease, "Hazardous Substances" shall mean and include those elements or compounds which are contained in the list of hazardous substances now or hereafter adopted by the United States Environmental Protection Agency (the "EPA") or the list of toxic pollutants designated by Congress or the EPA or which are now or hereafter defined as hazardous, toxic, pollutants, infectious or radioactive by any other Federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect. "Hazardous Substances," for the purposes of this Article 19, shall include petroleum products, asbestos, and polychlorinated biphenyls, and underground storage tanks unless installed, maintained, and closed in compliance with all applicable laws. iv. In the event Hazardous Substances are present on the Premises in violation of Tenant's covenant in Article 19.2.B.i hereof, and Tenant fails to clean up, remove, resolve, minimize the impact of, or otheIWise remediate such contamination in compliance with all applicable laws and regulations and to obtain a "no further action" or similar closure letter from the governmental authorities with jurisdiction over such Hazardous Substances permitting the development and use of the Premises as contemplated herein without further remediation (collectively, "Remediate,11 which term shall include obtaining such approvals 32 as are required from applicable governmental authorities prior to the commencement ofRemediation activities on the Premises), then Landlord shall have the right, but not theobligation, thirty {30) days after notice to Tenant and Tenant's failure to Remediate, or, ifTenant cannot Remediate within thirty (30) days, then upon Tenant's failure to commencepreparation of a plan to Remediate within such thirty (30) day period and di ligently pursuethe approval of such plan and the completion of the remediation work authorized by theapproved plan to completion, to enter upon the Premises to Remediate such contamination.Notwithstanding the foregoing, in no event shall Tenant be afforded more than two (2) yearsafter the approval of Tenant's remediation plan by the appropriate governmenta l agency or agencies, or any shorter time required for the completion of such remediation by the agencies in granting such approval, to complete such remediation. Tenant agrees tocommence preparation of such plan promptly upon receipt of notice that such HazardousSubstances are present, to apply for approval of such plan promptly, and to pursue suchapproval diligently. All reasonable costs and expenses incurred by Landlord in the exerciseof any such rights, which costs and expenses result from Tenant's violation of the covenants contained herein, shall be deemed Additional Rent under this Lease and shall be payable byTenant upon demand. Article 20 Option to Purchase Landlord hereby grants to Tenant an option to purchase all. but only all and not a lesser portion, of the Premises (the "Purchase Option''), at the end of the Initial Term or at any time during the First Extension Option Period or any additional Extension Option period then in effect, and provided there is then no uncured Event of Default, subject to and in accordance with the following provisions: 1.Notice of Exercise. Tenant shall exercise the Purchase Option by giving writtennotice of exercise ("Exercise Notice") to Landlord. The Exercise Notice shall specify a date for the closing (the "Closing"} ofTenant•s purchase of the Premises (the "Closing Date"). The Closing Date shall be not less than one hundred twenty (12 0) days and not more than one hundred eighty (180) days after the date Tenant gives the Exercise Notice. 2.Title Examination. Within ten (10) days of giving the Exercise Notice, Tenant shall order and obtain a title insurance commitment (the "Title Commitment''} from a mutually acceptable title insurance company (the "Title Company"), together with copies of all instruments (the "Title Instruments") reflected therein, including, but not limited to, any easements, restrictions, reservations, terms, covenants, or conditions which may be applicable to or enforceable against the Premises. The Title Commitment will show Landlord to be owner of fee simple title to the Premises and commit to insure title in Tenant under the standard owner's policy of title insurance of the Company (the "Title Policy") and for the Purchase Price (as defined in Article 20.3 below). Tenant shall have a reasonable period not to exceed ten (10} business days after Tenant's receipt of the Title Instruments (the ''Title Review Period") to review the Title Instruments as follows: A.If Tenant objects to title, on or before the expiration of the Title Review Period, it shall give Landlord Notice (a "Title Objection Notice"), in which event the Parties will proceed as set forth in Paragraph 4(c1 below. If Tenant approves of the title 33 and gives notice (a "Title Approval Notice'') to Landlord of such approval on or before the expiration of the Title Review Period, then the exceptions set forth in Schedule B-2 of the Title Commitment will be pennitted exceptions ("Pe rmitted Exceptions") to the Deed (as defined in Article 20.6.A) delivered at Closing (as defined and set forth in Article 20.4 below). In no event shall Tenant have the right to object to any matter relating to title which was created by Tenant. B.If Tenant fails to give a Title Approval Notice or a Title Objection Notice on or before the expiration of the Title Review Period, Tenant shall be deemed to have given a Title Approval Notice. C.If Tenant objects to title and gives a Title Objection Notice on or before the expiration of the Title Review Period, then Landlord will have ten business days (the "Landlord Response Period") in which to (i) propose a cure ("Proposed Title Cure") of the Title Objection or (ii) advise Tenant that it will not cure the Title Objection; provided, however, that any mortgage, deed of trust or other monetary lien or encumbrance placed by Landlord upon its fee simple interest in the Premises and in effect as of the Closing of the Purchase Option (each a "Landlord Mortgage'') shall not constitute an objection to title for which Tenant shall be required to give a Title Objection Notice and in no case shall constitute a Permitted Exception, and Landlord agrees, at its expense, to cause each Landlord Mortgage to be released of record at the Closing of the Purchase Option. If Landlord fails to respond to the Title Objection within the Landlord Response Period, Landlord shall be deemed to have given a Notice advising that it will not cure the Title Objection. D.If Landlord offers a Proposed Title Cure within the Landlord Response Period, Tenant will have ten (10) business days thereafter to give notice to Landlord that it (i) accepts the Proposed Title Cure, in which case the Parties will proceed as set forth herein with respect to the exercise of the Option and Closing or (ii) rejects the Proposed Title Cure, in which event the Parties will proceed as set forth in Article 20.2.E below. E.If Landlord gives notice (or is deemed to have given notice) to Tenant that it will not cure a Title Objection, or if Tenant gives notice (or is deemed to have given notice) to Landlord that it rejects a Proposed Title Cure, as Tenant's sole remedy and by notice to Landlord before the expiration of the Option Period, Tenant (i) may elect to waive the Title Objection, in which event the Title Objection will be a Permitted Exception and the Parties will proceed as set forth herein with respect to the exercise of the Option and Closing or (ii) Tenant may cancel this Option and in the event of such cancellation, the Purchase Option shall be deemed terminated and this Lease shall remain and continue in full force and effect in all other respects .. 3.Purchase Price. The purchase price (hereinafter referred to as the Purchase Price) shall be the fair market value of the Premises, valued as vacant land only without assigning any value to any Improvements then constructed on or under the Premises, and as if the Premises were not encumbered by this Lease. If Landlord and Tenant are unable to agree upon the fair market value on or before twenty (20) days following the date Tenant gave its Exercise Notice, then the fair market value shall be determined by the following appraisal method: Landlord and Tenant shall attempt to agree upon one licensed MAI appraiser but if Landlord and Tenant are 34 unable to do so, Landlord and Tenant shall each select one licensed MAI appraiser by providing written notice of such selection to the other Party on or before thirty five (35) days following the date Tenant gave its Exercise Notice. The two licensed appraisers shall select a third appraiser within ten (10) days foll owing the appointment of the last of the original two appraisers. The three appraisers shall then determine, by a vote of at least two of the three appraisers, the fair market value of the Premises, valued as vacant land only without assigning any value to any Improvements then constructed on or under the Premises, and as if the Premises were not encumbered by this Lease. The appraisers, or the majority of the appraisers, as the case may be, shall then submit an appraisal report to the Landlord and Tenant within thirty (30) days following the appointment of the third appraiser, and the market value as shown in such appraisal report shall be the Purchase Price. If either Landlord or Tenant fails to appoint an appraiser within the allotted time period, the appraiser appointed by the other Party shall be the sole appraiser. If only one appraiser is used, the fair market value shall be as determined by such appraiser's report. If a single appraiser is used, the parties shall share equally in the cost thereof. If three appraisers are used, Landlord and Tenant shall pay the cost of its own appraiser and share equally in the cost of the third appraiser. 4.Closing Costs. If the Purchase Option is exercised by Tenant in accordance with the terms hereof, then at the closing of the conveyance of the Premises (the "Closingu ), (a) Landlord, as seller, shall be responsible for one-half (1/2) of all Other Closing Costs (as defined below); the cost of a standard owner's policy of title insurance; and one-half (1/2) of all escrow and title company fees and charges (other than the title policy charges specified above); and (b) Tenant, as buyer, shall be responsible for payment of the documentary fee due pursuant to C.R.S. § 3 9-13-102; all recording fees for the special warranty deed; all title insurance premiums other than those which Landlord is obligated to pay as described above, including the additional cost of ALTA extended coverage and/or any title endorsements as may be desired by Tenant; one­ half (1/2) of all escrow and title company fees and charges (other than the title policy charges specified above); and one-half (1/2) of all Other Closing Costs. As used herein, "Other Closing Costs" shall mean document preparation charges by the title company, but shall not include any escrow or title company fees, real estate brokerage commissions, finder's fees, attorneys' fees or other such costs and expense s incurred separately by Tenant or Landlord. 5.Survey. Tenant may obtain a monumented land survey of the Premises, at Tenant's own cost and expense, 6.Closing. A.At the Closing, Landlord shall execute {and acknowledge, as appropriate) and/or deliver to the Title Company the following items (the "Landlord Closing Deliveries"): (i) a special warranty deed (the "Deed") for the Premises subject only to real property taxes for the year of the Closing and the Pennitted Exceptions, and (ii) such other documents as the Title Company may reasonably require in order to issue a title policy for the benefit of Tenant and consistent with the closing of a similar transaction. B.At the Closing, Tenant shall execute (and acknowledge, as appropriate) and/or deliver to the Title Company the following items (the "Tenant Closing Deliveries"): (i) an amount equal to the amount due from purchaser as shown on the mutually approved settlement statement prepared by the Title Company in immediately 35 available federal funds by wire transfer to the Title Company, and (ii) such other documents as the Title Company may reasonably request consistent with the closing of a similar transaction. 7.Assignment of Purchase Option. Subject to the restriction provided in thisparagraph, Tenant shall have the right to assign its rights under the Purchase Option con tained in this Article 20 separately from its rights under the remainder of this Lease to any Shea Related Entity, without the consent of Landlord, and upon receiving written evidence of such assignment and of the assumption by such Shea Related Entity of the obligations of Tenant with respect to the Purchase Option, Landlord shall accept the exercise of the Purchase Option by such Shea Related Entity as an exercise by Tenant hereunder. In the event the Tenant at the time of the assignment of the Purchase Option is a Qualified Assignee, the Tenant shall also have the right, without the consent of Landlord, to assign its rights under the Purchase Option contained in this Article 20 separately from its rights under the remainder of this Lease to any entity that is controlled by the Tenant or in which the Tenant owns a twenty five percent (25%) or greater interest, and provided Landlord receives written evidence of {a) such control or ownership, and (b)such assignment and of the assumption by suc h assignee of the obligations of Tenant with respect to the Purchase Option, Landlord shall accept the exercise of the Purchase Option bysuch entity as an exercise by Tenant hereunder. Tenant shall only have a right to assign its rightsunder the Purchase Option separate from its rights under the remainder of this Lease, without theprior written consent of Landlord, if the assigning Tenant at the time of such assignment is a Shea Related Entity or a Qualified Assignee. Any other assignment of the rights under thePurchase Option contained in this Article 20 separately from the rights under the remainder ofthis Lease shall only be made and be effective upon Landlord's prior written consent, whichconsent shall be in Landlord's sole and absolute discretion. {Signatures on following page] 36 N WITNESS WHEREOF, this Lease has been executed as of the date written above. LANDLORD: ENGLEWOOD/MCLELLAN RESERVOm FOUNDATION A Colorado non profit corporation Br. ____________ _ Name___________ Title___________ TENANT: CENTRAL PARK AT HIGHLANDS RANCH, LLC, a Colorado limited liability company By: Shea Properties Management Company, Inc., a Delaware corporation, its Manager By: _ ___.._---,_;,,l-f,----.:fet,,rillimm.:-----N ame:_-k�b.J•5iti��mr-- Title:_�r-------::::,,,F----- 37 sistant Se EXHIBIT A DEPICTION OF PREMISES [PROPOSED LOT 4, HIGHLANDS RANCH FILING NO. 156, 1ST AMENDMENT] A-1 I I I I I ' I . i s ; . ·1 . t I • HIGHLANDS RANCH FILING NO. 156, 1ST AMENDMENt 7 REPLAT OF LOT 1 AND TRACT A, HIGHLANDS RANCH nJJNG NO. U4, LOT 1, HIGHLANDS RANCH FIUNC NO. 147, AND LOTS 1-3, HIGHLANDS RANCH FIUNG NO. 158, LOCATED IN THE SOUTHEAST QUARTBR OF SECTION C, AND THE NORTHEAST / QUARTER OF SECTION II, TOWNSHIP 6 SOUTH, RANCE 68 WEST OF THE SIXTH PRINCIPAL MERIDIAN, _,,_.,,._ /·/ -""'"" ' ' .. , .. =:,.,:-,; -=--=--= ., ................... ,..,,,._. _.,_ ;. 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Mnl'.an .... ......... .... , --unnnatt ... , ... nor -..r ......... -....... , .... , ...... ...,...,. .... , .• •n1'St'" .... , ... .,,. ................ ..... , , ..... llla')n6"W11r.- .,.,.r_.. .,,r .... , .. ,.. ...... ·---...... ...... ... ,.'1,"1'Hr• . ,..,.,. . ...... ..... •ft'l�.U.U. ....... _ ... ...... ....,., .. , .. ��:. •1'''"0'"'· 1..-::.. I-----IUU IIGMD ......... IIIIC. ...... �-=-c:---I ···" I •• I I I ,--.:s-:;:.-- r I I I ·L - 8355322_18 EXHIBITB MEMORANDUM OF LEASE When recorded return to: Shea Properties 6380 South Fiddlers Green Circle Suite 400 Greenwood Village, CO 80111 Attention: Jeffrey H. Donelson, Esq. MEMORANDUM OF GROUND LEASE : This MEMORANDUM OF GROUND LEASE (the "Memorandum") is made between ENGLEWOOD/MCLELLAN RESERVOIR FOUNDATION, a Colorado nonprofit corporation ("Landlord"), with an address at I 000 Englewood Parkway, Englewood, Colorado 80110, Attention: President, and CENTRAL PARK AT IDGHLANDS RANCH , LLC, a Colorado limited liability company ("Tenant"), with an address at 6380 South Fiddl ers Green Circle, Suite 400, Greenwood Village, CO 80111, Attention: Peter A. Cutshaw, effective as of the Effective Date defined below. RECITALS A. Landlord, as the owner of the real property legally described in Exhibit A attached hereto and made a part hereof (the "Real Property''), has entered into a Ground Lease with Tenant with an Effective Date of __ ..;, 2016 (the "Lease"), covering the Real Property, together with all of Landlord's right, title and interest in and to certain Appurtenances and all improvements, if any, currently located on, appurtenant to, or used in coMection with the Real Property (collectively, the "Premises"). B. Landlord and Tenant desire to give record notice of the Lease. Capitalized terms used and not otherwise defined herein shall have the meanings assi gned thereto in the Lease. AGREEMENT In consideration of the Rent and the mutual promises and covenants set forth below, the parties agree as follows: I. Lease of Premises. In consideration of the obligation of Tenant to pay the Rent as provided in the Lease, and in consideration of the other tenns, provisions and covenants of the Lease, Landlord leases the Premises to Tenant, and Tenant accepts the Premises from Landlord. 2. Term. The initial term of the Lease (the "Initial Term") shall commence on ____ , 201_ (the date that is six (6) months from the date of the Replat Approval) (the "Commencement Date"). Unless extended as provided below, the Initial Term shall expire at 11:59 p.m. on ____ _, 20_ (the last day of the last calendar month of the twentieth (20th) Lease Year). Tenant shall have an option to extend the Initial Term ("First Extension Option") for an additional ten (10) years. If the First Extension Option is exercised, Tenant shall have three Memorandum of Ground Lease additional options to extend the Term for three additional consecutive tenns, each consisting often (10)years, and one final additional option term of five (5) years (each, an "Extension Tenn'j. The Initial Term and any Extension Terms are referred to herein as the "Term". Tenant shall have the right to exercise its Extension Options by providing Landlord written notice exercising its option to extend not less than one hundred eighty (180) days prior to the expiration of the then-current Term. 3.Improvements. Tenant is expres sly permitted to construct improvements upon the Premises as set forth in the Lease (the "Improvements"). Upon termination of the Lease, the Improvements shall become the property of the Landlord. 4.Assignment and Subletting. Assignment of the Lease and subletting of the Premises is restricted as set forth in the Lease. 5.Option to Purchase. The Lease contains a Purchase Option granted to Tenant, pursuant to which Tenant has the option to purchase the Premises at the end of the Initial Term or at any time during the First Extension Option Period or any additional Extension Option period then in effect, provided there is then no uncured Event of Default. Tenant shall exercise the Purchase Option by giving written notice of exercise ("Exercise Notice") to Landlord. The Exercise Notice shall specify a date for the closing (the "Closing'') of Tenant's purchase of the Premises (the "Closing Date'j. The Closing Date shall be not less than one hundred twenty (120) days and not more than one hundred eighty (180) days after the date Tenant gives the Exercise Notice. 6.Effect of Memorandum. This Memorandum is intended to provide record notice of the Lease. In the event of any inconsistency between the provisions of the Lease and the provisions of this Memorandum, the provisions of the Lease shall control. All parties are further given notice of the terms and conditions set forth in the Lease in addition to those described above. Copies of the Lease are in the possession of the Landlord and Tenant. The terms and conditions of the Lease are by this reference incorporated herein and made a part hereof. Memorandum of Ground Lease 2 Executed as of the Effective Date set forth above. Memorandum of Ground Lease LANDLORD: ENGLEWOOD/MCLELLAN RESERVOIR FOUNDATION, a Colorado non profit corporation By: ____________ _ ____________ Name Title TENANT: CENTRAL PARK AT ffiGHLANDS RANCH, LLC, a Colorado limited liabilit y company By: Shea Properties Management Company, Inc., a Delaware corporation, its Manager By: ____________ _ Name: ------------ Title: ·------------- By:. ____________ _ Name:. ___________ _ Title:. ____________ _ 3 ____________ STATE OF ____ ) ) ss. COUNTY OF ___ _, The foregoing instrument was acknowledged before me this __ day of 201_ by _____ ___, as _______ of ENGLEWOOD/MCLELLAN RESERVOIR FOUNDATION, a Colorado non-profit corporation. Witness my hand and official seal. My commission expires: Notary Public STATE OF ____ ) ) ss. COUNTY OF ___ _, The foregoing instrument was acknowledged before me this __ day of ---�201_by ______ �as ________ and _______ as of Shea Properties Management Company, Inc., a De laware corporation, the --------Man ager of CENTRAL PARK AT IIlGHLANDS RANCH, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public Memorandum of Ground Lease 4 \ EXHIBIT A TO MEMORANDUM OF LEASE Legal Description of the Property Lot 4, Highlands Ranch Filing No. 156, 1st Amendment, County of Douglas, State of Colorado. 8SS1647_1 A•l COUNCIL COMMUNICATION Date Agenda Item Subject April 4, 2016 Ordinance to approve lease 11bi of Englewood Mclellan Reservoir Foundation property to Shea Properties d.b.a. Central Park at Highlands Ranch, llC .-2nd Reading IN ITIATED BY STAFF SOURCE Englewood Mclella n Reservoir Foundation Murphy Robinson, EMRF Board of Directors COUNCIL GOAL AND PREVIOUS COUNCIL ACTION In 1999, City Council authorized the creation of the Englewood Mclellan Reservoir Foundation (EMRF) for the purpose of facilitating the development of property adjacent to the City's Mclellan Reservoir. On July 6, 2015, City Council approved Resolution 85 that supported EMRF in its negoti ations with Shea for the lease, with an option to purchase, the EMRF property in Highlands Ranch Planning Area 81 (PA 81.) On July 20, 2015, City Council approved Ordinance 28 that placed a ballot measure authorizing the sale of EMRF property following a minimum lease of 20 years. Ballot Question 2K was subsequently approved by Englewood voters in the November 2015 election authorizing sale of EMRF property, subject to ordinance approval by City Council. RECOMMENDED ACTION EMRF recommends City Council approve a bill for an ordinance, on second reading, approving the lease of the EMRF property in PA 81 to Shea Properties d.b.a. Central Park at Highlands Ranch, lLC, with an option to purchase following a lease term of 20 years. BACKGROUND In 1999, through Ordinance 41, City Council authorized the transfer of certain parcels of property in Douglas County near Mclellan Reservoir to EMRF for the purpose of facilitating the development of those properties. Since that time, EMRF has managed and maintained the property, has made improvements, including over-lot grading and storm water management, and has platted most of the individual parcels, including the subject parcel. On July 6, 2015, City Council approved Resolution 85 that supported EMRF in its negotiations with Shea Properties d.b.a. Central Park at Highlands Ranch, llC, for the lease of PA 81, with an option to purchase after 20 years. After the passage of Ballot Question 2K in November of 2015, Shea has secured initial entitlements from Douglas County, including determination of County requirements for roadway and park dedication. The land necessary for the required roadways to serve the development of PA 81 and for dedication of a three acre park to be allocated between Shea and EMRF. Shea has secured a tenant of an institutional nature and has reached a tentative tenant agreement for use of a significant portion of PA 81, based on the terms of the proposed lease with EMRF. The institutional use is subject to the approval of the option to purchase the property in the future, as provided by the approval of 2015 ballot question. The nature of the institutional use is one of such permanence that a future purchase is a requirement of its agreement with Shea. The basic terms of the proposed lease, with option to purchase are as follows: 1.An initial lease term of 20 years, with extension options up to 65 years. 2.The lease of 33.3 acres of the EMRF PA 81 in its entirety, less land dedications required by Douglas County for roadways and a three acre public park. The land dedications are to be distributed equally between EMRF and Shea. 3.A net ann ual rental rate based on a $6/sq. ft. value with a capitalization rate of 4.5%, or approximately $9.2 million over the initial 20 year term of the lease. 4.An annual inflation rate increase of 2% the initial 20 year term with an adjustment after year 20, based on actual inflationary factors 5.A purchase option at the expiration of the initial lease term, based on a fair market value determined by appraisal of the land in an unimproved, vacant condition. 6.The exchange agreement between Shea and EMRF is subject to, and will take place concurrently with, the closing of the lease, and is subject to execution of the lease. FINANCIAL IMPACT The initial 20 year lease term will generate $9.2 million. In addition, the sale of the property at the end of the 20 year term will generate additional revenue based on the appraisal of the unimproved ground at that time. LIST OF ATTACHMENTS Bill for an Ordinance Lease agreement COUNCIL COMM UNICATION Date Agenda Item Subject March 14, 2016 Ordinance to approve lease 11av of Englewood Mclellan Reservoir Foundation property to Shea Properties d.b.a. Central Park at Highlands Ranch, llC. INITIATED BY STAFF SOURCE Englewood Mclellan Reservoir Foundation Michael Flaherty, EMRF Board of Directors COUNCIL GOAL AND PREVIOUS COUNCIL ACTION In 1999, City Council authorized the creation of the Englewood Mclellan Reservoir Foundation (EMRF) for the purpose of facilitating the development of property adjacent to the City's Mclellan Reservoir. On July 6, 2015, City Council approved Resolution 85 that supported EMRF in its negotiations with Shea for the lease, with an option to purchase, the EMRF property in Highlands Ranch Planning Area 81 (PA 81.) On July 20, 2015, City Council approved Ordinance 28 that placed a ballot measure authorizing the sale of EMRF property following a minimum lease of 20 years. Ballot Question 2K was subsequently approved by Englewood voters in the November 2015 election authorizing sale of EMRF property, subject to ordinance approval by City Council. RECOMMENDED ACTION EMRF recommends City Council approve a bill for an ordinance approving the lease of the EMRF property in PA 81 to Shea Properties d.b.a. Central Park at Highlands Ranch, llC, with an option to purchase following a lease term of 20 years. BACKGROUND In 1999, through Ordinance 41, City Council authorized the transfer of certain parcels of property in Douglas County near Mclellan Reservoir to EMRF for the purpose of facilitating the development of those properties. Since that time, EMRF has managed and maintained the property, has made improvements, including over-lot grading and storm water management, and has platted most of the individual parcels, including the subject parcel. On July 6, 2015, City Council approved Resolution 85 that supported EMRF in its negotiations with Shea Properties d.b.a. Central Park at Highlands Ranch, llC, for the lease of PA 81, with an option to purchase after 20 years. After the passage of Ballot Question 2K in November of 2015, Shea has secured initial entitlements from Douglas County, including determination of County requirements for roadway and park dedication. The land necessary for the required roadways to serve the de velopment of PA 81 and for dedication of a three acre park to be allocated between Shea and EMRF. Shea has secured a tenant of an institutional nature and has reached a tentative tenant agreement for use of a significant portion of PA 81, based on the terms of the proposed lease with EMRF. The institutional use is subject to the approval of the option to purchase the property in the future, as provided by the approval of 2015 ballot question. The nature of the institutional use is one of such permanence that a future purchase is a requirement of its agreement with Shea. The basic terms of the proposed lease, with option to purchase are as follows: 1.An initial lease term of 20 years, with extension options up to 65 years. 2.The lease of 33.3 acres of the EMRF PA 81 in its entirety, less land dedications required by Douglas County for roadways and a three acre public park. The land dedications are to be distributed equally between EMRF and Shea. 3.A net annual rental rate based on a $6/sq. ft. value with a capitalization rate of 4.5%, or approximately $9.2 million over the initial 20 year term of the lease. 4.An annual inflation rate increase of 2% the initial 20 year term with an adjustment after year 20, based on actual inflationary factors 5.A purchase option at the expiration of the initial lease term, based on a fair market value determined by appraisal of the land in an unimproved, vacant condition. 6.The exchange agreement between Shea and EMRF is subject to, and will take place concurrently with, the closing of the lease, and is subject to execution of the lease. FINANCIAL IMPACT The initial 20 year lease term will generate $9.2 million. In addition, the sale of the property at the end of the 20 year term will ge nerate additional revenue based on the appraisal of the unimproved ground at that time. LIST OF ATTACHMENTS Bill for an Ordinance Lease agreement