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Home My WebLink About2011 Resolution No. 086CONTRACT NO, I q-.lt)/ ,!).. RESOLUTION NO .~ SERIES OF 201 I A RESOLUTION SUPPORTL\IG THE ENGLEWOOD MCLELLAN RESERVOIR FOUNDATION (F.MRF) LEASE OF A PORTION Of Tiffi MCLELLAN PROPERTY TO Mll.LER FAMTT.Y RF.Al. ESTATE , LLC . WH.EJU::AS. lhe Englewood Mclellan Reservoir Foundation (EMRF) was fanned to oversee the de velopment of lho Mclellan Reservoir property; and WHEREAS , the Lease is fo r appro xi matel y 7 acres of the Er.gl ewood Mclellan Reservoir foundation property ; and WHEREAS , City Council discussed the tenn., of lhe proposed agreement at the October 3"', 201 I Exccuti vt Session ; and WHEREAS , the EMRF Board of Directors has unanimously approved the lea se with Miller Family Real E.<tate , LLC; NOW , TIU:REFORE , BE IT RE SOLVED BY THE CITY COUNCU.OF TH.E CITY OF ENGLEWOOD , COLORADO , THAI": ~\. Thr. City Council of the City of t::nglewood , Co iomdo, hereb y supports the "Ground Lease" between the Englewood McLellan Re servoir Foundation and Mille, family Real Esta te, LLC . for the lease of a por:ion of the Mclellan property, ollochcd as E>thibit A. ADOPTED AND AN '.OVED ,bis I 7th day of October , 201 I. I, Loucrishia A. Ellis, City Clerk fot,?C '.ty of ccglewoorl , Co a~ove is• true °"PY of Reso lution No . Series of201 I . ereb y cert, fy the ._ . ~ ,. llis , City Clerk MIi.i .l'.ll FAMILY l<IIAL 1iST/\Tlt, LLC us Tcnnnt and 1\NGLlrWOO D/MC:Ll,L,LAN Rl !:s ,mvom 'FOOl'ff>ATION :1s l .. :11 ull11 n l tlalod :i s or ____ , 2011 Article J Article 2 Article 3 Article · Article 5 Article 6 Article 7 Article 8 Article 9 Article 10 TABLE OF CONTENTS Fundamental Lease Terms Ground Lease of Premises I. Definitions 2. Premises 3 . Condition of Pre.mises ; Ter,anl Rel ease 4 :mprovements 5. c asements 6 . Possession Lease Term and Conditions Precedent I . Term; Effective Date; Coinmenccmenl Date 2 . Extension Option 3 . Tenant 's Right of Entry 4. Title lusurai,ce Rent I . Construction Rent 2. Base Rent 3. Rent Adjustments 4 . Net ;..ease 5. Security Deposit; Pre-Deve;opmeot Rent 6. Credits Against Rent Taxes I . Real Esiate Taxes 2. Proration ofTaxes 3 . Personal Property Taxes Utilities I. lit'lity Usage Use, Subletting and Assignment l. Use 2. Assignment and Subletting [Intentionally Omitted] Mechauics Liens I . Lieus 2. Protection of Landlord's Interest iu Premises Indemnity and Insurance I. Indemnity 2. A ppear and Defend 2 5 6 8 10 10 . II II !2 ,\rliclc 1 I Arl'iclt! I 2 Arfklc 13 A r ticlc I 4 Art.iclc l5 Article 17 Article .18 Article 19 :t Jnsunmcc Damage nr n cstruction 15 Emitwn1 Bumain I !)cfi nilion of Taking &tt d Su b~lm,tial Tal:111g 2. T crn;nl':; Rii;:1tr. l.lpo\1 Tal:in g or Su l1':tami:,1 •:·aki ng 3. Tcttrnl':; Rigi 1ts Upun Lc,cs Tlmn Subslnl'.linl Tuking 4 . ll ighl s Upon Tempora ry Takittg 5. Award llcl'aull 17 I. Evcnti ofTenanl 's Default 2. Lane rd•~ Remcdi ,•,: J . Landi. -l'sDcfault 4. /lltornc,. 'Fees 5. \Vaivc r nL°Cc 111,:cqw:111 i:il n ,m mgc;s C oven an I nf l}.11 icl l\njo)'mcnt 22 S11horclin.itio11; Lniullo rd'~ ltighl hi !''1urtgagc :1nd Co nvey l'l'Cllli scs 12 Trnnsfcrs hy l.andiord 22 Misccllnncuns 2, I. Non-W aiv e, ol'D climlf' 2. Recording 3. Notice 4. Successors and Assi i:n s 5. Pai1ial Invalidity 6. lntcq1rctatiou '/. Head ings , Captio ns and Rcfcn:n<.:es 8. C,nvcming Law 9 . Exccuti<.lll of Documents I U. Force Majcurc l I . Rc.:asonablc Consent 12. Authority i 3. Estoppcl Ccr liikalc 14 . Holding Over Lcasehultl Fimincin~ ? S J . Mo1tgagc by Tenant 2. Notice To and Righls of Leasehold Mortgagees R cn•·cs~ntntions of Landlord aud Tenant 29 l . Representations of La ndlord 2. Represcntaticns of Tenant Article 20 Sur.-cnder of J1rcmises 32 Exhibit A-1 Legal Description of Premises A-1 ExhibilA-2 Site Plan of Premises A-2 Exhibit B Memora,du:n of Lease B-1 GROUND LEASE Thii: GROONIJ 1.ls/\S f( (Lhc "~") is mildc us oflhc _ day of ___ , 2011, hyand hetw,,.en l~NGLILWO(H>/MCLl~LLJ\N R 1!:SIJ:RVOIR l•OIJNl>ATION, u c,,lora,lc, 11<•1.1,,ofit ~oq,ornlion ("~"), and Mill e r f1'amily llc,al l(slal'e, LLC ('Tennnf'). The elate lhis l..c.i,:c ,s c,cc11IC;tl and cblivm:d by 1,o-.11 p;,rl 1c.s hereto shall he rcforrcd lo hercin~ftcr "" the "Effcc;ivc flak.'' WITNESS ETH: ror and i11 consi cleralion of the mutual covcmm ts herein ri111t;iinc,I anrl other i:ood a11cl valuable u,nsideration, the r~CCi?t an d ~ufficic11cy nf which arc hereb y ndrn owl e<igcd, the parties hcn:l o :iip·ce lo th e tc·:1111s and conditions as hctcinal't cr prov1clccl : Arliclc 1 T•'11111l:1mcntal l.,t::1!;c ·1 ·cn11s For t.:l1nvc11ici1cc 1 this Article I summari zes Cl.:1 l i1in fu :1d;1r.1cnl111 ccon111r:ic :\ncl hw;inc r.!i term ,: of this Lc:,se . 11:rfccth•e Dute : Prcmbes: 1.,ancllord Tenant Tenn : Option : ____ ,2011. Thal i,:,1:iin reul prope11y described on IJ:xhibit A utlached hc1cto ~n d in corporated heroin by thi :: reference, consisting of ucrcs . ENGLEWOOD/MCLELLAN RESERVOI.R FOU .\JDA.TlON IUUU Englewood Parkway Englewood, Colorado 80110 Att~aliuu: P1esidcnt Miller Family Reul F.state, L.L.C . 935 0 South 150 East S~itc 1000 Snndy , Utah 84070 Atwntion: Jny FrnndN With a copy to : Scott Bates, General Coi.nscl 9350 South 1 SO East, Suit e 10001 Sandy, Utah 84070 Twenty (20) years from the Commencc1ncnt Date Five (S) renewal options of five (5) years each. Rent: Annual amount ofS ($0.39 s.fi . as Construction Ren:. payable monthly and commencing as provided in Article 4 . Am1ual amow1t ofS ($0.75 s.f.] as Base Rent commencing as prov;1e<I in Article 4. increased ten percent (I 0%) every five (5) ,cars during the lni!ial Term, increased at the start ·Jfthe First Extension Option as provided in Article 4 anc incrca.cd by 10% at tl1e start of each subsequent 5-year renewal term. This is a Net Lease . Dcapusil ___ • as provided in Article 4.5 Article 2 Ground Lease of Premises 1 . Defini tions . For purposes of this Lease, the following tenns shall have the following meanings : A. "Adjustment Date" shall have the meaning set forth in Article 4 .3.C. B. "Assessments" shall have the meaning set forth in Article 19.1.K. C. "Base Rent" shall have the meaning set forth in Article 4.2 . D. "Base Rent Start Date" shall have the meaning set forth in Article 4 .1. E. "Buildings'' shall mean the buildbgs which may be constructed by the Tenant on the Premises . F. "Casualty" sh all have the meaning set fonb in Article 11 I. G. ''Comm encement Date " shall hav e the meaning set forth in Articie 3.1. H. "Constructiou Rent" shall be the monthly amount of$ ___ as provided in Article 4. I. I. "Default" or "Event of Default" shall have the meaning set forth in Alticle 13 .1. J. "Default Rate" shall mean interest accruing at the rate equal lo the Prime Rate plus three percent (3%). which rate shall be adjusted 1•:'th each change in the Prime Rate . However, in no event shall the Defac1lt Rate be less than ten percent ( I 0%) per am1um . For purposes of this Lease, "P time Rate" shall mean tl,e prime rate .. s published in the Wall Street Joumal. If the prim e rate published by the Wall Street Jouma . beco mes una vailable, Landlord shall use tl,e prime rate as announce or published by 2 sud, o'.hcr orguniznticn or publication ns reasonably detcn11incd by Lnn dlor<l lo be wmpnrablc to the prime rate now published in tho Wall Strcc1 Journal. K. "Dept nit'' :1h.:II have the meoni1,g set :orlh ;,, .\ r: 11·.b 4., L. "Effective Dulc" shall mcun lhe dal.c li1is Lt:a,:c :s ,:igued hy ho1h l'a1li c,:. M . "Euvironmcnlal l.11w" shall hnvc the mc1ming,:cl l\,rU1 in l\rlidc 11).I.J. K. "Exca1sabk flelay" shull mcun uny of the following events that prcvcms , clt:lays, rcumls 01 hinders a purty's pcrfonun nce of 1ts duties hc,eunder: . cl nf Goo; lire ; c:1rlhquake; flood ; explosion~ •,var~ invas io n~ insutTection~ riot; mC'·b viole11.:e; saho~agl!1 vandulism; inability lo procure or general shortage of labor , •~p1ipmc11t , faci li1·1c.s , material s or supplies in lhe op~n mu rkct; failuro oftrnnspo1tution; strik es ; lockouts ; any 111ntcii11l delay coi:,:,I iJy La :11Jlcn1 wilhout fault 11fTc11ant; or any cl clays due :o c:111 ,cs h(:yond lhe c1111l1ol o:· !,andlord and without il!: fauh or negligence 0. "l'irsl Ex l<msion Option" +all have Lht mcan :11:\ S<:I fr,.-th 111 .'\1lidc 3.2. I'. "ei :·.~t Exlcnsion Op tion l'cri od" shall hnvc th e mt:nning ,:ct fr,ch in A i 'idc 3.2. Q. "lmprovcmcnio" shal l mea n th e nuikings m1d a11y u U1 c1 i111pro vcn-.c11ls connl111cted un the Prt:miscs . R.. "Initial ·re:nn" shnll mcun U1e 1irsl' 20 Lease Yc,Jrs as 1t1ore specifically dcsciibed in A11icle 3.'I. S. "Landlon.1' is cnglcwood/McLcllan l(cscrvoir foundation . T . "Leasehold M011g11gc" shuil have the meaning ,:cl fo 11h in Article 18 .1. U. "Leasehold M01t eagce" shall have the meaning set forth in Ar,icle I~. I. V. "Lease Yeai" shall hnve the meaning set forth in Article 3.1. W. "Mcrnornm:•nn of Lcnsc" shall have U1e mca,,ing ~et forth in Arli de 17 .7.. X . "Monctury f)cfanlt " shall hnvc the mcamn!l set forth m l\rtielc 1:i .l . Y . "Non-Monetary Default" shall have the meaning s1,;t forth i11 Ar ticle 13 . I. Z. "Pre-Development Rent" shall hnve the meaning set forth in A11icli, 4S AA. "PremisP,s" shall have the meaning sel forth in Article 2.2.A l:lB . "Keal Estate Taxes" shall mean all laxc:s, however named, ass:sscd, lev ied, or colleclcd, whether 011 an A<l valorem basis or other taxing 1:icthod on the Premises, Improvement:., Buildings, aud li.Ssessmc~ls fur l•nd, betterments, a:1d improvements that are levied or assessed on the Premi .,e~ or the Improvements hy any lawful authority, as finally determined in accordance wilh law, oet of any applicable abatements, refunds, or rebates . CC . "Rent" shall mean tl1e at:1ount set forth in Artic!e 4. DD. "Site Plan" as refc1Ted to in Article 2.2.A and n'.lllched hereto as Exhibit EE . "Te:1a111 " is Miller Family Real Estate, L.L.C., and its permitted 5uccessors or assigns. FF . "Title C •mmilment shall have the meaning set forth in Article 3.4 GG. "Title Company" shall mean Stewart Tille Guaranty, or such other title company mutually agreed upon by Landlord and Tenant. A. Lease of Premises. For the tern:, uses, rcn~ and in consideni.tion of the covenants and ag:-eements contained herein, and for other valuable consideration, Landlord hereby leases to Te~ant and Tenant hereby leases from Landlord, upon the following terms, stipulations, provisions, and cooditions, that ecrtab real property consi sting of __ acres described in Exhibit A-l attached hereto and incorporated herein by tlu. reference ('Premises"). The location of the Premises is shown on Exhibit A-2 hereto (the "Site Plan"). B. Iilli;. Landlord hereby wanants to Tenant that it has good, mu;kc tablc ,mrl insurahle title to :he Premises, free and clear of any mortgages, pledges, liens, and other encumbrances, subject only to the exceptions to ti,k s'iown in the Title Commitment. 3. Cm.'i!i2_n.9f1.cell\IB!.'i ; Tenant.R~l..~-Except as otherwise expressly providerl herein , the Premises arc being leased in their as -is cond1t1on . Except for Landlord's representa- tions an t' .varranties expressly set forth m this Lease, 'Tenant hereby waives, releases, acquits and forever di schnrges Landl ord nnd its officers, directors, shnrcholdcrs, employee~, agents, su:ccssors and assi1,'lls, of and frr.m any and all suits, causes of action, claims, demands, damages (actual and punitive), losses, costs, liabilities, and expenses, including attomcys' fees, of any kind or natu re, in law or in equity, known or unkllown, which Tenant shall or may have or acquire or po ssess in any way directly or indirectly connected with , bnscd upon, or arising out of Landlord's use, mainte n•nce, leasing, ownership, operation, and demolition of improvements upon the Premises prior lo the Effective Dale of this Lease ; or (ii) t!1e condition (including environmental CC1ndi ,ion and structural fitness), status, quality, or nature of tbe Premises. ~!:xcepl as otherwis ~ expre ssly provided herein, it is the intention of this Lease that any and all responsih ·li1i 1:s a11 d ob ligation s ofl .m,rllorrl, and a11y and all rights or claims ofTe:1ant against Landlorrl 'ts su cc-.es sors and as sig11s and affiliat es, arising br virtue of the physical condition of 4 lh c Prc mfacs, urc by 1his relca.sc decl ared nu !: 1111 d void and of no pre.sen '. or fulu rc effecl ;,s 10 ,:uch par ties . 4. l.!mlI!1vcmc11.\,s. Tenant , at i1 s ~olc cosl all<i cxpcn!,c, ·~•r h i I~ own force s or those 11f'its u,1 111 ·;11_.lors , muy c~o n::lruct (mpro\•cmc1tt !i on ll1 c l'rcmi ,'tis . All nfthr~ l rn prnvr.mcnl s :-;hall c;»:1ply in all respects with all upplicable govcmmc11111l na;ui1c111c11ts. 5. Enscn1c11t~. La11d;onl and Ten an t agree, upu 11 lhi: 11 ·,,sonuble r1·,1ucst 11ft:1thcr pm1y le, l.lw; l.,casc, the app!icahle govcrcm c111 al agency, ur a 1w!,1ic utility, lo c.,ccut c docu :ncnl,: ,11 hich ttl'c rcm:01rn bly required to c:·ca tc utility t.arncmcnts , temporary c.:onstrucl.i on cu sc mcnt i.;, nr oth er ca~c..:1nc 11 ts 1i.;.qu ir c<1 to construct the lmp ro vcmcnt :::1 maintain nnd service th e Jmprovc mcnl" or any 01.ht:r impro vcme11'.~ tu be cl cvcbped on the adjoinin~ ln nds c•wnccl by Lamllurd , prn,idd ,a,ch cnS<»nc11l e: cl,, uot u11ro as on ub ly interfer e with either pnrty 's use of \heir propc11y. Each pa1ty will unc lcrtakc to u·Jtf1in !he coi1sc11t of its mo11 g,n,;cc1 if 1111y, lo 1111 y :::uBcmcnl!: n.:ql1ircd under th is pa r;,gm ph . 6. C.~'?j.QJ..1. Lm,dlord shall deliver pos:Jcr.:;inn oflhe. Prcmh:c~ to Tcn:mt rn1 th e Co1111111:n1:emcnt Date (as hcrci nallc: dt:f.i ncd). 7. S11:11111~£. Tc111111t sh all have th e ri ght , ul Tc11anl',: cx pc:wc, to cr cd and u~c pylons or monum ent sign s 011 the Premises to the cxtcnl pcrrn illcd by 1tpplicable govc, n111c11t ur di1.,111 ct,s, rule-, and rcgulntions . Article j .Lease Turm; ICutry ; T itl e lns111 ·nn cr. I . I en.1~ Etfo ,;ti vc D11tc: Commencement Da le . This Lease sh al I bt:crnn~ lt:g ull y bindin g on tbc Effective Date . However, the lease term (''!nit iul Tenn") LJ ball commence on the earlier of I) the date Tenant conuncnct:s con struction oflhc !mprovcmcnts, or 2) ____ , 20 ___ ; such dat e shall be the "Commcncenrnnt Ontc.'' For p:irposcs of this Lease, "c:o mmcncc,s co11stiuclion" shall 1:ica11 the dnte when Tenant bcgi11s construction of the fnnuc.l a!io n for any lmprove:nents. Unless extended as provided below, the Initial Tenn sl;all cxpirr al 11 :5 9 p.m. on U1e las t day of the calendar month of Lhe twentieth (2 0'11) year Lease Year l'or p urpos ct of this Lea se, th ~ tcm1 "Lease Ycnr" shall mean each twelve (12) :nonth pt 1·i ,,<' bc:gi nning o11 t·hc first rlay of the calendar month sub sequent to the commencement of th e Initial 'fon11 if lhc in iii al Tenn do cs not conu11c11cc on the f.r st day a:· a calendar month . 2. Extension Olltio n. Tenant shall l1avc m1 9ption to extend the leas e tcm1 ("First u:xlcnsinn Optiu11 '')fo1 an addi tion al five (S) ycurs ("First Extension Option Period"). lfthe First F.xtcns io n Option is exercised, Tenant shall hnv c an option to extend tlic lease for fou r additional r;o:1sccutivc terms, each consisting of five (5) y~ars . 'l11e Firs! F.xten sion Opt ion and eac., uddihonul er.tum on ophon sh~ll be 01' the same terms uud conditions as set fot1h herein (there shall be no options beyond the optim ., !,'!'anted in this Sec tion 2), except the Base Rent at the commencement of u,~ Fi 1st Exte,1sion Option l'criod, will be ine:euseu ~s provided in A:ticle 4.3 and will increase at the start of each additional Extension Option period as provided in A1 i iclc 4.3 Section 3(c). Ten ant sh all have U1e right to ex ercise its op ti ons by providing Landlo rd written notice exerci sing its optio,i to extc:nd 110: less U1an one hundred eighty (!80) 5 days prior to the expiration of the then current lcnn. A1 a condition ofTemuu 's right to exercise one or more options to extend the term, at the time of tl1e giving of its notice of exercise there shall be JO uncured Event of Default. J. Tenant's Rjght oilnll:.Y. Before the Commencement Dale, Tenant, its agents, employees, contractors, or subcontractors, prospective lenders and investors have been given the right of access to ~,e Premises to lest, inspect, and evaluate the Premises as Tenant deemed appropriate. Tenun'. shall promptly restore any alterations made to the Premises by Tenant, or al Tenant's instance or •·oquest, and Tenant shall pay for all work performed by Tenant, or at Tenant's instance or re-,uesl. Any and all liens on any portion of the Premises resulting from the actions or requests or ot'.1erwise !It the instance of Tenant shall be removed by Te11ant at its expense within thirty (30) days llfier notice thereof is given to Tenant. Te:i.ant shall, al Twa11l's expense, defend , indemnify, and hold harmless Landlo:d from and against any and all o:>ligations, claims, lo:;s, and damage, iucluding costs and attorneys' fees, to the cxte~t the same arc caused by Tenant's entry upon or inspection of the Premises. Tenant shall provide Landlord in a commercially reasonable timefrarne with copies oftest and reports obtained by Tenant. Tenant's obligations under this subsection to restore, to pay for all work, to remove liens, and to defend indemnify and hold Landlord ha.-inless shall survive the termination of tl1is Lr.ase. 4. Tit)e {nsurance. Landlord has provided Tenant with a Title Insuranc.e Collllllitmem ("Title Comm 'tment") with an Effective Date of __ issuec by ___ . Landlord will pay tl1e premium for the leasehold title insurance policy described in the Comminnent and may use a portion of the Dcposif lo make such payrnen: and will cause tl1e pulicy lo be delivered to Te:1ant after the Commencement Date. Article 4 Rent I. Construction Rent. Tenant shall pay to Landlord, iii United Stales Dollars, rent ("Construction Rent") in the annual amount ofS...[W9 s.f.) , payable monthiy in the amount of$ ___ . Constmction Ren t shall he payable in equal monthly installments, commencing or. the Comme11cement Date, and continuing until .be "Base Rent Start Date, a.~ hereinafter defined. TI1e "Base Rent Start Date" shall be the earlier of (i) the date Tc,i;anl opens for business to the public on the Land or (ii) ___ , 20 __ , Cu11stru~liun Rent shall be payable in advance on the first clay of each calendar month , with appropriate proration for any partial calendar month, al the address given for Landlord in Section 17. 2. Base Rent. Tenant shall pay to Landlord, in United Stales Dollars, beginning on the. B~se Rent Start Date, Base Rent in the annual amount of$ [$0.75 s.f.J , payable monthly in tl1e amount of$ ___ . Base Rent ,hall be payable in c1>:>nthly installments, in advance on foe fi rst day of each calendar month, with approptiate proration for any partial calendar month or Lea.se Yea•, at tl1e address given for Landlord in hrticle 17 hereof, as such address may be changf'd in accordance with Article 17. TI1e Base Rent shall be adjusted as provided in Paragraph 3 of th;s Article 4. Landlord shall apply the Deposit (ir,cluding accrued in,ere,t), including any amour., paid from the Deposit for the cost of the Title Policy as provided in Article 3.4, first to the Cunsltuc1io11 Rent and any excess 10 the Base Rent. 6 3 . &:11.l.filljustmcnts . /'.. Base Rent shall be adjusted during the Initial Tenn 11 s follo ws: i. Lc;isc Year 6 thru 10-annw,I ,·c:nl rof$ ii. Lcuse year I 1 lhru 15-annual ,cnt of$ _______ . iii. Lc:rse Year l<i lhru 20-unnual rcnl o''$ 13. 111 lhc eve nt T,:,;1rnnl cxorci:ic!i the Firm Exte nsio n Option, commencing 011 the lirsl day of the l'irst Bxtcmion Option Period , the Base Reul sl1111l IJc aclju,;tcd as fo ll ows: i. The Base Rent shall be an 0111011111 r.qun l to $_j Jar.,, Rgnl on Bnsc Rent Stai1 Date) mulliplit:d by lh e perce ntage ium::a,:c in t'.1c CPl l11dex (a s dclined beiow) from i.he Ba :w ll cnl Sturl Date to lh e In st rlny of'Lhc: 2v ye ar Initial Tenn , but in no event ,:hall th e Bu se Rcnl b:,t;inn ine llrn firs \ day of the l'irst Extension Option l'c;·i,,d be less than lhc D:rnc Rent for lh c ycu r i1111ncdi,.tcly preceding the Firm 1.:xtensr<ln Upt mn l"c1iud . ii. By wa y of ex ample c,f :he aclju,1mc11t lo hr. m ade 11 111.lc:r thr. prcccdi1:g subparagr aph, if i:ssu 11 d11g (/\) lh c l'rc111i ses consisl of7 11cres , or 304,920 square foc l, (B) Base Ren \ at Jla~c Kent Stan f)ate is $228,690 ann~aily (304 ,92 0 square l'cel linllls $0 7~), an,\ (r:) f·he CPl Inde x has incrcusi.:tl 45% fro111 the Da se Rent SIHl't Dut.o lhrn t.ho lu,it duy u flh e lni ti~I Tenn, \hen the J:lusc ,tent on the fir st day of'th c l'irst Ern:nsion Period would be $33 1, 603.40 annually ($22~,690 lim t:s~ 5%). Based on the sam e assumptions, but the CPI lnrlex only i1mca:<.,d 30%, and the Base Rent for the la~t year of the Initial Tenn wus $301,38 6.3 9, lhc Bu se ~'.cnt r.ommencing foe firs t day of the Firs t Ex tc ns ,011 Option Perio d would remain at $304 ,386.39. C. In the eve11l Tenant exercises one o:· more additi onal options, the rent shall be increased effec:ive on the fi rs\ cl ay of each fiv e-yea: nddiliornl o ption period , (in each <:asc, the "Arljustmcnt .O"te"), by lO¾ r,f th e Rane Ren t in effect duri :ig 11,e p:,or five- year opti!ln period. D. As used her ei n, the CPI h1t ..:~ sh nll mcm1 : i The Consumer Price Index for all Urb an Consumers, ,Jenver, Boulder, Metro Arca -All It ems Index (CPI -I), 1982-84 equals IOO), published by U1e Unilcd Stales Dcpa1.11m:nt of Labor, Bureau of Labo r Slulistics . If the CD( Index is published with n imbcrs issued other than or. a momhly basis, the G , Index shall be the CPI ,ndex number published for the date closest to me Co:runcncemcnt Dale or the npplicoble Adjustmenl D~te. ii . If the CPI Index is d:scontinuecl, the CPI Index adju stment shnll be made using comparable statistics on the cos: of living for the Denver, Jlou ldv r metropolitan area as ::omputed and published !,y any agency of the United Stutes Government or by a responsfole financial periodical or recogn ized 11utl1 ority selected in the reasonable discretion of Landlord . 4 . ~-This Lease is a net lease. Except as m2y be express ly proviclccl otherniise b this Lease, all costs incurred in connection with the cons tructio:1, operation, maintenance and leasing of the Improvements and all Real Estate Taxes a11d 0U1er costs in curred m connection witl1 and in relation to the Premises shall be paic by Tenant. Lu11dl urd shall have no obligation to mak~ any repairs, replacc!T'"' ~ or re.newals nf nny kine!, nnturc or de9 ciipt1on whatsoever to tl1e bnprovements or the Pre . ,s. 5. Secudtv Deposit : Pre-Dcveloqment Rent. h, co1mc ct io11 with a Loller u f h1 te11t ("Letter of Int ent ") between and Landlord and Tenant dAl scl Mny 24, 20 I t, Tcnaut pnid n security deposit ("De po sit") to Stewart TiUe Guarant y Company , as Es:row Agent and U1e Escrow Agent invested the Deposit in an interest bearing account. Subs equently, the Es cro w Agent paid amounts of the Deposit to Landlord pursuant tJ the term s of U1c Letter of Jntent, including, but not limited to, payments of $10,000 a mon th ,l're-Developme.nt Rent"). Upon payment of the first monUily Construction Rent ?ayment . ·,II Pre-Development l<.ont sha ll be applied to the Construction Rent. From and after the Commencement Dnte, the escrow agent shall pay to the Landlord any unpaid Construction Rent from tl1e escrow fund unti I such lime as the csc,ow fw1d , including accrued interest is exhaust ed. Iii the event Tc nout defaults under the terms of this Lease, tl:e balance of the escrow fund, in cludin g accn:ed Lnt erest shall be paid to Landlord, to apply against any and all amounts due as a result of such d efault, im.:iuding any damages, attorneys' fees er other costs due Landlord. '>. Credits Against Rent. Under the tenns of the Letter of Intent, Landlord agrees to giv" Tenant credits against the Rent ("Rent Credit") in the amount equal to the sum of (i ) $5,000 ~r L!'y percent (50%) of the cost incwTed by Tenant for platting the Premises, whi chever is less , and (ii) one bait' (1,2) orthe commission pa id by Tenant to the Broker bu : noi to ex ceed one-hall' (1/2) ofa total commission amount equal to 3.5% ot'the gross value of th:: first 20 years of this Lease . Th e total Rent Credit will be divined by 24 and U1 e resu lt will be applied ngainst the frst 24 r:iomhs of Rent payable during the Initial Term be1~0 rc any cred it for Pre-De velopm ent Rent and betore payments a:·e made from the escrow fund . I. Real E,tatc Taxes . Article 5 Taxes A. Duiing the tenn of this Lease, Tenant shall as ,um e, pay, bear, and discharge any aod all Real Estate Taxes with respect to the Premises, or any part thereof, and all other taxes in an y manner applicable to or asse ssed a!,\ams t U1e Prem :ses or 3ui ldings or any pai1 tl1e1eof, or against any of the machinery , fixtures, equipment, or other propc.rty or items . Tenant shall ,i~y all Real E· 11e Taxe.s clir·ec :ly lo the taxinfl rntl:01ities and Tenant shall 1;,e c;-ed i1 cd all reim burse111c 111 s on account of ab ate meu ts, 8 re fu nds, or rebates of'Real Es tate Taxes during the tem1 of this Lease . Landlord lit:n.:)y 11ulhorizcs Tenant to :ile and pursue any protest of the valuation of the Premi se,: and abate111c111 petitions for abatement o f ta xes for any reu sou, as Tenant m,:y deem to be appropriate Lm,,llorrl agrees to execut e uny fom1 of ugrccmc nl as may be nccc~i ::iry 111 · c 011Jl Ct,;lion lh crc willt B. In th e cv cnl be Pr em is e!; arc now indudcd in a lnr~c r lax parcel owut :cl Uy Lumllord, Landlord shnll lnkc !:uch uclin11n m; mu y be nccc:ssilry to mHla.: the Pr em ises a :;:cparnte Tnx Parcel. Tcn ai11 shall coopcrme with Landlord in such act ion . C . In the cvont U1erc ir. a special us!:essmenl which is includ ed withi:i the definition of Reul E!:tatc Taxe s herein, and such assessment may be paid in pe1iudic in :itnllm cn ls, Tenan \ :;hall poy such in scch pe1iodic inslallmenls or ma y r rcpay or retire the principal indebtednes s 011 any spcci•I assessment and Tenant shall be res ponsible on ly for l11m c in slallmcnts rnlating lo th e pc1iod in cl uded within the term of thi s Lease, ba sed upon the maximum number of in r.tu llm cnll: in which the same muy be p,ii d. In th e even I of a:1y prop osed specia l as se ssmen t woi:ld prcvide for poym enl ex tending l,~y ~ud the llorm of thi s Lc a;c (excluding anrl c,:1cnsi11n p1m orl), u:1lc ss Te na nt ugrccs to pa y for al.I of such assessment, Lalllllunl shall have lhc righl to participnlc in lh c proce ss of approving or rejecting such ass essment. D . Lan dlc ,rd shull 1.:uoaerate wit, Tcnanl so that all in vo ices fo r Rcnl Estate .1Xes s,rnll he sent rlircct ly by th e taxing authority to Ten ant. E. Landlord agrees to submit lo Tu11a11I uuy i11voiccs fo r Real Estate Taxe s and not ices of spi:r::al 11sscs.,mcnts with rcspi,ct to the Premises which a!'e sent to Land lord within thirty (JO) day s uncr receipt by Lnndlord. ,.and lord shall furnish Tenant with co pies of all Notices of Va'.ualion of the l'remi sc.1 which arc sent lo Landlord within ten (I 0) days after rec eipt thereof an d in sufficient tim e In allnw Tenant to detcnnine whether or 1101 to contest .any increase in R1:al Estate Tru.es or valuation. 'ff Tenant desires to cont~st such increa.~e . Tenant shall protest such valuation or file an a ba:emcnt pt.:1iliu11 w,tl,in applicable statutory time periods . Lancilord shall fully r;(lopcratc with Tenan t in an y such proceeding . 2. Pror,,liµn !1['.fuxcs. If the Tc,m sl,oll ex pire on any date other th,m ;_;ccem bcr 31 sl uf any year, the: 11111cnml payable by Tenant during the calendar yciu· in which such tcrminatiuu occurs shall be prnra ted on the basis which the number of da ys from U1e commcneemcnl of said lax fiscal year to and includin[.\ said termin atio n date bears to 365. A similar proration shall be made fo r the L;1x fir.cal year in whi ch the Term commen ces . 3 . Persona] Property Taxes . Tenant shall pay all taxes charged against trade fixtures, furnishings, equipment or uny other porsonnl propc1ty belo ngin g lo Tenant. Les see may con ,est any su ch personal prope,ty laxes, assessments or valuatio::Js; provided, how~ver, T~11u nl shall do so within the lime pe,iod pcnnilled by applicabl c statutes. 9 Article 6 Utilities I. Utility Usage . Tt:nanl shall assumc, bear, pay, lllld discharge as its sole and separate ohligation all of the applicable charees for all utilities consumeri on the Premises. Except in the event of an emerg~ncy , neither Landlord nor Tenant shall lake any action which shall intcr111pt or interfere with any electric, gas, water, sewage, or :elephone service to the Prem ises or to the adjoining propc11y owned by Landlord. Article 7 Use, Subletting, and Assignment I. Use . Tenant may use and occupy the Premi~es during the Tenn of the Lease for all lawful uses in accordance wiU1 the rc~uirements of this Lease. 2. Assignme~t and Sublettjug A. P,ior IJ the Dase Rent Start Date , Tenant sliall have U1c right to sublet all or any pmt of the Premises or assign U1is Lea~e upon Lanrllord's p1ior wtittcn consent which shall not be unreasonably withheld. Aller the Base Rent Start Date, Tenant will have the right to sublet all or any part of the premises or assign this Lease for any lawful use v.ithout Land:ord's consent. B. In the event Tenant subleases pa11 or all of the Premises, the rent or other consideratior. payable under sue~ sublease is greater than the Base Rent due hereunder applicable to the s~bleased portion of the Premises, then Tenant shall pay to Landlord one half (l/2) of such excess amount, after first reco\'ering Tenant's Transaction Costs as hereinafter provided. Any e~cess amount payable to Landlord shall be payable from time to time only as when Tenant receives the rent from its sub-tenant. If Tenant assigns this Lease and Tenant receives compensation in addition to the assignee's agreement to make the payments due under this Lease, Tenant shall pay to Landlord one half (1/2) of such compensation. In calculating any excess rent or compensation for a sublease or assignment under this Paragraph B, Tenant shall first be reimbursed for its costs ("Tenant's Transaction Costs") in connection with such sublease or assig,unent and the Premises covered thereunder, including but 1101 limited to any site work, any approvals obtained from governmental agencies, anc engineering or survey work, any development fees paid to any governmental ager.cy and any commissions or marketing costs. C. Any assignme11t o, subletting shall be effective only upon delivery to Landlord of an instrument effecting an !ISSignment or subletting of this Lease by Tenan :, execu ted by Tenant and the assignee or sublessee. Each assignee shall agree to assume, be bound by, and perfonn aU tc1111s, covenants, and conditions of !.'tis Lease to be k!l?t and perfonned by Tenant and which arise after the effe:tive date of the assignment. Afi~r execution of the assignment or sublease, Tenant will forward a completed copy thereof to Landlord . 10 D. In lh e e:vr.nl Tcnanl sublc;1scs or ass igns lhis Lea ,;e, Tenanl sh•ll m111::iin liable for nll of Tenant's oblii;ations to Land lorn arising hereunder, unles.s · i. Tenanl assillns all :-iglu, tille and interest under this Lease 10 an 11ssignee who assumes and ai;rccs to pay and pcrfom1 all of the Tenant's obligations hereunder pursuant t;, an Assumption Agrc:cmcnt rr.i,son nhly satisfactory to Landlord; and ii. The assignee pro vides evidence rc i:sonably satisfretory lo Landlord lh al ii has a nel worU1 in excess ofSI00,000,000 .00 ancl has liquid assets at lcasl cq"al lo the Base Rent payable unrlcr this Lease during the twenly-frn r (24) months lhllowinn such assignment. Ai-licle R (Intentionally 0111iU-crll J\1 ·lick'I Mcch;u1ics Lien~ ,l,jJ;ru;. Tenant shall promptly pay when cbe the entire co st or all work done to the l'rcmiscs by or at ,he '""uesl of'tcnanl (including but no\ limited \c work done prior to the Elfoclive Dale) and Tc11a11l shall keep the Premises fre~ ol'licns for lubor or malcr :al,:, S,,ould mechanics'_ materia!rncn's, or other hens be filed against lbc Pr ~mi~cs, Tenant shail cause the lien lo be canceled and disclrnrgccl nfrceord, or shHII fi le a bond in su'.l slitution of'lhc 1:1ccl·.anic's lien in uccorda.,cc with the provisions nfColorndo Revised Slalulc 38-22-J 31, el. seq .. wiU1i11 forty-live (45) cays ofTcnnnt's receipt ofnolicc of such lieu . Nulwilhslanding the foregoing, Tenant may conte.~t, in good faith und with reasonable diligence, the validity of any such fon or claimed li"n, provided that Tenant "hall give to L•n<llord such security as I ,mdlr,rd may reason ab I y request ensure the payment of any mnuuuls claimed. If the Tenant contests a lien or claimer] lien, then on final determination of the lien or claimed lien, the Tenant shall cause the lien to be relcuned and, in the event of Ql1 adverse judgment, satisfy such judgment. 2. Protection of Landlord's Interest in Premises. Nothing ill th is Lease shall be construed ,rs eiving Tenant or any Uher person nny rir.bt, power or authority lo acl, : agent 0 1 or 10 contract for, or permit the rendering of, any services or the fumish ing of any m1t,.iials in su ch manner as would {.\ive rise to the filing uf any ,,,cchnnics' liens or other elnims against the fee cf tlw Premises or tl1e improvements thereon. L,indlord shall have the right al all reasonable lime.i lo post , and keep poslerl, on the Premises any notices which Landlord may deem necessary for the protection of Landlord ,md ii inlcrcsl in the P,emiscs an·: the improvements thereon from mr:r.hanics' liens or other claims. Article 10 Indemnity and Insurance I . lndem!1itx . From and after the Effective Dale and contiauing al all times thereafter Jurin& the fem1 hereof: JI A . Te,1ant assumes all tisk ofloss, dnmagc, or destruction to the Premises, Improvements, Buildings and contents, or lo any other property brought upon the Premises, Improvements, and Building 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, dwnagc, or destructiou including claii111 and causes of action asserted against Landlord. B. Tenant s!1all indemnify and save hannless Landlord from any and all claims, losses, damages, o• expenses, on account of injuries to or death of any nnd all persons whomsoever while ot, tl1c Pre:nises, and any and all loss cir deslructioo of or camage lo the Premises, the Improvements , the Building and any contents and personal property located upon the Premises and owned by, rented to, orin the care , eustacy, or control of the parties hereto, or any ofTcnant's subtenants, arising or growing out of, or in any manner connected with : (i) any use and occupancy of the Premises by Tenant or any subtenants for a Permitted Use or otherwise; (ii) caused or occasioned, in whole or in part, by reason of or arising during lhe presence upon the Premises of ti1e person or the propc11y of the Tenant, its officers , employees, agents, subtennnls, renters, customers, invitees, licensees, servants, contrnctors, subcontractorr, materialmen, suppliers, worlanen, laborers, and the cmployc::s and agents of each of the foregoing, or any and all other persons, iuvited or otherwise, with or without Tenant's consent, while on the Premises; (iii) arising out of or rcsultir.g from Tenant's development, sale or u,arket.ing of the Premises and/or the !mprovcmeuts; and (iv) any plans or designs for the Improvements prepared by or on behalf of Tenant. C . Tenant hereby indemnifies and saves harmless Landlord and nny of its officers, members, contractor.; and agents from any and all claims, losses, damages, o r el(penses, on account of injuries to or death of an y 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 Tennnt or any of ,ts employees, :11anagcrs, members, officers, contractors, subcontractors, materialmen , suppliers, workmen, laborers, subtenants, renters, licensees, servants or agents . D . The foregoing indemnities slu,11 not apply to any injuries, death , claims, losses, damages and expenses lo the extent arising as a result of any negligence or intentional acts of Landlord or its officers, employees, contractors or agents. E. L ,ndlord hereby indemnifies and saves ham1lcss Tenant, to tbe extent penuitted by law, rrom any aud all claims, los;es, c\an,ages, or expenses, on ar.r.mmt of injuries to o r death of any and all persons whomsoever while on the Premises, and any and all loss or Mstruclion of or damage to the Premises, the Improvements, the Building and au y contents and porsoual 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 misconcuct of Landlord, its officers, employees. or agents . 2 . Am1ear and Defend . Landlord a:1d Tenant fu11ber ~gree, tha: if it is the ii,dem ni fyin g party, thai it will appea r and defend at i:s own expense, in th e name md on behalf 12 of the indcmniliccl party, ull claims or suits for ,,._juries lo or death of person s or Josi; or rlc st ru,~ti on of or <?anrnge to propr.rty Hrisi ng or growing out of or in any 1nw1.:·,,.:r connected with or caused or occa sioned by or in connection with its indemn it ies scl forh in Section I oflh,s Arl 1clc JO . 3. _IIIB!.!D!!J.Q;;, A. J::gmcr.\.1:.I!.11[1.l!!gi;. Du ri.1g lhc pc1 'od ofco:ii:lruclio11, Tc111111l shull .kccp ,., :·c:q uire its general contructor to keep, a policy of builders ri:;k insurance covcrir,g lo,;s '" rlmnnr:c lo lhe. hnprovemcnls for lhc full n:plm:cment ensl of all md: canslrnr.!i on, 11a1ning Tenant•~ Lell!lchold Mortgagee, if any, 11s n loss payee. Duri,1g the 'i'crm 1uirl ,tll opti on periods, Tenant shall keep in full force and effect a policy of all ri sk. spcci~l fom'. o r equivalent f01m properly insurance coveting loss or damage to the Premises in the amo unt of the full replacement CC\St of the Building and other im,,rovcm e11ls ,,:. ·he Properly, iu au amount al lcasl cquu! lo the liard costs of c:111s.rucliun, with a dccluctiblc 1.h.11 is con:mcrcially rcaso1rnblc in light of'Tcnan •. 's financial siren gt\ 1111min1~ Tmm1t's I .r:11 sflhnicl Mrn1gn[\ee , '.f any, as a lnss pay1·a. B. Lia bility ln surQJ.>£~. Du .in,; .!,c T 1>1111, Tenant shall keep in fuil force conunerciul general liability insurance or garage liability insurance (collcch vcly, '·GGL'1, with bJ dily injn ry "nrl prop,-:i ty dmM8<'. covi:ra,;~ with :·cspccl to lh e Premises am! business ,~pcrntetl by Tcnnnt , wh ich "hull name T..and 1onl and, al Landlord 's wril1en request, Landlord 's firs\ Mo :tgagcc 11s additional insureds as their respectiv e interests may appear. T11" li miir. of such COL poli~y shall be not lc,ss than $2,000 ,000 .00 cnmhinr,I sin!JIC limit for bodily inju1y and prop011y damage, with a dcduclible that is eommcrciully rcnsonuble in light ofTenant ·s financial stren gth. The CGL policy combined sh,gle limit for bodily injwy and propc1ty cl:image requirement m;,y be increased by Landlord, bu; not more tlum once in any three (3) year period, lo u commercially prudent and reasonable 11mou1,t, ':,ascd upon the ll1 c:n cum:ul gt:ilera . liability insurance cun~ilions prevailing in lhe metropolitan Denver market. C. Workers' Compensation In surance . To lhe extent rc<]Uircd by Jaw, Tenant ~hall 1nai11l11it1 workcrs' compensation insurance covering its employees in statutory limiLq, nmning Tenant 's Leasehold Mortgagee, if a,.y, as a loss payee. D. Automobile Linbili ty. Tenunt shall maintait1 r,c all times during the Tenn garage liability insurnnce cove1ing liability arising out of the use of (i) all Tenant owned vehicles, (ii) al: vehicles hired or leased by Tenant unrl (iii) all non-ow11e<l an,1 borrowed vehicles. E. Fonn of Policies. All insurance required by this Section sh all be witli insrn·ers licensed or otherwise peiT~itted to c.onrlnct business in the state in wh ich the Premises arc located . Aiiy insurance hereunder may be provided under blanket poli cies of insura:1ce. Propeity insurance maintained by T ·nant pursuant tc subparagraph A ofthis Section shall name Tcnan'. as insured and Landlord a:; &dditionul insured , as their intere.qts may appc:,r in accordance with Section 11.3, and, so long as tl1e Premises are mortgngcd pursuant to a mortgage ofwil.ieh Tenant has received written no tice , sl· all be subject to a 13 H \MA;hc:l y\EMRF\UIIT~ Millc1 Lu"° ().2R -111dnc stundard mongagee clause in favo r ofLan~lord's first mortgagee. AU insurance maintained by Tenant pursuant to subparagraph B of this Section shal i name Tenant as insured and Landlord as additional in'>llred, as their int::rests may appear, and, so long as the Pretnises are mortgaged pursu1111t to a morl!lllge ofwbicu Tenant has received written notice, shall be subject to a standard mortgagee clause in favo~ of Landlord's first mo:-tgagee . F. Poli cy Provisi ons . All policies of insurance (other U1an self-insurance) cnwnerutod above shall be provided by insurance caniers ha ving al policy commencement a Be;t rating of not less than A-VIII ; provided , however, that if the rating of any such insurer folis below such level, such rating reduction shall not consti tute a default hereunder provided all renewals of su ch policies shall be with carriers with a Best rating of not Jess than A-\/Ill at the time ofsuc:1 ren ewal. An increased coverage or "umbrella" policy may be provided and utilized by either party to increase the coverage provided by indi vidual or blanket po licies in lower amm:nts, and the aggregate coverage provided by all such policies with respect to the Premises and Tenant's liabi :it y hen:tmde r shall be satisfactory provided that such policies otl1e.-wise comply with the provi sions nfthis Section 11 . G. Waiver of Kight ofK ecovery and Subrogation. Witl1 respect t-J any loss covered by insurance or required to be covcrec by insurance hereunder, Landlo .. · a,,d Temmt hereby waive any and all rights of 11:covet y against each other for any loss or damage to the Premises or the contents contained therein, or for lois of income on account of tire or other casualty; and each patty's aforesaid poEcies of insurance shall, to the extent available, contain oppropriate pro visions recognizing trus mutual release and waiving all rig.1ts of subrogation by the respective insuran ce carriers . H . Evidence of Insurance . On ur rdore the Cumweucei uent Date, Tenant shall cause to be iss·Jed to Landlord certificates of iusurance evidencing,:ompliance wi~1 the applicable covenants of this A-ticle I 0. Tenant shall use comi:ierciall y reasor.able efforts to obtain from the insure:-a certiii , ate which provides that the r.ertificate bolder will be given at least thirty (30) ~ays' notice prior Lo C11occllatiun; provided, however, ifTcnant is unable to obtain s:icb provision, then Tenant agrees to providr. to Landlord at least thirty (30) days' notice of any anticipated cancellation of an existing insurance poli cy. I. SclflnsuD!!]££. Telant sholl have the 1ight to sclf-ii,sure in lieu of providing the insurance required under this Article provided it complies witn all oftl1e following: (i) Tcaant shall have delivered to Landlord a ee1tificatioo from an independent public accountant reasonably satisfactory to Landlord tl1at as of the end of Tenant 's most recentl y euded fiscal year, Tenant had a net worth of at least $100,000,0t _lO.OO computed in accordance wi th Generally Accepted Accounting Principles, consis:onti ; applied , (ii) Tenant has delivered to Lai1dlord an Agreement reasonably satisfactory 10 Landlord agre eing to indemnify and hold Landlord han:nless from and against any loss and liabil ity to the extent such loss and liability would hav e 14 been co\lered uncer the policies ofinsu:nnce required under other pro visi ons of this Article, and (iii) W1thir. 90 days llile: the end of cuch ri scnl year, Tcnunl hu s dr.l iver~.d In Landlord n cc11ification from an indcpcndcnl publi c acco~nlaal rcusonobly sn\i 5fo clory (o Landlord tha t ns oflhc end orthe fisc al yr.ar j•rnl ended , Tcnnnl l:a d a n~I wurll, ar al 1~11s! $ I 00 ,00l ,,OIJ0.00 r.ompulud in i:ccortlunce; wi1h Gcncrnlly Accepted Accounting l'rinciplcs, consistently upplied, and ifTcn:1111 foils lo celiver sur.h ccrlific ution within the lime rcquirc·:tl, Tenant will immediately obtain the in ,;urancc required by, and comply with, tl1e oth er provision s of this Article. Article 11 DHmuge or Destruction 1. Subject lo Landlord 's li~hl as provid ed in Sc :ellon I ·1 .3, • r th e l'r,a ni ::cs ,,r any of lho Jm;,rovcments are damaged or dcsln.iy t:rl ri min(l lhe Initial Term or ;my cxtc:ndcd term by 11 :in:; or other ~nsuulty ("Cnsunlty"), this i.,e.i~c nhull continue in cffcc~ and Tenant shull conl"inue to pay U1e Rent witboul abatcn:cnt. Tenant shall remo ve m,d ciispose cf all hazardous materials in acco rdance with uppli•:able legal requirement~ and lake sue!: action u·1 may be required under applicable municipal ordinm1 ce.s anrl other laws, rules and regulations with respect to any da111age or destruction of the Tenant's Improvements. Tennnl shall not have any obl 'gation to repair and/or rebuild the Tenant's Improvements cl:im~gcd by fire or other cas1111lly or cause . Tenant shall promptly provide a sightlybunfo:· anc: shall remove all debris from U1cdnmagcd portion of the Tenant's l111proveme11ts and us e dihgen t cffo1ts to pince tho Premi ses in an orderly und safe co11ciition. If requestecl hy Landlord should Tenant elect not to rebuild, Tenant shall, at its sule cost and expense, raze nnd remove any remaining portion of the Te.'lant's Improvements and fill end grade the Premises in a safe and sightly manner as .,,dsted on the Commencement Date, or seed su::h portion of the Premise:; as desit,'llated by Lnn<llord . l. In the event Tenant elects lo repair and/or rebuild the l:nprovcmcnls, if the cost. of such repair ur restoration shall be less than the insurance procccdr paid as a resull of the Casualty , Tenant shall he entitled to retnin the balnnce of mch pro seds to the extent not rctjuired lo h~ applied tu 1111y f..cu schold Mortgage . Tcnunt :,hull complete nil work promptly after the occurrence oflhe CP.sua!ly . All repai · and/or restoration work shall be pcrfor:11cd in a good and workmnniikc, m~n .,e, and shall be subject lo nil provisions of lhi s Lease applicable to construction oftl1e Improvements . 3. In the event a Casualty occurs and the Tenant elects not lo repai r and/o r rebuild , Tenant shall give written notice to L1111cllord within one hundred twenty (120) days of the dale of the Casualty of such elcctio~, and Landlord shall then have the option, exercised by written notice to Tenant on or before the earlier of (a) one hwulred twenty (120) days following written notice from Tenant of its election not to repair and/or rebuild, or (b) two hundred forty (240) days follow ing the date of the Casua lty ifTr.uant 15 H;\Mflahtny\cMR,f\UIIT)' Mtll:u-LaJc !;1-:!S•l l ).doc bas failed to commence repair or reb:iilding by sue!: time (in which case Tenant shall be deemed to have elected not to repair or rebuild), to continue the Lease to the end of the then cw-re11t term, in which case there shall be no abatement of rent, and the insurance oroceeds shall be paid to Tenant except to the extent required lo payoff and discharge any Leasehold Mortgage; provided however if the Cas:ialty occurs during the last two (2i yeo.rs o: the then current term and Tenant has elected or is deemed to have elected not to ~epair or rebuild, Tenant shall be entitled to retain the balance of such proceeds to the extent not required lo be applied to any Leasehold 111.ortgage; such proceeds shall be used to pay the present value of any Rent remaining during the term of the Lease and the cost of removing of the Buildings and Improvements, cleari11g of debris, removing founJations and footings, and restoring of the Premises to substantially the condition that existed as the commencement of the Lease; t~ the extent there are any remuining proceeds, such proceeds belong to the Tenant In the event the Casualty o<.:eurs during the last two (2) years of the then current term and Tenant has elected or deemed to have elected not to repair or rebuilcl, Tenant shall be obligated, regardless of the availability or sufficiency of any insurance proceeds, to remove the Buildings and Improvements, clear debris, remove foundations and footings, and restore the Premises to substantially the condition that existed at the corr111,encement ofti1e Lease. 4. Notwithstanding any provision to the contrary set forth _above in this Article 4, in the event of a Casualty and Tenant has elected or deemed to have elected no: to repair or rebuild, Landlord shall e,,operate and assist in efforts to lease the Premises on terms reasonably acceptable to Lsndlord; and nothing in this Article 11 shaU in anyway limit Tenant's rights set forth in Article 7. Article 12 Eminent Domain I. ))efinition of Taking and Substantial Takjng. For the purpose of U1is Lease, a "Taking" shall mean any c.ondemnation 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 ir. lieu of condemnation by an authority vested with the power of eminent domain; the "Date of Taking" shall ntean the earlier of the date upuu which tltle to tl:e Premises or any portion U1crcof or any right ap;,urte11a11t thereto so taken is vested in the condemning authority or the date upon which possession of the Premises or any portion thereofis taken by the condemning autho1ity; and "Substantially AU of the Premises" shall mean so much of the Prenises or the ri g:1ts appurtenant thereto as, wbea taken, leaves the w1taken portion ur.suitable in Tcnnnt's rc&sonable opinion for the continued fea.~ible anc: economic oper~tion of the Premises by Tenant for the same purposes as immediately prior to such Taking or as conter:iplated herein. 2. Teuant's Rights Upon Taking or Substantial Taking. Each party agrees to furnish the other a copy rof any notice of a threatened or proposed Taking received by such party. In the event of a Taking of Substantially All of the Premises, this Lease shall terminate and both Landlord and Tenant shall be relieved from all fi.uther obligations hereunder from and after the Date of Taking. All B<1Se Rent an~ 01he1 sums payable by Tenant hereunder shall be app~1tione.d and paid through and including the Date of 16 Tuk.ing, and ncilht:r Lw1dlord nor Tt::10111 shall huvc uny rights i:1 any compensntion or dmnai:cs payahlc to lhe other in connection wilh such Taking. 3 Tcn,.nt's Rights Upon Les~ 1JU!llJlubst1mlial T11king . In the cve11I. ofu Taking l f less than Substantially All of the l'rcmiscs, Base Rem and other ch nrgc.~ shull be reduced fairly and ~-quilably in uccorclnncc with the )lOrlion condcnmed or taken, effective a.~ oflhe Dale of Taking, and 'fonanl shall rnakt: all nc:;cssary rcsto"1t.:ons lo the Improvements so t!ial lhc portions of tl,e Improvements not taken constitute n complete nrchitectu,,,I unil, uncl :ho proecc<l r. ofth~ aw1ucl nllributublc lo the volue of the Improvements Taken shall be ;e1aincd by Te:1ant ~. Righls Upon TcmporaDUJl.kim:-Notwithsta.-,ding the foregoing, in the event or n T•king of the Premises or any portion thereof, for temporary use (spccificnlly one: not exceeding one hundred eighty (I 80) dayi; in duation), with011t the taking of the fee simple ti lie U1ercto, this Lease shall rernnin in full force nnd effect, and tliere shall be no ;;iha '.cmcnt of Rent during such period. All awards, da :n:,gcs, co:upensation and proceeds payable by the condemnor by reason of such Taking relating lo the Premise., for periods µrior lo lhc w,pirntion of the Lcusc shall be payable to Tcr1anl. All ::uch uwurcls, da,mgas, compe:,sution and proceeds for pc1iods after the expiration of the Lcusc shall be puyabb to Landlord. Auy thing conlnincd in this Section 12A lo the contrary not with sta:1ding, a tc,npQrary T r.king for any period in cxeo..ss of one humlred eighty (180) d~ys may, Al Tenant's option , he deemed a pennanent Taking and shall he e,overnfl<I hy subparagruph i2.2 or 12 .3 above, as applicable. (a) The award paid by the condemning authority ( other than a Taking for tcmpornry use) shall be a -lc,ealt1cl on a pro rnta l111sis b::'w,:1-,n !he fair market vnJ,.ic of the Premises und the Improvements as dctc11nincd by the condemning auth01ity or a court of competent jurisdict:on. (b) Landlord and Tenant shall each have the right to represent their respective inlcrc.~ls in each proceeding or negotiation wi1J1 respect to a·t:aking or intended taking by power of condemnation and to make full proof of their claims. Te1:ant shall have the sole light to control the defense, prosecution and s~'.'.lcment ofi:s claim to the extent lhe conclcmnntion prot:<·:i:cling or nel!,o\iution nff1,:tr. Tc,,ant's leasehold inlP.Test hercunder 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 pl'Oct:eoing or negotiation uffcct3 Landlord's reve111ionary interest in the Premises and/or Improvements. Landlord and Tenant each agrees to execute ~ntl deliver to the other any inslmmellls tlJAt may be rcastmably rr.,1uircd lo cffectuule 01 focilitwe the provisions of this Lease relating lo condemnution. 17 H:1MFlahc11,•\EMRF\L:iny Milks Lcn.v 11 .1,t .J \ldci:: Article 13 Default l . Events of Tenant's Default Any of the following occurrences, conditions or acts by Tenant shall constitute an "Event of Default" unricr this Lease: A. Failure to Pay Rent: Breach. (i) Tenant's failure to make any payment of money required by this Lease (including without lin1itation Bose Rent or Real Estate Taxes) (subject to Tenant's 1ight of good faith contest wiU1 respect to Real Estate Taxes, as oet forth in and as limited by Article 5), within teu (I 0) days after the receipt of written notice from Landlord to Tenant that same is overdue ("Monefarv Default"), in which event such delinquent amount shall accrue interest at the Default Rate; or (ii) Tenant's failure to observe or pcrfonn any other material p:-ovision of !his Lease within thirty (30) dnyf after receipt of written notice from Landlord to Tenant specifying such default and demanding that the same be cured ("Non-Monet11rv Default"): provided tl1at, if such default cannot with due diligence be wholly cured within such thirty (30) day period , ·i"~nant shall have such longer period as is reasonably necessary to cure the defaul~ no long as Tenmt proceeds promptly to commence the cure of same within such thirty (30) day pr-iod 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 mtde when due, no notice shall be required, and interest sball accrue at the Default Rate from the date such payment was due until paid. D. Bankruptcy. Any petition is tiled by or against Tenant under any section or chapter of the Federal Bankruptcy C'..ode, and, in the ca~e of a petition filed against Tenant, such petition is not dismissed within sixty (60) days after the date of such filir.g. C. Insolvency. Tenant becomes insolvent or transfers property in fraud of creditors. D. Assignment for Benefit of Creditors. Tenant rr,akes an assignment for the b"11efit of creditors. E. Receivel"$hill -A receiver is ~ppointed for any ofTenw1t's assels. F. Attachment . This Lease or Tenant's interest in tl1e Premises or any part thereof is taken by attachment, cxerution or other p1oc.:ss 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 as required under the tenns of Ulis Lease . In the event the Tenant continues to pay Rent as requu·ed under tl1e te1ms of Ulis lease, no Event of Default shall occur solely as a result ofTenar.t's bankruptcy, insolvency, assigrunC!l! lor benefit of its creditors, or the appomtment of a re.ce1ver for any of Tenant 's assels . 18 2. umdlord's Rcmcdjcj. After the occunc:1cc of nn Even! of Defaull by Tc:imt, l . .llncllord shull have the right to institute from time lo time an action or uctions (i) to rec<,ve~ dumngcs (cxclnsivc of consequential or special damaucs), (ii) for inJum:tive nnd/or other equitable rclici; and (iii) in the event ofMonelury Dcfou:t only, lo recover posr.cssion oflhc l'rc:111 ,i:cs 111ul tcrmi,mtc this Lease. A. Muru,ll!IY.lMimll. fn the event of a Monetary Default: (i) Cont inu~ Lease. Landlord may, at il!l option, t=iuatc Tcnanl"s right lo possession or the Premises and continue this Lease in full force and effect, in which eve, 11 Landlord shall have !Iv: right to collecl Base Rent and other ebargcs when cue, indudhg uny 3UJ119 due for any option pc1iod for which an Clttcnsion option has been exercised, together wiU1 Lamllonl's n:usonablt> atlomt:ys' foes anc interest at the Default Rate from Ure elate such payment was due until the date paid by Tenant. In lhe altetnative, Landlord shall h:ive the n'ght, al ils opt.ior to make ,ny paymcn:, such as taxes, nthel'wisc required lo ':>e made by Tenant, in which event such puymcni shall not be deemed u cure ofTcnnnt's defoull, and Tenant shall reimburse Landlord o"or any such puymcnt, together with rcas01:able allomcys' fo,ss nnd intcrcsl ul the Dcfoult Rate from the date Lundlorcl :nak~s such payment to the date Landlor,l receives such reimbursement Landlord shall have u,e rigbl to pcuccubly re-enter the PrcmiHcs, willmul such re-en try being deemed a termination of the Lt'.ase or an acceptance by Landlord of il surrender th~reof. Landi ore shall also have the tight, at its option, from 1ime lo time, without 1e1.111innlir.g this Lcasi,, lo rdet the Premises, or 1111y purl thereof, with or withnut lcgul process, as thc>1gcnt, mid for lhc account, of'J'cnant upon such terms nnrl conditions as Landlord may deem advisuble, in which event the rents roccived on such rel citing shall be applied (i) iirst to the rcasona:ile and uctuul expenses of such reletting and collcclion, including without limitation necessary rcnovatio1: and alto:·ations of the Premises, rcnsonable and actual attorneys' f~'CH am! uuy reasonable and actual real estate commissions and consulting foes paid, lllld (ii) thereafter lowurd payment of nil sums due or to become due to Landlord hereunder. If a sufficient amount to pay such expenses and sums shall uu1. be reali,;ed, in Lai1dk,rd's exercise of <:ommcrcially reasonable effm1s lo mitigate its damages (which Landlord hereby ag:ees lo r:rnkc), tl1en Tenon! shall pay Landlord any sud1 deficiency monthly, 1111d landlord may bri11g an action or actions tb::rcfor as such monthly dcf.cicncy shall arise and acctue. Lat1dlord shall nol, in any event, be required to pay Tenant any sums received by Landlord on a rolctting oflhe Premises in ~XCl'.ss C'f the rent pmvide.d in this Lease, but such excess slmll reduce any acc1ucd\,resenl or faturc obligntions ofTcnant hereunder. Landl01'd's re- entry 1111d rclclting or U1c l'ren:ises without .ennination of this Lease shall uol preclude Lm1dlord fi-0111 subse.quenlly te1111i11aling this Lease as set forth below. (ii) Tenninale Lease. Landlord may tenninalc this Lease by writlcn notice to Tenant specifying a date therefor, which shall be no sooner than thirty (30) days fol lowing receipt of such notice by Tenant, and this Lease shall the11 tenninate on the date so specified as if such date had been originally fixed as Ure expiration dale ofU1e Term. Iii the event ofS'Jch tennination, Landlord shall be entitled to recover from Tenant all of the following as damages: 19 H :\MAnhcrty\l:iMl{f\Ulny Miller l.t3c 11•:!l• I I ).<:<ic (A) The "worth at the time of the award payment" (defined below) of any obligation which has accrued prior to the date oftennination. (Bl The "worth at the time of the award payment" of the amount by which the unpaid Base Rent and all other charges which would have accrued after tennination w1til the time of award pay1:1ent exec , .s the a1:mun! of any sums (net of relettir.g costs and expenses) actually received by Landlord from the PremisP.s aft.er tenni11alion . Landlord shall have an affirmative obligation to attempt to mitigate its damages following tennination, until the time of the award payment. (C) The "worth at the time of U1e award payment" of the amount by which the Base Rent and all other charges which would have accrued after the lime of the award payment for the remaining term ohhis Lease exceeds the Fair Market Rent ("FMR"), determined ir. the manner set forth below, for the remaining term of this Lease. The FMR, as used in Ulis Lease, shall be !he fair market rent of the Premises, net ofmar:<et brokerage commissions and consulting fees, as of the time of the award for a term equal to U1e remaining term of this Lease subsequtmt lo the liim: of the uww·c! payment (assuming this lease had not been tenninatP.d) on an "ns is" basis, AS rl•atennined by a licensed MAI appraiser selected by Landlord. Al Tenant's option, Tenallt 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, ill· which case the FMR shall be the median of the 1hree appraisals. Tenant shall bear the cost of the appraisal process . As used in this Article 13, Paragraph 2, the tenn, "worth at the time of the award pnyment", shall be computed by ellowing simple intere.st at an accrual rate equal to the Default Rate for past due obligations, and a discount rate lo net preser:t value at the time of the award payment of five percent (5%) per annum on anticipated future obligations or revenues, and mitigation amounts, with nu interest or tliscow,t, ou tl!e amount of the obligations payable on the date of such calculation. In the event Ibis Lease shall be terminated 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, r~muve all persons and property therefrom, by summary dispossession proceedings . (iii) Reimbursement of Landlord's Costs in Exercising Remedies. Landlord may recover from Tenant, one.I Tenant shall pay ro Landlonl 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 repaiiing U1e same for reletting, am: all other reasonable and actual expenses, commissions and charges inc111Ted by Landlord in exercising :i,1y remedy provided herein or as a result of w1y Event of Default by Tenant hereu11der (including without limitation reasonable attomeys' fees), provided that in no event shall Tenant be obligated to compensate Landlord for any speculative or consequential cam,ges caused by Tenant's failure to perfonn its obligatio1:s under this Lease. 20 B. &m'"lie.• Are Cuinulatjve. The various 1igh:s nnd remetl1os r~servccl to Landlord herein are cumulative, ~ml Landlord may pursue uny und ull such righls and 1rnnerlics, in mlclilion to r.ny other rights or rcmeclie.• 11vaih1hle nt law c,r in equity, whether a: the sumc time or ()lhe,wi~o (to ,he extent not inconsistent wiU, spccilk pruvi~ion~ of'this Lease). Notwithstnnding unyUiing herein to t11e contrary, Landlord exprC.'lsly wnives ils right to forcibly rlispos.sffis Tt:mrnt from the P:·emises, whether pcnceably or otherwise, wiLl1out judicial process, such that Lunrllordshull not be enti '.lcd lo uny "com:ncrciul lockout" or any othe: provisions of 11p11licable lcw which permit landlords to dispossess tonant,i from commercial propmties without the bcnd:t of judicial review. C. Miligatiq_n of Pnmages. In the event Landlord elects to tenninalc the Lease antl seek damages from Tenon! os provided herein, Londlord will use reasonable efforts to mitigate it~ damage.~. Landlord shall have the option but not the obligation lo list the Premises for lease wilb a real estate broker. In !he ~vcnl Landlord elects not lo so list the properly but iustc:ad elects to it::o!fmnrket the Properly for lcnsc, such c;lccticn shall not ht: deemed lo conslitulc a failure by Landlord to mit,gulc. Landlord will nol be oblignLerl lo accept lens than the then cu1Tei:I market rent for tl1e Premises; deviate from ils then estahlisbed guidelines for tenants including will,uut limilaticn use, C:llpericnce, reputation, and <:r~ilitwrnthinc.,.,; lease less than all ofU1e Premises; extend !he term oflhis Lease; or expend any money on hchruf of r. new tenant. Tenant will not have any independent, affirmative claim agnt~s'. Landlord on account ofLandlonl'~ failure to mitigate it~ damages; however, such failure to mitigate may be asserted by Tcnunl as a dr.fensc ton r:lnim hy T..andlorcl lo the extent allowed by law. D. Wnivcr of j . ..ondlord'~ Lien. J..1111dlord hereby waives any sla\-Jto,y liens and any rights of distress wiU1 re,pcct lo 01e Tenant's Propc1ty (as defined below) from time to time located on the Premises. This Lease doe., tl(I! grant n contnir.bal lien or any other secu1ity interest to Lamllurd or in favor of Landlord with respect to Tenant's Property. r .andlord furfacr agrees, without cost to Tenant, to execute and deliver such inshumenl~ reasonably :-cqucsted by Tenant from time to time to evidence the aforesaid wnil'cr of Landlord. Ar, used herein the te1m "Tennnt's J'ropertv" shall mean all movable partitions, business and ,r~rle fixtures, machinery and equipment, auton1obiles, ~:;,nputers, fumil'l!rc, satellite dish(N), sigt1age, communications eq'.lipment and office equipment, and all furniture, fomishings and other wticles of j)ersomtl proµeity owned by Tenanl and located in the Premises. 3. La11dlord's t:l.'lfi_lJ!t. In the event Landlord shall at any time be in default in the observance or perfonnance of any of Lbe covenanlli aml agrcemenlll required io be performed a·· J ohseived by Landlord hereunder and any such dcf!llllt shall continue for a period of sixty ( 60) days after written notice to Landlord (or if such default is i11capuble of being cured in a reasonable ma:111er within sixty (60) days and if Landlord has not commenced to cure the same w:thin said sixty (60) day period and thereafter diligently prosecutes the sari,e to completion), and Landlord shall not thereafter cure such default, T,:nanl shall be enliUed, at its election, to bring suit for tl1e collection of any amounts for which Landlord may be in default, 'lr for the performance of any otbcr covenant or agreement devolving upon Landlord, in addition to all 21 h:\Mr1Aheny\EMR.f-\Lm1y Millci· LaiK 9-:?f>-11 ).1.uc remedies otherwise provided in this l.cRse and othP.rw ise available at law or in equity under the laws of the United States or the State of Colorado . 4. Attomr.y,s ' Fees In thr. event that either Landlo rd or Tenant commences any suit for the collection of any amounts for which the other may be in default or for the periom1ancc of any other covenant or agreement hereunder, the prevailing party in any such action shall be awarded its costs and expenses, including, but not limited to, all attorneys' fei:s and expenses incWTed in enforcing such obligations and/or collecting such amounts, from the other party lo such action. 5. Waiver of Consequential Damages . In no event shall eilher Landlord or Tenant have the right to recover consequential damages of any kind from the other. Except as limited hereinabove, all rights and remedies may be exercised and enforced concurrently 1111d whenever and as often as La.'ldlord or Tenant shall deem necessary. In the event of a default by Tenan~ nothing contained herllin shall preclude, o: be deemed a waiver, of Landlord's right to recover da.,iages arising from its ownership or operation of the property owned by it adjacent to the Premi.ses . Article 14 Covenant of Quiet Enjoym~nt Landlo:d 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, and 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 :awful claims or all persons whosoever, except those claiming by or through Tenant. · A1tlcle 15 Subordination; T..anrllord's Right to Mortgage and Convey Premises Landlord may mortgage its interest in U1e Premises , provided such mortgage e9ressly pro vides that the rights and interests of the mortgagee thereunder are subject and subord inate 10 the rights arid interests of Tenant hereunder and the rights of any Leasehold Mo ,1gagee under any Leasehold Mortgage then or thereafter existing. Should Landlord sell, convey, or transfer iu. interest in the Premises or shouid any mortgagee of Landlord succeed to Landlord's interest through foreclosure or deed in lieu thereof, Tenant shall attorn to such succeeding pa:ty as its landlord Ullder this Lease promptly upon any such succession, provided such succeeding party assumes all of Landlord 's duties an d obligations under this Lease . Such succeeding pa.'iy shall not be liable fo r any of Landlord's obli ga tions and duties hereunder prior lo its assumption of Landlord's duties and obligations herellllder . Article 16 Transfers by Landlord No tra nsfe1 or sale oiLandlord's interest hereunder shall release Landlord from any of its obligations or duties hereunder prior thereto . Landlord shall be released of any 22 1111goi ng ob I igalions hcreunde1 · from und after the tlnte of such transfer und only upon the assurnpt icm of all such obligatio11s and cluti1:,~ by the transferee ofLimdlol'd. Notwithstunding unything c.onlninr,1 herein l11 the r:ontrury, in no event shnll l.,1n<llo ;·d have the right Lo transfer, in any manner whul!mcvcr, or lo noll its in1cn:st hereunder priur to delive ry of posscm~ion or the: l'rcmiscs to Tc:1m1l. Article I'/ Miscellnncous I. ~m1-Wa :ver nf Defau :t. No 11cq11i ?sr.,mce hy either 1iarty to nnydcfault hy the ulhc1 party ,:hall opuratc as II wui vcr of ils r'ghts witl1 ruspect lo nny other brcuch oo: clcfaul!, whr.thcc of the sarne or any other covenant ur cumlitiun. 2. Rc1:2n!ing, 'TI1is Lease shall no'. be recorded. The pnrtir.s shall execute, ucl:nowlc:l ge, ,mrl <le.livec to each ot'icr duplicate originals of a short f'mm nr memorandum of this Lease ("Memorandum of Lcn.o") in subsl r.ntinlly the fo1111 or U:xhihif fl a!lachc<l hcl'elo m1cl inc:,rporntrnl krcin, describing the Pl'cmbcs nnd "eUing fol'lh lhc Tern, c,f 11,is Lease. The Me111011111dum of Lease slrnll be recorded nt Tcnnnt's expense . hi the cvelll Ten.ml l'CCOJ'ds thi s I .cnsc , ·.his Lease shall aulomatictlly be dccm~d terminated nncl ofno l\1rlhcr force or effect I:' lhis Lcai:c i , tenninat·ed, upon request ofl..:mlilord, Tenant will cxcc~lcancl deliver to Landlord a t.crmi:iati on of tl:c Memorandum of Lease suitnblc for recording. 3. Not.i~. Any notice, rnqucsl, offer, approval, conscn ~, or other communication required o, pcnnittcd to be given by or on behalf of either party to lhe other shall be given or mmmunicatecl in writing by perso:1a: clclivcry, 1-e11utable overnight cour:er scl'vic:c which keeps J'ccciplr. of deliveries (i.e ., Federal fa press), c,r United Stutes ccrtilhd mail (rr.tuni receipt rn11ue~ted with postage fully prepaid) m· express mail sc:·vicc nddrcsscd to the other party as follows: Ifto Tenant: With copies to: MillerFan:ily Real Esliite, L.L.C. 91~0 Sonth 1 ~0 Rnste, Suite I 000 Sandy, Utah 84070 Altentiou: Jay rrnnc:s Scott Bales, General C' ,mnscl 9~50 South ISO Bruit, Suite 1000 Sumly, Utuh 84070 13 Ii to Landlord : With copies to : Englewood/McLellan Reservo ir Foundation l 000 !:nglcwood Park-w•y Englewood, Colo rado 80 I l 0 Attention : President Ci ty of Englewood 1000 Englewood Parkway Englewood , Colo rado 801 I 0 Att ention : City Attorney or ot such other address as may be specified from time tc time in writing by either pa11y . 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 wcich case the date of posbnark shall be deemed the dote notice bas been &~ven . 4. Sur.c.essors and Assjrms . All c-0venai1ts, promi ses , condi tions, rep re:ientatioris , and agreements herein contained shall be binding upon, apply to , and inure to the benefit of the Parti es hereto and their respective heirs , executors, administrators , su ccessors (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 an y extent be held invalid , the remainder of this Lease or the 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 er.forceable to tbe fullest extent pennitted by law . 6. Interpretatjon. In interpreting thi s Lease in its entirety, any additions written or typed thereon shall be given equal weight, and there shall be no inference , by operation of law or otheiwise, that any provision of th is Lease shall be construed against either party hr.reto . This Lease shall be construed without regard to any presumption or oth~~· rule requiring construction against the Parties causing this Lease to be drafted . 7. .!:Iwungs. Captions and References . The section captions contained in th:s Le ase are for convenienc e only and do no '. in ru:y way limit or amplify any tenn or provision hc,cof. 111c use of the terms "hereof," "hereunder," and "herein" shall refer to this Lease as a wh_.t , inclusive of the Exhibits, except when noted 01berwise . ·n1c terms "include," "im:lullt:s," anli "including" incorporate the meaning "without limitation .•· The use of the masculine or neuter genders herein si1all include the mii.iculint:, feminiue , and neuter genders and the singular form shell include the plw-al when the context so requires. 8. Govemir.g Law. This Lease shall be consuucd under the laws of the State of Colorado. 9. Execution ofDucumt:nl~. Landlord and Tenant shall each cooperate with the other a11d exe-:ute such documents as the other party may reasonably require or request so as to enable it to conduct it s operations, so long as the rC(!uested conduct or execution of documents does 1101 derogate or alter the powers, rights, dut ies, and responsibilities of the respective Parties. 24 10. Force Majeurc. Whenever a pa1ty 1s re :1uired to ;,erfonn an uct under this Lcnsc by a ccrtuin time, unless specificelly providctl otherwise in tins Leasz, .<uch party may ~xlcnd the clcucllinc in the uvcnt of Excusable Delay . In the event n pmty elects to so ext.end a dcmllinc, such pm'l'y ,hull {bl give written notice to the other party within twenty (20) c:h1ys following the conm1eneeme11I oflhc Excusublc Delay selling forth the even '. giving nsc to the Excusable Delay. The party electing to extend the dcacllinc shall within twenty (20) days followin1.1 t.hc c11d of' the Excusnble Delay give an additional written notice to the other party selling lluth the nunihcr of days the period has been c>:11:nrled n.s u rc:m,ll nfl11c Excusable Delay and the dcluils of >:uch d~loy. 11. Rc;1mm11hlµ Cunscnt. NulwithstunJing a11yU1iHg to Uic conllary conlllined in this Lease, in all cases where consent or approval shall be required pursuant to this Lease, the giving of cat:h co:1scnl or approval shall not be unreasonably withheld or delayed by Uic p1t1ty from whom snch consent is required or requested. 12. Authority. No agreement, including but nu: limited to un 11i;rccmcnl 10 11mcnd or modify this Lease or to accept surrender of the Premises , r.hatl be deemed binding upon either p~rty, unless in wtiting and signed by an offi ce:· oftlic pa11y ugainsl whom the ugrccmcnl is to be "" forced or hy a pernou designated in writing by such p:ut~ as so authorized lo act. No paymem by Tenant or rceeip : by Landlord of u lesser ammmt Ihm: the Rent hcrdn slipulutc:d shall be uc,cmcd tu be other thun on accm:nt of the carli:sl stipulated Rent, nor shall any endorsement or statement on any check or any lette:· accompanying any check or paym~'llt ofRcn1 be deemed an accord and satisfaction unless expressly agreed lo by Landlord acting tliru its authorized representative, nnd Lnncllord mny nac:e.pl sue:', c:heck nr pnymcn : without prejudice to Land iord's l"i1,1ht lo recover the bulunco of ,iuch Rt:nl or purr.uc 1111y olher remedy then available 10 Landlord. 13. Estoppe) CcrMjeatc. Each purty ab\l·•e:1, frm1 time tu tirn", wi1hi11 twc111y (20) days fol:owing written request from the other pa1ty, to execute and deliver an cstoppel staling that 1his Lease is in full force and effect, and if modified or amended, setting fort!: such modification or amendment, that no default exists, or if a default, setting forth the same, and such other factual maters regarding the Lease as may be rcasJnably requ::stec., provided such cstoppel docs not oblig;:\c the party to acknowledge or consent lo any modifi,;ations or interpretations of tl,is Lease not previously agreed upon by both pa11ies in writing . 14. Holding OveL Sl:ould Tenant hohl over, without Landlord's consent, after the Lt:asc term has expired and continue to pny Rent, Tenant shall become a month to month tenant only. In no event shall such hold over constitute an extension of the tenu of this Lease. During such hold over, the Rent shall be an amount llqUal to one hundred fifty percent (150%) of the Rent during the last month of the term of the LMse , together with all other amountspaynhlc by Tenant under the tcnns of Lhc Lcusc. None of the tenns of this Porngroph or the holding over by Tenant shall constitute a waiver of any rights of Landlord to tenn inate the Lease al any time •ud to re-e11ter and take possession of the Premises. Tennrt shall reimburse Landlord and indemnify l ;111cllnrd against all damage.~ incurred by Landlord resulting frnm any delay by Tenant in surrenderillg possession of the Premises. 15 H.\MFl:ihc11y\EMRF\1.nn)' Miller l.e.uc 9,21:,11),duc Artlcle 18 Leasehold Financing 1. Mortgage bv Tenant ·Tenant may, from time to time, hyPot!iecate, mortgege, pledge, or alienate the improvements and/or Tenant's leasehold estate and rights hcreunC:er. Such lien shall :l'-referred to herein as a '·Leasch(l!d Mortgage " and the holder or holders of any such lien shall be referred to herein as a "Leasehold Mortgagee." The Leasehold Mortgagee's interest in the Premises and this Lease shdl be subordinate, junior and subject 10 Landlord's ownership of the Premises and interest in this Lease . A Leasehold Mortgage shall encumber uo interest in the Premises other than Tenant's interest in tl1e 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 lo the lea,:ehold estate in any 'awful way and, pending foreclosure of such lien, the Lca.,chold Mortgagee may take possession of and operate the Premises, perfonning all obligations perfo1mable by Tenant, and upon foreclosure of such lien by power of sale, judicial foreclosure, or acquisition of the leasehold estate by deed in lieu of foreclosure, the Leasehold Mortgagee may sell and assign the leasehold estate hereby created. Notwithstnnding 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 persr,n 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 exerc;1e its remedies following an Event of Default prior to Leasehold Mortgagee's possession or ow~ership. Landlord agrees lo provide an estoppel to any Leasehold Mortgagee upon writter. request therefor, provided such cstoppel does not obligate Landlord to ncknowledge or consent to nny modifications or interpretations of this Lease nul previously agreed upon by both parties in writing. 2. Kotice 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 ngninst any Leasehold Mortgagee unless and until served on any LeasebC:>ld Mongagee as herein provided. In the event Tenant shall default in the perfonnance of any of the terms, covenants, agreements, and condilior.s of thls Lea.;e to be performed on Tenant's part, any Leasehold Mortgagee shall have the right, wiUlin the grace period available to Tenant for curing such default or such Additional time as may be granteci lo 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 lo perform any other obligation, and Landlord shaU accept such performan~cs on the part of any Leasehold Mortgagee as though the same had been done or perfonned by Tenant. B. In the case of a Monetary Default by Tenan~ Landlord will take no action to effect a tetminalioo of this Lease by reason thercofu11less such default has continued beyond forty-five (45) days after Landlord shall have served a copy 26 H:V-.tFl1hc11)'\!ZMRF\L.,11r Miller L.cuc 9-:?l::-lll.c1nc ofsucl: notice upon Tenant and m1y Leasehold Mongagee who has given Landlord notice as provided in 0.0.0 .ibove, il bt,ing the intent hereof and the understanding of the patt ies that any Leasehold Mortgngr,e shall br. 11llnwC11 not less than fit1een (15) days in addition lo U,e lhirly (30) duys grnntod tc Tcn:1111 to cure ar.y M.,nc\a ry Dcfa:ilt of Tenant. C. J'n the ca se of any Non-Monetary Dcfuul '. by Ten am, H Lcus ehnld M:utgagec ,:hull be allowed, in ncl<lit ion to :my gnu.:c pciio d gra,;tcr! t1J T"nanl, llll n<.ldilio1rnl Lim<> 11s hcrcinnflcr spccilicd to cure such Ncm-Monelory Dcfuull within whicli' either: a) if such d11fH.11lt is a monctnrydefaul t or is otherwise susccpliblc o:bcing cu red by tho Leasehold Mortgagee without ob tainin g possession of the Premises, to conunence and diligeully proceed tu toure ~u ch Non-Monetary Default within thi11y (30) days following the cxpir.ition of any grace period granted to Tenant, or if snc:h dc:fnul t mm aot rea~on d ,ly he cured within thirty (JO) days, to commence ~uch cure witl1i n thi11y (30; clui~• following the cxpirntion of any grucc period gra :1ted to Tcnum and to diligently prosc•;ulc the cure lo complctio,:; b) if Huch default is a non-monetary default and is not susccptil>lc ofhcing c:ircd by the umschokl Murlgi,gce without obtaining pos ~cssion oflhcPrcmiscs, lo commence µ··,cccdings to obtain possession of the l'remi ses within thi,ty (30) rlRys followin g the expiration of any gnce period grunted to Tenant and diligently prosecute such action lo completion (includir.g posRession bye receiver) ,md to cure such default wilaiu lh i!-Ly (30) duys following possession or the appointment of u receiver in the case of a default which is susceptble of being ~~m~I within thirly (30) clays when the :,casebold Mortgagee has obtained possession thereof. lf ~uch default can not rcusonubly be curec;J within thirty (30) days following possession or appointment of a receiver, lo commence suci1 cure within thirty (30) days following possession or appointment of a receiver and to diligently prosecute the cure to completion. D. In the event that tl1is Lease is terminated by Landlord on atoe0uul of any defa.ilt , Landlord shall give prompt notice thereof to each Leasehold Mo1tgagce who has given notice to be notified. Landlord, within tl:irty (30) days aO.e .. receiving a written request therefor, which shall be given witl1in si xty (60) days after such tcnninution, will execute and deliver a new lciisc of the Premises lo the Leasehold Mortgagee m its nominee or to the purchaser, assignee, or lrnnsferee, as the case muy be, for the remainder of the term of this Lease, containing the same covenants, agreements, ,cm1s, provis ions, aud limitations as are contained herein , provided U1at the Leasehold Mortgagee shall (i) pay to'r.1111dlord, simultaneously with U1e delivery of am:h nr.w lease, all uupaid rental due under this Lease up to and including U1c detc of the commencement of the term of such new lease and all expcuses including, without limitation , reasonable attorneys' fees and disb·Jrsements and court costs incurred by Landlord :n connection with the default by Tenant and lhe 27 H:\MFl11hcny\EMRF\IA1T)'Millcr ~•e 9-'.?8 -i l).dac tcnnination and the preparation of the new lease, anc (ii) the Leasehold Mortgagee shall commence and diligently i;roceed to cure all defaults existing under this Leue wh,ch are susceptible to cure. E. The time available lo a Leesehold Mortgage:, to initiate foreclosure proceedings as aforesaid shall be deemt4 ex1e111led by the number of dttys of clelay of occasioned by judicial restnction against such initiation or occasione,d by ot~er circumstahces 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 Leasehold Mortgagee shall pay or cause to be paid all charges of wha:soever nature payable by Tenant hereunder which have been accrue,d and are unpaid and whi<-h will thereafter accrue during said period. Following the acquisition ofTc11ant's leasehold estate by the Leasehold Mortgagee or its dcsigncc, either as o result of foreclosure or acceptmce of an assignment in lieu of foreclosure, the Lcasehclcl Mortgagee or pa.'1y acqu iring title to Tenant's leasehold estate, whereon Landlorci's righ '. to effect a tenninafr,n of this Lease based upon the default in question 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 he and shall be deemed to have been waived by Landlord upon completion of the foreclosure proceeding., or ncquisition of Tenant's interest in this Lease by nny 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 not be liable to perfonn the obligations imposed on Tenant by tllis Lease incurred or accruing after such purchaser or successor no longer has ownership of the leasehold estate or posses.ion of the Premises . G. Nothing herein shall preclude Landlord from exercising any of Landlord's rights or reme,dies with respect to 211y other default by Tenant during any period of any such forbearance, subjec1 lo the rights of uny Lell!lehold Mortgagee as herein provided . H. In he event two or more Leasehold Mortgagees cuch exercise their rights hereunc!er and there is a conflict which renders it impossible lo con1ply witl1 all such request~, the Leasehold Mortgagee whose leasehold r.,ortgage would be se1ior in priority if there were a foreclosure shall prevail. ln 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 he asserted against Landlord wiU1 respect lo such period of lime . I. Upon the reasonable request of any Leasehold Mortgagee, Landlord and Tenant shall cooperate in including in this Lease by suitable amendment er separate agre em ent from ,i me lo Ii.me any provision for the 28 purpoce ofimpletnenting the protective provis:ons contained in U1i~ Leese for the benefit of sueJ Leasehold Mortgagee in allow 'ug such Leasehold Mortgugee rcasm :uble mean~ to protect or preserve tl1e lien of it< proposed L:>nschold Tr ust Dct,d on !he nccurrence of a dcfnull undt~· the terms uf the Lens<.:. Lnndlmcl und Tcna11l ~hall uxecule, dulivci:, und ncknow lccli;e uny :.:mcNlmcnl or scpamtc a),~·ecmenl reasonably nccessury lo effect any such requirement ; provided, however, that any Nuch mnendm ent. or SOJ>arnle agreement shnll nut i11 11 :,y wny affect the :crm or rcntul 1mder this Lease nor othcrwilc in any mnturiul rc:ipcut ndversely affect nny rights of Landlord under this Lease. J. Tenant shall reimburse Landlord any attorneys' fees or other dircd oul of pocket costs incurred in coMeclion with any lease amendments or other documentation or review in connection with Tenant's proposed Leasehold Mcwtgage . Ar ticle 19 Rcprcsenlntions of Landlord :mcl Tenant I. B.Qnrcsenl alions ofLundlord. Except as 0U1orwinc disclosoo on Schcdu :e I attached hereto, Landlord represents and wnrrunls lo Tenant that, us of the Etfoclive Datt:: A. Landlord is u non-profit cor;,01·ution validly orga11ized nnd existing under the In· of the State ofColoraclo . Landlord hus 11:e full 1ighl, power and authority to cnler into this Agreement nml to p11rfonn l..1111,lltnrl's ohligntinM hercunrlcr . B. This Agreement (i) has been duly auU,ori,..cd, c,i,cutc:d, aud delivered by Landlord; and (ii) is the bindiug obligation of Lundlord; C. Landlord has not granted, other than lo Tcnnnt, any oulstnndiug option, right of first refusal or any preempti ve light wi :h rcsp::ct IO the purchase of all or any po11ion of the Premises . D. To the bcsl ofLamllord's knowlecge, tl1e Pn:misc:s uud use a11d occupancy thereof is not in violation of any laws and no written notice of such violat ion has been rcceive<i by Landlord and is nol lhe subject of any existing, pending, or thrcalcnecl investigation or inquiry by 11ny govcrmnentul autl1orily or ~ubjecl lo any 1cmcdial obligalions under nny ln.ws pcrt11inin1: le• or relating lo hazardous matctials or c,lhcr cnvironmenlul conditions . E. There are no unrecorded easements or rights-of-way affecting any or all of the Premises except the s.1nitnry sewer inl r.rcr.plor Jin<"-• as prev iously rlisclosed by Landlord to Tenant. F. No lawsuit has been filed again~! Landlord regarding the Premi ses. 29 H:\Mfhher1y\t:Mkr:\l..:my MIiier Wse Y-21-11 ).doc G. There are no other leases, agreements or contracts in existence relating to the Premises, including, without limitation, tenant l~es, service contracts, or management agreements. H. Landlord has received no notice from any insurance company with respect to the cancellation ~f ;.,;y j)Olicy concerning the Premises or refusal of the insurance company to insure the Premises. J. There a,-c no oral agreements affe~ting the Premises . J. There is no litigation pending with respect to the Premises relating to any Envi~onmental Law viol.itious. Except as disclosed in writing by Landlord or disclosed in environmental reporlll delivered lo Tenant, Landlord has no actual knowledge of an Environmental Law violaiion ~nd 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 tem1 "Enviro11mentnl Law," as used in this Agreement, shall include : (I) Comprehensive Environmental Response , Compensation, and Liability Act of 1980, as amended by the Superfund Nnendments and Reauthorization Act of 1986, 42 U.S .C.A. §9601, et seq . ("CERCLA ''); (2) Solid Waste Disposal Act, AS amended by the Resource Conse1vation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C.A. §6901, ct seq.; (3) Federal Water Pollution Control Act of 1972, as amended by the Clean Watnr Act of 1977, as amcndcc, 33 U.S.C.A. ~1251, ct seq.; (4) Toxic Substances Control Act of 1976, as amended, 15 U.S .C .A. §2601, et seq.; (5) Emergency Planning and Commw1ity Right-to-Know Act of 1986, 42 U.S.C.A. § 11001, et seq .; (6) Clean Air Act of 1956, as amended by the Clean Air Act Amendments of 1990, 42 U .S.C.A. §740!, et seq .; (7) National Environmenllll Policy Act of 1970, as amended, 42 U.S.C.A. §4321, et seq.; (Si Rivers and Harbors Act of 1899, as amended, 33 U.S.C.A. §401, et seq .; (9) Endangered Species Act of 1973, as amended, 16 U.S .C.A . § 153 I , et seq .; (10) Occupational Safety o.nd Henlth 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(!), et seq .; and (12) all applicable standards, rules, policies and other governmental requirements. · K. There are no agreements, commitments or understandings by or ':>ctween Landlord and any thir~ party pursuant to which (i) Landlord agrees to ruke the Pre11,ises pnrt of any ~:,ecial assessments, special dis trict, 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, righ'.s-of- way, road or license for ingress and egress or other use in respecl lo any pal'l oflhc Premises , whether on account of the developmr.nt of adjacent or nearby real property or otherwise . Landlord bas no lu1owledge of any Assessments being contemplated . L. Landlord has no knowledge of any f~ct, condition, or action, present , contemp!ated, or tlu·eatencd , which would or may result in the tennination or impai1mc11t of access lo and from the Premises as sud1 access presently exists, and 30 llwl: Landlord is not in violAlion ofuny eas,~111:nl.q, rights-of-way, c011di1ions, covcnw1L~ and rc!-lrictions, licenses, nr other agreenicnts burdening the l'rcmis~. M. J.,unrllord owns the Premises free uncl dear of nny m011gngc r,r deed of 2. Et1,ros"nlttlit!!!~ ufTenunl. Tu1wnl, cprcs~nts, warrants ,m~ c:,vcnanls lo Luncllorcl A. Tenant's Aul]loritl · Tennnl is • duly consti1111i,l I imiled linbility r.ompuny or5a11iz.c:l ·Judcr U1c laws of the Slate of Colorado, il has the power to enter into this Lease and perform Tcn:mt's obligations hereunder; and the persoo execut:ng U1is Le:L~c cm Tcnm11's behAifhas 1he righl' anrl lawful authority to do so. n. Tc1:ant's Covenant as to Ha1.ardous or Toxic Mntcrjafa . i. Tenant hereby covenants 1ha1 Tenon! shall not cause or pc1m1l any "Ha:t.anlons Suhst:mccs" (ns hereinafter dcfo1cd) lo be placed, held, lo c:ilcd or disposed of in, on or ut lhc l'rc111iscs or any purl tl:crcof except in acwrdnnt:c with all applicable laws, stntulcs, 01dinnnccs, and rcgulal :ons. ii. Tenant hereby agrees l.o indemnify Landlord and ho :cJ Landlord harmless !i-0111 a11d agui11sl aiiy and ull losses, liabJilics, damages, bjuries, cxpcnsr;s, including reasmmblc ullorncys' foes, costs or nny sctllcmcnl or judgment nnd c.laims ofnny 1111d cvt:ry kincl whalsncvti· paid, incuncd or su:fercd by, or asserted agnins:, Landlord by any person or entity or govcmmcnwl ngcncy as a result of the escape, seepage, lcalcngc, spilln.ge, discha:·ge, emission, discha rging or rclci1se from, the Premises of nny Haza:·dnll~ Substa:1ce, proviclec , howover, thal the foregoing indemnity in limited lo millcru arising solely from Tenent's violation of the covenant contained in the preceding subperngraph 2.B.:. m. For pmposr.~ of this 1 ,CP.se, 'f·ln,.nrdo•:, Suhstunccs" shall 1:1can and include those elemcnl~ or compounds which arc containc;d in the list of hazardous subsumcc.~ now or hereafter adopted by the United ~talcs ',1wironmental Protection Agency (the "EPA") or the iist oft(Jxic pollutants dcsib,'11Ulccl by Congress or the EPA or which me 110w or hereafter defined as hazardous, toxic, pollutants, infectious or radioactive by auy other Federal, state or local sllllule, law, ordinance, code, rule, re1,'lllation, order or decree regulating, relating 10, or imposing liability or standards ·of conducl concerning, any haZllrdous, toxic or d1111germ1s waste, substance or mntcrinl, as now or at any lime hereafter in cffoct. "Hazardous Substances," for the purposes of this Paragraph i6, shall include petroleum producw, asbestos, and polychlorinaled biphenyls, and underground storage '.aulu; uni= in~lulled, mainwim,d, ancl clusocl iu compliance witb all applicable laws . iv . In the event Haznrdous Si-',stllnces are present on the Premises in violation of Tenant's coverdllt in subparagraph 2.B.i he:-eof, and Tenant fails LO 31 H:\MFlnlu:r1y\l?MI\Jl\l.Any Miller Lenn 9·28· 11 ),ctc'lc clean up, remove, resolve, minimize Ilic impact of, or otherwise n:mt:diul• such contamination in compliance with ail applicable laws and regulations and to obtain a "no further action" or similar closure letter from the governmental au:horities with judsdiction over such Hazardous Substances permitting the development and use of the Premises as contemplated herein without further remediation (collectively, "Remediate," which tem1 shall include obtaining such approvals as are required from applicable governmen:al authorities prior to the commencement of Remediation activities on the Premises), then Landlord shall have the right, but not the obligation, 111.irty (30) days after notice to Tenant and Tenant's failure lo Remediale, or, if Tenant cannot Rcmediate within thirty (30) days , then upon Tenant's failure to commence preparatior: of a plan to Remed:ate within such thirty (30) day period and diligently pursue the approval of such plan and the completion of the remediation work authorized by the approved plan '.o completion, to enter upon the Premises to Remediate such contamination . Notwithstanding the foregoing. in no event shall '!'euanl be afforded more than two (2) years after the approval of Tenant's remcdiatio:1 plai, 1.,y the ap?ropriate govcrr.menlal agency or ag,::udcs, or any sloo:ler time, required for the completion of such remediation by the agencie.~ in granting such approval, to complete such rc:nediation. Tenant agrees to commence preparation of such plan promptly upon receipt of notice that such Hazardous Substances arc presen~ lo apply fo ~ approval of such plan promptly, and to pursue such approval diligently. All reasonable costs aud expenses iucwred by Landlord in the exercise of any such rights, wh:ch costs and expenses result from Tenant's violation of the covenants contained herein, shall be deemed Additional Rent under this Lease and sholl be paynblc by Tc11n111 upon demand . C. Douglas County Deposit. Tenant acknowledges 1hat Landlord has made a refundab:e security deposit with Douglas County, Colorado in the amount of $17,534 .60 to se:ure that grading, erosion and storc1 sewer coutl'Ol is mai11tained according to the applicable governmental requirements ("GESC Deposit"). All refunds of the GESC Deposit shall be paid to Landlord . In there event there is a loss, in whole or in part, of the GESC Deposit as a result of Tenant's failure to maintain the Premises as required for a full refund of the GESC Deposit, Tenant shall reimburse Landlord for the amount of such loss . D. Broker. Tenant ack.now ,edges that it has retained Newrnnrk Kn ight Frank Frederick Ross (''Broker") as its rt-.al estate agent and brokr.r and agrees to pay Flmker a.,y and all compensation due ii as a result of this transaction. Except for Broker, each party hereby indemnifies and agrees to hold the other party hwmless from all danages, claims. li abilities cir expenses , including reasonable and actual attorneys ' foes (through all levels of proceedings), resulting from any claims that may be asserted against the oilier party by any real estate broker or finder with whom tl1e indemnifying party either has or is purported lo have dealt. 1. 32 IN WITNESS WHEREOF, Oiis Lease hus been executed as of:hc date writt~n ahovc. H:\Mi-1:ihcrty\l:.MJU·1L.,ny Miller Lc.11c 9-:!S• 11 ).dnc LANDLORD: JiNGl..l~WOOD/MCLIT.LLAN ,ms li\11 )I U FOUNflA'l'tON A Colorado 11011 profit corporation By: _________ _ -------·------------··· Name ,.,..-,---------···-··-TiLIC TENANT: MlLl.,ER FAM.lLY REAL liSTATli., L.L.C. • Uluh limit<.:d linbility ccmpuny By: _______ _ Name ·----· Title 33 EXHIBIT A-1 LEGAL DESCRJPTION OF PREMISES EXI-IIBIT A-2 Sl'J'l: PLAN OF PREMISES A-2 EXHIBIT B MEMORANDUM OF LEASE COUNCIL COMMUNICATION Dale A2enda Item Subiect October 17. 2011 i-esolution of support to the Englewood 11 Ci Mclellan Reser;oir Foundation for lease of approximately 7 acres to Miller Family Real Estate, LLC. INITIATED BY I STAFF SOURCE Englewood Mclellan Reservoir Foundation Michael Flaherty, EMRF COUNCIL GOAL AND PREVIOUS COUNCIL ACOON In 1 Y~Y, City Council authorized the creation of the Englewood Mclellan Reser.,oir Foundation (EMRF) for the purpose of development of properties in the Mclellan Reservoir land . Over the last several years, City Council has supported EMRF in the sale of parcels that have been, are being, and/or will be developed to provide additional revenue for the City of Englewood, D~ring the October 3, 2011 Executive Session, City Counc'I reviewed the terms of a proposed agreement in waich EMRF would lease approximately 7 acres of PA 84 to the Miller Family Real Estate, LLC (MFRE). RECOMMENDED ACTION EMRF recommends City Council approval of the Resolution supporting the agreement between EMRF and Miller Family Real Estate (MFRE) for lease of approximately 7 acres of PA 84. BACKGROUND In 1999, City Council authorized, through Ordinance 41, the creation of the Englewood Mclellan Reservoir Foundation ,a non-profit corporation charged with furthering the development of the Mclellan Reservoir property and transferred the property to EMRF. The following goals for development were established by City Council in Ordinance 41. I. Protect the quality of the City's stored water at Mclellan Reservoir. 2. Protect the reservoir ecosystem. 3. Establish and maximize a future long-term income streilm to benefit the City. 4. Maintain the quality of the Highline Canal recreational facilities and the wetlands between C-470 and County Line Road . S. Minimize development impacts 011 the reservoir. 6. Enhance •he quality of life of the neighborhood of which it is part. 7. · Enhance the quality of life for residents of the City of Englewood. In late September, EMRF reached an agreement in principal with MFRE on lease terms. During an Executive Session on October 3, 2011, EMRF staff presented information to City Council regarding a Letter of intent with MFRE for a proposed lease of Englewood Mclellan Reser.,oir Foundation (EMRF) property. Since that time, using the language of the Letter of Intent as the basis, the EMRF Roard and the EMRF attorney held negotiations with the broker and the atlorney for MFRE. FINANCIAL IMPACT Initial rJc1>osit: l're-Uevelopment Rent: Con!;tn1ctio11 Ren1,,I: UST Of AlTACHMENTS Cit\• Ccuncil RHsolution I 1-i:1se AgrP.ernent $200,000, applicable to future rental pay:nonts $ I 0,000/month, non-refundable, hut :i1>plic:.1hle 10 cons1ructiun rnnt, un ess the le:t~c is l<·?nninatc~d. $9,YlO/n,onlh, c(,mmencinu on construr.tion s1.ir1. $229.690/yem tom1rn::1u.:ing un opening and increasing 10'¼, every five (5) years, for the initial lU year terrn and wilh a CPI adjustment at the beginning of ihe first (of five) five year option periods.