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HomeMy WebLinkAbout2006 Ordinance No. 028• • • ORDINANCE NO . ZE> SERIES OF 2006 -- COUNCIL BILL NO. 28 INTRODUCED BY COUNCIL MEMBER WOODWARD AN ORDINANCE AUTH ORIZING A PROPERTY LEASE PERTAINING TO THE REDEVELOPMENT OF THE ENGLEWOOD GOLF COURSE . WHEREAS , the City of Englewood, was approached by Miller Weingarten Realty on behalf of the Sheridan Redevelopment Agency in 2004 regarding the proposed redevelopment plan fo r the area wesl of South Santa Fe Drive , between Hampden and O,ford Avenues ; and WHEREAS , because the Englewood Golf Course is localed within the city limits of Sheridan and within th e proposed redevelopment area ; and WHEREAS , the Sheridan Redevelopment Agency require s agreement with the City of Englewood to lease a ponion of the Englewood Golf Course for the planned retai l/en1enainment comple,; and Wh , ":EAS , the City of Englewood held a Public Hearing on July 24, 2005 regarding the propeni .eas e Agreement penaining 10 the Redevelopment of the Englewood Golf Course ; and WHE,<EAS , the Propeny Lease provides for 1he following : • The Englewood Golf Course Facility will be maintained in its entiret y, including the IR- hole regulation course , the Par 3 course , and the driving range . The relocation will offer significant improvement s 10 the Englewood Golf Course including : I. Moving most of the 18-hole course off the landfill by shifting the fronl nine holes to currently undevel oped areas on b~th sides of the South Platte River. 2. Providing a clay cap under those elements of the Golf Course that will remain on the landfill to help ensure healthy soil conditions for vegetation growth . 3. Other golf course enhancements and improvements to the South Platte River bike trail. The proposal carries no financial risk to the City, as all costs relate d 10 the relocation of the golf course will be paid by the developer . • The ponion of the golf cou rse that is on the proposed propeny lease will be relocated and rebuilt, in its entirely , at the sole e.pensc of Miller Weinganen , at an estimated cost of S5 .5 million . Revenues from the lease of City propeny will be retained by th< City to support the delivery of services , future capital in vestments , e,pansion of the City 's reserves, reduction of debt and/or oth er benefits to the City as may be determined by City Council. Substantive Elements of the Proposed Ground Lease • Miller Weingarten p1oposes to lease , for an initial 20 year term, the portion of the golf course in question fo r $4 .19 million, with three additional 20 year options totaling S900,000. The lea se of the property is subject to completion of other land acquisition and finalizat ion of development plans by the City of Sheridan and Miller Weingarten. • Miller Weingarten will pay the City an additional $650,000 to cover the cost of the City's monitoring of the environmental remediation on City property and the redevelopment of the golf cours e, as well as supplemental golf co urse improvements and enhancements. • The scheduled sta rt of the golf course redevelopment is mid-September 2006 , with completion scheduled for the spring of 2008 . The golf course clubhouse and the back (wesr) nine holes will remain open lo the public during construction . • Miller Weingarten is obligated to protect the City of Englewood from any loss of profit from operation of the golf course during any pt! iod th at the golf course is impacted by relocation and for two years following re-opening of all facilities . • Miller Weingart en has advanced the City a non-refundable deposit of $150,000 to cove r the cost of its out-of-pocket expenses associated with the City's revie·N of the propo sed transaction . Miller Weingarten is ob ligat ed to protect th e retail tenants of CityCenter Englewood from negative impacts. • • The projec t will include significant improvements to the cnvironmcnta 1 conditions of • the City's property . Miller Weingarten has develope d a Voluntary Cleanup Plan that has been approved by the Co lorado Department of Health and Environment (CDPHE). CDPHE and the consultants for the Ci ty of Englewood will monitor the environmental remediation of the City property. Miller Weingarten ha s guarantetd completion of the golf course rede ve lopment and has indemnified the City agai nst en viro nmental damages that may occur as a re sult of this project. • The redevelopment plan is available for viewing al the Englewood Municipal Golf Course , Englewood Recre ation Ceuter, Malley Senior Center, Englewood Civic Center and on tt'I ~ City's web site, WW\\'.1.:11g h;wrnll\i.!(w .org. NOW , THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: ~. The City Council of the City of Englewood, Colorado, hereby authorizes and approves th e Property Lease , allached hereto as Exhibit A. ~-The Mayor and the City Clerk are hereby authorized lo sign and allest sai d Property Lea se Agreement on behalf of the City of Englewood, Colorado. Introduced , read in full, and passe d on first reading on the 24th day of July , 2006 . • • • • Published as a Bill for an Ordinance on the 28th day of July, 2006 . Read by title and passed on final reading on the 7th day of Augus~ 2006 . Published by title as Ordinance No .~ Series of 2006, on the I I lb day of August, 2006 . ~ I, Loucrishia A. Ellis, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a bUe copy of the Ordinance passed on final reading and published >, "'' •--••.1i. Smo "'""' ~ Lo rishia A. Ellis ~ • • • GROUND LEASE BETWEEN CITY OF ENGLEWOOD, a home rule municipal corporation, as Landlord And 7/19/06 SHERIDAN REDEVELOPMENT AGENCY,• body corporate and politic or the State or Colorado 112531 2_4.doc 4122!6-0l6 as Tenant Dated: ____ _ • • • TABLE OF CONTENTS Article 1 Fundament1I Lease Terms ............................................................................................ 1 Article 2 Ground Lease of Premises----____ ........................................ ! I . Definitions ............................................................................................................... 1 2. Premises .................................................................................................................. 4 3. Conditi on of Premise s; Tenant Release .................................................................. .4 4 . Improvements .......................................................................................................... 4 5. Recreation Easem ent ................................................................................................ 4 6. Easements ................................................................................................................ 5 7. Signage .................................................................................................................... .5 8. Environmental Disclosure ........................................................................................ 5 Article 3 Lease Term and Conditions Precedent ........................................................................ 5 I. Tenn ......................................................................................................................... 5 2. Tenant 's Conditions Precedent. ............................................................................... 5 3. Landlord's Conditions Precedent. ............................................................................ ? 4 . Extension Options .................................................................................................... 8 Article 4 Rent .................................................................................................................................. 9 I . Rent .......................................................................................................................... 9 2. Net Lease ................................................................................................................. 9 Article S Taxes .................................................................................. ____ ........................... 9 I . Real Estate Taxes ..................................................................................................... 9 2. ProrationofTaxes .................................................................................................. 10 3. Personal Property Taxes ........................................................................................ 10 Article,; Utllltles ................................................. ______ ......................................... 11 I. 1l 2S31 2_4 .doc: 41 22)6-086 Utility Usage .......................................................................................................... 11 Article 7 Use, Subletting, and Asslgnment ................................................................................. 11 I. Use ......................................................................................................................... 11 2 . Assignment and Subletting .................................................................................... 11 3. Non-disturbance ofSub-lessees ............................................................................. 12 4 . Status of Improvements and Building .................................................................... 12 Article 8 Mechanics Liens ..................................................................... ,.. ................................... 12 I . Liens ....................................................................................................................... 12 2. Protection of Landlord's Interest in Prcmises ........................................................ 13 Article 9 Indemnity and Insurance ............................................................................................ 13 I. Indemnity ............................................................................................................... 13 2. Appear and Defend ............................................................................................... 14 3. Tenant's In surance ................................................................................................. 14 4. 5. lnsi. ance Policies and Certifi cates ....................................................................... 14 Blanket In surance ................................................................................................... 15 6. Unearned Premiums .............................................................................................. 15 Article 10 Damage or Destruction .............................................................................................. 15 I . Damage and Destruction ........................................................................................ 15 Article 11 Eminent Domaln ......................................................................................................... 16 I . AutomaticTennination .......................................................................................... 16 2. Tennination Right .................................................................................................. 16 3. Res'oration ............................................................................................................. 16 4 . Award -Lease Not Tenninated ........................................................................... 17 5. Award-LeaseTenninated .................................................................................. 17 6. Tennination ........................................................................................................... 17 Article 12 !INTENTIONALLY OMITTEDt ............. ____ ...................................... 17 11 2531 2 4.doc 41 2236-08 6 ii • • • • • • Article 13 Default ..................... ___ ..................................................................................... 17 Remedies Upon Tenant's Default .......................................................................... 17 2. Remedies Upon Landlord's Default ....................................................................... 18 3. Attorneys' Fees ...................................................................................................... 18 4. Waiver of Consequential Damages ........................................................................ 18 Article 14 Covenant of Quiet Enjoyment ................................................................................... 19 Article 15 Subordination; Landlord's Right to Mortgage and Convey Premises ................. 19 Article 16 Transfers by Landlord ............................................................................................... 19 Article 17 MlsceUaneous .............................................................................................................. 20 I. Non-Waiver of Default. ......................................................................................... 20 2. Recording ............................................................................................................... 20 3. Notice ..................................................................................................................... 20 4 . 5. Successors and Assigns .......................................................................................... 21 Partial lnvalidity ..................................................................................................... 21 6. lnterpretation .......................................................................................................... 2 I 7. Headings , Captions, and References ...................................................................... 21 8. Governing Law ...................................................................................................... 21 9. Execution ofDocuments ........................................................................................ 21 10. Force Majeure ........................................................................................................ 21 I I. Waiver of Land lord's Lien ..................................................................................... 21 Article 18 Leasehold Financing ................................... --.................................................... 22 I. Mortgage by Tenant ............................................................................................... 22 2. Notice To and Rights Of Leasehold Mortgagees ................................................... 22 Article 19 Additional Provlslon1 ................................................................................................. 2S I. 112!)12 4.do< 41 2236-086 Restrictions ............................................................................................................ 25 iii 2. Open Space Plan .................................................................................................... 25 3 . Englewood Golf Complex ..................................................................................... 25 4 . New Road : Landlord's access ............................................................................... 25 S. Non-material Amendments requested by Sub-lessees ........................................... 25 6 . Public Indemn ification ........................................................................................... 25 Article 20 Representations of Landlord and Tenant .............................................. , ___ _...6 I . Representations of Landlord .................................................................................. 26 2. Representatio ns ofTenant. ..................................................................................... 27 Article 21 Right oi 1 ,nt Refusal to Purchase ............................................................................ 28 I . Right of First Refusal ............................................................................................. 28 11 25312 4.doc 412236-086 iv • • • • • GROUND LEASE THIS OROUND LEASE (the "Lease") is made and entered into as of the Effective Date set forth In Article I by and between CITY OF ENGLEWOOD, a home rule municipal corporation ("Landlord"), and SHERIDAN REDEVELOPMENT AGENCY, a body corporate and politic of the State of Colorado ("Tenant"). Landlord and Tenant are sometimes hereinafter each 1in111larly referred to u a "Party" and collectively referred to as the "Parties .• Article 1 Fundame!!t3l Lease Terms For convenience, this Article I summarizes certain fundamental economic and business tenn, ut'thi1 Lease . Effective Date: Premise■: Landlortl Tenant Term: Option: Rent : Security Deposit Title Insurance Liability Amount: That certain real property described on Exhibit A attached hereto and incorporated herein by this reference , consisting of acres . CITY OF ENGLEWOOD 1000 Englewood Parkway Englewood, CO 80110 Attention : City Manager SHERIDAN REDEVELOPMENT AGENCY 4 I 04 South Federal Blvd . Sheridan , CO 80 I I 0-5399 Attention : Executive Director Twenty (20) years from the Commencement Date Three (3) options of twenty (20) years each The one time lump sum payment and other amounts as set forth in Article 4. None An ALT A leasehold title insurance policy in tlie amount of $4,190,000 shall be provided at Landlord's expense . Article 2 Ground Lease of Premises I. ~-For purposes of this Lease, the following terms shall have the • follow 'n3 meanings : 112lll2.4.dnc 412211,,-016 A. "Assessments" shall have the meaning as set forth in Article 20 .1.K. B. "Buildings" shall mean the buildings which may be constructed by the Tenant on the Pmnises, C. "Casualty" shall have the meaning as set forth in Article I 0.1. D. "Commencement Date" shall mean the earlier of (I) thirty days after Tenant's and Landlord's waiver of their Conditions Precedent as provided in Article 3.2.G and 3.3 .D, or (2) the date Tenant commences construction under the terms of the Development Agreement on either the Premises or Landlord's golf course . E. "Contracting Party" shall have the meaning set forth in Article 8.1. F. "Default" or "Event of Default" shall have the meaning as set forth in Article 13 .1. G. "Development Agreement" shall mean that certain agreemen t to be executed by Landlord and Tenant providing for the rebuilding by Ten nnt of the portions of the Landlord's golf course complex as described therein . H. "Effective Date" shall mean the date thi s Lease is si b"led ',y 'o o.11 Parties and the Englewood City Council has adopted an Ordinance approving th•~ Lease and such Ordinance has become final. I. "Environmental Conditions" shall mean the presence or alleged prese nce of any sub ~!ance, material or waste which is regulated by any loca l governmental authority, the State of Colorado or the United States Government, including, without limitation , any petroleum products or used oil or fractions thereof, flammable substances , explosives , radioactive mater:als, asbestos , and any material or substance that is regulated pursuant to any Environmental Laws. J. "Environmental Laws" shall mean the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), as amended , 42 U.S .C. § 9601, ct seq.; the Solid Waste Disposal Act and the Resource Conservation and Recovery Act ("RCRA"), as amended , 42 U.S.C. § 6901, et seq.; the Clean Water Act, as amended , 33 U.S.C. § 1251, et seq .; the Safe Drinking Water Act, as amended, 42 U.S.C. § 300(1), <I seq .; the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA "), as amended, 7 U.S.C. § 136, et seq .; the Toxic Substances Control Act ("TSCA"), as amended, I 5 U.S.C § 2601, et seq.; the Clean Air Act , as amended, 42 U.S.C . § 7401 ct seq.; the Oil Pollution Act ("OPA") I 04 Stat. 484 (I 990); the Colorado Petroleum Storage Tank Act , as amended, C.R.S. § 8-20.5, et seq.;.; the National Environmental Policy Act of 1970, as amended, 42 U.S.C.A. § 4321 , et seq .; the Rivers and Harbors Act of 1899, as amended , 33 U.S.C.A . § 40 I , et seq .; the Endangered Species Act of 1973 , as amended, 16 U.S.C.A. § 1531 , et seq .; the Colorado Water Quality Control Act, C.R.S. §§ 25-8-101, et seq .; the provisions of7 C.C.R. 1101-14; and any similar local , state or federal laws, rules , ordinances or regulations either in existence as of the date hereof or enacted or promulgated after the date of this Lease that concern (i) the management, control, 112 Slt:? 4.doc 4122)b.(JH6 2 • • • • • • discharge, treatment, abatement, containment and/or removal of substances or materials that are or may become a threat to public health or the environment, and (ii) state and local water quality and stormwater regulation . K. "Environmental Workplan" shall mean all such work to be performed pursuant to (i) that certain Voluntary Cleanup Plan (the "VCUP") as approved by the Colorado Department of Public Health and Environment ("CDP HE") on April 18, 2006 (including, without limitation, the Materials Management Plan , the Contractor 's Plan of Operations, and the Vapor Mitigation Plan); and (ii) that certain letter dated ____ __,2006 , from CDPHE stating that compliance with the procedures, specifications and conditions of the Environmental Workplan is deemed to constitute compliance with CDPHE 's Solid Waste Program rules and regulations (the "Comfort Letter"). The Environmental Workplan shall specifically include any and all amendments to the above-referenced documents which are approved by CDPHE anJ Landlord . L. "Excusable Delay" shall mean any of the Jllowing events that prevents , delays , retards or hinders a Party's performance of its dudes hereunder: act of God; fire ; earthquake; flood ; expl osion ; war; invasion ; insurrection ; riot; mob violence ; sabotage ; vandalism; inability to procure or general shortage of labor, equipment, fa cilities , materials or supplies in the open market; failure of transportation ; strikes; lockouts ; any material delay caused by Landlord without fault .:,fTenant ; or any delays due to causes beyond the control of Landlord and without its fault or negligence . M. "Improvements " sh all mean the Buildings and any other improvem ents constructed by Tenant or Sut>ten ?~t on the Premises . N. "Landlord" is City ofl'.nglewood .. 0. "Leasehold Mortgage•;" shall have the meaning as set forth in Article 18. P. "Memorandum of Lease" shall have the meaning as provided in Article 17. Q. "Option Term" shall have the meaning as provided in Article 3.4.A. k. "Option Term Rent" shall have the meaning set forth in Article 3.4.C. S. "Premises" shall have the meaning as set forth in Article 2.2.A. T. "Prime Rate" shall have the meaning as set forth in Article 5.1.E. U. "Real Estate Taxes " shall mean all taxes, however named , assessed , levied , or collected , whether on an ad valorem basis or other taxing method on the Premises, Improvements, Buildings, and assessments for land, bettl!l'lllents , and improvements that are levied or assessed on the Premises or the Improvements by any lawful authority, as finally determined in accordance with law, net of any applicable abatemen:S, refunds, or rebates . 112531 :: 4.doc 41 2236-086 V. "Refusal Property" shall have the meaning as set forth in Article 21 .1. w. "Rent" shall mean the amount set forth hi Article 4.1. X. "Tenant" is Sheridan Redevelopment A:en~y, and its permitted suc.~essors or assigns . Y. "Tenant's Property" shall have the meaning set fPrth in Article 7.4 . A. For the term, uses , rent , and in consideration of the covenants and agreements contained herein, and for other valuable consideration, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, upon the following terms , stipulations, provi sions, and conditions, that certain real prop'!rly more particularly described in Exhibit A et1 1ched hereto and incorporated herein by this reference ("Premises "). B. Landlord hereby warrants to Tenant that it has good and marketable title to the Premises , free and clear of any mortgages, pledges , liens, and other encumbrancis . 3. Condition of Premises; Tenant Release. The Premises are being lea sed in their as- is conditio~. Tenant hereby waives , releases , acquits and forever discharges Landlord and its officen;, directon:, city council memben:, employees, agents, successon; and assigns, of and from • any and all suits, causes of action , claims, demands, dnmages (actual and punitive), losses , costs, • liabilities , and expenses, including attorneys' fees , of ~ny kind or nature, in law or in equity, known or unknown, now or in the future, which Tenant shall or may have or acquire or possess in any way directly or indirectly connected with , based upon, or arising out of Landlord's use, maintenance, leasing, ownen:hip, operation, and demolition of improvements upon the Premises prior to the Effective Date of this Lease; or (ii) the condition (including Environmental Conditions and structural rtness), status , quality, or nature of th e Premises. It is expressly agreed by the parties to this Lease that any and all responsibilities and obligations of Landlord , and any and all rights or claims of Tenant against Landlord or its successors , assigns and affiliates , arising by virtue ofor in relation to the physical condition of the Premises (including Environmental Conditions and structural fitness), are by this release declared null and void and ofno present or :uture effect as to such parties . 4. ,!rn provements. Tenant, at its sole cost and expense, with its own forces or those of its contract0,s. may construct Improvements on the Premises . All of the lmpmvements shall comply in all r~:1 pe,:ts with all applicable governmental requirements. Landlora acknowledges that Tenant may sublease portions of the Premises to Subtenants, who will con struct their own Improvements . However, the parties agree that notwithstanding ,ucb arrangements, Tenant shall remain responsible to Landlord to satisfy the obligations of Tenant under the Lease with respect to such portions of the P.-emises. 5. Recreatjon Easement. Landlord reserves for itself, its agents , employees, guests and invitees, a non-exclusive recreational easement over and across that portion of the western • portion of the Premises on which Tenant intends to construct a drainage swale, which easement 11 2Sll2 ◄.doc 412236-086 4 • • • area shall be from the western edge of the swale to the flow line of the swalc (''Rec Easement Arel"). The easement shall be used only for the purpose of allowing golfers access and us e over tl,c Rec i:asernent Area in coMection with their golfing activities , including access to retrieve golf balls . In no event shall Landl ord permit golf carts on over or across the Rec Easement Area . Tenant shall have the responsibility, at its sole cost and expense , for maintaining the Rec Easement Area in first class condition consistent with its intended use as a drainage swalc and golfing play area in conjunction with the adjacent golf course . 6. ~ Landlord shall, upon the request of Tenant , execute documents which are reasonably required to create utility easements on the Premises or other easements on the Premises required to service the lmprovemi:nts or any other improvements developed on the Premises . In the event Landlord has approved the granting of one or more easements on property owned by Landlord but which is not part of the Premises , which approval shall be at Land lord's sole and absolute di scretion , Landlord shall also execute documents neces sary to create the approved off Premise easements . 7. ~ Tenant agrees to provide Landlord with signage identifying Landl ord's adjacent golf course. The signage shall be at such location or locations and in such form as are reasonably a!Jproved by both Landlord and Tenant. T,:, the extent necessary, Tenant grants Landl ord an easement over the Leased Premises to maintain such approved signs . 8. Envjronmental Disclosure. Tenant may, at it option , record an environmental disclosure relating to the Premises . This disclosure will establishes environmental institut ional controls on use and development of the Premi ses in form acceptable to Landlord . Upon approval by Landlord of the en vironmental disclo sure, L .. nd lord agrees to reco rd a consent to the environmental di sclosure , , in form accept able to Landlord,. Landlords consent shall also provide that, during th e term of this Leas,, including any extensions, Landlord shall have no liability, obligation, or responsibility for enforcement or for any failure by Tenant or its subtenants or related or affiliated parties to comply with the requirements of the environmental disclosure. Article 3 Lease Term and Conditions Precedent I . Term . This Lease shall become legally binding on the Effective Date and, unless extended in accordance with the Option set forth below in Section 4 of this Article 3, shall expire on the last day of the twentieth (20th) Lease Year (the "Term"). For purposes of this Lease, the term "Lease Year " shall mean each twelve (12) month period commencing on the Commencement Date. 2. Tenant's Conditions~- A. Tenant's Right ofEntry. After the Effective Date, Tenant, its agents, employees , contractors, consultants and engineers shall have the right from lime lo time to enter upon the Premises in accordance with the terms of an Access Agreement to be ll:!.53 11_4 .doc ◄1 22 36-086 entered into between Landlord and Tenant, which sh~II be in form and substance similar to the Access Agreement executed prior to the execution of this Lease . • B. l&ndlord Dc)jveries . Within five (S) days after the Effective Date, Landlord shall deliver to Tenant copies of all surveys and reports in Landlord's possession and pertaining to the Premises including but not limited to all engineering, environmental, wetlands, water rights, and soils reports, and all reports or notices received from or filed with any local , state or governmental agency during the last five (S) years . C. ~-Tenant or its designee(s) shall have the right , from time to time after the Effective Date and subject to the terms of an Access Agreement to be entered into between Landlord and Tenant to conduct a physical inspection, review and analysis of the Premises on such mailers and subjects and in such detail as Tenant , in the exercise of its sole discretion, deems advisable or appropriate, including but not limited to the following : examination of title to the Premises , performing physical inspections of the Premises, performing soils iests (including, without limitation, invasive testing), engineering studies , environmental studies (including inva•: ve testing of all existing structures), market stu dies , market analyses, feasibility st ;dies, reviewing zoning and other regulatory matters , building and other :egulations and restrictions , covenants, water rights , mineral rights, and conductii,g such other tests and reviews as the Tenant, in its so le discretion , desires to conduct with respect to the Premises or Purchaser's contemplated development and use of the Premises . Except as expre ss ly provided in the Acce ss Ab'l'eement , Tenant's physi cal inspection of the Premi ses shall not interfere with • Landlord's golf course operations. Tenant's obligation to waive it s Condition s Precedent is subject to Tenant's satisfaction of its investi gation of the Premises . D. Development Plan. Landlord acknowledges that Tenant desires to rezone and plat the Premise s (or a porti on thereof) in the City of Sheridan. Tenant shall apply for and pu :s ue the approval of the zoning, planned unit development and/or platting of all or any por,'ion of the Premises (the "Development Plan ") according to such plans as Tenant dete,min~s appropriate in its sole and absolute discretion, but subject to any Tenant obligations contained in this Lease. Lan<ilord shall, at Tenant's sole cost and expense, solely in its capacity as owner of the Premises , promptly join in the execution of such applications, plats and other documents, and participate in such administrative or judicial proceedings as Tenant deems reasonably necessary to accomplish the final approval of the Development Plan by the City of Sheridan. Nothing contained herein shall require or obligate Lan:llord to participate in any way in any condemnation proceedings which may be undertaken with respect to the Development Plan or Tenant's acquisition of property in connection with the Development Plan. Tenant's obligation to waive its Conditions Precedent shall be subject to the City of Sheridan's approval of the Development Plan ~!us appeal period without conditions (or subject to omditions satisfactory to Tenant in Tenant's sole and absolute discretion) and ne t ,ubject to appeal. E. Assemblage . Landlord acknowledges that Tenant intends to acquire the property as part of Tenant's assemblage of all of the properties within the area depicted on Exhibit B attached hereto and incorporated herein by this reference (the • 1125312 4,dac: 4122)6-()86 6 • • • "Assemblage"). Tenant's obligation to wai ve its Conditions Precedent is subject to Tenant acquiring or obtaining possession of all properties within the Assemblage, including the Premises, at approximately the sa,ne time . F. Public Fjnancjng . Tenant intends to provide public financing through the sale ofbc>nds to finance the construction of certain public improvements pertaining to the Assemblage . Tenant shall not be obligated to waive its Conditions Precedent until the issuance of such bonds. G. Wajver ofCondjtjons Precedent. In the event Tenant fails to gi ·:e Landlord written notice on or before August 31, 2006 (the "Conditions Prececent Deadline") that the Conditions Precedent have been satisfied or waived, this Lease shall terminate thirt y (30) days following the Conditions Precedent Deadline; provided , however, that Tenant shall be entitled to two (2) extensions of the Conditions Precedent Deadline of six (6) months each. Tenant shall exercise each extension of the Conditions Precedent Deadline by giving written notice to Landlord within ten (10) days prior to the Conditions Precedent Deadline then in effect. Regardless of when the Tenant notifies Landlord tha t the Conditions Precedent have been satisfied or waived, Tenant shall commence construction on the Premises only in the month of September unless Landlc,rd has approved in writing a different commencement date, such approval to be in Landlord 's sole discretion. 3 . Landlord's Conditions Precedent. A. Deve lopmr.nt Agreement. Tenant has ab-reed to rebuild, at its expense, a portion of Landlord's existing golf complex ("Golf Course Work ") in accordance with the terms and conditions to be set forth in the Development Agreemen t to be exec ut ed by Landlord anrl Tenant. Prior to the Conditions Precedent Deadline, except for a letter of map revis'on ("LOMR") to be issued by the Federal Emergency Management Agency ("FEMA"), and approvals or permits from the Army Corps of Engineers ("ACOE") or storm water permits associated with the LOMR, Tenant shall also obtain all other necessary consents and approvals required in connection with Tenant 's performance of its obligations under the Development Agreement , including any approval s required from the City of Sheridan . In the event Tenant fails to obtain all such the necessary approvals and consents by the Conditions Precedent Deadline, this Lease shall terminate as provided below in subsection D. B. Environmental Guaranty . Upon the Assignment and Assumption of this Lease, as provided in Article 7, Section 2, Tenant shall furnish to Landlord the limited guaranty as required therein, and upon failure to do so , this Lease shall terminate upon ten (10) days prior written notice to Tenant. C. Clarification of Payment-in Lieu Agreement. Landlord currently has an Intergovernmental Agreement with the City of Sheridan for payment in lieu of taxes , which agreement was intended to compensate the City of Sheridan for exempting the Premises and adjacent golf course from assessment of sales and use taxes resulting from the City of Englewood 's ownership of the property. It is unders!ood by all parties that 11 25)12 4.doc 41 22 )6-086 7 payments from Tenant or its assignee to Landlord for rent or as otherwi se required under this L~ase shall no! oe deemed •~axable sales activities " or "G reen Fees " as such term s are used in the Intergovernmental Agreement, and th , rent and other such amounts shall not be included when calculating the payment in lieu of taxes . Tenant shall obtain from the City of Sheridan, prior to the Conditions Precedent Deadline, as hereinafter defined , a letter confirming their concurrence with this understanding. D. Wajver of Conditions Precedent. In the event Landlord foils to give Tenant written notice on or before August 31, 2006 , unless such date is extended (the "Conditions Precedent Deadline") that each of Landlord 's conditions precedent have been satisfied or waived, this Lease shall terminate thi. ty (30) da ys following the Conditions Precedent Deadline . Tenant shall have the two (2) options to ex tend the Conditions Precedent Deadline up to six (6) months each, provided , however, Tenant shall commence construction on the Premises only during the month of September 11nless delay in commencement of construction is caused by an act or omission of Landlord , or unles s Landlord approves a request by Tenant for a delay in commencement of construction . Tenant shall exercise each extension of the Conditions Precedent Deadline by gi ving written notice to Landlord within ten (10) da ys prior to the Conditions Preced en t Deadline then in effect. 4. Extension Options. A. Options. Tenant shall ha ve opti ons to exrend the Lea se Term for three • additional consec utive terms (each an "Option Term "), each consisting of twenty (20) • years, on the same terms and conditions as set forth he•·e in (there shall be no options beyond the three terms granted herein). In order to e.(ercise such option , Tenant shall notify Landlord in writing at least twelve (12), but not more than twenty four (24), months prior to the expiration of the resp ective Lea se Term of its election to exercise the option . B. Conditions Precedent. As a condition precedent to Tenant's right to exerci se one or more of its options, at the time of the gi ving of its notice of exercise and at the commencement of the extended term, Tenant shall not be in default of its obligations to pay taxes as provided in Article 4. C. Landlord 's Notice. In the event Tenant fails to give timely notice of extension as provided above, the Lease Ten!! nevertheless shall not expire until after Landlord has given Tenant written notic e that the current Lease Term is scheduled to end on the date provided for under thi s Lease and se t forth in the notice and that Tenant is entitled to extend such Term. Tenan t shall have sixty (60) days from receipt of such notic e to notify Landlord that Tenant elects to exercise its option to extend and to pay the Option Term Rent , and, if notice is timely given by Tenant , Tenant pays the Option Term Rent and the conditions precedent set forth in subparagraph B above have been satisfied , the notice of exercise shall be deemed to have been timely given. 112531 2 4.00C 412236-086 8 • • • • D. On or before the Commencement of each Option Term , Tenant shall pay Landlord the following amounts as payment of rent for the entire Option Term (the "Option Term Rent "): (i) First Opticn Term: $200,000 (ii) Second Option Tenn: $300 ,000 (iii) Third Option Term : $400,000 Article 4 fun! 1. Rent. Tenant shall pay to Landlord , in United States Dollars , the sum of S4 , 190,000.00 ("Rent") (PLUS $650,000 TO BE ADDED TO THE RENT OR SUCH OTHER CATEGORY AS MW DESIGNATES( as payment of Rent for the initial 20 year Lease Term ; provided , however, that Tenant shall receive a r•edit agai nst the Rent of$150,000. The Rent Payment shall be paid following Landlord 's written notice to Tenant that Landlord's wai ver or satisfaction of each of Landlord's conditions precedent as se t forth in Sectio n 3.D of Art icle 3 and upon the earlier of(a) Tenant 's is suan ce of the bonds as rrferred to above in Article 3, Section 2.F, or (b) the date Tenant commences construction under the term s of the Deve lopment Agreement on either the Premi ses or Landlord 's golf course . 2. Net Lease . This Lease is a net lease . Except as may be expressly provided otherwise in this Lea se, all costs incurred in connection with th e construction , opera tion , maintenance and leasi ng of the Improvements and all costs incurred in co nnection with and in relati on to th e Premises shall be paid by Tenant. Landlord sha ll have no ob ligation to make any repairs , replacements or renewals of any kind , nature or de scri ption whatsoever to the Improvement s or the Premi ses. I. Real Estate Taxe,;, Article 5 Taxes A. Tenant shall assume , pay , bear, and di scharge any and all Real Estate Taxes with respect to the Premises , or any part thereof, and all other taxes in any manner appli ca ble to or assessed against the Premises or Buildings or any part thereof, or against any of the machinery, fixtures , equipment , or other property or items . Tenant shall pay all Real Estate Taxes directly to the taxing authorities and Tenant shall be credited all reimbursements on account of abatements , refunds , or rebates of Real Estate Taxes . Landlord hereby authorizes Tenant to file and pursue any protest of the valuation of the Premises and abatement petitions for abatement of taxes for any reason , as Tenant may deem to be appropriate . Landlord agrees to execute any form of agreement as may be necessary in connectio n therewith . 11 25 312 4.c.loc 412236-086 9 B. In the event there is a special assessment which is included within the definition of Real Estate Trutes herein , an d such assessment may be paid in periodic • installments, Tenant shall pay such assessments in periodic installments or may prepay the entire special assessment and Tenant shall be responsible only for those installments relating to the period inc luded within the Term of this Lease . In the event any proposed special assessment would provide for payment extending beyond the term of this Lease (excluding any extension period), unles s Tenant agrees to pay for all of such assessment, Landlord shall have the right to object to such assessment and to direct Tenant to object or vote to reject such assessment. C. Landlord shall cooperate with Tenant so that all invoices, notices and statements for Real Es tate Trutes shall be sent directly by the taxing authority to Tenant. Tenant shall promptly provide Landlord with copies of all notices, invoices or statements Real Estate Taxes recei ved by Tenant. D. Landlord agrees to submit to Tenant all invoices for Real Estate Taxes and notices of special assessments with respect to the Premi ses within thirty (30) days after rece ipt by Landlord . LanJ 1ord shall furnish Tenant with copies of all Notices of Valuation of the Premi ses within ten (10) business days after receipt thereof. If Tenant desires to contest such increas e, Tenant sha ll protest such valu ation or file an abatement petition within applicable sta tut ory time periods . Landlord sha ll fully cooperate with Tenant in any such proceeding; pro vided Landlord shall not be required to incur any costs in con nection with such proceeding . 2. Proration of Taxes . If the Tenn sha ll expire on any date other than December • 3 1st of any year, the amount payable by Tenant during the calendar year in whi ch such termination occurs shall be prorated on the basis which the number of days from the commencement of sa id tax fiscal year to and including sa id terminati on date bears to 365. A similar proration shall be made for the lax fi scal year in which the Term commences . 3. Personal Property Taxes. Tenant shall pay all taxes charged again st trade fixtures, furnishings, equipment or any other personal property belonging to Tenant. Lessee may contest any such personal property taxes, assessments or va lu ati ons; provided , however, Tenant shall do so within the time period permitted by applicable statut es. 112 53 12 4.doc 412236-086 10 • • • • Article 6 Utllltles I . Utjljty Usage. Tenant shall assume, bear, pay, and discharge as its sole and separate obligation all of the applicable charges for all utilities consumed on the Premises . Except in the event of an emergency, neither Landlord nor Tenant shall take any action that interrupts or interferes with any electric, gas, water, sewage , or telephone service to the Premises or to the adjoining property owned by Landlord. Article 7 Use, Subletting, and Assignment I. Use Subject to the restrictions set forth in Section I of Article 19, Tenant shall use and occupy the Premises during the Tenn of the Lease for all lawful uses in accordance with the reql1irements of this Lease . Tenant shall not use the Premises, or permit or suffer the use of the Premises by others , for any activities or purposes prohibited by the laws , rules and reb>ulations of the United States or the State of Colorado, or of the ordi , ,nces of the county in which the Premises are located , and shall not permit or suffer any pollution of the Premises or any disorderly conduct, noise or nui sa nce upon i:1e Premises , except as provided in the Environmental Workplan. 2. Assil!l1ment and Subletting. It is understood and ab'l'eed that Tenant has entered into a Disposition Development Agreement with Weingarten Miller Sheridan LLC for the redevelopment of property west of Santa Fe, and that the Premises will be incorporated in the redevelopment project. Landlord hereby consents to the assignment of this Lease to Weingarten Miller Sheridan LLC and the assumption by Weingarten Miller Sheridan LLC of all c fTenant 's obligations urder this Lease, provided the form and substance of the Assignment and Assumption Agreement shall be subject lo Landlord's prior written approval, which approval shall be in Landlord's so le discretion. Upon the occurrence of both (I) the assib'111nent to and assumption by Weingarten Miller Sheridan LLC of this Lease; and (2) the delivery to Landlord of a limited guaranty by Weingarten Realty Investors, a Texas real estate investment tru :;t, 1,, form and substance satisfactory to Landlord , in its sole discretion , that b'llaranties performance of all of Tenant 's obligat ions , responsibilities and covenants regarding various environmental matters , as well as the payment of deductible amounts under any insurance policies provided by Tenant in accordance with Articles 9.3 and in accordance with a.,y environmental insurance requirements set forth in an Assignment and Assumption Agreement , the·. the obligations of the Sheridan Redevelopment Agency, as Tenant, under this Lease shall terminate. Prior to the completion of the performance of all of Tenant 's obligations under the Development A!,'Teement, there shall be no other assignments of this Lease without the prior written approval of Landlord, which approval shall be in Landlord's so le discretion . Following comp letion of the performance of all of Tenant's obligations under the Dev elopment Agreement , and subject to the restrictions set forth in Section I of Article 19, Tenant shall have the right to assign this Lease from time to time without the approva l of Landlord provided such assignee, in the reasonable determination of Landlord, is an experienced shopping center operator; provided further, however, no existing guaranty or other security held by Landlord to secure Tenant's obligations under this Lease shall be released unless a substitute guarantor has a net worth of not less than SI 00 ,000,000 (One Hundred Million Dollars, or the guaranty is replaced with substitute collateral in form and 112531 2 4,doc -112236-0116 I I substance satisfactory to Landlord in its so le discretion. Subject to the restrictions set forth in Article 19, Section I, Tenant shall have the right, without Landlord's consent, from time to time, • to sublet portions of the Premises to sub-tenants who are or intend to conduct a trade or business on the subleased premises 3. Non-disturbance of Sub -'™· No subleases of any portion of the Premi ses shall be affected by a cancellation or termination of this Lease , and Landlord shall recognize the rights of the subtenants under the subleases, provided such subtenants attom to Landlord upon Landlord's reque st. Landlord shall enter into a customary non-disturbance and attomment agreement upon the request of the subtenant under a sublease and shall execute and deliver to Tenant an Estoppel Certificate in a form requested by any Subtenant or any lender to which Tenant grants a security interest in this Lease and/or the Improvements. In no event shall Landlord be obligated to execute any estoppel or non-disturbance and attomment agreement which modifies the terms of this Lease or creates any additional liability or risk for Landlord. 4. Status ofhnprovements and Building . As between Landlor•J and l enant , at all tim es during any Term of this Lea se, the Improvements , Building, facilities, macl1inery, fixtures, equipment, or other property or items erected, a part of, or in any manner associ,ted with the Improvements (collectively "Tenant's Property") shall for all purposes be con~.idered, and shall be and remain, the sole and separate real and perso nal property of the Tenant. Upon expiration of the Term of this Lease, by acceleration or otherwise, at Landlord's option by written notice to Tenant within ninety (90) days following termination ofthi~ Lease, Tenant shall remove any or all of Tenant's Property, including any improvements si tuated on the Premises, in which event • Tenant shall restore any affected portions of the Premises to a clean , graded, dirt capped condition which shall satisfy any then applicable ordinances , regulations or other governmental requirements . In the event Landlord has not exercised its option to require Tenant to remove all improvements situation on the Premises , any of Tenant's Property or improvements which Landlord has not required to be removed shall become the property of Landlord free of any claim by Tenant. Article 8 Mechanics Liens I . Liens . Tenant shall promptly pay when due the entire cost <'fall work done to the Premises by or at the request of Tenant and Tenant shall keep the Premises free ofliens for labor or materials. Should mechanics', materialmen's, or other liens be filed against the Premises by reason of the acts of either party hereto ("Contracting Party"), such party shall cause the lien to be canceled and discharged of record within forty-five (45) days of the Contracting Party 's receipt of actual notice of such lien . Notwithstanding the foregoing, the Contracting Party may contest, in good faith and with reasonable diligence, the validity of any such lien or claimed lien , provided that the contracting party shall give to the other party such security as may be reasonably requested by the other party to ensure the payment of any amounts c,aim ,·;d and \u prevent ar.y loss of any interest in the Parcels on account of any such lien . If the Contracting Party contests a lien or claimed lien, then on final determination of the lien or claimed lien, the contracting party shall cause the lien to be released and, in the event of an adverse judgment, • 1125312 4.doc 412236-086 12 satisfy such judgment. Nothing herein shall be deemed to waive or impair any existing • immunity of Landlord t•; liability or obligations for mechanics' liens . • • 2. Protection of Landlord's Interest in Premises . Nothing in this Lease shall be construed as constituting the consent of Landlord, expressed or implied, to the performance of any labor or the furnishing of any materials or any specific improvements, alterations of or repairs to the Premises or the improvementz thereon, or any part thereof, by any contractor, subcontractor, laborer or materialman, nor as giving Tenant or any other person any right, power or authority to act as agent of or to contract for, or permit the rendering of, any services Cl' the furnishing of any materials in such manner as would give rise to the filing of any mechanics' liens or other claims against the fee of the Premises or the improvements thereon. Landlord shall have the right at all reasonable times to post, and keep posted, on the Premises any notices which Landlord may deem necessary for the protection of Landlord and it interest in the Premises and the improvements thereon from mechanics' liens or other claims . Article 9 Indemnity and lnsul'ance I. Indemnity . From and after the Effective Date and continuing at all times thereafter during the Term hereof: A. Tenant assumes all risk ofloss, damage. or destruction to the Premises , Improvement s, Buildings and contents , or to 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 indemnities and ab'Tees to protect and defend Landlord from all such loss , damage , or destruction including claims and causes of action asserted against Landlord . B. Tenant shall indemnify and save harmless Landlord and any of its officers , members , employees , elected official s, contractors and agents from any and all claims , losses, damages, or expenses, on account of injJries to or death of any and all persons whomsoever while on the Premises, and any and all loss or destruction of or damage to the Premises, the Improvements, the Building and any contents and personal property located upon the Premises and owned by, rented to, or in the care, custody, or control of the parties hereto, or any of Tenant 's subtenants , arising 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 the presence upon the Premises of the person or the property of the Tenant , its officers , employees , agents, subtenants, renters, customers, invitees , licensees, servants, contractors, subcontractors, materialmcn, suppliers, workmen, laborers , and the employees and agents of each of the foregoing , or any and all other persons , invited or otherwise, with or without Tenant's consent, while on the Premises; (iii) arising out of or resulting from Tenant 's development , sale or marketing of the Prn1ises and/or the Improvements; and (iv) any plans or designs for the lmprov,::ments prepared by or on behalf of Tenant or Guarantor . 112SJl2 _4.doc 412ll6•086 13 C. Tenant hereby indemnifies and saves hannless Landlord and any of its officers, members , employees, elected officials , contractors and agents from any and all • claims, losses, damages , or expenses, on account of injuries to or death of any and all persons whomsoever, and any and all loss or destruc1ion of or damage to any real or personal property adjacent to the Premises , caused by Tenant or any of its employees , managers , members, officers, contractors, subcontractors, materialmen , suppliers, workmen, laborers , subtenants, renters, customers, invitees, licen sees, servants or agents. D. The foregoing indemnities shall not apply to any injuries , death , claims, lo sses, damages and expenses arising so lely as a re sult of any negligence or intentional acts of Landlord or its officers , employees, contractors or agents. 2. Appear and Defend . Tenant further agrees that it will appear and defend at it s own expense, in the name and on behalf of Landlord, all claims or suits for injuries to or death of persons or lo ss or destruction of or damage to property arising or growing out of or in any mann ,r connected with or caused or occasioned by or in connection with its indemnities set forth in Article 9.1 above . 3. Tenant's Insurance . From and after the Effective Date of thi s Lease and continuing in full force and effect at all times thereafter through out the en tire Term of this Lease , at Tenant's sol~ cost and expense for the benefit of Landlord , Tenant, and any Mortgagee under a Leasehold :. ,,1gage , as named insured , as their respective interest s ma y appear, the Tenant shall maintain Commercial General Liability in surance for bodily injury, personal injury , and death and property lo ss, dest ruction . and damage in clud ing contractual liability by which the insurer(s) without exclusion , insure to the ext c:.t of the policy(i es) limits the liabilities and indemnities • assumed by the Tena,1t under this Article 9, with a minimum combined single limit of not less than $25 ,000,000.00 per occurrence and in the aggregate, with a deductible in amount which is commercially reasonable. In the event thi s Lease is assigned and assumed by Weingarten Miller Sheridan LLC , payment of the deductible shall be guarant eed by Weingarten Realty In vestors, a Texas real estate investment trust in accordance with the terms of its limited gu aranty as referred to in Section 2 of Article 7. Coverage shall include , but shall not be limited to , contractual liability, personal injury and death , owners and contractors protection , elevator liability , liquor liability (t o the extent applicable), products and completed operations, explosion, collapse and underground coverage. The se in surance rtquirements shall in no way limit or modify any of the liabilities. indemnities , or obligations of Tenant under any provision of this Lease . 4. lnsuran~e Policies and Certificates. All of the insurance policies required pursuant to Article 9.3 shall be written with companies licensed to do business in the State of Colorado, with a financial rating of VIII or better a11d a policyholder's rating of A (CONFIRM( or better in the latest edition ofBest 's Rating Guide on Property and Casualty Insurance Companies (or equivalent, if such b'llides is no longer published), and such policies shall provide that Landlord shall be given a minimum of thirty (30) days' written notice by any such insurance company prior to the cancellation, termination, or alteration of the terms or limits of such coverage. Copies of such policies shall be delivered to Landlord endorsed premium paid by the company or agent issuing the same, or accompanied by othc-r evidence satisfactory to Landlord that the premiums thereon have been paid. Such policies and evidence of payment shall be delivered to Landlord prior to or concurrent with the first entry upon the Prem ises, or any portion • 1l 2Sl 12_4.doc 4122)6-0116 14 • • • thereof by Tenant, its contractors and subcontractors. Upon expiration of such policy, a new policy with the required endorsements attached, plus evidence of premium paym~r.t, shall be deli vered to Landlord not less than thirty (30) days prior to tl•e expiration of th e then current policy term . At no time shall the amount of any deductible under any policy of insurance required hereunder exceed the amount customarily pro vi ded for similar type properties in the metropolitan Denver, Colorado area. The liability insurance requirements hereunder shall be re viewed by Landlord and Tenant every three (3) years for the purpose of determining the adequacy of the limits and mutually adjusting (in consultation with their respecti ve insurance advisors, if there are any) the minimum limits of such insurance from time to time to lin ;ts which shall be reasonable and customary for similar facilities oflike size and operation. if the parties are unable to mutually agree upon the adequacy of the then existing limits or any new limits at lea st ninety (90) days prior to the expiration of an existing polic y or policies, the parties shall mutu ally agree upon an independent insurance advisor with experience in securing or writing policies of insurance for similar facilities oflike size and nature, who shall thereupon determine the adequacy of the then existing limits and/or establish the new limits for the insurance polici es hereunder with respect to which the parties cannot a&'!'ee. If the Tenant fails to obtain insurance poli cies in accordance with such independent insurance advisor 's determination , the Landlord ma y petition the Di strict Court for an order requiring Tenant to obtai n insurance in accordanc a with the requirement s of this Lease . 5. Blank et Insurance . Nothing in this Article~ shall prevent Tenant from taking out insurance of the kind and in th e amount required under a blanket in surance poli cy or policies (copies of which shall be delivered to Landlord) which may cover other properties owned or operated by Tenant or its affiliates as well as the Premises . Improvement s, and Buildings ; pro vi ded, however, that any such policy of blanket insurance of the kind provided for : (i) sh all specify therein the amount required by Article 9 to be carried by Tenant and shall furnish Landlord and the holder of any leasehold mortgage on the Premi ses , Improvements, and Buildings with a written statement from the insurers under such policy(ies) specifying the amount of the total ins urance allocated to the Premi ses , Improvements , and Buildings; and (ii) that such policies of blanket insurance shall, with respect to the Premises , Impro vements , and Buildings , contain the va rious provisions required by the provisions of Article 9. 6. Unearned Premiums . Upon any expirati on of the Lease, any unearned premiums paid by Tenant occasioned by the short rate cancellation of such policy(ies) shall be payable to Tenant. Article 10 Damage or Destruction I. Damage and Destruction . If the Premises or any of the Improvements are damaged or destroyed during the Term of this Lease by a fire or other casualty ("C asualty "), this Lease shall continue in effect, unless Tenant elects to terminate this Lease by giving written notice to Landlord within one hundred eighty (180) days of the date of the Casualty specifying a date of termination within sixty (60) days after the date of the noti ce, in which event, Tenant shall ren,ove and raze the portion of the Premises which is damaged, remove and dispose of all 11 2Sl l2_4.doc 4122)6-086 15 hazardous materials in accordance with applicable legal requirements, and, at Landlord 's election , level and either pave over or seed such portion of the Premises , and pay off and discharge any Leasehold Mortgage . The balance, if any, of any insurance proceeds shall be retained by Tenant. In no event shall Tenant have any claim for refund of any rent paid hereunder or any other payments made in connection with tbs Lease . Article 11 Eminent [1 1,maln It is the understanding of Landl ord and Tenant that under the applicable law, the Premises are not subject to be ing taken under power of eminent domain . However, should the Premises or any portion thereof hereafter become subj~cl to such taking, the parties agree as follows: I. Automatic Tennination If, ,fter the execution of this Lease and prior to the expiration of the Tenn, the whole of the Prer,1ises shall be laken under power of eminent domain by any public authority, or conveyed by Landlord lo said authority in lieu of such laking (collectively, "Condemnation "), then this Lease and the Term shall cease and terminate as of the date of such taking, subject, however, lo the right ofTenanl, at its election, lo continue lo occupy the Premises , subject lo lhe tenn s and provisions of this Lease , for all or such part, as Tenant may detem1ine, of the period between the date of such taking and the date when possession of the Premises shall be taken by the taking authority, without any refund of any renl or other charges. if any. paid in advance by Tenant. In no evenl sha ll Tenant have any claim for refun d by Landlord of any renl paid hereunder or any olher payments made in connec tion with thi s Lea se . 2. Tennination Right. If, after the execution of this Lease and prior to the expiration of lhe Tenn , any Condemnation shall result in a laking of any portion of the Improvements, or any portion of the Premises , which taking in Tenant's sole discretion materially impedes or interferes wilh access lo the Premises , or materially affects the conduct of Tenant's busines s as th eretofore conducted at the Premises , then Tenant may, at it s election, tenninate this Lease by giving Landlord notice of the exercise of Tenant's electiv I within one hundred eighty ( 180) days after Tenant shall receive notice of such taking. Without limiting lhe generality of the foregoing, any laking of any portion of the Buildin g; shall automatically invc>!,e the foregoing tennination rights . In the event oflennination by Tenant under the provisions of this Article, this Lease and the Tenn shall cease and terminate as of the date of such taking, subject to the right of Tenant , al its election, to continue to occupy the Premises, subject to the tenns and provisions of this Lease, for all or such part as Tenant may dctennine for the period between the dale of such laking and the date when possession of the Premises shall be taken by the appropriating authority, without refund of any rent or other charges , if any, paid in advance by Tenant. In no event shall Tenant have any claim for refund by Landlord of any rent paid hereunder or any other payments made in connection with this Lease. 3. Restoration . In the event of a Condemnation with respect to which Tenant shall not have the right to elect to tenninate thi s Lease or, having such right , shall not elect to terminate this Lease, this Lease and the Term shall continue in full force and effect for that portion of the Premises which shall not have been expropriated or taken. ll:?5)12 4.tklC 41 2:?J6-0R6 16 • • • • • • 4. ~-In the event of a Condemnation of any portion of the Premises and/or the Improvements more than ten (10) years prior to the end of the Lease Term or eny Option Term, and the Lease is not terminated, the award paid by the condemning authority shall be paid to TenGllt. 5. ~an! Lease Tennjnated . In the event of a Condemnation and the Lease is terminated, or a Condemnation ten (10) years or less to the end of the Lease Term or Option Term as herein provided and the Lease is not terminated, the award paid by the condemning authority shall be allocated as foliows : A. The Leasehold Mortgagee first shall be paid the balance due on any note and Leasehold Mortgage ; then B. Second , to Landlord up to an amount equal to Landlord's residual interest in the land value of the Premises taken; and C. Third, the balance of the award to Tenant. 6. Tennination . In the event of any termination of this Lease as the result of the provisions of this Article, the Parties, effective as of such termination, shall be released, each to the other, from all liability and obligations thereafter arising u~der this Lease, and this Lease shall become null and void and of no further force or effect, except as to the allocation of an award in the condemnation . Article 12 (INTF,NTIONALL Y OMITTED) Article 13 Default I . Remedies Upon Tenant's Default. In the event Tenant (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings in law, in equity or before any administrative tribunal which have or might have the effect of preventing Tenant from complying with the terms of this Lease) shall at any time be in default in the observance or performan~ of any of the covenants and agreements required to be observed by Tenant hereunder (a "Default"), and any such Oefault shall continue for a period of thirty (30) days after written notice to Tenant and to any and all Leasehold Mor•gagee(s) for monetary obligations and sixty (60) days after written notice to Tenant and to any and all Le11Sehold Mortgagee(s) for all other obligations (or if such Default is incapable of being cured in a reasonable manner within sixty (60) days, and Tenant or a Leasehold Mortgagee has not commenced to cur~ the same within said sixty (60) day period and thereafter diligently prosecutes the same to completion) and Tenant or any Leasehold Mortgagee ~hall not thereafter cure such Default, then Landlord shall be entitled as its sole remedy to (a) bring suit for the collection of the rent or other amounts for which Tenant m~y be in default, or for the performance of any other covenant or agn:ement devolving upon Tenant andA r (b) cure such Default and seek reimbursement from Tenant for the cost of curing the Default, together with 1125312 4.doo 412236-<>86 17 interest at a per annum rate equal to the rime Rate plus five percent (5%), all without entering into possession or terminating this Lease . For purposes of this Lease, Prime Rate shall be the • prime rate published in the Wall Street Journal or other comparable publication in the Wall Street Journal is no longer published, adj usted with each change in the prime rate . In the event Tenar.t breaches the restrictions on use set forth in Article 19 .1, Landlord shall be entitled to immediate injunctive relief. Landlord's rights h ein shall be subj ect in all respects to tt,e provisions of Article 18 below. 2. Remedies Upon Landlord's Default. In the event Landlord sha ll at any time be in default in the observance or performance of any of the co venants and agree ments required to be performed and observed by Landlord hereu~der and any such default shall continue for a period of sixty (60) days after written notice to Landlord (or if such default is incapable of being cured in a reasonable manner within sixty (60) days and if Landlord has not commenced to cure the same within said sixty (60) day period and thereafter diligently prosecutes the same to completion), and Landlord shall not thereafter cure such default , Tenant shall be entitled, at its election , to bring suit for the collection of any amounts for which Landlord may be in default, or for the performance of any other covenant or agreement devolving upon Landlord , without terminating this Lease , in addition to all remedies otherwise provided in this Lease and otl1erwise available at law or in equity under the laws of the United States or the State of Colorado . 3. Attorneys ' Fees. In the event that either Landlord or Tenant commences any action for the co llection of any amounts for which the other may be in default or for the • performan ce of any other covenant or agreement hereunder, the prevailing Party in any such action shall be awarded it s costs and expen ses , including, but not limited to , all attorneys' fe es and expenses incurred in enforcing such obligations and/or collecting such amounts, from the other Party to such action . 4. Waiver of Consequential Damages . In no event shall either Landlord or Tenant have the right to recover consequential damages of any kind from the other. Except as limited hereinabove , all rights and remedies may be exercised and enforced concurrently and whenever and as often as Landlord or Tenant shall deem necessary. Nothing contained herein shall preclude. or be deemed a waiver, of Landlord 's right to recover damages sustained by Landlord which result from any activity that affects the physical play of Landlord's adjacent golf course, including but not limited to the drainage swale which Tenant intends to install on the western line of the Premises . I. ~ndlord acknowledges that Tenant intends to develop the Premises as a retail shopping center; Landlord agrees that Tenant shall not be li able for damages arising solely from the activity occurring in connection with such retail operation; provided such activity does not result in an adverse phy si cal condition of Landlord's adjacent golf course which impairs the physical play of the golf co urse . Tenant agrees that Landlord shall r,ot be liable for damages arising from Landlord 's operation of its adjacent golf course or arising from the use of such course by any other party, including but not limited to damages arising from golf balls landing on the Leased Premises . 1125 )12 4,doc ;1122)6-{)116 18 • • • • Article 14 Covenant of Quiet Enjoyment Landlord agrees that Tenant shall quietly and peaceably hold, possess, and enjoy the Premises , without any hindrance or molestation by the agents or empbyees 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 lawful claims of all persons whosoever, except tho se claiming by or through Tenant. Tenant 's use of the Premises shall not result in an adverse condition of the physi cal condition of Landlord's adjacent golf course which impairs the physical play of the golf course. In no event shall Landlord be liable for, or otherwise be responsible for, any injury or damage to the Premise s or property of Tenant's subtenants, or their employees , b'Uests, invitees or any other person arising from th e operation of Landlord 's adjacent golf course, inchirl ing but not limited to any claim arising from golf ball s landing on the Premi ses . Article 15 Subordination; Landlord's Right to Mortgage and Convey Premises Landlord may mortga ge its interest in the Premi ses, pro vided such mortgage expressly provides th at the rights and interests of the mortgagee thereunder are subject and subordinate to the rights and interests ofTenant hereunder and the rights of any Leasehold Mongagee under any Leasehold Mortgage then or thereafter existing. Should Landlord sell, convey, or transfer its interest in the Premises or should any mortgagee of Landlord succeed to Landlord's intc,rest through foreclosure or deed in lieu thereof, Tenant sha ll attom to such succeeding party as its landlord under this Lease promptl y upon any such succe ssio n, provided such succeedi ng party assumes all of Landlord's duties and obligations under this Lease. Such succeeding party shall not be liable for any of Landlord's obligations and duties hereunder prior to its assumption of Landlord's duties and obligations hereunder, except that Tenant shall be entit led to any offsets or defense which may have arisen prior to such succeeding party's assumption, which such offsets or defenses are specifically provided herein or are otherwise permitted by law. Article 16 Transfers by Landlord No transfer or sale of Landlord 's interest hereunder shall release Landlord from any of its obl igations or duties hereunder prior thereto . Landl ord shall be re leased of any ongoing obligations hereunder from and after the date of such transfer and only upon the assumption of all such obligations and duties by the transferee of Land lord. Notwithstanding anything contained herein to the contrary, in no event shall Landlord have the right to transfer, in any manner whatsoever, or to sell its interest hereunder prior to delivery of possession of the Premises to Tenant. 112Sll2 -i ,doc 412236-0116 19 Article 17 MlsceU1neou1 t. Non-Wajvcr ofPefau)t. No acquiescence by either Party to any default by the other Party shall operate as a waiver of its rights with respect to any other breach or default, whether of the same or any other covenant or co'ldition . 2. ll&£orllin&. This Lease shall not be recorded . The parties shall execute, acknowledge, and deliver to each other duplicate originals of a short fonn or memorandum of this Lease ("Memorandum of Lease") in substantially the fonn of Exhibit C attached hereto and incorporated herein, describing the Premises and setting forth the Term of this Lease . The Memorandum of Lease shall be recorded at Tenant 's expense . If Tenant terminates this Lease , upon request of Landlord, Tenant will execute and deliver to Landlord a termination of the Memorandum of Lease suitable for recording . 3. ~-Any notice, request , offor, approval , consent, or other communication required or permitted to be given by or on behalf of either Party to the other shall be given or communicated in writing by personal delivery, reputable overnight courier service which keeps receipt s of deliveries (i.e ., Federal Express), or United States certified mail (return receipt requested with postage fully prepaid) or express mail service addressed to the other Party as follows : Ifto Tenant: With copies to : If to Landlord: With copies to : Sheridan Redevelopment Agency 4104 South Federal Boulevard Sheridan , CO 80 I I 0-5399 Attention : Executive Director Windholz & Associates I 650 38th Street, Suite I 03 W Boulder, Colorado 80301 Attn : Jim Windholz Esq. City ofEnglewood IOOO Englewood Parkway Englewood, Colorado 80110 Attention : City Manager City of Englewood I 000 Englewood Parkway Englewood, Colorado 80110 Attention: City Attorney or at such other address as may be specified from time to time in writing by either Party. All such notices hereunder shall be deemed to have been given on the date personally delivered or the date marlced on the return receipt, unless delivery is refused or caMOI be made, in which case the date of postmark shall be deemed the date notice has been given . 11 25)12 4.doc 41 22)6486 20 • • • • • • 4. Successors and Assi.llfil. All covenants, promises , conditions , representations , and agreements herein contained shall be binding upon , apply to, and inure to the benefit of the Parties hereto and their respective heirs , executors , administrators , successors (including subtenants), and permitted assigns . 5. Partial ln valjdity. If any provision of this Lease or the application thereof to any person or circumstance shall to any extent be held invalid , the remainder of this Lease or the applicati on of such provision to persons or circumstances other than those as ·ro which it is held invalid shall not be affected thereby, and each provision of this Lease shall bt: valid and enforceable to the fullest extent permitted by law . 6. Interpretation . In interpreting this Lease in its entirety , any additions written or typed thereon shall be given equal weight , and there shall be no inference , by operation of law or otherwise, that any provision of this Lease shall be construed against either Party hereto . This Lease shall be construed without regard to any presumption or other rule requiring construction against the Parties causing this Lease to be drafted . 7. Headings, Captions, and References. The section captions cont ained in this Lease are for convenience only and do not in any way limit or amplify any term or provision hereof. The use of the terms "hereof," "hereunder," and "herein" sh all refer !o this Lease as a whole, inclusive of the Exhibits , except when noted otherwise . The terms "include ," "includes ," and "including" incorporate the meaning "without limitation ." The use of the masculine or neuter genders herein shall include the masculine , feminine , and neuter genders and the singular form shall include the plural when the context so requires . 8. Governing Law . This Lease shall be construed under the law s of the State of Colo rado. 9. Ex ecution of Documents. Landlord and Tenant shall each cooperate with the other and execute such documents as the other Party may reasonably require or request so as to enable it to conduct its operations , so long as the requested conduct or execution of documents does not derogate or alter the powers, rights , duties, and responsibilities of the respective Parties . I 0. Force Majeure. Whenever a party is required to perform an act under this Lease by a certain time, unle ss specifically provided otherwi se in this Lease , such party may extend the deadline in the event of Excusable Delay. In the event a party elects to so extend a deadline, such party shall first give written notice to the other party within twenty (20) days following the commencement of the Excusa ble Delay setting forth the event giving rise tn the Excusdble Delay. The party electing to extend the deadline shall within twenty (20) days following the end of the Excusable Delay gi ve an additional written notice to the other party setting forth the number of days the period has bt'en extended as a result of the Excusable Delay and the details of such delay . 11 . Waiver of LandlQ!~. Landlord hereby waives any lien it may have for rent against any and all of the propercy of any of Tenant's sublessees of any portion of the Premises . 11 25312 4.doc 41 22 36-086 21 Article 18 Le11ebold Financing I. Mortgage by Tenant. Tenant may, from time to time, bypothecate, mortgage, pledge, or alienate the Improvements and/or Tenant's leasehold estate and rights hereunder. Such lien shall be referred to herein as a "Leasehold 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 shall be subordinate, junior and subject to Landlord's ownership of the Premises and interest in this Lease . A Leasehold Mortgage shall encumber no interest in the Premises other than Tenant's interest in the Lease and the Improvements located on the Premises, including any personal property of Tenant, and any subleases of portions of the Premises . A Leasehold Mortgagee or its assigns may enforce such lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of such lien, the Leasehold Mortgagee may take possession of and operate the Premises, performing all obligations performable by Tenant, and upon foreclosure of such lien by power of sale, judicial foreclosure, or acquisition of the leasehold estate by deed in lieu of foreclosure, the Leasehold Mortgagee may sell and assign the leasehold estate hereby created . Notwithstanding anything herein contained to the contrary, the Leasehold Mortgagee or any person or entity acquiring such leasehold estate shall be liable to perform the obligations imposed on Tenant by this Lease only during the period such person has ownership of said leasehold estate or possession of the Premises . Landlord agrees to provide an estoppel to any Leasehold Mortgagee upon written request therefor, provided such estoppel does not obligate Landlord to acknowledge or consent to any modifications or interpretations of this Lease not previously agreed upon by both parties in writing. 2. Notice To and Rights Of Leasehold Mortgagees. A. When giving notice to Tenant with respect to any default hereunder, Landlord shall also serve a copy of such notice upon any Leasehold Mortgagee who shall have given Landlord a written notice specifying its name and address . No such notice shall be effective against any Leasehold Mortgagee unless and until served on any Leasehold Mortgagee as herein prov 'ded. In the event Tenant shall default in the performance of any of the terms , covenants, agreements, and conditions of this Lease to be performed on Tenant's part, any Leasehold Mortgagee shall have the right , within the grace period available to Tenant for curing such default ur such additional time as may be granted to any Leasehold Mortgagee herein, to cure or make good, such default or to cause the same to be cured or made good, whether the same consists of the failure to pay rent or the failure to perform any other obligation, and Landlord shall accept such performances on the part of any Leasehold Mortgagee as though the same had been done or performed by Tenant. B. h the case of a default by Tenant in the payment of money, Landlord will • • take no actio,, to effect a termination of this Lease by reason thereof unless such default has continued beyond forty-five (45) days after L3ndlord shall have served a copy of such notice upon Tenant and any Leasehold Mortgagee who has given Landlord notice as provided in Article 18.2.A above, it being the intent hereof and the understanding of the parties that any Leasehold Mortgagee shall be allowed not less than fifteen ( I 5) days in • 1125312 4.doc 412236-086 22 • • • addition to the thirty (30) days granted to Tenant to cure any default of Tenant in the payment of rent or in the making of any other monetary payment required under the terms of this Lease . C. In the case of any other default by Tenant, it being the intent hereof and the understanding of the parties that any Leasehold Mortgagee shall be allowed, in addition to any grace period granted to Tenant, an additional time as hereinafter specified to cure a non-monetary default of Tenant, Landlord shall take no action to effect a termination of the term of this Lease by reason thereof unless such default has continued beyond the grace period available to Tenant for curing said default, and then only after Landlord shall have served a copy of a notice upon any Leasehold Mortgagee who has given Landlord notice as provided in subparagraph Article 188 .2.A above , in the payment of rent or in the making of any other monetary payment required under the terms of this Lease within which either: a) to commence and diligently proceed to cure within thirty (30) days such default, if such default is susceptible of being cured by the Leasehold Mortgagee without obtaining possession of the Premises; b) to commence within thirty (30) days and diligently proceed to obtain possession of the Premises (including possession by a receiver) and to cure such default within thirty (30) days following possession or the appointment of a receiver in the case of a default which is susceptible of being cured when the Leasehold Mortgagee has obtained possession thereof; or c) if su ch defa ult is not susceptible of being cured by obtaining possession (inclu di ng poss ession by a receiver) to institute foreclosure proceedings within thi11 y (3 0) days and thereafter to complete such foreclosure proceedings or otherwis e acquire Tenant's interest under this Lease with reasonable and continuous diligence. A Leasehold Mortgagee shall not be required to continue such possession or continue such foreclosure proceedings if the defa·tlt which prompted the service of such a notice has been cured . D. In the event that this Lease is terminated by Landlord on account of any default , Landlord shall give prompt notice thereof to each Leasehold Mortgagee who has given notice to be notified . Landlord, within thirty (30) days after receiving a written request therefor, which shall be given within sixty (60) days after such termination, will execute and deliver a new lease of the Premises to the Leasehold Mortgagee or its nominee or to the purchaser, assignee, or transferee, as the case may be, for the remainder of the term of this Lease, containing the same covenants, agreements, terms, provisions , and limitations as are contained herein, provided that the Leasehold Mortgagee shall (i) pay to Landlord, simultaneously with the delivery of such new lease, all unpaid rental due under this Lease up to and including the date of the commencement of the term of such new lease and all expenses including, without limitation, reasonable attorneys' fees and disbursements and court costs incurred by Landlord in connection with the default by Tenant and the termination and the preparation of the new lease, and (ii) the Leasehold 1125312 4.doc 41 2236-0!6 23 Mortgagee shall commence and diligently proceed to cure all defaults existing under this Lease. E. As long as there is a Leasehold Mortgagee, neither the bankruptcy nor the insolvency ofTenant shall operate or permi( Landlord to terminate this Lease as long as all rent specified above and all other charges of whatsoever nature payable by Tenant continue to be paid in accordance with the term of this Lease. In the event of a filing of a petition in bankruptcy by the Tenant, and the Tenant rejects this Lease under Section 365 of the Bankruptcy Code (or any replacement thereof), the Landlord shall , upon the request of a Leasehold Mortgagee which has been approved by Landlord, affirm this Lease, and the Landlord will enter into a new lease on the same terms and conditions with the Leasehold Mortgagee immediately upon Tenant's rejection of this Lease. In the event of a filing of a petition in bankruptcy by the Landlord , and the Landlord rejects this Lease and the Tenant does not affirm it, a Leasehold Mortgagee will have the authority to affirm this Lease on behalf of the Tenant and to keep the Lease in full force and effect. F. The time available to a Leasehold Mortgagee to initiate foreclosure proceedings as aforesaid shall be deemed extended by the number of days of delay of occasioned by judicial restriction against such initiation or occasioned by other circumstances beyond the Leasehold Mortgagee's control. G. 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 whatsoever nature payable by Tenant hereunder which have b,,en accrued and are unpaid and which will thereafter accrue during said period . Following the acqui ~ition of Tenant's leasehold estate by the Leasehold Mortgagee or its designee, either as a result of foreclosure or acceptance of an assignment in lieu of foreclosure, the Leasehold Mortgagee or party acquiring title to Tenant's leasehold estate, whereon Landlord's right to effect a termination 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 be and shall be deemed to have been waived by Landlord upon completion of the foreclosure proceedings or acquisition of Tenant's interest in this Lease by any purchaser (who may, but need not be, the Leasehold Mortgagee) at the foreclosure sale, or who otherwise acquires Tenant's interest from the Leasehold Mortgagee or by virtue of a Leasehold Mortgagee's Exercise of its remedies . Any such purchaser, or su ccessor of purchaser, shall not be liable to perform the obligations imposed on Tenant by this Lease incurred or accruing after such purchaser or successor no longer has ownership of the leasehold estate or possession of the Premises. H. Nothing herein shall preclude Landlord from exercising any of Landlord's rights or remedies with respect to any other default by Tenant during any period of any such forbearance, subject to the rights of llllY Leasehold Mortgagee as herein provided . I. In the event two or more Leasehold Mortgagees each exercise their rights hereunder and there is a conflict which renders it impossible to comply with all such requests, the Leasehold Mortgagee whose leasehold mortgage would be senior in priority • 11 25)12 4.doc 41 22)6-086 24 • • • if there were a foreclosure shall prevail. In the event any Leasehold Mortgagee pays any rental or other sums due hereunder which relate to periods other than during its actual ownership of the leasehold estate, such Leasehold Mortgagee shall be subrogated to any and all ri¢its which may be asserted against Landlord with respect to such period of time. Upon the reasonable request of any Leasehold Mortgagee, Landlord and Tenant shall cooperate in including in this Lease by suitable amendment from time to time any provision for the purpose of implementing the protective provisions contained in this Lease for the benefit of such Leasehold Mortgagee in allowing such Leasehold Mortgagee reasonable means to protect or preserve the lien of its proposed Leasehold Trust Deed on the occurrence of a default under the terms of the Lease . Landlord and Tenant shall execute, deliver, and acknowledge any amendment reasonably necessary to affect any such requirement; provided , however, that any such amendment shall not in any way affect the term or rental under this Lease nor otherwise in any material respect adversely affect any rights of Landlord under this Lease or impose any additional liability or risk on Landlord . Article 19 Addltio11al Provisions 1. Restrictions. Tenant agrees to prohibit occupancy of the Premises by Wal-Mart , by any office product sellers ( excluding sellers using less than 20% of their floor space to sell office supplies). pet supply sellers (excluding sellers using less than 20% of their floor space to sell pet supplies), full service sporting goods sellers like Sports Authority, and Dick 's Sporting Goods, so long as tenants with such uses arc in operation in the City Center Englewood Shopping Center are in operation, and for two years after such uses are no longer present at the City Center Englewood Shopping Center. 2. Open Space Plan . Tenant will facilitate and make reasonable efforts to enlist the cooperation and participation, of the City of Sheridan in the South Platte River Open Space. 3. Englewood Golf Complex . Unless this Lease is terminated pursuant to Article 3.2.G or 3.3.D, Tenant shall be responsible for the cost ofrebuilding the Englewood golf complex in acc0rdance with the terms and conditions of the Development Agreement. 4. New Road : Landlord's access. Tenant intends to construct a road running from north to south on the western portion of the Premises and immediately to the east of a drainage swale to be constructed by Tenant ("New Road"). Landlord shall have the right, at its sole cost, to obtain access from the New Road to its adjacent property, which access shall be at not more than 2 locations to be determined by Landlord. The access points and Landlord's use of the access and road shall comply with all applicable laws and regulations, and Landlord shall pay any cost or incremental cost resulting from such access. 5. Non-material Amendments requested by Sub-lessees. Upon the reasonable request of any Sub-lessee, Landlord ~hall cooperate in including in this Lease suitable amendments from time to time, provided, however, that any such amendment shall not in any way affect the business terms between Landlord or Tenant, including but not limited to the 11 253 .2 4.doc 412236 -086 25 rental or lease term under this Lease nor otherwise in any material respect adversr' any rights of Landlord under this Lease or impose any additional liability or risk on L~, •• ,<1 . • 6. flllilic Jndgnnjficatjon . So long as the Tenant undc, this Leue is a public or quasi-public entity, any indemnification by the Tenant as provided in this leue shall be enforceable against the public or quasi-public entity only the extent such entity has the legal authority and power to provide such indemnity. Article 20 Representadon1 of Landlord and Tenant I . Representations of Landlord . Except as otherwise disclosed on Schedule I attached hereto , Landlord represents and warrants to Tenant that, as of the Effective Date : A. Landlord is a Home Ruic Municipal Corporation validly existing under the laws of the State of Colorado . Landlord has the full right, power and authority to enter into this Agreement and to perform Landlord 's obligations hereunder. B. This Agreement (i) has been dul y authorized, ex!Cuted, and delivered by Landlord ; and (ii) is the binding obligation of Landlord . C. Landlord has not granted , other than to Tenant, any outstanding option , right of first refusal or any preemptive right with respect to the purchase of all or any • portion of the Premises . D. To the best of Landlord's knowledge , the Premises and use and occupanc y thereof is not in violation of any laws and no written notice of such violation has been recei ved by Landlord and, except as noted in the following sentence , is not the subject of any existing, pending, or threatened investigation or inquiry by any governmental authority or subject to any remedial obligations under any laws pertaining to or relating to hazardous materials or other Environmental Conditions . Tenant acknowledges that it has been advisd that the Premises r.re si.hject to ongoing investigation and supervision by applicable agencies or departmeni. of !he State cf Colorado with regard to the Environmental Conditions existing on the Premises . E. There are no unrecorded easements or rights-of-way affecting any or all of the Premises except the sanitary sewer interceptor lines ,1s previously disclosed by Landlord to Tenant. F. No lawsuit has been filed against Landlord regarding the Premises . 0 . Except as noted in the following sentence, there are no other leases, agreements or contracts in existence relating to the Premises, including, without limitation, tenant leases, scrvi~ contllscts, or management agreements . Landlord cwrcntly has an agreement with the City of Sheridan for payment in lieu of tax~, hts agreements with vllrious concessionaires operating in its golf course facility, has one or • I 12l l l2 4.doo '12236-0ll b 26 • • • more sign agreements for advertising at its golf course , and has agreements relating to the Golf Course Enterprise Revenue Refunding Bonds, Series 2003 . None of the forgoing agreements create any obligations, restrictions or limitations relating to the Premises or its use, nor conflict with any provisions of this Lease. H. Landlord has received no notice from any insurance company with respect to the cancellation of any poli,y concerning the Premises or refusal of the insurance company to insure the Premises. I. There are no oral agreements affecting the Premises . J. There is no litigation pending with respect to the Premises relating to any environmental law violations. Landlord and Tenant acknvwledge that a portion of the Premises consists of a landfill which was closed several years ago. Except as disclosed with respect to the Environmental Conditions at the Premises, and as may be oth,. wise ascertainable by Tenant through its own investigations and due diligence , no notice of any violation of Environmental Laws or r other written communication pertaining lo Environmental Conditions at the Premises has been recei ved by Landlord from a govern mental agency. K. There are no agreement:,, commitments or understr.ndings by or between Landlord and any third party pursuant lo which (i) Land lord agr,:es lo make the Premi ses part of any special assessments, special district , or taxing district (" Assessments"), or (ii) Landlord or its successors in interest are required to sell , grant or dedicate any part of the Premises or to grant any easement, water rights, right s-of-wa y, road or license for ingress and egress or other use in respect to any part of the Premi ses , whether on account of the development of adjacent or new by real rro;,erty or otherwise Landlord has no knowledge of any Assessments bein g ~011 \emplated . L. Landlord has no knowledge of any fact , condition , or action, present , contemplated, or threatened , which would or may result in the termination or impairment of access lo and from the Premises as such access presently exists , and Landlord is not in violation of any easements, rights-of-way, conditions, covenants and restrictions , licenses , or other agreements burdening the Premises . 2. Representations of Tenant. Except as otherwise disclosed on Schedule I attached heret0 , Tenant represents and warrant s to I '1!1dlord that , as of the Effective Date : A. Tenant is an Urban Renewal Authority, validly existing under the law s of the State ofC. •lorado. Tenant has the full right , power and authority to enter into this Agreement .. nd to perform Tenant's obligations hereunder. B. This Agreement (i) has been duly authorized, executed , and delivered by Tenant; and (ii) is the binding obligation ofTenant. 112531 2 4.doc 412236~186 C. No luwsuit hus bt:e11 filoo uguinsl Tenant regunling th~ Premises . 27 D. Tenant hu received no notice from any insurance company of any refusal of the i111urance company to insure the Premises . • E. There arc no oral aarccrnents made by Tenant affecting the Premises . Article 21 Right or Finl R,fus ■I to Purchase I. RillbLofFjm Refugl. Landlord docs hereby grant Tenant a right offirst refusal to purchase the Premises and any portion thcrcof ("Refusal Property"), to be exercised by Tenant anytime during the Lease T~, in accordance with and subject to the following provisions : A. If at any time during the Lease Tenn, Landlord shall receive a bona fide offer, other than at publ h auction, from a third person, for the purchase of the Refusal Property, which offer Landlord shall desire to accept, Landlord shall promptly deliver to Tenant a copy of such offer and Tenant may, within thirty (30) duys thereafter, elect to purchase the Refusal Property on the same tenns as those set fort h in such offer, except as provided below . B. lfTenant shall not accept such offer within the thirty (30) day period, said right offirst refusal shall be deemed to have been waived and Tenant shall not have the right to purchase the Refusal Property as to the portion of the Refusal Pro perty specified in the offer, but this Lease shall continue otherwise on all of the terms as ,hose set forth. If the offer only pertains to a portion of the Premises, Tenant's right offi,st refusal shall remain in effect as to the portion of the Premises not included in such offer. If Landlord • docs not consummate the sale of the Refusal Property, Tenant's ril)ht of firs ! refusal shall remain in effect. C. If the offer received by Landlord contains property in addition to the Refu :;al Property, Tenant shall be obligated to exercise its rights as to only the Premises , or portion thereof covered in the offer, and there shall be an equitable adjustment of the price . 11 253 12 4.doc 41 2236-086 (Remainder of Page Intentionally Left Blank) 28 • • IN WITNESS WHEREOF, this Lease has been executed as of the date written above . 112511 ~_4.doc 4122 l6-ill6 LANDLORD : CITY OF ENGLEWOOD A home rule municipal corporation "~ Mayor TENANT: SHERIDAN REDEVELOPENT AGENCY a _________ _ By: Title : 29 • • • 1125)12_ .. .doc 4122)6.(116 EXHIBIT A DESCRJPTION OF PREMISES ~ EXHIBIT A SHEET1 OH • PREMISES DESCRIPTION A LEASE PREMISES LOCATED IN SECTION 4, TOWNSHIP 5 SOUTH , RANGE 68 WEST OF THE SIXTH PRINCIPAL MERIDIAN ; COUNTY OF ARAPAHOE , STATE OF COLOR,l,[)(); BEING MORE PARTICULARLY DESCRIBED "5 FOLLOWS : COMMENCING AT A WITNESS CORNER, BEINGS 89'58'50" W, 50 ,14 FEET DISTANT FROM THE CALCULATED POS ITION OF THE NORTH QUARTER CORNER OF SAID SECTION 4 AND MONUMENTED BY A 3' BRASS CI\P STIIMPED "PLS 22571", WHENCE THE NORTHWEST CORNER OF SAID SECTION 4 , "5 MONUMENTED BY A2-1/2" ALUMINUM CI\P , STIIMPED PLS 11434, BEAAS S 89'58'50" W, A DISTANCE OF 2,805.26 FEET WITH ALL BEAAINGS CONTAINED HEREIN BEING RELATIVE THERETO ; THENCE ALONG THE NORTH LINE OF THE NORTHWEST QUARTER OF SAID SECTI ON 4, N 89'58 '50" E, A DISTANCE OF 50 .14 FEET TO THE CALCULATED POSITION OF THE NORTH QUARTER CORNER OF SAID SECTION 4; THENCE ALONG THE WEST LINE OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 4, S 00'13'03" W, A DISTANCE OF 484 .17 TO THE SOUTHEASTERLY CORNER OF REPLAT OF A PORTION OF THE HAMPDEN BUSINESS CENTER ON THE PLATTE, A SUBDIVISION RECORDED IN PLAT BOOK 99 AT PAGE 6 OF THE ARAPAHOE COUNTY RECORDS ANO THE POINT OF BEGINNING ; THENCE CONTINUING ALONG THE WEST LINE OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 4, S 00'13'03' W, A DISTANCE OF 824 .65 FEET; THENCE S 89'48'57' E, A DISTANCE OF 89 .51 FEET; THENCE S 13'38'27" W, A DISTANCE OF 81 .34 FEET TO THE WESTERLY BOUNDARY OF YANISH SUBDIVISION , A SUBDIVISION RECORDED IN PLAT BOOK 41 AT PAGE 17 OF THE ARAPAHOE COUNTY RECORDS ; THENCE ALONG THE WESTERLY AND SOUTHERLY BOUNDARIES OF SAID YANISH SUBD IVISION THE FOLLOWING TWO (2) COURSES AND DISTANCES ; 1. S 15'54'51' W, A DISTANCE OF 914 .34 FEET ; 2. S 73'37 '05" E, A DISTANCE OF 554 .58 FEET; THENCE S 18'22'55' W, A DISTANCE OF 94 .52 FEET; THENCE '1 73'29'31' E, A DISTANCE OF 200.06 FEET TO THE WESTERLY RIGHT OF WAY LINE OF SOUTH SANTA FE DRIVE; THENCE ALONG SAID WESTERLY RIGHT OF WAY LINE , S 16'2T48" W, A DISTANCE OF 147 .12 FEET TO THE SOUTH LINE OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 4; THENCE ALONG THE SOUTH LINE OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 4, S 89'56'49" W, A DISTANCE OF 460 .45 FEET TO THE CENTER QUARTER CORNER OF SAID SECTION 4; THENCE ALONG THE NORTH LINE OF THE NORTH HALF OF THE SOUTHWEST QUARTER OF 5"10 SECTION 4, S 89'54'1r W, A DISTANCE OF 50.15 FEET; THENCE S 16'22'55" W, A DISTANCE OF 737 .84 FEET; THENCE S 45'58'08" W, A DISTANCE OF 29.28 FEET; THENCE N 89'20'47' W, A DISTANCE OF 23 .72 FEET ; THENCE S 39'38'10" E, A DISTANCE OF 21 .75 FEET; THENCE S 26'40'25" W, A DISTANCE OF 268 .67 FEET ; THENCE N 83'19'35" W, A DISTANCE OF 30 .00 FEET; THENCE S 26'40'25" W, A DISTANCE OF 185.06 FEET; THENCE N 69'58'35"W, A DISTANCE OF 158.57 FEET; THENCE S 00"01'25" W, A DISTANCE OF 150.00 FEET TO THE NORTHERLY RIGHT OF WAY LINE OF OXFORD AVENUE ; THENCE ALONG TH I: NORTHERLY RIGHT OF WAY LINE OF OXFORD AVENUE , N 89"58'35" W, A DISTANCE OF 233 .40 FEET; THENCE N 85'14'11" E, A DISTANCE OF 61 .45 FEET; THENCE N 00'28'34" W, A DISTANCE OF 207 .87 FEET ; THENCE S 90'00'00" E, A DISTANCE OF 57 .93 FEET; THENCE N 16'4T06" E, A DISTANCE OF 440 .93 FEET; THENCE N 46'4-4'08"W, A DISTANCE OF 135.38 FEET; THENCE N 26'23'49" W, A DISTANCE OF 78 .85 FEET; THENCE N 33'29'43" E, A DISTANCE OF 73 .39 FEET; THENCE N 02'12'43' W, A DISTANCE OF 104 .93 FEET ; THENCE N 14'33'49' E, A DISTANCE OF 94 .85 FEET; • CONTINUED ... PROJECT: 003038 .J COMPANIES OF COLORADO 2399 BLAKE STREET., STE . 130, DENVER, CO . 80205 PH : 303-989-8588 FX; 303-989-9932 DENVER CHICAGO PHOENIX ~ EX~E~~!J A PREMISES DESCRIPTION CONTINUED THENCE N 04'58'59" W, A DISTANCE OF 71.81 FEET ; THENCE N 12'19'17" E, A DISTANCE OF 46 .09 FEET ; THENCE N 19'20'00" E, A DISTANCE OF 141 .15 FEET; THENCE N 08'04'57" W, A DISTANCE OF 147.73 FEET; THENCE N 40'22'45" E, A DISTANCE OF 96 .54 FEET; THENCE N 06'53'42' W, A DISTANCE OF 80 .59 FEET ; THENCE N 22'38'11" E, A DI STANCE OF 91 .09 FEET; THENCE N 01'40'40" E, A DISTANCE OF 91 ,14 FEET; THENCE N 36'2T17" E, A DISTANCE OF 57 ,62 FEET; THENCE N 20'16'06' W, A DISTANCE OF 160,22 FEET; THENCE N 13"24'27" E, A DISTANCE OF 88 .22 FEET; THENCE N 22'04 '04" W, A DISTANCE OF 38 ,67 FEET ; THENCE N 46'43'15" W, A DISTANCE OF 88 .33 FEET; THENCE N 00'57'40" W, A DISTANCE OF 151 ,08 FEET ; THENCE N 32'08'26" W, A DISTANCE OF 114 ,85 FEET ; THENCE N 15'32'59 " W, A DISTANCE OF 76 .29 FEET ; THENCE N 39'16'11" W, A DISTANCE OF 39 .29 FEET; THENCE N 65'37'00" W, A DISTANCE OF 71 .17 FEET; THENCE N 25'01'01" W, A DISTANCE OF 50 .11 FEET; THENCE N 52'37'27' W, A DISTANCE OF 33 .68 FEET; THENCE N 80'47'51" W, A DISTANCE OF 56.01 FEET; THEN CE N 31'37 '24" W, A DISTANCE OF 91 ,75 FEET; THENCE N 63'47'04" W, A DISTANCE OF 113.35 FEET ; THENCE N 32"23'45" W, A DISTANCE OF 66 .77 FEET; THENCE N 15'17'05" W, A DISTANCE OF 30.14 FEET; THENCE N 00'05'56" E, A DISTANCE OF 31.91 FEET ; THENCE N 36"38'27" E. A DISTANC E OF 145.14 FEET ; THENCE N 17'02'27" W, A DISTANCE OF 192 .38 FEET TO THE SOUTHERLY BOUNDARY OF SAID REPLAT OF A PORTION OF THE HAMPDEN BUSINESS CENTER ON THE PLATTE; THENCE ALONG THE SOUTHERLY BOUNDARY OF SAID REPLAT OF HAMPDEN BUSINESS CENTcA C'~ THE PLATTE , N 72'57'33" E. A DISTANCE OF 1214 .48 FEET TO THE POINT OF BEGINNING ; CONTAINING A CALCULATED AREA OF 2,372 ,114 SQUARE FEET OR 54 .457 ACRES , MOR E OR LESS . ILLUSTHATION ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE . SURVEYOR'S CERTIFICATE I HEREBY CERTIFY THAT THE ATTACHED PREMISES DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECT SUPERVISION AND IS ACCURATE TO THE BEST OF MY KNOWLEDGE AND BELIEF . ALAN WARNER COLORADO PLS 28668 FOR AND ON BEHALF OF VJ COMPANIES OF COLORADO. LTD. 23!19 BLAKE ST., SUITE 130 DENVER, CO. 80205 • 303-989-8588 D03038 PROJECT: 003038 ,3 COMPANIES OF COLORADO 2399 BLAKE STREET., STE . 130. DENVER, CO. 80205 PH : 303-989-8588 FX : 303-989-9932 DENVER CHICAGO PHOENIX ILLUSTRATION FOR EXHIBIT A SHEET30F5 \ -1\_ --~BF,.ilfl!flS=----V N 111'$6 ,0 E 2I05.26 NW COR., SEC. 4 Z-1/2" ALUM. CAP POINT OF COMMENSEMENT LS I l4J4 WITNESS CORN[R J ' BRASS CAP, LS 22571 LEASE PREMISES 2,372 ,114 SF± 54 .456 AC± -~-..I! .v1,.,,,.'----.o=-"...!, , UN[, Sfl/4, NW 1/4 Sil'I C-N 1/16 COR., SE E I CALCULATFO POSI TION 2" AL L42 SEESHEET4 PREMISES CONTAINS APPROX .2,372, 114 SO FT (!14 .456 ACRES). nus EXHIBIT OOES NvT REPRESENT A MONUMENTED LANO SURVEY , IT IS INTENDED ONLY TO DEPICT THE ATTACIED DESCRIPTION . Scale : 1 "=300' '!::=-----==-•300====5600 FS:eT ® En · 2199eitbs..et,Sui1e110 LEASEPREMISES ,gmeers Dtnffl, CO 10205 RIVER POINT AT SHERIDAN Scientists 101.m .,111 .. 1cc SECTION 4, T. s s .• R. sa w .. &TH PM Surveyors tOi!. 9::n fu CITY OF SHERIDAN, COUNTY OF ARAPAHOE, STATE OF COLORADO ORN: AGW DATE: 07/07/08 JOB: D03038 COMPANll!S OF COLORADO LTD. CKD: SCALE: 1"•300 F8K: NIA ILLUSTRATION FOR EXHIBIT A SHEET40F5 UNPLA'rTCD /16 COR., SEC. 4 W 1/4 COR., SEC. 4 \ ~z'/4 " ALUM. 4,f-s 21502 • ALUM. CAP ILLEGIBLE 9'56'49" c. IJ2 .o;-:;-i,.,.,.----r---<;>-S-OUTH UNF:, SWl/4, UNPI.AITET) ~ -L21 L20-' 2,J72 , 114 SF± 54 .456 AC± ::i"' UNPLAITET) ~I _ ~•~IL~ 01:!O~AYENUE SOUTH UNF:, Nl/2, SWl/,4 SF:C. 4 51/16 _coR., SEC 16/15 S 1/16 COR., SEC. 4 1-1/2 ALUM. CAP J-l/4"ALUM. CAP ILL[GIBL[ PLS 2J5 I 6 PREMISES CONTAINS APPROX .2,372 , 114 SQ FT (54 .456 ACRES). THIS EXHIBIT DOES NOT REPRESENT A MONUMENTED LANO SURVEY, IT IS INTENDED ONLY TO DEPICT THE ATTACHED DESCRIPTION . NF:1/4, SF:C. 4 Sca!e : 1 "=300' 300 FEET LEASE PREMISES ,.. Dawcr, CO 8020l RIVER POINT AT SHERIDAN 600 Scientists 10191,im "°'" SECTION 4, T. s s .. R. 68 w .. sTH PM © Enuineers 2399BlolccS-~Sullcl30 Surveyors t~3;=32 fu CITY OF SHERIDAN, COUNTY OF ARAPAHOE, STATE OF COLORADO COMPANIES OF COLORADO LTD 1-!g~~;.o~: ,:,AG,e,W"---fl~~~f;.TE~~c:',0;',p:;_0; .. :;.--t;~a,08;;;K"": ~cii'ft"'038"'--------ll • • • •• tu.UITftATION FOR EXHIBIT A IIHEETBOFB LINE TABLE LINE BEARING DISTANCE LINE BEARING DISTANCE L1 ~nn'1J'03'W ••'-u' LJ1 N1719'17'F' ..i§..Q( L2 5811'46'57'£ RQ ~1' LJ2 N1ll'20'00'E 141 15' LJ ~1.LV<'?7'W A1,34' L33 N"-"4'57'W 147.7-'' L4 S15'54'51'W 914.34' LJ4 N4!T22°45'E .. ~--· L5 S73'37'05'F' 554.56' LJ5 N06"53'42'W 80,59' LB S16'22'SS'1N 04,52' LJ6 N2T38°11 'E 91.09' L7 S73'29'31 'E 200.06' LJ7 N01'40'40'E 9114' LB s1.-,1•4•'W 147.12' LJB NJ6'27'17'F' 57.62' L9 S8ll'56'49'W 460 45' LJ9 N20"16'06'W 15noo• L10 ~••'54'17'W 50.15' L40 N1Y'4''7'F' RB."' L11 S16"22'SS'W 737,64' L41 N2704'04'W 311,67' L12 ~45'5A'06'W ?O,?R' L42 N4~• '15'W AA ,.,.,• L13 N89'20'47'W 23.72' L43 N00'57' 40'W 151 .08' L14 ~30'3R'10', ?1.75' L44 ~,Tn■'?R'W 114,A5' L15 S26"40'25'W 7RR ,67' L45 N15'32'59'W 76,29' L16 N6Y19'35'W 30.00' L46 N39'16'11'W 39.29' L17 S26"40'25-W 165,0R' L47 NR5'J7'nn'W 71 .17' LIB NB9"58'35'W 158.57' L48 N25'01 '01'W 50,11' ·• L19 snn-n1'?5'W 1sn.oo' L49 N5"-'7'?7'W .H,AR' L20 N89'58°35'W '" 40' L50 N80'47'51 'W 56,01 ' L21 NB5'14'11'E Rl.45' L51 N31'.'7'74'W 01 .75' L22 N00'28'34 'W 207.67' L52 NBS 4 7'04 'W 113.JS' L23 S90'M'OO"E 57.93' L53 N'2''J'45'W 86.77' L24 N16"47'0B'E 44na,• L54 N15'17'05'W J0.14' L25 N4 .. 44'0R-W 135.36' L55 ~=n•'56'F' 31 ,01 ° L26 N26'23' 49'W 78.65' L56 NJ6'J8'27'E 145.14' L27 N33'?0'43'F' 73,39' L57 N1T0?'?7'W 19?,.'8' L2B N02' 12' 4J'W 104.93' L5B N7T57'33'E 1214.48' L29 N14',H'40'F' 94,R5' L30 N04'58'59'W 71 .81' ~ ~ilter. ~~~~ I"~•~ I I ,,,!. ~ ~;::;tmoH:~U •• 07/07108 .. i/ri••u•~J~ THIS EXHIBIT DOES NOT REPRESENT A MONUMENTEO ~O SURl/'fY, ~l l~\t'l IT IS INTlaNOED ONLY TO DEPICT THE ATTACHED DESCRIPTION . ew-2l!l9Bltluo-Sulte130 LEASE PREMISES °""'",COll020S RIVER POINT AT SHERJOAN Scit:ntists ioi .Nrnu.-SECTION 4, T. 5 8., R. U W., 91H PM • S l03.919.!19l2 fu CITY OF SHERIDAN , COUNTY OF AAAPAHOE, STATE OF COLORADO urveyors VJco.-. ORN: AGW IOATE: 07/07/08 I JOB: 003038 __ 11 COMPANIES OF COLORADO LTD. CKO : I SCALE: 1._NIA: IFBK: NIA • • 1125312_4.doc 412236-086 EXHIBITB ASSEMBLAGE 2 • • i I I ! I .1 I I River Point at Sheridan PUD Sketch Plan Sketch Plan Stipulations .. WTDIT: ....... ,....1t~,.__.Unll~('UO)ll 1 ........ ~ ............ n. ............. "' ..... .................. ...-..... ~ ... llllNnp. ......._.. ........................... Qly .. ....... c......,......,-,-,an..,-◄. THIMCIN1nn:l"l,.AOIITAMCeO,S11'.J2fUT: THIMCI N D"ffQ"' W, A DIITANCl 0, N.D '11T: TMINCI N.-,1W-l,AmTINCl01'11.14PUT; TitlNCI N 14"inrW,,. 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In ___ ,..,......_........,_-, .... "-ot•CllfoflMfNIIII. I~ ..-111111 ... l'UO-...l'llnr.tlllalloM.,.._...., ... IIUI Z-Dllttkl ... _... ...... ......,.., ........... _ ... ....,..,_"""lrtll!OCllfc.-lol .. Clff .. .....,_,c-.e.. Wll-lrt"'J..,_111111_. .. _.._? .. ___ ... , =:-c.....-_ ::-::::::::::::::, ::::.= ) .. ) Municipal Approvals IMrlclon"-nnlneCll'lw!lll•lon """9ftdlrt11WCl!y•l.,..,.....l"lonnlngc:Gfflfflll11or\ ___ ,.,. ___ ..... PIINllngCoffllNHlon~ lhor\MnClly t-Ol,WICI Appr.-1 !rt 1111 City of l hffllln Ctr, C-.dl ___ ..,. ___ .... '""'"--,..,-.... --·~ .. ~,..,,..---- Cll1k&Roc:o, .... c.r11nc,1, l haf'1bynn1ti·lhll lhll ln1t11M11nl wu 1;11-d ln mr•lfir»ol ___ :'clod ~~----·• \N o ___ fflOIIIII IM ____ .,...,ol 11101 1Mll1 --··------------f'IU!lllon ____ • Cltor\olAf'lp..-Counlr ::f;·:.=. ::. ====== @ Y IC.tNITY MAP .i ! CITY OF SHERIDAN, CO RESOLUTION NO. NO . 24-2006 A RESOLUTION OF TiiE CTrY COUNCll. OF THE CITY OF SHERIDAN AMENDING THE RIVER POINT AT SHERIDAN PUD SKETCH PLAN WHEREAS, on Feb,,,., 8, 2006, Ci1y Council adopled Resolution No . 5-2006 conditionally approving the "Riv~; i'oint at Sherid1111 PUD Sketch Pl1111"; 1111d WHEREAS, Febru•I')' 8, 2006, Cil)I Council adopted Resolution No . 6-2006 approving . the PUD Preliminary Sile Pinn for the Riv-, Point at Sheridan project; and WHEREAS, oo Apri l 9, 2006 the !' .ming Commissi on conducted n publi c hearing, upon the PUD F'rnal Site Pinn for "River Pmo at Sheri rl.n"; and WHEREAS, during the course ofµreparing the PUD Final Sire Pinn, the Developer reques1ed several minor changes to the PUD Sketch Plan, which changes were recommended for approval by the Planning Commission; and WHEREAS, City Council now wish r:s to amend the 11Rlvcr Point at Sheri dan PUD Skelch P!an " as it was conditional!. approved pursuant to Resolution No . 5-2006 in the specifics set forth belo w; and WHEREAS, Cil)I Council finds the proposed PUD Skelch Pinn amendments are consistenl with the Cily's Comprehensive Plan nnd the proposed rezoning of 1he prop erty 10 the PUDdistrict. NOW, THEREFORE,BEITRESOLVEDBY THE CITY COUNCIL OF THE CITY OF SHERIDAN, COLORADO, THAT : ~ The PUD Sketch Plan for tl,e River Point at Sheridan Subdivision condirionally approved by rhe Cily Council by Resolution No . 5-2006 on February 8, 2006 shall be amended as follows: a. The legal description of the property thnl is subjecl 10 the Skelch Plan shall be amended to coincide with the legal description of the property rezoned pun;uanl to Ordinance No. 1-2006. @ Paragraph D. I. M. of the Sketch Plan shall be changed "Municipal Golf Courses" to "Englewood Municipal Golf Co urse". · c. Paragraph D. ID. A. pertaining 10 "Parking Requirements" shall be ch1111ged to read : One parking space shall be required for ench 350 square feel of tseable floor nrea, except tha1 resraurant and theater uses shall require a minimum of one parking space per each 4 seats. d. Paragraph D. XI. (Grading/Drninnge) shall be amended to read : XL Grading/Drainage On-site grading will generally provide for level buildin g pads with the site generally sloping from east to west of the existing topography . An interim grading plan, including an interim storm water management plar., shall br submitted to the City for approval prior to any grading activities associnted with the removal of landfill materials existing on the property. Such i~terim grading plan and stonn water management plan shall be consistent with the "Contractor's Plan of Operations" approved by the State of Colorado in conjunction with the removal of landfill materinls. A final drainage report, grading plan 1111d stonn water management pion shall be submitted to the City for approval prior to final overlot grading and development of the property. The applicant shall reimburse the City all expenses incurred by the City in the review and approval of such interim and final drainage grading and storm water plans. ~.2!!.k · All other provisions of Resolution Na. 5-2006, inc luding !he conditions of approval esrablished therein, shall remain in full force and effec1, unless incon sistent with the terms of this resolution . The amendment ta the PUD Sketch Plan authorized by the resolurion shnll be incorpornt~d into the document prior to recordation. Dane on d resolved !his 261h dny of April 2006 . A'ITEST: tu,,,;.~,,-, Arlene Sagee City Clerk APPROVED AS TO FOM! James A. Windholz City Attorney o/~ --.. ____ ,_ • • ~ m BUILDING AREAS ■ EXI STING BUILDING ~ PUBLICRIGHTOFWAY c:€> PARKING LOT ACCESS THE SUB-AREAS ARE DEFINED AS FOLLOWS; SUB-AREA 1 -THAT AREA NORTH OF THE SOUTH PLATTE RIVER SUB -AREA 2 -THAT AREA SOUTH OF THE SOUTH PLATTE RIVER, BUT NORTH OF RIVER PO INT DRIVE SUB-AREA 3 -THAT AREA BETWEEN RIVER POINT DRIVE AND SOUTH RIVER POINT DRIVE SUB -AREA 4 -THAT AREA SOUTH OF SOUTH RIV ER POINT DRIVE ~ PROPERTY LINES ALON6 'Tl£ H:STERN 8'61! ,..RE SLB.EC,T TO GH"-N6e TO MEET 1'V1 T!:R Gl/ALIT1" REOOIR!M:NTS, SKETc;HPLM @ Q ~ AREA/SITE EXHIBIT l'¼..,r t r _,,. !' ·,:;_ \::=..~ '. EX012 1-- ~~i Qg • c:] 0.. ffi ~ ex:~! . ~1-iil [? -=~ :s: q; ill -ex: ' . • : () ,, " . • ' ' ' • ' ' i cwiiwJ.IITl."-AN IICI.La:1· • .-.r . I .,.-.... • ~ " I @ G100 • • • qIVER POINT AT SHERIDAN SUBDIVISION FILING NO. 1 A RESUBDIVISIDN OF POR TIONS OF PETERSBURG , JAYHAWK SUBDIVISION, YANISH SUBDIVISION, NATCHES SUB DIVIS ION FILING NO . 1, REPL.AT OF A PORTION OF THE HAMPDEN BUSINESS CENTER ON THE PLATTE AND SCIENTIFIC TRANSPORTATION FILING NO . 1, TOGETHER WITH UNPL.ATTED LANDS LOCATED IN THE SOUTHWEST QUARTER OF SECTION 33, TOWNSHIP 4 SOUTH, RANGE 68 WEST AN D IN SECTION 4, TOWNSHIP 5 SOUTH , RAN GE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY OF SHERIDAN , COUNTY OF ARAPAHOE , STATE OF COLORADO OWNERSH IP AND DEDICATION ~~5~1~g[~~,F~ --•''""~•-,••--01-Mt10o• .. --or-•r -u,,,.,,.... -••1-0.,.,m,. __ oc,1 .. _,_,,c-..•""-•cnc:,,,•.,.-""0•••1"" Ol-c»l'T..-CO ... l lt<•at-• ... -... co,,_,11"'1-0l'lr-OUH-~iE:~~~~-~=-·:-::,~-:i";::'wcoo::,~:..-:::::.-=-:.:.·.::::::: T....cll CIWI _Ol_l ... 1 ... ,\ ... 0,l"l--l•-'1•0"-•etO,,Ol ... t,W-•a 11u1...aor ..... ri,o, ... "°'1T_fT~l•Ol lOT• a.co., ·-----'1.o,QICI , .. 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OWNERS ACKNOWLEDGEMENT :, cw.,,ifA WE 1NGARTEN MILLER SH EllJDAH UC, ACOLOA.ADO UUITED LIABILITY COMPANY OVMER ALAHS l(Ullf OWN(R TOM R C.t..ll AASCO LEASSOR'S CONSENT '"'Cl"'OI I IOQ._CO.llll"IIIIU\U,HIIIIO,,,•-•-CY•"'--■n -"'O(O,,IID(I "''IHtAOIIIIMlll'°""IITIDT-.•UllNl .. ~Nl•li,, ~ _____ ot 104 c,nor,..c..1·"UOO~- TITLE VERIFICAT ION ------•.,, ___ u __ _ IL SURVEYOR'S CERTIFICATE ::=i , ..... _ •• ,oc, .... o..,.,,_.__Tl'lllli,Cl""OIIIJ _,.1Ct .. 1Mll•••TCYCO.-Oll "'•••ct•t••1 ... ,, .. .,........ __ lll ~DM1•10,, ..... __ 11_•--- _,,,..,,"'..,,.,.,...,._~,,•11•◄•••0,.,.._11 __ _,., ........ _ .... _ ,o. __ ,,_,__,1111 ro,,...oo,,lof-•OI Vl [--I O"C.0.Dlll'IID GENERAL NOTES , ..,,a.:.,1111-!Dco._,.,.oou_·,--c:1..,. .. °"',e,,c,,"""'°--11t<1:,o. _.,,...,.,.,_,_11'1 .. 1..,ll■YDu ••rio~•_,,fllry:,o,fCll',1."I "'•"'°"'-°'°' l&IID-• ... :it•IC'l.,l,_..,..,.,...,C_•:•~woor,11-11•'1 .... ,_• .. 00IIII'' .. u•11i:o __ ..,,,o,,n,.,,iw,..,,eo1 I -.. --~-~•1 -,1 .._,,osoo 111•-t11 --<~-•-"'IIII -.:u-c-•1•~•-11•-oH.---U-.IOtl>ll ll•lVll• .... -c ., I .. ,'ll •IOIIICl.l-11'1 111 1:)0l<I •-I --ott1"1',0,, __ q .... -....,c:IICICl,<,"l ..... 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SHEET20F I • RIVER POlNT AT SHERIDAN SUBDIVISION FILING NO. 1 A RESUBDIVISION OF PORTIONS OF PETERSBURG , JAYHAWK SUBDIVISION , YANISH SUBDIVISION , NAT(.;HES SUBDIVISION FILING NO . 1, REPLAT OF A PORTION OF THE HAMPDEN BUSINESS CENTER ON THE PLATTE AND SCIENTIFIC TRANSPORTATION FILING NO . 1, TOGETHER WITH UNPLATTED LANDS LOCATED IN THE SOUTHWEST QUARTER OF SECTION 33 , TOWNSHIP 4 SOUTH, RANGE 58 WEST AND IN SECTION 4, TOWNSHIP 5 SOUTH , RANGE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY OF SHERIDAN , COUNTY OF ARAPAHOE , STATE OF COLORADO , ... ~~1~- EN,GLEWOOD GOLF COURSE _, ~UM~TTED-..L 1 I I .. """' ♦ IILO.aC.UMIG!m 0 nMDIOUIDff .. lOtll • Kfl"o..1al'llU.Nl'\M!'CCU' Olll/1"-,uilDM WMD~l'l.l--- 't.':.,.'\.'",,";.':."~ Cffl' fll oa,,-Wll lM .,....1.111. ... -""'7-- I ...U.l(~'I.IIUiffflD C.U.»-11•1~ • • • RIVER POINT AT SHERIDAN SUBDIVISION Fil/NG NO. 1 A RESUBOIVISION OF PORTIONS OF PETERSBURG , JAYHAWK SUBDIVISION, YANISH SUBDIVISION , NATCHES SUBDIVISION FILING NO . 1, REPLAT OF A PORTION OF THE HAMPDEN BUSINESS CENTER ON THE PLATTE ANO SCIENTIFIC TRANSPORTATION FILING NO . 1, TOGEntER WITH UNPLATTEO LANDS LOCATED IN THE SOUTHWEST QUARTER OF SECTION 33, TOWNSHIP 4 SOUTH , RANGE 68 WEST ANO IN SECTION 4, TOWNSHIP 5 SOUTH , RANGE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN, I a.If'_,_ I c::::-.£~-111• I 1-::::.:::::-.::::,_ JU7° • __ :::...::::.::::....._,,.., CITY OF SHERIDAN , C:OU"ITY OF ARAPAHOE, STATE OF COLORADO •-I .,':',.r.:',\./ O:.iJ I I I ,.. ... c.a. '·- I 01'11'01• W ,.. ... c-N':'( ,r-N •.:;.-=-J-gf,;;'1!;'/ a.r-11:11.DOIJ L-- LOT 30 1MI~ ) ,_ I -I l a.---1 .. .,,,,..,, I @ ,...,,., ,.,,,. ------~ .... ♦ IILOMCOIICJIMIIIID o roi..llD-...offMIOltD • 1n1•~-;-....... ~u,, Ollwrll"W'DIIIIMI llllllllllll"nN_. __ .., ---- lri\ ~=--=·"' \_~1=1= ..... Ya.....,..a,0CIUIU,IIQ,&,.1!>,. UM& WU! ON SHEET !I · CURVE JAIL! ON SHEET t \ .,ouo,onn1 SH~ET ◄ CF I RIVER POINT AT SHERIDAN SUBDIVISION FILING NO. 1 A RESUBOIVISION OF PQf,ITIONS OF ~ETERSBURG , JAYHAWK SUBDIVISION , YANISH SUB0IV1SI0N , NATCt£S SUBDIVISION FILING NO . 1, REPLAT OF A PORTION OF THE HAMPDEN BUSINESS CENTER ON THE PLATTE ANO SCIENTIFIC TRANSPORTATION FILING NO. 1, TOGETHER WITH UNPLATTEO LANDS LOCATED IN THE SOUTHWEST QUARTER OF SECTION 33 , TOWNSHIP 4 SOUTH, RANGE 88WEST ANO IN SECTION 4, 10WNSHIP 5 SOUTH, RANGE 68 WEST OF THE 6TH PRINC IPAL MER IDIAN , CITY OF SHERIDAN , COUNTY OF ARAPAHOE , STATE OF COLORADO 1W ~~~.-;:--.-:-,, -- S 01 •21'01 • W 71.IO' • Wl'l"~ftWJa ,v,Jn:Clf' GI I/I' IIWlfflll JICN WM111"¥JIU_. __ ... IIO,Dllll ,...all'tUC ,..._,.,.,.-;.~•. cm or~ wa: uc RIVER POlNT AT SHERIDAN SUBDIVISION FILING NO. 1 A RESUBDIVISION OF PORTIONS OF PETERSBURG , JAYHAWK SUBDIVISION , YANISH SUBDIVISION , NATCHES SUBDIVISION FILING NO. 1, REPLAT OF A PORTION OF THE HAMPDEN BUSINESS CENTER ON THE PLATTE AND SCIENTIFIC TRANSPORTATION FILING NO . 1, TOGETHER WITH UNPLATTED LA~DS LOCATED IN THE SOUTHWEST QUARTER OF SECTION 33, TOWNSHIP 4 SOUTH , RANGE 68 WEST AND IN SECTION 4, TOWNSHIP 5 SOUTH, RANGE 88 WEST OF THE 6TH PRINCIPAL MERIDIAN , CITY OF SHERIDAN , COUNTY OF ARAPAHOE, STATE OF COLORADO ,' c:::: ~::~,:,::-, ' ?'-::::::::::::::::::::::::::::::::::: ' N 31'27°1 ENGLEWOOD GOLF COURSE UNPLATTED ' ',,'1, --' 1/f,IWIII ..... ...... ...._ -.... N on3•42• w ............ ........... 10.9' ' ' ............ .] ·-~,.. t.-.u,' ,,;;;;~- . , -♦ .uuor 01111D ... IO!ID o~..-..inAIIICnD • IDl"lilllCIU'IQl.aa"'-'CIICCI# Clll/rM1l111 ... ..-m'"a,ui .... --------~ ~:1'-«I' N 1,r::,•41• [ ...... SEE SHEETe LOT 58 ...,,,.. IN ---,.,.,.,.,.,.-.;-. ar,r,~U-UC,-----·-• --•--11 tnu.aUIT,lt.DCl:-11"Cl'I09GI --~~"' t.u.»-tl-1~ SHEETS OF B RIVER POlNT AT SHERIDAN SUBDIVISION FILING NO. 1 A RESUBDIVISION OF PORTIONS OF PETERSBURG , JAVHAWK SUBDIVISION , VANISH SUBDIVISION , NATCt£S SUBDIVISION FILING NO. 1, REPLAT OF A PORTION OF TliE HAMPDEN BUSINESS CENTER ON THE PLATTE ANO SCIENTIFIC TRANSPORTATION FILING NO . 1, TOGETHER WITH UNPLATTED LANDS LOCATED IN THE SOUTHWEST OUAATER OF SECTION 33 , TOWNSHIP 4 SOUTH , RANGE 68 WEST AND IN SECTION 4, TOWNSHIP 5 SOUTH , RANGE 68 WEST OF THE 8TH PRINCIPAL MERIDIAN , CITY OF SHERIDAN , COUNTY OF ARAPAHOE , STATE OF COLORADO ' ,' t::::.£°::._-;::.. , 1-::::.:::::::::.:_ I -.::::-::::.:::: ENGLEWOOD GOLFCOURSE UNPLATTED N ll'27'1 ' SEEIHEET4 ~-r---- ~ ~ , " ' . ~ LDT 4A .., ,~:i\ ~ ~ ,_ ~ -, ~ Q.) IDT 2A .... ,.. ----- IDl2 ... .,. ,.,,,,,,,u ,,.,.,,,,,,,,,,,, .. ,.,,.,.,, ,..,,, .,,.,,,,, .,,,,. .,, . . . . -♦ ---•lllfflll o RUCI_..,...,.__. • IDl'M«!DllGas....-llCC#' ...... ..,.. .... -"Y»IU_. 101,:1·« -... -~ an fl blGlnOOO W.. U1C ,-----:!_, ----1! IDICot•m~-) ·'v) a§i~m \ y OOtia'AMaO,=LTD. SHEET !I oFe RIVER POlNT AT SHERIDAN SUBDIVISION FILING NO. 1 A RESUBDIVISION OF PORTIONS OF PETERSBURG , JAYHAWK SUBDIVISION , YANISH SUBDIVISION, NATCHES SUBDIVISION FILING NO . 1, REPLAT OF A PORTION OF THE HAMPDEN BUSINESS CENTER ON THE PLATTE AND SCIENTIFIC TRANSPORTATION FILING NO . 1, TOGETHER WITH UNPLATTED LANDS LOCATED IN THE SOUTHWEST QUARTER OF SECTION 33 , TOWNSHIP 4 SOUTH , RANGE 68 WEST AND IN SECTION 4, TOWNSHIP 5 SOUTH , RANGE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY OF SHERIDAN , COUNTY OF ARAPAHOE , STATE OF COLORADO I r.::::..[°'•~,:.-:,:- ! r:::::::::: --.::::-- 1 -.::::-:::::~ ' ' ENGLEWOO D GOLF COURSE UNPLATTED ', '1 ' ' --' ltl."'"' ........... 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I :- t "..'\~"..•.~", Cffl fl' IDIII.IIICIIII Ulll UC ~----~-'------ti SEE SHEET& IDl'8 """"' rw~ ~=--..:: .... \ V ) =1==-'-Y coi.,....o,CQ..OIADQ,LTD, SHEET50F e RIVER PO{NT AT SHERIDAN SUBDIVISION FILING NO. 1 A RESUBDIVISION OF PORTIONS OF PETERSBURG, JAYHAWK SUBDIVISION, YANISA SUBDMSION, NATCtES SUBDIVISION FILING NO , 1, REPLAT OF A PORTION OF THE HAMPDEN BUSINESS CENTER ON 'TliE PLATTE AND SCIENTIFIC TRANSPORTATION FILING NO, 1, TOGETHER WITH UNPLATTED LANDS ENGLEWOOD GOLF COURSE UNPLATTED LOCATED IN 'TliE SOUTHWEST QUARTER OF SECTION 33, TOWNSHIP 4 SOUTH, RANGE 68 WEST AND IN SECTION 4, TOWNSHIP 5 SOUTH, RANGE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN , CITY OF SHERIDAN, COUNTY OF ARAPAHOE, STATE OF COLORAOO L.111111 ♦ ,.__.,.llfflll 0 ,.......,.._,._ • IIDl'Mellltffla.l'UIIIEW ...... flllMrD .... ...... w,u----------mnmM kala :I.._ waoruc ., :- ~ Cffl' o,....,.. ~ UC ~---------11 --•1111~-, -... -n ~----... 1,-r ..... _ ,~-= \ --"... CX..#JalQl'OQLCIMIIQ.1.111. SHEET I Of I • • • llll312_4<1oc Cl22J6-016 EXHIBITC MEMORANDUM OF LEASE • • • RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Daniel L. Brotzman, Esq . CityAttomey City ofEnglcwood I 000 Englewood Parkway Englewood, CO 80110 (Space Above for Recorder's Use Only) EXHIBITC MEMORANDUM OF LEASE AND RIGHTS OF FIRST REFUSAL AND FIRST OFFER THIS MEMORANDUM OF LEASE AND RIGHTS OF FIRST REFUSAL (this "Memorandum") is made and entered into as of--,---,-----,-,-~ 2006, by• d among City of Englewood , a home rule municipal corporation ("Landlord"), and Sheridan Redevelopment Agency, a body corporate and po litic of the State of Colorado ("Tenant") . TERM AND PREMISES. The Lease Term commences on _____ and ends on ,----,----,----• all in accordance with the provisions set forth in that ce rta in written Ground Lease dated _____ , 2006 and executed by Landlord and Tenant ("LedSe"), all of which provisions are specifically made a part hereof as though fully and completely set forth herein . Landlord Leases to Tenant, and Tenant leases from Landlord, the certain real property consisting of land ("Premises ") located in Arapahoe County , Colorado, as legally described in Exhibit A attached hereto, together with all rights of ingress and egress and all other rights appurtenant to sa id Premises including, without limitation, the right to use L~: improvements to be constructed on the Premises for the purposes contemplated in the Leas,,, ,,n of whi ch rights arc more particularly described in the Lea se. 2. USE . Reference is particularly made in Article 19 .1 of the Lt·ase wherein certain restrictions on the use of Premises . 3. RIGHT OF FIRST REF USAL. Landlord has granted to Tenant a Right of First Refusal during the tenn of the Lease to pur,:.liase the Premises or a portion thereof in the event Landlord receives an offer from a third person to purchase the Premises or a portion thereof AND the Landlord desires to accept. Refer~nce is made to Article 21 of the Lease for the specific tenns and condi ti ons of the Right of First Refusal. 60)6\20\886691 .4 4. PURPOSE OF MEMORANDUM OF LEASE. This Memorandum is prepared for the purpose of recording and in no way modifies the express and particular provisions of the • Lease . 5. FOR THE BENEFIT OF THE PREMISES. Landlord and Tenant intend that the covenants , co.nditions and restrictions described and referred to herein shall be both personal to Landlord and Tenan t and binding on their successors and assigns (to the extent assignment is pennitted under the Lease). Each succe~sive owner of the Premises or of any portion thereof, and each person hev ing any interest therein derived through any owner thereof, shall be bound by such covenants, conditions and restrictions for the benefit of the Premises. 6. TERMINATION. In th~ event the Lease terminntes for any reason , Landlord shall have the right lo record an Affidavit certifying that the Lease has terminated . Upon the recording of such Affidavit , this Memorandum shall also be deemed terminated and of no further force and effect. IN WITNESS WHEREOF , this Memorandum has been executed as of the date first written above. LANDLORD: CITY OF ENGLEWOOD A home rule municipal corporation By: M:iyo r TENANT : SHERIDAN REDEVELOPENT AGENCY A body corporate and politic of the Stale of Colorado By : Title: • • • • • STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DENVER ) The foregoing instrument was acknowledged before me this __ day of ----,---,--,---• 2006, by _,, ___ ,--________ as Mayor of City of Englewood , a home rule municipal corporation. WITNESS my hand and official seal. My commission expires : __________ _ STATE OF COLORADO CITY AND COUNTY OF DENVER Notary Public ) ) ss . ) The foregoing instrument was acknowledged before me this __ day of _______ ,, 2006 , by ., as _______ of Sheridan Redevelopment Agency , a body corporate and politic of the State of Colorado . WITNESS my hand and official seal. My commission expires : ___________ _ Notary Public • • • 60)6\20\973129.3 EXHIBIT A ff ASE AND MEMORANDUMJ:L AND FJRST OFFER RIGHTS OF FJRSI RE LEGAL PESCRJPTJQN OF P~ Exhibit B • I of I •S) EXHIBIT A SHEET 1 OF 5 • • PREMISES DESCRIPTION A LEASE PREMISES LOCATED IN SECTION 4, TOWNSHIP 5 SOUTH , RANGE 68 WEST OF THE SIXTH PRINCIPAL MERIDIAN ; COUNTY OF ARAPAHOE, STATE OF COLORADO; BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS : COMMENCING AT A WITNESS CORNER, BEINGS H9'56'50" W, 50,14 FEET DISTANT FROM THE CALCULATcO POSITION OF THE NORTH QUARTER CORNER OF SAID SECTION 4 AND MONUMENTED BY A 3' BRASS CAP STAMPED "PLS 22571", WHENCE THE NORTHWEST CORNER OF SAID SECTION 4 , AS MONUMENTED BY A 2-112" ALUMINUM CAP , STAMPED PLS 11434, BEARS S 69'56'50' W, A DISTANCE OF 2,605 .26 FEET WITH ALL BEARINGS CONTAINED HEREIN BEING RELATIVE THERETO, rHENCE ALONG THE NORTH LINE OF THE NORTHWEST QUARTER OF SAID SECTION 4, N 69'56'50" E, A DISTANCE OF 50.14 FEET TO THE CALCULATED POSITION OF THE NORTH QUARTER CORNER OF SAID SECTION 4; THENCE ALONG THE WEST LINE OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 4, S 00'13'03' W, A DISTANCE OF 464 .17 TO THE SOUTHEASTERLY CORNER OF REPLAT OF A PORTION OF THE HAMP DE N BUSINESS CENTER ON THE PLATTE, A SUBDIVISION RECORDED IN PLAT BOOK 99 AT PAGE 6 OF THE ARAPAHOE COUNTY RECORDS ANO THE POINT OF BEGINNING; THENCE CONTINUING ALONG THE WEST LINE OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 4, S 00'13'03' W, A DISTANCE OF 624 .65 FEET; THENCE S 69'46'57' E, A DISTANCE OF 69.51 FEET; THENCE S 13'36'27" W, A DI STANCE OF 61 .34 FEET TO THE WESTERLY BOUNDARY OF YANISH SUBDIVISION, A SUBDIVISION RECORDED IN PLAT BOOK 41 AT PAGE 17 OF THE ARAPAHOE COUNTY RECORDS ; THENCE ALONG THE WESTERLY ANO SOUTHERLY BOUNDARIES OF SAID YANISH SUBDIVISION THE FOLLOWING TWO (2) COURSES AND DISTANCES : 1. S 15'54'51' W, A DISTANCE OF 914 .34 FEET; 2. S 73'37'05" E, A DISTANCE OF 554 .56 FEf:T; THENCE S 16'22'55" W, A DISTANC E OF 94.5,. FEET; THENCE S 73'29'31 " E, A DISTANCE OF 200.fl6 FEET TO THE WESTERLY RIGHT OF WAY LINE OF SOUTH SANTA FE DRIVE; THENCE ALONG SAID WESTERLY RIGHT 0 1' WAY LINE, S 16"27'46" W, A DISTANCE u l"-147.12 FEET TO THE SOUTH LINE OF THE SOUTHWEST QUARTER OF :nE NORTHEAST QUARTER OF SAID SECTIOl 14; THENCE ALONG THE SOUTH LINE OF THE SOUTHWEST QUARTER OF THE NORTHEASl' ":UARTER OF oAIO SECTION 4, S 69"56'49" W, A DISTANCE OF 460.45 FEET TO THE CENTER QUARTER CORN~R OF SAI D SECTION 4; THENCE ALONG THE NORTH LINE OF THE NORTH HALF OF THE SOUTHWEST QUARTER OF SAID SECTION 4, S 69"54'17" W, A DISTANCE OF 50 .15 FEET; TliENCE S 16"22'55" W, A DISTANCE OF 737 .64 FEET; THENCE S 45"56'06" W, A DISTANCE OF 29 .26 FEET; THENCE N 69'20'47" W, A DISTANCE OF 23 .72 FEET; THENCE S 39'36'10' E, A DISTANCE OF 21 .75 FEET; THENCE S 26'40'25' W, A DISTANCE OF 268.67 FEET; THENCE N 63'19'35" W, A DISTANCE OF 30 .00 FEET; THENCE S 26'40'25" W, A DISTANCE OF 165.06 FEET; THENCE "I 69'56'35" W, A DISTANCE OF 156.57 FEET ; THENCE S 00'01'25" W, A DISTANCE OF 150,00 FEET TO THE NORTHERLY RIGHT OF WAY LINE OF OXFORD AVENUE ; THENCE ALONG THE NORTHERLY RIGHT OF WAY LINE OF OXFORD AVENUE , N 69'56'35" W, A DISTANCE OF 233.40 FEET; THENCE N 65'14'11" E, A DISTANCE OF 61 .45 FEET; THENCE N 00'26'34" W, A DISTANCE OF 207 .67 FEET; THENCE S 90'00'00' E, A DISTANCE OF 57 .93 FEET; THENCE N 16'47'08" E, A DISTANCE OF 4~0 .93 FEET; THENCE N 48'44'06' W, A DISTANCE OF 135.36 FEET; THENCE N 28 '23'49' W, A DISTANCE OF 78 .85 FEET ; THENCE N 33'29'43" E, A DISTANCE OF 73 .39 FEET; THENCE N 02'12'43" W, A DISTANCE OF 104.93 FEET; THENCE N 14'33'49' E, A DISTANCE OF 94 .85 FEET; CONTINUED ... PROJECT: D03036 ✓3 COMPANIES 0 1' COLORADO 2399 BLAKE STREET., STE . 130, DENVER, CO. 60205 PH : 303-96&·6566 FX : 303-969-9932 DENVER CHICAGO PHOENIX ~ EX~E~~l! PREMISES DESCRIPTION CONTINUED THENCE N 04'58'59" W, A DISTANCE OF 71 .81 FEET ; THENCE N 12'19'17' E, A DISTANCE OF 46 .09 FEET; THENCE N 19'20'00" E, A DISTANCE OF 141 ,15 FEET; THENCE N 08'04 '57 ' W, A DISTANCE OF 147 .73 FEET; THENCE N 40'22'45' E, A DISTANCE OF 96 .54 FEET; THENCE N 06'53'42' W, A DISTANC E OF 80 .59 FEET; THENCE N 22'38'11' E, A DISTANCE OF 91 .09 FEET ; THENCE N 01'40'4 0' E, A DISTANCE ')F 81 .14 FEET; THENCE N 36'27'17' E, A DISTANCE OF 57 .62 f EET; THENC E N 20'16'06' W, A DISTANCE OF 160.22 FEET; THENCE N 13'24 '2r E, A DISTANCE OF 68 .22 FEET; THENCE N 22'04'04' W, A DISTANCE OF 38 .67 FEET; THENCE N 46'43'15' W, A DISTANCE OF 88 .33 FEET; THENCE N 00'57'4 0' W, A DIS TANCE OF 151 .06 FEET ; TH ENCE N 32'08'26' W, A DISTANCE OF 114 .65 FEET ; THENCE N 15'32'59' W, A DISTANCE OF 76.28 FEET ; THENCE N 39'16'11 ' W, A DISTANC E OF 39 .28 FEET; THENC E N 65'37'00' W, A DISTANCE <:i F 71 .17 FEET ; THENCE N 25"01 '01' W, A DISTANCE OF 50.11 FEET; THENCE N 52'37'27' W .•, DISTANCE OF 33 .86 FEET; THENCE N 60'47'51' l'i, A DISTANCE OF 56 .01 FEET ; THENCE N 31'37'24' W, A DISTANC E OF 91 .75 FEoT; THENCE N 63'47'04' W, A DISTANC E OF 113 .35 FEeT ; THENCE N 32'23'45' W, A DISTANCE OF 66 .77 FEET; THENCE N 15'17'05' W, A DISTANCE OF 30 .14 FEET; THENCE N 00'05'56' E, A DISTANCE OF 31 .91 FEET; THENCE N 36'36'27' E, A DISTANCE OF 145.14 FEET; A THENCE N 17'02'27' W, A DISTANCE OF 192.38 FEET TO THE SOUTHERLY BOUNDARY OF SAID REPLAT OF A PORTION OF THE HAMPDEN BUSINESS CENTER ON THE PLATTE; THENCE ALONG THE SOUTHERLY BOUNDARY OF SAID REPLAT OF HAMPDEN BUSINESS CENTER ON THE PLATTE, N 72'57'33' E, A DISTANCE OF 1214 .48 FEE T TO THE POINT OF BEGINNING ; CONTAINING A CALCULATED AREA OF 2,372 ,114 SQUARE FEET OR 54.457 ACRES , MORE OR LESS . ILLUSTRATION ATTACHED HERETO AN D INCORPORATED HEREIN BY REFERENCE . SURVEYOR'S CERTIFICATE I HEREBY CERTIFY THAT THE ATTACHED PREMISES DESCRIPTION WAS PREPARED BY ME ori UNDER MY DIRECT SUPERVISION AND IS ACCURATE TO THE BEST OF MY KNOWLEOGE AND BELIEF . ALAN WARNER COLORADO PLS 26666 FOR AND ON BEHALF OF VJ COMPANIES DF COLORADO, LTD. 2388 BLAKE ST ., SUITE 130 •• DENVER, CO. 60205 • 303-988-6586 D03036 PROJECT: 003038 ,3 COMPANIES OF COLORADO 2389 BLAKE STREET .. STE . 130, DENVER , CO. 60205 PH: 303 -96 8-B588 FX: 303-969-9932 DENVER CHICAGO PHOENIX ILLUSTRATION FOR EXHIBIT A SHEET 3 OF 6 _A_ BASIS OF 8£ARINCS ~ . V -11 89"56'50' E:-2605.2~ --N 1/4 COR., SEC. 4 CALCULATE:O POSlnON \_ NW COR., SEC. 4 2 -1/2 " ALUM. CAP POINT OF COl,/1,/[NSE:MENT LS 114J4 WITNESS CORNER NO MONUM£NT FOUNO OR SIT CORN£R FALLS IN J" BRASS CAP, LS 22571 SOUTH PLATT[ RIVER BLOCK 1 7 -. PfTERSBU.~C , Pl.AT BOOK Al, PAGE 2 POINT OF • . • L~T 1. B e,c"K,---,-1 ---1 BEGINNING ~~ ~'f,._~%:8fo/'~Atf-JJ LEASE PREMISES 2,372,114 SF± 54.456 AC± '!: ,:i.-:( BLOCK 1 -,H, NATr:HfS SUBO . ..J ~ l: Pl.AT BOOK 105. PAGE 42 8~ ~ BLOCK I PfTERSBURG PLAT BOOK Al, PAC( 2 -~• JI'. J)IL,R,'-----4..-6;;,L!!~ . UN£. SE:1/4, NW 1/4 C-N 1/16 COR., 5£ CALCULA T[O POSIT/ SEE SHEET4 PREMISES CONTAINS APPROX .2,372,114 SQ FT (~.456 ACRES). THIS EXHIBIT DOES NOT REPRESENT A MONUMENTED LANO SURVEY, Scale : 1 "=300' 300 BOO IT IS INTENDED ONLY TO DEPICT THE AT ·-_1H_ED_D_Es_c_R_IPTI_O_N~. ____________ F_EET ______ H ,...n uineers 2399 BIik• S"""I S· Ito I JO o· Deaver, CO 80205 RIVER POINT AT SHERIDAN Scientists 303 91 um voice ,,EcTION ,, T. s s .. R. 68 w .. 6TH PM Surveyors ~~~:=l2 fu CITY OF SHERI•; AN, COUNTY OF ARAPAHOE, STATE OF COLORADO LEASE PREMISES ORN : AGW DATE: 07/07/06 JOB : 003038 b COMPANIBS OF COLORADO LTD. CKD : SCALE : 1"•300 FBK: N/A r.======~~~=====, .• ,:,➔• ILLUSTRATION FOR 'ti EXH!BIT A UNPLATTCO L21 L20:; 2,372,114 SF± 54 ,456 AC± SHEEUOF5 UNPLATTfJJ B, I _ --1LJV6'~ It'...~ Oi -O~AYENUE SOUTH UN£, Nl/2, SWl/.4 SEC, 4 51/16 COR., SEC 16/15 S 1/16 COR., SE:C. 4 1-1/z• ALUM. CAP J-1/4 " ALUM. CAP ILLF:Cl8L£ PLS 2J516 PREMISES CONTAINS APPROX.2,372 ,114 SQ FT (54 .456 ACRES). THIS EXHIBIT DOES NOT REPRESENT A MONUMENTED LAND SURVEY, IT IB IHT!NDED ONLY TO DEPICT THE ATTACHED DESCRIPTION. Scala : 1 '=300' 300 FEET LEASE PREMISES Engineers 2399 Blakes ... ~ Suile 130 Denver, CO I020S RIVER POINT AT SHERIDAN 800 Scientists 3o 3.9aum voice SECTION 4, T. D s .. R 118 w .. mi PM Surveyors t~~::,9 32 r.. CITY OF SHERIDAN, COUNTY OF ARAPN!OE, STATE OF COLORADO COMPANIES OF COLORADO LTD. ...g""~'"'o:'"'' A~G~W~--~.,,~~TE..,~,...:0"',~! ... :,..:--... t08"'eK:"": .,,~ .. :,-~--,, • • UN£ LI L2 LJ L4 1..5 LB L7 LB L9 LIO LI I Ll2 LIJ l.14 L15 LI& L17 L18 Ll9 L20 L21 L22 L2J L24 L25 L26 L27 L28 L29 LJO II.~ T10N ~OIi EXHIBIT A IHIITIO#I T1118 EXHIIIT D0£8 NOT REPAESENT A MONUMENml ~D SURVEY, IT II INTINDIO 011.Y TO Ol!PICT TM! ATTACll!D DE8CRIPTION . • • • COUNCIL COMMUNICATION Date: Agenda Item: Subject: July 24, 2006 11 a i Property Lease Agreement regarding the Redevelopment of the Englewood Golf Course Initiated By: I Staff Sour~e: Department of Parks and Recreation Jerrell Bla ck, Dire ctor COUNCIL GOAL AND PREVIOUS COUNCIL ACTION City Council pa sse d a Motion on August 1, 2005 authorizing the Englewood City Manager to enter into negotiati ons with Miller Weingarten Realty regarding a redevelopment propo sa l impacting the Englewood Golf Course. RECOMMENDED ACTION Staff recommends that City Council adopt a Bill for an Ordinan ce approving a Property Lease Agre eme nt pertaining to the Red eve lopment of the Englewood Golf Course with The Sheridan Redevelopment Agency . BACKGROUND, ANALYSIS, AND ALTERNATiVES IDENTIFIED The City of Englewood was approached by Miller Weingarten Realty on behalf of the Sheridan Redevelopm ent Agency in 2004 regarding the proposed redev elopment plan for th e area west of South Santa Fe Drive . The Sheridan Redevelopment Agency has requested lea sing approx imately 54 acres from the City of Englewo od to develop a planned retail/entertainment co mple x. The Property Lease provides for the following: • The Englewood Golf Course Facility will be maintained in its entirety, including the 16-hole regulation course, the Par 3 Course and the Driving Range. The relocat ion will offer significant improvements to the Englewood Golf Course including : • The lease provides for an initial 20 year term and three additional 20 year options . • Miller Weingarten is obligated to protect the retail tenants of CityCenter E,1glewood from negative impacts. • The project will include significant improvements to the environmental conditions of the City's property. Miller Weingarten has developed a Voluntary Cleanup Plan that has been approved by the Colorado Departmerot of Health and Environment (CDJ>HE) -DPHE and the consultants for the Cit ',' rJf Englewood will monitor the environmental remediati~., of the City property . • Miller W-.i ngarten has guaranteed completion of the golf cours e redevelopment and has indemnified the City against environmental damages that may occur as a result of this project. • The scheduled start of the golf course redevelopment is mid-September ir~6, with completion • scheduler! for late spring of 2008. The golf course clubhouse and the bac vest) nine hole, will remain open to the public during construction. • Miller Weingarten has coordinated with the South Suburban Park and Recreation District regarding impacts to the Mary Carter Greenway. • The lease of the property is subject to completion of other land acquisition and finalization of development plans by the <:ity of Sheridan and Miller Weingarten. FINANCIAL IMPACT The property lease provides the following financial elements: • Miller Weingarten has advanced the City a non-refundable deposit of $150,000 to cover the cost of its out-of-pocket expenses associated with the City's review of the proposed transaction. • Miller Weingarten will lease th e proposed property for an initial 20 year term for $4.19 million and will have 3 additional 20 yea r options totaling $900,000. • Miller Weingarten will pay the City an additional $650,000 to cover the cost of the City's monitoring of the environmental remediation on City pro perty and the redevelopment of the golf course, as well as supplemental golf cou rse improvements and enhancements. • Th e prop0sal carries no financial risk to the City, as all costs related to the reloca tion of the • golf co urse will be paid by the developer. • The portion of the golf course that is on the proposed property lease will b e relocated and rebuilt, in its entirety, at th e sol e expense of Miller Weingart en, at an estimated cos t of $5.5 million. • Miller Weingarten is obligated to protect th e City of Englewood from any loss of profit from operation of the golf course during any period that m e golf course is impac ted by relocation and for two years following re-opening of all facilities . LIST OF ATTACHMENTS Assignment and Assumption Agreement Limited Guaranty Redevelopment Letter from Mike Miller Affirmation from Sheridan Redevelopment Agency on Leas e Agreement Bill for an Ordina nce • • • • GROUND LEASE ASSIGNMENT AND ASSUMPTiON AGREEMENT This Groun,1 Lease Assignment and Assumption Agreement (" Agreement") is made a.id entered into asofthe __ day __ ~ 2006, by and between SHERIDAN REDEVELOPMENT AGENCY, a Colorado limited liability company ("Assignor"), and WEINGARTEN MILLER SHERIDAN , LLC, a Colorado limited liability company (" Assignee"), and THE CITY OF ENGLEWOOD, COLORADO, a home rule municipal corporation ("Landlord"). RECITALS A. Assignor is the ·1 enant under that certain Ground Lease dated _____ 2006 between the City of Englewood, Colorado, as Landlord (the "Ground Lease "). B. Assignor desires to assign to Assignee all of Assignor's right, title and interest in and to, and Assignee desires to ass ume from Assignor and agrees to observe , perform and be bound by all of Assignor's covenants , duties and obligations under the Ground Lease. C. Landlord and Assignee desire to amend t'1e Ground Lease by adding the provisions set forth below to the Ground Lease. D. Capitalized terms used herein but not defined herein shall have the meanings given them in the Ground ,,ease . AGREEMENT NOW, THEREFORE, in consideration of the foregoingprer,1ises and the mutual covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed as follows : I. Assignment cf Tenant Leases and Deposits . Assignor hereby assigns and transfers to Assignee all of Assignor's rights, title and interest in and to the Ground Lease. 2. Assumption of Obligations . Assignee hereby assumes and agrees to observe, perform and be bound by all of the covenants, duties and obligations of Assignor, arising under and with respect to the Ground Lease. 3. Representa(ions and Warranties . Assignor hereby represents and warrants to Assignee that (a) it has not previously assigned its interest in the Ground Lease to any third party; and {b) it owns its interest in the Ground Lease free and clear of all liens, security interests and encumbrances . 4. Amendment to Ground Lease . Landlord and Assignee agree to amend the Ground Lease by deleting the original reference in Article 12 as being "Intentionally Omitted", and inserting in Article 12 the following in its entirety: • • • ARTICLE 12 Environmental 1. Environmental Di sclosure . Tenanl acknowledge: that Landlord ha s disclosed to Tenant that portions of the Premi ses include a fonner landfill and the possible existence of Environmental Conditions at , on, under or migrating onto or fro m the Premises . Tenant acknowledges that it has conducted its own investigations of the Premises, including the presence or absence of any such Environmr1 '.al Con diti ons. Landlord makes no representations or warranties whatsoever regarding the accuracy or reliability of infonnation and doc ument s disclosed to Tenant by Landlord regarding the presence or absence of Environmental Conditions existi ng al th e Premises. Tenant acknowledges that Tenant is sophisticated in th e purchase and development of real property, and has been given full opportunity to inspect the Premi ses, including the opportunity to perform env ironment al testing at the Premises . 2. Tenant's Voluntary Cleanup and Redevelopmen t. Tenant intends to redevelop the Premi ses as part of the Sheridan Red evelo pment Area and the Ri ver Point at Sheridan retail ce nter development project. In furtherance of those development act iviti es, Tenant has prepared and submitted the Environmental Workplan to the Colorado Department of Public Health and Environment ("CDPHE"). Tenant has recei ved written approval from CDPHE for the Environmental Workp lan. During the tenn of the Lease , including any extensions, Tenant covenants, al it s so le cost and expense, to perfonn, comply with and be responsible for , and to ca use all of its subles sees , contractors, agents, successors , assigns and grantees to pcrfonn , and comply with: (I) all tenn s and conditions of the Enviro nm ental Workplan; and (2) all tenns and conditions in the supporting documents forming the basis of the Environmental Workplan ; and (3) all other applicable Environmental Laws; and (4) any work, respo nse action, investigation , monitoring, or remediation that is required by any governmental ~gency with applicable auth r.,iiy to be undert aken regarding any Environmental Conditions at th •! Premises that are addressed in the Environmental Workplan or th at b,-co mc known as a res ult of Tenant performing or carrying out its respons:biliti,-s under items (I), (2), and (3) abo ve. Tenant shall use its best efforts to obtain from CDPHE and deliver to Landlord a "No Acti on Det ermination" at the completion of each pha se of the Environmental Workplan. 3. Relea se and Covenant Not to Sue . Tenant hereby releas,-s and covenants not to sue Landlord and its elected officials , employees, agent,., repr1.-sen tativ1.-s, and assigns, of, from and for any and all manner of actions, suits, claims, drunages , judgment s, levies , executions, demands, costs, expenses and liabili ties, known or unknown, liquidated or unliquidated , direct or indirect, whether in contract , tort or otherwise, existing by virtue of any federal , state or local stat ute or regulation, which Tenant could assert against Landlord as a result of or arising out of the presence or alleged presence of Environmental Conditions at the Premis es or flood ing on the • • Premises caused by Tenant's development activities and/or Impro vements. This release and covenant not to sue shall survive the termination of this Lease and any sale or other conveyance of title to the Premises . 4. Tenant's lndemnjficatjon of Landlord . Tenant agrees to release, indemnify and hold harmless Landlord and its elected officials, employees , agents, representatives , and assigns, from and against all liability, claims. demands, suits, actions, administrative proceed;ngs, orders, damages , costs, judgm ents , levies, executions, expenses, assessments , fines and penalties, including court costs and reason able expert witness and attorneys' fees, arising out of or rclnting to any of the following : (I) the performance by Tenant of its obligations this Article 12 ; (2) any work, response action, investigation , monitoring, or remediation or abatement that is required by any governmental agency with applicable authority to be undertaken regarding any Environmental Conditions that are addressed in the Environmental Workplan or that become known as a result of Tenant perfo!ming or carrying out its responsibilities under items (I), (2), (3) and ( 4) of Article i 2.2 above; (3) the use and occupancy of the Premises by Tenant or Tenant's sublessees, contractors, agents, successors, assigns or grantees, including but not limited to acts or omissions of Tenant or Tenant 's sublessces, contract ors, agents , successors, assigns or grantees, during or after the redevelopment of the Premises , resulting in the creation of, contribution to, or exacerbation of any Environmental Conditions at the Premi ses now or in the future ; (4) Tenant's failure to comply with any applicable law,; and/or regulations governing wetlands, Hoodptain s or Hoodways ; (5) ca using or contributing to any additional waste water treatment costs or violations of effluent limits in the CDPS Permit for the Littleton/Englewood Wastewater Treatment Plant ("LEWWTP") as a result of the use and occupancy of the Premise s by Teijant or Tenant's sublessees, contractors, agen ts. success ors , assigns or grantees. including costs of penalties and/or compliance with any administrative or judicial enforcement action taken against the LEWWTP and/or the Cities of Littleton and Englewood as the owners thereof; or (6) arising out of or relating to any Hooding on the Premises caused by Tenant's development activities and/or Improvements . Thi s indemnification is not limited to third party claim s and shall survive the termination of thi s Lease. 5. Landlord's Right to Inspect. During the term of the Lease, Landlord has the right upon reasonable prior notice to Tenant, but not the obligation, to co nduct any in spection s, test s, surveys, procedures or investigation s (together as "Inspections") at the Premises that Landlord, in its sole discretion, deems necessary to dctennine whether Environmental Conditions exist and/o r whether Tenant's de velopment activities and Improvements are in compliance with all applicable laws and reb,ulations . Lano lord shall use commercially reasonable efforts to minimize interruptions of Tenant's business use of the Premises in conducting any such inspections . During Tenant's performance of its respon sibilities under Article 12.4 above, Landlord has the right , but not the oblig,1tion, to have its inspectors present on-site during all aspects of Tenant's work . Tenant shall not interfere with or • • • obstruct the access or observation of landlord's inspector. Tenant has designated the following persons as the contact for direct communication by Landlord's inspector on matters relating to Tenant's work (and Tenant may change such designation by prior written notice to Landlord: (Insert Contact Name( 6. Environmental Insurance. Tenant shall , at no cost to Landlord , acquire and maintain environmental liability insurance policies naming Landlord as an insured beneficiary in coverage fonns and amounts acceptable to Landlord, and written by one or more com;,anies acceptable to Landlord, all in Landlord's reasonable discretion . T<:nunt shall use its commercially reasonable best efforts, at no cost to Landlord , to maintain such coverage throughout the tenn of the Lease. including any extension s. Such policies shall provide that Landl ord shall be given a minimum of thirty (30) days· written notice by any such insurance company prior to the cancellation , tennination , or alteration of the tenns r,; limits of such coverage . Copie s of such policies shall be delivered to LandlorJ endorsed premium paid by the company or agent issuing the same, or accompanied oy other evidence satisfactory to Landlord that the premiums thereon have been paid. Such policies and evidence of payment shall be delivered to Landlord prior to or concurrent with the first entry upon the Premi ses, or any portion thereof by Tenant , it s contractors and subcontractors . 7. Flood Insurance. Tenant shall , at no cost to Landlord , acquire and maintain liability in surance covering damage caused by flooding on the Premises naming Landlord as an insured entity in coverage fonn s and am ount s acceptable to Landl ord in Landl ord 's reasonable discretion . 8. Construction and Maintenance of Drainage Swale. Tenant intend s to construct a drainage swale along the western boundary of the Premises for the purpose of controlling and/or managing excess runoff created by Tenant's development. Tenant agrees, at its sole cost and expen se, to accept full responsibility for construction and maintenance of the drainage swale in such a manner to ensure that it functions properly and in accordance with all applicable laws and regulations . In addition , Tenant agrees to erect fencing , subject to the approval of Landlord, along the eastern boundary of the swale located on the leased Premi ses along the Landlord's golf complex . 9. Storage. Tanks. Landlord and Tenant are • ·rrently unaware of any past or present underground or above ground storage tank systems or operations at the Premises . Accordingly, nothing in this Lease shall be interpreted or applied as any express or implied indication of the ownership or operation of any underground or above ground storage tanks by Landlord or Tenant , or as conferring "Owner" or "Operator" status or liability to Landlord or Tenant regarding any underground or above ground storage tanks at the Premises in the past , present or future , pursuant to • • • any federal , Colorado or local laws, rules , regulations or polici es of any governmental agencies, administrative committees or commissions . I 0. Sub-tenants. In no event and notwithstanding anything to the contrary contained herein shall Landlord hold any subtenants responsible for the provisions of this Article, except to the extent a subtenant expressly agrees to be responsible therefor under the terms of its sublease between it and Tenant. 5. Further Documents. Assignor and Assignee agree to execute further or additional documents and to take such other actions as may be reasonably necessary or appropriate to fully confirm or carry out the assignment and transfer as set forth in this Agreement. 6. ~-All notices or other communications to be given to Tenant in accordance with Article 17, Section 3 of the Leas e shall be addressed to Tenant as follows : lfto Tenant: With co pies to : Weingarten Miller Sheridan LLC 850 Englewood Parkway, Suite 200 Englewood , CO 80110 Attention : Mr. Stewart A. Miller Weingarten Realty Investors 2600 Citadel Pl aza Drive P.O . Box 924133 Hou ston , TX 7792-4133 Attention : General Counsel Weingarten Realty Investors 2600 Citadel Pl aza Drive P.O . Box 924133 Hou ston , TX 7792-4133 Attention : President Isaacson Rosenbaum P.C. 633 1711> Street, Suite 2200 Denver, CO 80202 Attention: William M. Silberstein , Esq . 7. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. 8. Successors . This Agreement shall bind and inure to the benefit of the parties hereto and their respective heirs , successors and assigns . • • • 9. Further Actions . Each of the parties hereto shall execute such documents and take such action as may be reasonably requested by the other party to carry out the provisions and purposes of this Agreement . 10. Applicable Law . This Agreement shall be construed in accordance with the laws of the State of Colorado . 11 . Counterparts . This Agreement may be executed in two or more counterparts , each of which sh.ill be deemed and original and all of which taken together shall constitute one and the same instrument. [remainder of the page left intentionally blank} • • • IN WITNESS WHEREOF, the parties have executed this AgremlCDt u of the day and date first above written. ASSIGNOR: SHERIDANREDEVBLOPMBNT AGENCY, a Colorado limited liability company By. __________ _ Name :. ______ _ Title: __________ _ ASSIGNEE: WEINGARTEN MILLER SHERIDAN, U..C, a Colorado limited liability company By. W eingartcn Realty Investors, a Texas Real Estate InvestmCDt Trust, ~~ LANDLORD: THE CITY OF ENGLEWOOD, COLORADO, a home rule municipal cotp0ration By. __________ _ Name :. __________ _ Title : __________ _ Page6 • • • GROUND LEASE ASSIGNMENT AND ASSUMPTION AGREEMENT This GrounJ Lease As signment and Assumption Agreement ("Agreement") is made and entered into as of the __ day ____ , 2006, by and between SHERIDAN REDEVELOPMENT AGENCY , a Colorado limited liability company ("Assignor"), and WEINGARTEN MILLER SHERIDAN, LLC , a Co lorado limited liability company(" Assignee"), and THE CITY OF ENGLEWOOD, COLORADO, a home rul e municipal corporation ("Landlord"). RECITALS A. Assignor is the Tenant under that certain Ground Lease dated ______ 2006 between the City of Englewood . Colorado, as Lendlord (the "Ground Lease"). B. Ass ignor desires to assign to Assignee all of Assignor's right, title and interest in and to , and Assignee desires to assume from Ass ignor and agrees to observe, perform and be bound by all of Assignor's covenants , duties and obligations under the Ground Lease . C. Landl ord and Ass ignee desire to amend the Ground Lease by adding the provi sio ns set forth bel ow to the Ground Lease . D. Capitalized terms used herein but not defined herein sha ll have the meanings given them in the Ground Lease . AGREEMENT NOW, THEREFORE , in consideration of the foregoing premises and the mutual covenants contained herein, the receipt and suffici ency of which are hereby acknowledged , it is hereby ab"l'eed as follows : I . Assignment of Tenant Leases and Deposits . Assign or hereby assigns and tran sfers to Assignee all of Assi gnor's right s, title and interest in and to the Ground Lease. 2. Assumption of Obligations . Assignee hereby assumes and agrees to observe, perform and be bound by all of the covenants, duti es and obligations of Assignor, arising under and with respect to the Ground Lease . 3. Representations and Warranties. Assignor hereby represents and warrants to Ass ignee that (a) it has not previ ously assigned its interest in the Ground Lease to any third party; and (b) it ow ns its interest in the Ground Lease tree and clear of all liens , security interests and encumbrances . 4. Amendment to Ground Lease . Landlord and Assignee agree to amend the Ground Lease by deleting the original reference in Article 12 as being "Intentionally Omitted", and inserting in Article 12 the following in its entirety: • • • ARTICLE 12 Environmental I. Environmental Djsc!osure. Tenant acknowledges that Landlord has disclosed to Tenant that portions of the Premises include a former landfill and the possible existence of Environmental Conditions at , on, under or migrating onto or from the Premises. Tenant acknowledges that it has conducted its own investigations of the Premises, including the presence or absence of any such Environmental Conditions . Landlord makes no representations or warranties whatsoever regarding the accuracy or reliability of information and documents disclosed to Tenant by Landlord regarding the presence or absence of Environmental Conditions existing at the Premises. Tenant acknowledges that Tenant is sophisticated in the purchase and development ofrcal property , and has been given full opportunity to inspect the Premises , including the opportunity to perform environmental testing at the Premises . 2. Tenant's Voluntary Cleanup and Redevelopment. Tenant intends to redevelop the Premises as part ol'the Sheridan Redevelopment Area and the River Point at Sheridan retail center development project. In furtherance of those development activities , Tenant ha s prepared and submitted the Environmental Workplan to ffil'HEthe Colornd o Department uf Public Health and Environment ("C Dl'I-IE"). Tenant has received written approval from CDPHE fo r the Environmental Workplan . During the term of the Lease, including any ex1cn si,u1 s, Tenant covenants , al its sole co st and expense, to perform, comply with and be responsible for , and to cause all of its sublessees , contractors, agents, successors, assigns and grantees to perform, and comply with: (I) all terms and conditions of the Environmenta l Workplan; and (2) all terms and conditions in the supporting documents forming the basis of the Environmenta l Workplan: and (3) all other applicable Environmental Laws; and (4) any work, response action , investigation . monitoring. or remediation that is required by any governmental agency with app li cable authority to be undertaken regarding any Environmental Conditions at the Premises that arc addressed in the Environmental Work plan or that become known as a result of Tenant performing or carrying out its responsibilities under items (I), (2), and (3) above . Tenant shall use its best efforts to obtain from CDPHE and deliver to Landlord a "No Action Determination" at the completion of each phase of the Environmenta l Workplan. 3. Release and Covenant Not to Sue . Tenant hereby releases and covenants not to sue Landlord and its elected officials , employees, agents, representatives , and assigns, of, from and for any and all manner of actions , suits, claims, damages, judgments, levies, executions, demands , costs , expenses and liabilities, known or unknown , liquidated or unliquidated , direct or indirect, whether in contract, tort or otherwise , existing by virtue of any federal, state or local statute or regulation , which Tenant could assert against Landlord as a result of or arising out of the presence or alleged presence of Environmental Conditions at the Premises or flooding on the Premises caused by Tenant's development activities and/or Improvements. This release and covenant not to sue shall survive the termination of this Lease and any sa le or other conveyance of title Jo the Premises . • • • 4. Tenant's Indemnification of Landlord. Tenant agrees to release , indemnify and hold hannless Landlord and its elected officials, employees, agents, representatives, and assigns, fron \ and against all liability , claims, demands, suits, actions, administrative proceedings, orders , damages, costs, judgments, levies, executions, expenses, assessments, fines and penalties, including court costs and reasonable expert witness and attorneys' fees, arising out of or relating to any of the followini;: (I) the performance by Tenant of its obligations this Article 12; (2) any work, respon se action , in vestigation, monitoring, or remediation or abatement that is rcx1uin.-d hy any g11vcmmcntal ugcncy with upplicublc auth ority lo be umlcrtakcn rcg urdiny any Environmental Conditions that are addressed in the Environmental Workplan or that become known as a result of Tenant performing or carrying out its ,eponsihilitiesrcsponsibilitics under items (I), (2), (3) and (34) of Article 12 .2 above ; (3) the use and occupancy of the Premises by Tenant or Tenant's sublessees , contractors , agents, successors, assigns or grantees , including but not limited to acts or omissions of Tenant or Tenant's sublessees, contractors, agents, successors, assigns or grantees, during or after the redevelopment of the Premises, resulting in the creation of, contribution to , or exacerbation of any Environmental Conditions at the Premises now or in the future ; (4) Tenant's failure to comply with any applicable laws and/or regulations governing wetlands, floodplains or floodways; (5) causing or contributing to any additional wastewater treatment costs or violations of effluent limits in the CDPS Permit for the Littleton/Englewood Wastewater Treatment Plant ("LEWWTP") as a result of the use and occupancy of the Premises by Tenant or Tenant's sublessees, contractors, agents, successors , assigns or grantees , including costs of penalties and/or compliance with any administrative or judicial enforcement action taken against the LEWWTP and/or the Cities of Littleton and Englewood as the owners thereof; or (6) ar.sing out ofor relating to any flooding on the Premises caused by Tenant 's developm ent activities uncVor Improvements. This indemnification is not limited to third party claims and shall survive the termination of this Lease . 5. Landlord's Right to Inspect. During the term of the Lease, Landlord has the right upon reasonable prior notice lo Tenant , but not the obligation , lo conduct any inspections, tests , surveys , procedures or investigations (together as "Inspec ti ons") at the Premises that Landlord, in its sole discretion, deems necessary lo determine whether Environmental Conditions exist and/or whether Tenant's development activities and lmpr.:ivements are in compliance with all applicable l••vs and regulations. Landlord shall use commercially reasonable efforts to minimize interruptions of Tenant's business use of the Premises in conducting any such inspections . During Tenant 's performance of its responsibilities under Article 12.4 above, Landlord has the right , but not the obligation, to have its inspectors present on-site during all aspects of Tenant's work . Tenant shall not interfere with or obstruct the access or observation oflandlord's inspector. Tenant has designated the following persons as the contact for direct communication by Landlord's inspector on matters relating to Tenant's work (and Tenant may change such designation by prior written notice to Landlord : (Insert Contact Name) • • • 6. Environmental Insurance. Tenant shall, at no cost to Landlord , acq uire and maintain environmental liability insurance policies naming Landlord as an insured beneficiary in coverage forms and amounts acceptable to Landlord, and written by one or more companies acceptable to Landbrd, all in Landlord's reosBnhle eisereliBnrcasonablc discretion. Tcnunl shull use il s commercially rea sonable best clfort s, al no cosl lo Landlord, lo mninlain such coverage throughout the lenn of the Lease , induding any cxlcnsiun s. Such policies shall provide that Landlord shall be given a minimum of thirty (30) days' written notice by any such insurance company prior lo the cancellation, termination, or alteration of the terms or limits of such coverage . Copies of such policies shall be delivered to Landlord endorsed premium paid by the company or agent issuing the same, or accompanied by other evidence satisfactory to Landlord that the premiums thereon have been paid. Such policies and evidence of payment shall be delivered lo Landlord prior lo or concurrent with the first entry upon the Premises , or any portion thereof by Tenant, its contractors and subcontractors . 7. Flood Insurance . Ten11t1I shall , at no cost to Landlord, acqui re and maintain liability insurance covering damage ca used by flooding on the Premises naming Landlord as an insured entity in coverage forms and amounts acceptable to Land lord in Landlord's selereasunuble discretion-f(>PEN?-1. 8. Construction and Maintenance of Drainage Swal e. Tenant inlends IJ construct a drainage swale along the western boundary of the Premises for !he purpose of controlling and/or managing excess runoff created by Tenanl's development. Tenant agrees, al il s sole cos t and expen se, lo accept full responsibility for con struclion and mainlenance of the drainage swale in such a manner lo ensure that ii functions properly and in accordance with all applicable laws and regulation s. In addition , Tenant agrees lo erect fencing , subject to the approval of Landlord, along the eastern boundary of the swale located on the leased Premises along th e Landlord's golf complex ,dqth.-ted en ti•hlhll _. 9. Storage Tanks . Landlord and Tenant are currently unaware of any past or present und ergrou nd or above ground storage tank systems or operations at the Premises. Accordingly, nothing in this Lease shall be interpreted or app lied as any express or implied indication of the ownership or operation of any underground or above b'l'Ound storage tanks by Landlord or Tenant, or as conferring "Owner" or "Operator" status or liability to Landlord or Tenant regarding an y underground or above ground storage tanks al the Premises in the past, present or future, pursuant lo any federal , Colorado or local laws, rules, regulations or policies of any governmental agencies , administrative committees or commissions. I 0. s.u!!:Jenani~. In no event and notwithstanding anything to the contrary contained herein s~all Landlord hold any subtenant s responsible for the provisions of this Article , except to the extent a subtenant expressly agrees to be responsible tlteffl,rth~refor under the terms of its sublease between it and Tenant. • • • 5. Further I>ocuments . Assigr \ssignc:e agree to execute further or additional documents and to take such other actions . •1 oe reasonably necessary or appropriate to fully confinn or C8JT)' out the assignment and transfer as set forth in this Agreement. ~ Notici:s . AU.!l@C~'li or othec.wmmuniCJ!lions to 1>£&ixen to Tenant in accordance with Articl e 17, Secti on 3 o(the Lease shall be,.Jiddressed t enant as.follo.ws: lfto e1ll!lll;_ With copies to : . ei • · · l.~ 850 Engl ite lQ(l Engle. Attentio . Miller Weingarten Realty Investors 2600 Citadel Plaza Drive P.O . BoJt 2"133 Houston , TX 77.92-4133 Attention : Preside nt Isaacson Rosenbaum P.C . 633 l7'" Street, Suite 2200 Den ver, CO 80202 Attention: William M. Silberstein, Esq. 7. lr.Entire Agreement . This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. 8. '1,-Successors, This Agreement shall bind and inure to the benefit of the parties her~to and their respective heirs, successors and assigns. 9. 8,-further Actjons . Each of the parties hereto shall execute such documents and take such action as may be reasonably requested by the other party to C8JT)' out the provisions and purposes of this Agreement. l(). 9'-Am!ful~. This Agreement shall be construed in accordance with the laws of the State of Col-,rado . IJ , ~unterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed and original and all of whici, tc! .ogether shaH constitute one and the same instrument. [remainder of the page left intention,;11/y blank] • • • n-1 WITNESS WHEREOF, the partiea have executed tbla Aaieement u of the day 111d date lint above writtm. ~ ~ ASSIGNOR: SHERIDAN REDEVELOPMENT AGENCY, a Cololldo limited liability comp1111Y By. ___________ _ Name: __________ _ Title: __________ _ ASSIGNEE: WBINOARTBN MILLER SHERIDAN, LLC, a Colorado limited liability company By. Weingarten Realty Invcston, a Texas Real Estate Investment Trust, ~~ LANDLORD: nm CITY OF ENGLEWOOD, COLORADO, a !:iome rule municipal co1p0ration By.. ___________ _ Name: __________ _ Title : __________ _ Paget, • . DRAFT LIMITED GUARANTY This Limited Guaranty ("Guaranty Agreement) is entered into this __ day of July, 2006 by Weingancn Realty Investors, a Texas real estate investment trust ("Guarantor") for the benefit of the City of Englewood, Colorado, a home rule municipal corporation. RECITALS A. Englewood, as Landlord, entered into a Ground Lease (the "Lease") with Sheridan Redevelopment Agency ("SRA "), as tenant , relating to that certain real property ("Premises") more particularly described on Exhibit A attached hereto and made a part hereof by this reference, which Lease has an Effective Date of even date herewith . B. SRA intends to assign it's interest as Tenant in the Lease to Weingarten Miller Sheridan LLC ("Tenant"), pursuant to that certain Ground Lease Assignment and Assumption Agreement attached hereto as Exhibit B and made a part hereof by this reference (the "Assignment"). --- C . SRA and Tenant have requested Englewood to consent to the Assignment and Assumption Agreement. • D . As a condition of Englewood's consent to the Assignment and Assumption • Agreement, Englewood requires Guarantor to enter into this Guaranty Agreement, and Guarantor has agreed to do so to induce Englewood to give its consent. NOW THEREFORE, in consideration of Englewood's consent to the Assignment and Assumption Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor agrees as follows: AGREEMENT I . Guarantor absolutely, unconditionally and irrevocably guarantees and agrees (a) to perform fully and promptly all of the covenants, agreements and other obligations required to be performed by Tenant (including the obligation to make any payments) under Article 12 of the Lease, as amended by Paragraph 4 of the Assignment; (b) to indemnify Englewood against uny losses, claims, damages or other costs incurred by Englewood as a result of any breach or default by Tenant of any of Tenan,'s obligations under Article 12 of the Lease (ilS amended by Paragraph 4 of the Assignment); (c) to pay any deductible amount required to be paid by the insured under any insurance policy Tenant is obligated to obtain under the provisions of Article 9 of the Lease and under Article 12 of the Lease (as amended by Paragraph 4 of the Assignment), (d) to pay any and all reasonable costs, attorneys' fees and expenses incurred or expended by Englewood due ~, 1111y default by Tenant in the performance of the obligations referred to in subparagraphs (a) through (c) of this Paragraph and (e) to pay any and all reasonable costs, attorneys' fees and expenses • incurred or expended by Englewood in enforcing the provisisons of this Guaranty Agreement. The obligations to be performed by Tenant and payments to be made by Tenant described in subparagraphs (a) through (c) of this Paragraph I, together with any payments to be made by Guarantor under subparagraphs (d) and (e) of this Paragraph I, are herein collectively referred to as the "Obligations ." 2. Guarantor expressly waives demand and notice of default by Tenant and Guarantor. Englewood shall be under no obligation to use diligence in preserving the liability of any person on the Obligations or in bringing suit to enforce performance of the Obligations. Guarantor waives all defenses given to sureties or guarantors at law or in equity other than the actual performance of the Obligations and all defenses based upon questions as to the validity, legality or enforceability of the Obligations and agrees that Guarantor shall be primarily liable hereunder. 3. Englewood, without authorization from or notir.e to Guarantor and without impairing, modifying , changing , releasing , limiting or affecting the liabili ty of Guarantor hereunder, may from time to time at its discretion and with or without valuable consideration, alter, compromise, accelerate, renew , extend or change, take and surrender any insurance policies insuring any of the Obligations, or settle or compromise with Tenant or any other person or persons liable on the Obligations on such terms as it may see fit, • and may apply all moneys received from the Tenant or others to reduce or discharge any portion of the Obligations in such manner as it may determine to be in its best in•erest , without in any way being required to apply all or any part of such moneys upon any particular part of the Obligations. It is specifically agreed th at no exercise or non-exercise by Englewood of any other right or remedy of Englewood shall in any way affect any of Guarantor's obligations hereunder or any security furnished by Guarantor or give Guarantor any recourse against Englewood . 4 . The liability of Guarantor hereunder shall not be modified, changed , released, limited or impaired in any manner whatsoever on account of any or all of the following: (a) the incapacity, dissolution or termination of Guarantor or Tenant; (b) the failure by Englewood to file or enforce a claim against the estate (either in administration, bankruptcy or other proceeding) of Tenant or any other person or entity ; (c) recovery from Tenant or any other person or entity becomes barred by any statute of limitations or is otherwise prevented; (d) any defenses , set-offs or counterclaims which may be available to Tenant or any other person or entity; (e) any release of Tenant, any co-guarantor or any other person (other than Guarantor) primarily or secondarily liable for the performance of the Obligations or any part thereof; (f) any releases or waivers with respect to the Obligations; (g) any failure of Englewood to give any notice to Guarantor of any default under the Obligations, or this Guaranty; or (h) any impairment, modification, change, release or limitation of the liability of, or stay of actions or lien enforcement proceedings • against, Tenant, its property, or its estate in bankruptcy resulting from the operation of any 2 • • • present or ,•. mre provmon of the Federal Bankruptcy Code (hereinafter called the "Bankruptcy C .xle") or other similar federal or state statute, or from the decision of any coun. 5. Ell lewood shall not be required to pursue any other remedies before invoking the benefits of the guaranties contained herein, and specifically it shall not be required to make demand upon or institute suit or otherwise pursue its remedies against Tenant or any surety other than Guarantor or to proceed against any security or insurance policy now or hereafter existing for the performance of the Obligations . Englewood may maintain an action on this Guaranty without joining Tenant therein and without bringing a separate action against Tenant. 6. If for any reason whatsoever (including but not limited to ultra vires, lack of authority, illegality, force majeure, act of God or impossibility) the Obligations cannot be enforced against Tenant, such unenforceability shall in no manner affect the liability of Guarantor hereunder and Guarantor shall be liable hereunder notwithstanding that Tenant may not be liable for such Obligations and to the same extent as Guarantor would have been liable if such Obligations had been enforceable against Tenant. 7. Guarantor absolutely and unconditionally covenants and agrees that in the event that Tenant does not or is unable to perform the Obligations for any reason, including, without limitation, liquidation , dissolution, receivership, conservatorship, insolvency, bankruptcy , assignment for the benefit of creditors, sale of all or substantially all assets, reorganization, arrangement, composition, or readjustment of, or other similar proceedings affecting the status , composition, identity , exi~tence, assets or obligations of Tenant, or the disaffirmance or termination of any of the Obligations in or as a result of any such proceeding, Guarantor shall perform the Obligations and no such occurrence shall in any way affect Guarantor's obligations hereunder. 8. Should the status of Tenant change, this Guaranty shall continue and also cover the Obligations of Tenant under the new status according to the terms hereof. 9 . In the event any payment by Tenant to Englewood is held to constitute a preference under the bankruptcy laws, or if for any other reason Englewood is required to refund such payment or pay the amount thereof to any other party, such payment by Tenant to Englewood shall not constitute a release of Guarantor from any liability hereunder, but Guarantor ag1~-es to pay such amount to Englewood upon demand aoo this Guaranty shall continue to be effective or shall be reinstated, as the case may be, to the extent of any such payment or payments. 10 . Guarantor ag :1,;3 that it shall not have any defense arising out of the absence, impairment or loss of any right of reimbursement or subrogation or other right or remedy of Guarantor against Tenant or against any security resulting from the exercise or election 3 of any remedies by Englewood, or any defense arising by reason of any disability or other • defense of Tenant or by reason of the cessation, from any cause, of the liability of Tenant. 11 . Guarantor hereby represents, warrants and covenants to and with Englewood as follows : (a) the execution , delivery and performance of this Guaranty do not contravene , result in the breach of or constitute a default under its Trust Agreement or any other organizational or governing documents relating to the organization , governance or operation of Guaranty , or any contract or agreement to which Guarantor is a party or by which Guarantor or any of his properties may be bound or affected and do not violate or contravene any law, order, decro:e, rule or regulation to which Guarantor is subject; (b) there are no judicial or administrative actions , suits or proceedings pending or , to the best of Guarantor's knowledge, threatened against or affecting Guarantor or involving the validity , enforceability or priority of this Guaranty ; (c) this Guaranty constitutes the legal, valid and binding obligation of Guarantor enforceable in accordance with its terms . 12 . The rights of Englewood are cumulative and shall not be exhausted by its exercise of any of its rights hereunder or otherwise against Guarantor or by any number of successive actions until and unless all Obligations have been performed and each of the obligations of Guarantor hereunder has been performed . 13 . Any notice, request , offer , approval, consent, or other communication required • or permitted to be given by or on behalf of or to Guarantor or Englewood shall be given or communicated in writing by personal delivery, reputable overnight courier service which keeps receipts of deliveries (i.e., Federal Express), or United States certified mail (return receipt reque sted with postage fully prepaid) or express mail service addressed to the other Party as follows : If to Guarantor Attention: ______ _ With copies to: Attention : If to Englewood : City of Englewood 1000 Englewood Parkway EnglewooJ, Colorado 80110 Attention : City Manager 4 • • • • With copies to: City of Englewood I 000 Englewood Parkway Englewood , Colorado 80110 Attention : City Attorney or to such other address or to the attention of such other person as hereafter shall be designated in writing by the applicable party sent in accordance herewith . Any such notice or communication shall be deemed to have been given and received eiti1er at the time of personal delivery or, in the case of delivery service or mail , as of the date of first attempted delivery at the address and in the manner provided herein, or in the case of telegram , telex or telecopy , upon receipt. 14 . This agreement and the other loan documents and the rights and obligations of the parties hereunder and thereunder shall in all respects be governed by , and construed and enforced in accordance with, the laws of the State of Colorado (without giving effect to Colorado's principles oi conflicts of law). Guarantt'r hereby irrevocably submits to the non-exclusive jurisdiction of any Colorado court or federal court sitting in Denver , Colorado over any suit , action or proceeding arising ut, of or relating to any of the loan documents . 15. This Guaranty may only be modified, waived, altered or amended by a written instrument or instruments executed by the party against which enforcement of said action is asserted. Any alleged modification , waiver , alteration or amendment which is not so documented shall not be effective as to any party. 16. The terms , provisions, covenants and conditions hereof shall be binding upon Guarantor its successors and assigns, and shall inure to the benefit of Englewood its successors, assignees. Within this Guaranty, words of any gender shall be held and construed to include any other gender and words in the singular number shall be held and construed to include the plural, unless the context otherwise requires. A determination that any provision of this Guaranty is unenforceable or invalid shall not affect the enforceability or validity of any other provision and any determination that the application of any provision of this Guaranty to any person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of such provision as it may apply to any other persons or circumstances . 5 EXECUTED the day and year first above written . State of Texas )ss Country of ______ ) WEINGARTEN REALTY INVESTORS, a Texas real estate investment trust By :----------- Its : ____________ _ The foregoing instrument was acknowledged before me this __ day of July, 2006 by :----=------:--' as _________ of Weingarten Realty Investors, a Texas real estate investment trust. Witnes s my hand and official seal. My commission expires : ___________ _ Notary Public 6 • • • .f\\rE Bert\nb11um, WtinMhit.nk & E11Non, P.C. A1111mr;,, 111 /,~,· J 70 Sovtntecnth Stttct Rtl)llblic Pllu • 48th P1nnr Denwr. Ct-'nrado 110202-Sffl Tolq,1,<.,., l0lllll4IOO t"Kllmile : J0J/62V-7610 • • H. Mkhael Miller DittnOlalJOJ/'92-IJJ0 F.-Mtil: hmmlllerebw-lepl.cum Jerrell Black, Director Parks & Recreation City ofEng)ewood 1000 Englewood Parkway Englewood, CO 80110 July 20, 2006 Re : Sheridan Redevelopment/Golf Course Dear Jenell: This will confirm our conversation regarding the Development Agreement. The Lease, in Article m, Section 3, provides that agreement and signatures on the Development Agreement are conditions to the Lease becoming effective. lf the City docs not have a signed Development Agreement acceptable to it by August 31, 2006, the City has the right to tcrmill3te the Lease . Accordingly, the Lease can be approved by Council in advance of, and separate from, the Development Agreement. As to the status of the Development Agreement, it is cum:ntly still a work in process, although I believe the major clements have been agreed to . The most important was the design and concept, and there is agreement by both Miller-Weingarten and the City to Concept K, which has previously been delivered to Council . In addition, the City developed an outline of other key elements it requires in the agreement, and these have been reviewed by Miller- Weingarten. I am advised that except for a couple of smaller items still under discussion, Miller- Weingarten has also concum:d in the outline of key elements . discussed. HMM :sld Please let me know ifthere are any questions regarding the matters I have Very truly yours, BERENBAUM, WEINSHll!NK & EASON, P.C. ']J);µ H. Michael Miller H:\Ooc:a\OlcnttRo\BNOLBWO\aolrcourfflBlack ltr DI .doc w I !i -1 ~ ~,11 ~uu ;~ j ~. Q "' " tW.~~ -- ~-~ " -~ .. ~ .. --, .. ,";', j • • • Dan Brotzman From: Jerrell Black Sent: Monday , July 17, 2006 5:40 PM To: 'H . Michael MIiie~; Dan Brotzman ; Mike Flaherty; Rick Kahm; Dave Lee; Bob Spada ; Norm Higley (normhlgley@nwhlaw .com) Cc : Rick Kahm Subject: RE: lease docs Mike Copp, Sheridan City Manager brcught me a copy of the Sheridan Redevelopment Agency l.-1sntir., agenda from July 12, 2006 . This shows that the Redevelopment Agency Is moving forward with the lease as Gary Sears had requested . I will have It In the packet with the other Information on Thursday . He said their E~!,Cutlve Ses~ion on the Golf Course Lease Agreement was extremely positive . The lease agreement is scheduled to be formally approved on Wednesday, July 26 , 2006 . Other issues that need to resolved , we can tal k about at tomorrow's 1 :30pm meeting . Nam, .:,,;,i1 1uu bring an update related to the Insurance issues . It Is my hope to have everything received by We~· oa d•! a:temoon . That will allow time to compile all the documents and fish out what Is miss in g on Thursday mt . ,,ng . tks, jenrell Lei me know If you have any questions . • • • 2. 3. AGENDA SHERIDAN REDEVELC ?MENT AGENCY MEETI.JG July 12, 2006 Following the City Council Meeting Call to Order Ro!ICall Treasurer's Report a. Receive and me Treasurer's Report 4. Approval of Minutes a. Minutes of the SRA Meeting of June 28, 2006 S. Approval of Bills a. Ray Real Estate Services $ 6,737.50 b. Key-Rite Security 1,421.50 c. Windholz & Associates 9,919.00 d . M,,blle Mini, LLC 387,84 TOTAL $18 ,465.84 6. Motion to adjourn to Executive Session a. For the purpose of determining positions relative to matters that may be subject IG• negotiations, rleveloplng strategy for negotli,tlv11S, and/or Instructing negotiators, under C.R.S. Section 24-6-40.2(4)(e). (Englewood Golf Course Lease) 7. Adjournment • • • GROUND LEASE BETWEEN DRAR'-7/619/06 fllMM JW rt,) CITY OF ENGLEWOOD, • home rule municipal corporation, as Landlord And SHERIDAN RED EV ELOPMENT AGENCY, a body corporate and politic of the State of Colorado 1125312_◄.doc ◄122 3b-OK6 as Tenant Dated:. ____ _ • • • TABLE OF CONTENTS Article I Fundamental Lease Terms ........................................................................................... 1 Article 2 Ground Leue of Preml1H .............................. _______ ........................... I I . Definitions ............................................................................................................... I 2. Premises ................................................................................................................ 34 3. Condit ion of Premises; Tenant Release .................................................................. 4 4. Improvements .......................................................................................................... 4 5. R1--creati on Easement ............................................................................................... 4 6. Easements-4 ............................................................................................................. 5 7. Sign agc .................................................................................................................... 5 8. Environment al Di scl os urc ........................................................................................ 5 Article 3 Lease Term and Conditions Precedent ............... , .. _____ ......................... -4 5 I. Term ...................................................................................................................... 45 2. Tenant 's Conditions Precedent. ............................................................................ 45 3. Landlord 's Conditions Precedent. ......................................................................... 67 4. Extension Option s ................................................................................................. 18 Article 4 Rent ............................................................................................................................... 89 I . Rent ....................................................................................................................... 89 2. Net Lease ............................................................................................................... 89 Article S Taxes ................................................................. _______ ....................... 89 I . Real Estate Taxes .................................................................................................. 89 2. Proration of Taxes ............................................................................................... 910 3. Personal Property Taxes ...................................................................................... 910 Article 6 Utilities ..................................................... -----·· ...................................... 9JJ! I. 1125)12_4.doc 4122)6--086 Utility Usage ....................................................................................................... 9 J 0 • Article 7 Use, Subletting, and A11lpment ............... ____ ............................................ 910 I. Usc ...................................................................................................................... 9JO 2. Assignment and Subletting ................................................................................. 910 3. Non-disturbance of Sub-lessees ........................................................................ -IGJ I 4. Status of Improvements and Building ............................................................... -IG 11 Article 8 Mecbanlca Liens ...................................................................................................... Hl2 I. Liens .................................................................................................................. ++12 2. Protect'on of Landlord's Interest in Premi ses ................................................... ++ 12 Article 9 Indemnity and Insurance ............. _____ .................................................. -1-1-12 I. Indemnity .......................................................................................................... ++12 !. Appear and Defend .................... , ...................................................................... 4-2-13 Tenant·s Insurance ............................................................................................ H 13 • 4 . Insurance Policies and Certificates ................................................................... -1-314 5. Blanket Insurance .............................................................................................. -1-314 6. Unearned Premiums .......................................................................................... +415 Article 10 Damage or Destruction ......................................................................................... -MIS I . Oamage and Destruction ................................................................................... +41 5 Article 11 Eminent Domain ................................................................................................... 1415 I. Automatic Termination ..................................................................................... +415 2. Termination Right ............................................................................................. +41 6 3. Restoration ........................................................................................................ H16 4. Award-Lease Not Terminated ...................................................................... H16 5. Award-Lease Terminated ............................................................................. H i§ 6. Termination ....................................................................................................... H ,l§ • Article 12 EaAroameatel .................................................. 15lffiTfflTLQl!i ALLl:' 0 ~ 1125312 4,doc: 4l22lb-0&6 ii • • Article 13 Default ................................................................... ____ ............................ ffl7 I. Remedies Upon Tenant's Default ...................................................................... MJ 7 2. Remedies Upon Landlord's Default .................................................................. Ml 7 3. Attorneys ' Fees ................................................................................................. 461 8 4. Waiver of Consequ enti al Damages ................................................................... H 18 Article 14 Covenant of Quiet Enjoymen ............................................................................ ¥118 Article 15 Subordination; Landlord'• Right to Mortgage and Convey Premt,,,a ............. ¥118 Article 16 Transfen by Landlord .......................................................................................... ¥119 Article 17 Miscellaneous ..................................................... -........................ -....................... ¼1119 I. Non-Wai ver of Default ..................................................................................... Hll 9 2. Recording .......................................................................................................... Hl19 3. Notice ................................................................................................................ Hl19 4 . Successors and Assigns ..................................................................................... -1920 5. Partial Invalidity ................................................................................................ +920 6. Interpretation ..................................................................................................... +920 7. Headings , Capticns, and Re ferences ................................................................. +920 8. Governing Law .................................................................................................. +920 9. Execution of Document s ................................................................................... ·llJ _ , I 0. Force Majeure ................................................................................................... f92 I 11. Waiver of Landlord's Lien ................................................................................ i!02 I Article 18 Leasehold Financing ....................................................... , ..................................... i412 J I. Mortgage by Tenant ......................................................................................... i!02 I 2. Notice To and Rights Of Leasehold Mortgagees .............................................. i!02I Article 19 Additional Provlalona ............................................................................................ ~li I. 1125312 4.doc 412236-086 Restrictions ........................................................................................................ ~2~ iii • • • 2 . 3. Open Space Plan ............................................................................................... ;g~ Englewood Golf Complex ................................................................................. ;g~ 4. [New Road : Landlord 's access! ...................................................................... 23 ~ 5. Non-material Amendments requested by Sub-lessees ...................................... ;g25 6. Publi c Jndemnili catil)n ......... , ............................................... , .................... , ... , .... ,,,,25 Article 20 Representations of Landlord and Tenant , .. ,., ___ _ I. Representation s of Landlord ............................................................................. 2-1~ 2. Representation s ofTenant ................................................................................. ~26 Article 21 Righi of Finl Refusal to Purcb1se ............................. , ......................................... a627 I . Right of First Refu sal ........................................................................................ 'M27 11 25312 4.doc ,12236-086 iv • • • GROUND LEASE THIS GROUND LEASE (the "Lease") is made and entered into as of the Effective Date set forth in Article I by and between CITY OF ENGLEWOOD, a home rule municipal corporation ("Landlord"), and SHERIDAN REDEVELOPMENT AGENCY, a body corporate and politic of the State of Colorado ("Tenant "). Landlord and Tenant arc sometimes hereinafter each singularly referred to as a "Party" and collectively referred to as the "Parties." Article I Fundamental Lease Terms For convenience, this Article I summarizes certain fundamental economic and business terms of this Lease . Effective Date: Premises: Landlord Tenant Term: Option: Rent : Security Deposit Title Insurance Llabllty Amount: That certain real property described on Exhibit A attached hereto and incorporated herein by this reference, consisting of acres . CITY OF ENGLEWOOD I 000 Englewood Parkway Englewood , CO 80110 Attention : City Manager SHERIDAN REDEVELOPMENT AGENCY 4104 South Federal Blvd . Sheridan, CO 80110-5399 Attention : Executive Director Twenty (20) years from the Commencement Date Three (3) options of twenty (20) years ea ch The one time lump sum payment and other amounts as set forth in Article 4 . None An ALT A leasehold title insurance policy in the amount of $4,190,000 shall be provided at Landlord's expense. Article 2 Ground Lease of Premls s I. l&linili2m -For purposes of this Lease, the following terms shall have the following meanin gs: 11m12_◄.c1o< 412236-036 A. "Assessments" shall have the meaning as set forth in rticle 20.1.K. B. "Buildings" shall mean the buildings which may !,e constructed by the Tenant on the Premises . C. "Casualty" shall have th•: meaning as set forth in Article I 0.1. D. "Commencement Date" shall mean the earlier of (I) thirty days after Tenant's and Landlord's waiver of their Conditions Precedent as provided in Article 3.2.G and 3.3.D, or (2) the date Tenant commences construction under the terms of the Development Agreement on either the Premises or Landlord's golf course . E. "Contracting Party" shall have the meaning set forth in Article 8.1. F. "Default" or "Event of Default" shall have the meani ng as set forth in Anicle 13 .1. G. "Development Agreem ent" shall mean that certain agreement to be executed by Landlord and Tenant providing for the rebuilding by Tenant of the portions of the Landlord's golf course complex as described therein . H. "Effective Date" shall mean the date this Lease is signed by both Parties and the Englewood City Council has adopted an Ordinance approving this Lease and such Ordinance has become final Bild not sohjeet le repeal thNJogh the re!erendom pNlee .1.1. er ether-♦ ise sohjeet le litigatien . I. "Environmental Conditions" shall mean the presence or alleged presence of any suhstance, material or waste which is regulated by any local governmental auth uri1y, the State of Colorado or the United Stales Government, including, without limitation , any petroleum products or used oil or fractions thereof, flammable substances, explosives, radioactive materi als, asbestos, and any material or substance that is regulated pursuant to any Environmental Laws . J . "Environmental Laws" shall mean the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), as amended, 42 U.S .C. § 9601, et seq.; the Solid Waste Dispo sal Act and the Resource Conservation and Recovery Act ("RCRA"), as amended, 42 U.S.C. § 6901 , et seq.; the Clean Water Act , as amended , 33 U.S .C. § 1251 , et seq.; the Safe Drinking Water Act, as amended , 42 IJ.S.C . § 300(1), et seq.; the Federal Insecticide, Filngicide and Rodenticide Act ("FIFRA"), as amended, 7 U.S.C. § 136, et seq .; the Toxic Substances Control Act ("TSCA"), as amended, 15 U.S .C § 2601 , et seq.; the Clean Air Act , as amended , 42 U.S.C. § 7401 et seq.; the Oil Pollution Act ("OPA ") 104 Stat. 484 (1990); the Colorado Petroleum Storage Tank Act, as amended, C.R .S. § 8-20.5, et seq.;.; the National Environmental Policy Act of 1970, as amended , 42 U.S .C.A. § 4321, et seq .; the Rivers and Harbors Act of 1899, as amended, 33 U.S.C.A. § 40 I, et seq .; the Endangered Species Act of 1973 , as amended, I 6 U.S.C.A. § 1531, et seq .; the Colorado Water Quality Control Act, C.R.S. §§ 25-8-101, et seq .; the provisions of7 C.C .R. 1101-14; and any similar local , state or federal laws, rules , ordinances or regulations either in existence as of the date hereof or enacted or 112 53 12 4.doc 412236.086 • • • promulgated after the date of this Lease that concern (i) the management, control , discharge, treabnent, abatement, containment and/or removal of substances or material s that arc or may become a threat to public health or the envi ronment, and (ii) state and local water quality and stormwater regulation . K. "Environmental Workplan" shall mean all such work to be performed pursuant to (i) that certain Voluntary Cleanup Plan (the "VCUP") as approved by the Colorado Deparbnent of Public Health and Environment ("CDP HE") on April 18, 2006 (including, without limitation , the Materials Management Plan, the Contractor's Plan of Operations, and the Vapor Mitigation Plan); and (ii) that certain letter dated ____ _, 2006, from CDPHE stating that compliance with the procedures, specifications and conditions of the Environmental Workplan is deemed to constitute compliance with CDPHE's Solid Waste Program rules and regulations (the "Comfort Letter"). The Environmental Workplan shall specifically include any and all amendments to the above-referenced documents which are approved by CDPHE and Landlord . L. "Excusable Delay" shall mean any of the following events that prevents , delays, retards or hinders a Party's performance of its duties hereunder : act of God; fire ; earthquake; flood ; explosion ; war; invasion ; insurrection; riot; mob violence; ~abotage ; vandalism; inability to procure or general shortage of labor, equipment , facilities , materials or supplies in the open market; failure of transportation ; strikes ; lockouts ; any material delay caused by Landlord without fault of Tenant ; or any delays due to cau ses beyond the control of Landlord and without its fault or negligence . M. "Improvements" shall mean the Buildings and any other improvements constructed by Tenant or Subtenant on the Premi ses. N. "Landlord" is City of Englewood .. 0. "Leasehold Mortgagee" shall •.lve the meaning as set forth in Article 18 . P. "Memorandum of Lease" shall have the meaning as provided in Article 17 . Q. "Opti un Term " shall have the meaning as provided in Article 3.4 .A. R. "Option Term Rent" shall have the meaning set forth in Article 3.4 .C. S. "Premises" shall have the meaning as set forth in Article 2.2.A . T. "Prime Rate" shall have the meaning as set forth in Article 5.1.E. U. "Real Estate Taxes" shall mean all taxes, however named, assessed, levied, or collected, whether on an ad valorem basis or other taxing method on the Premises, Improvements, Buildings, and assessments for land, betterments, and improvements that arc levied or assessed on the Premises or the Improvements by any lawful authority, as finally determined in accordance with law, net of any applicable abatements , refunds , or rebates . I 12Sl12 4.doc 412236-086 • • • V . W. "Refusal Property" shall have the meaning as set forth in Article 21. I . "Rent" shall mean the amount set forth in Article 4.1. X. "Tenant" is Sheridan Redevelopment Agency, and its pennitted successors or assigns. Y. "Tenant's Property" shall have the meaning set forth in Article 7.4 . A. For the 1enn, uses, rent, and in consideration of the covenants and agreements contained ho-rein, and fo r other valuable consideration , Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, upon the following tenns, stipul u1;, ~s. provisions, and conditions , that certain real property more particularly des cri ~,J in Exhibit A attached hereto and incorporated herein by this reference ("Prc mis1 q"). e. Landlord hc-reby warrants to Tenant that it has good and marketable title to the Premises , free and clear of any mortgages , pledges , liens, and other encumbrances . . J. Co11dition of Premises · Tenant Release . The Premises are being leased in their as- is condition . Tenant hereby waives, releases , acquits and forever discharges Landlord and it s otliccrs, directors, city council members , employees , agents, successors and assigns, of and from any and all suits, causes of action , claims, demands , damages (actual and punitive), losses, costs, liabilities . and expenses, including attorneys· fees , of any kind or nature, in law or in equity. known or unknown , now or in the future, which Tenant shall or may have or acq uire or possess in any way directly or indirectly cc,nnec ted with . based upon , or arising out of Landlord's use, maintenan ce, leasing, ownerr,h ip , operation, and demolition of improvements upon the Premises prior to the Effective Date oi'this Lease; or (ii) the condition (including Environmental Conditions and structural fitness), status. quality. or nature of the Premises . It is expressly agreed by the parties to this Lease that any and all responsibilities and ob ligations of Landlord . and any and all rights or claims of Tenant against Landlord or its successors , assigns and atli li ates , arising by virtue of or in relation to the physical condition of the Premises (including Environmental Conditio ns and structura l fitness), arc by this release declared null and void and of no present or future effect as to such parties. 4. Improvements. Tenant . at its sole cost and expense. with its own forces or those of its contractors, may constru ct Improvements on the Premises . All of the lmproveme~ts shall comp ly in all respects with all applicable governmental requirements . Landlord acknowledges that Tenant may sublease portions of the Premises to Subtenants , who will construct their own Improvements. However, the parties agree that notwithstanding such arrangemenls, Tenant sha ll remain responsible to Landlord to satisfy the obligations of Tenant under the Lease with respect to such portions of the Premises . 5. Recreation Easement . Landlord reserves for itself; its agents, •~nployc _ ,, guest s and invit.-cs, a non -exclusive recreational casement over and across that portion of the wes tern portion of :he Premi ses on which Tenalll intend s 10 con struct u drainage swalc, which casement 1l 2jJ l2_4.d..x: ◄1 2 H0.0Sti 4 • • • area shull be from lhe we slem c-di;e uf lhc swalc lu lhc tlow line of 1hc swnlc ("Rec Eascmcnl Arca''). The ea semcnl shall he used unly li•r 1he purpose of allowing golfer s acce ss and use over lhc Rec Ea scmenl Arca in cunnecliun wi1h lhcir gulling acli vilic s, including access lo retrie ve gulf hall s. In nu cvcnl shall Landl11rd pcnnil golf cart s on over or acro ss 1hc Rec Easemcm Arca . Tcnanl shall ha ve lhc rcspun sibilily , al ils sole co sl and expen se, liir 111ain1ai111ng lhc Rec Easement Arc a in fir st dass comlition c1.u1 sistcn1 wi th it s inh.:ndl.'tl use as a drainage swa lc and golling play area in conjunction wilh lhc mljaccnl golf course . 6. ~~ Landlord shall, upon the request of Tenant, execute documents which are reasonably required to create utility easements on the Premises or other easements on the Premises required to service the Improvements or any other improvements developed on the Premises . In the event Landlord has approved the granting of one or more casements on property owned by Landlord but which is not part of the Premises, which approval shall be at Land lord's sole and absolute discretion , Land lord sha ll also execute documents necessary to create the approved off Premise easements . 7. Signagc . Tl·nanl ilgrcc s to prov ide Landlord with sign agc identi(ying Lamllunl 's m.ljaccnl golf course. The signagc shall be at such lot..:ati on or location s um! in such fon11 as arc rea sonabl y approved by hulh Landl,,rd mul Tenant. Tu the extcnl nece ssa ry, Tcnunl i;ranl s Landlord ,111 ca sement over th e Lea sed Premi ses to maintain such a1~. ·fi 'l 't..•d sign s. 8. En viro11mc111HI Disdo surl'. Tcm111 1 ma y, al it option , !·.:;,.1.1 nl an cn vironmen1t1I di scll1 surc relati ng to the Premi ses. Thi s di sclo sure will establishes en ,nmmental in stitutional con trol s on use und dc vclopmcn l o f the Premi ses in fonn m.:cc 1>tahlc ll• l.anclkml. Upon appro vu l by Landlord l,fthc cn virnnmcnlal di scl os ure , Land lord ugn:c s to record a cun scnt to the cn viro r 1ncntal di sd osun..-, 1 in fonn acccptahlc tu Landlord ,. Land lord s i.:on sent shall .ilso pro vid e 1ha1, t.lur;ng the tcnn of thi s Lcu sc, including an y cxtcn silHl S, Landlord slrnll ha ve 1w liahilit y, oh lig.ation , or respon sibility for cnti.,n.:1..·mcnl or fril · any failur1..· by Tenant or it s suhtenant s lll" related or ,1rtiliatcd partie s t~• compl y with the rcl1ui rcmcnt s ,11'thc en vironmental di sclo sun·. Article 3 L.ease Term snd Conditions Precedent I. Term. This Lease sh.,·.I become legally binding on the Effective Date and , unless extended in accordance with the Opti on sci forth below in Section 4 of this Article 3, shall expire on the last day of the twentieth (20th) Lease Year (the "Term"). Fo r purposes of this Lease, the term "Lease Year" shall mean each twelve ( 12) month period commencing on the Commencement Date . 2. Tenant's Conditions Precedent. A. Tenant's Right of Entry . After the Effective Date, Tenant, its agents, employees, contractors, consultants and engineers shall have the right from time to time to enter upon the Premises in accordance with the terms of an Access Agreement to be 11 2H1 2_4.doc 412::?36-086 • • • entered into between Landlord and Tenant , which shall be in fonn and substance similar to the Access Agreement executed prior to t~e execution of this Lease . B. Landlord Deliveries . Within five (5) days after the Effective Date, Landlord shall delivL-r to Tenant copies of all surveys and reports in Landlord's possession and pertaining to the Premises including but not limited to all engineering , environmental, wetlands , water rights , and soils reports , and all reports or notices received from or filed with any local, state or governmental agency during the last five (5) years . C. Inspection . Tenant or ils designee(s) shall have the right , from lime lo time after the Effective Date and subject to the tenns of an Access Agreement to be entered into between Landlord and Tenant to conduct a physical inspection, review and analysis of the Premises on such matters and subj Is and in such detail as Tenant , in the exercise of its so le discretion, deem s advisable or appropriate, including but not limited 1.0 the following: examination of title to the Premi ses, perfonning physical inspections of I.he Premises . perfonning so il s lesls (including, without limitation , invasive testing), en11ineering studies, environmental stud ies (including invasive testing of all existing struc!Ures), market studies, market analyses, feasibility studies , reviewing zoning and other regulatory matters, building and other regulations and restriction s, covenants , waler rights, mineral rights , and conducting such other lesls and reviews as the Tenant, in ils sole discretion , desires to conduct with respect to the Premises or Purchaser's co ntemplated development and use of lhe Premises . Except as expms ly provided in the Access Agreement , Tenant's physical inspection of the Premises shall nol interfere with Landlord's golf course operations. Tenant's obligation to waive ils Conditions Pre.:edcnl is subj eel to Tenant's sati sfaction of its in ves tigation of the Premi ses. D. Development Plan . Landlord acknowledges thal Tenant desires 10 rezon e and plal the Premises (or a portion thereof) in the Cily of Sheridan . Tenant shall apply for and pursue lhe approval of the zoning , planned unit development and/or plaiting of all or any portion of the Premises (the "Development Plan") according to s•Jch plans as Tenant delennines .1 ppropriate in il s •ole and absolute di scretion , bu! subject to any Tenant obligations contained in this Lease . Landlord shall, at Tenant 's sole cost and expense, solely in ils capacity as owner Clf the Premises , promptly join in lhe execution of such applications, plats and other docum.:nl s, and participate in such adminislralive or judicial proceedings as Tenant deems reasonably necessary to accomplish lhe final approval of the Development Pinn by lhc City of Sheridan . Nothing contained herein shall require or obligate Landlord lo part;cipale in any way in any condemnation proceedings which may be undertaken with respec, to the Development Plan or Tenant's acquisition of property in connection with lhe Development Plan. Tenant's obligation to waive its Conditions Precedent shall be subject lo the City of Sheridan's approval of the Development Plan plus appeal period without conditions (or subject lo conditions satisfactory to Tenanl in Tenant's sole and absolute discretion) and nol subj eel to appeal. E. Assemblage. Landlord acknowledges that Tenant intends to acquire the pro perty as part ofTenant's assemblage of all of the properties within the area depicted on E1hlblt 8 attached heret o and incorporated herein by this reference (the 112 5.ll2_4.d11c 4122lh.Ollb 6 • • • • Assemblage"). Tenant's obligation to waive its Conditions Precedent is subject to Tenant acquiring or obtaining possession of all properties within the Assemblage, including the Premises, at approximately die same time. F. PubHc fiP11Dcing . Tenant intends to provide public financing throu3h the sale of bonds to finance the construction of certain public improvements pertaining to the Assemblage. Tenant shall not be obligated to waive its Conditions Precedent until the issuance of such bonds . G. Wajvcr of Conditions Precedent. In the event Tenant fails to give Landlord written notice on or before August 31, 2006 (the "Conditions Precedent Deadline") that the Conditions Precedent have been satisfied or waived , this Lease shall terminate thirty (30) days following the Conditions Precedent Deadline; provided, however, that Tenant shall be entitled to two (2) extensions of the Conditions Precedent Deadline of six (6) months each . Tenant shall exerdse each extension of the Conditions Precedent Deadline by giving written notice to Landlord within ten ( I 0) days prior to the Conditions Precedent Deadline then in effect. Regardless of when the Tenant notifies Landlord that the Conditions Precedent have been satisfied or waived, Tenant shall commence construction on the Premises only in the month of September unless Landlord has approved in writing a different commencement date, such approval to be in Landlord 's sole discretion . 3. !d!!Jdlorr/s Conditions Precedent. A. Development Agreement. Tenant has agreed to rebuild, at its expense, a portion of Landlord's existing golf complex ("Golf Course Work") in accordance with the terms and conditions to be set forth in the Development Agreement to be executed by Landlord and Tenant. Prior to the Conditions Precedent Deadline, except for a letter of map revision ("LOMR") to be issued by the Federal Emergency Management Agency ("FEMA "), and approvals or permits from the Army Corps of Engineers ("ACOE") or storm water permits associated with the LOMR, Tenant shall also obtain all other necessary consents and approvals required in connection with Tenant's performance of its obligations under the Development Agreement, including any approvals required from the City of Sheridan . In the event Tenant fails to obtain all such the necessary approvals and consents by the Conditions Precedent Deadline, thi s Lease shall terminate as provided below in subsection D. B. Environmental Guaranty . Upon the Assignment and Assumption of this Lease, as provided in Article 7, Section 3.2, Tenant shall furnish to Landlord the limited guaranty as required therein, and upon failure to do sn , this Lease shall terminate upon ten ( I 0) days prior written notice to Tenant. C. Clarification of Payment-in Lieu Agreement. Landlord currently has an lntergovernmer.tal Agreement with the City of Sheridan for payment in lieu of taxes, which agreement was intended to compensate t'ie City of Sheridan for exempting the Premises and adjacent golf course from assessment of sales and use taxes resulting from the City of Englewood's ownership of the property. It is understood by all parties that 1125)12_◄.doc ◄12236-0MI 7 • • • payments from Tenant or its ll!t!tiglleeeussign,-c to Landlord for rent or as othe,wise required under this Lease shall not be deemed "taxable sales activities" or "Green Fees" as such terms are used in the Intergovernmental Agreement, and the rent and other such amounts shall not be included when calculating the payment in lieu of taxes . Tr.nan! shall obtain from the City of Sheridan, prior to the Conditions Precedent Deadline, as hereinafter defined, a letter confirming their concurrence with this understanding. D. Wajver ofCondjtjons Precedent. In the event Landlord fai ls to give Tenant written notice on or before August 31 , 2006 , unless such date is extended (the "Conditions Precedent JJeadline") that each of Landlord 's conditions precedent have been satisfied or waived , this Lease sh all terminate thirty (30) days following the Conditi ons Precedent Deadline . Tenant shall have the two (2) options to extend the Conditions Precedent Deadline up to six (6) months each, provided , however, Tenant shall commence construction on the Premises only during the month of September unle ss del ay in co mmcm.:cmcnt of l'ons trw.:ti on is caused by an act ur lllUi ss ion of Landh.,nl , or unl ess Landl ord appro ves a rc4ucst by Tenant for a del ay in commencement of con struction. Tenant shall exercise each extension of the Conditions Precedo:nt Deadline by giving wrillen notice to Landlord within to:n ( I 0) days prior to the Co nditions Precedent Deadline then in effect. 4. Ex tension Option s. A. Options. Tenant shall have options to extend the Lease Term for three additiona l consecutive term s (each an "Option Term"), each co ;,s is ting of twenty (20) years , on the same terms and conditions as set forth herein (th,,· .. shall be no options beyo nd the three term s b'l'anled herein). In order to exercise su ch option , Tenant shall notify Landlord in w1i ting at lea st twelve (12), but not more than twent y four (24), months pri or lo the expiration of the respective Lease Term of it s election lo exercise the option. B. Co ndition s Precedent. As a co nd ition prec edent lo Tenant's right lo ex,-rci se one or mo •s of it s options , al the time of the giving of its notic e of exercise and al the commencement of the extended term. Tenant shall not be in default ofils obligations to pay laxes as provided in Artic le 4. C. Landlord's Notice . In the event Tenant fails to give timely notice of extension as provided above. the Lease Term nevertheless shall nol expire until after Landlord hac given Tenant written notice that the current Lease Term is scheduled to end on the date provided or under this Lease and set forth in lhe noti ce and that Tenant is entitled 10 extend such Term . Ten ant shall have sixty (60) days from receipt of such notice to notify Landlord that Ten ant elects to exercise its option to extend and to pay the Option Term Rent, and , if notice is tim ely given by Tenant , Tenant pay s the Option Term Rent and the condit ions prec<:dent set forth in subparagraph B above have been satisfied. the notice of exercise shall be deemed lo have been timely given . 11 2S l124.cb: 41 2236-086 • • • D. On or before the Commencement of each Option Term, Tenant shall pay Landlord the following amounta u payment of rent for the entire Option Term (the "Option Term Rei 11"): (i) First Option Term: $200,000 (ii) Second Option Term : $300,000 (iii) Third Option Term : $400,000 Article 4 lkD1 I . RmJ. Tenant shall pay to Landlord , in United States Dollars, the sum of $4,190,000.00 ("Rent") (PLUS $650,000 TO BE ADDED TO THE RENT OR SUCH OTHER CATEGORY AS MW DESIGNATES( as payment of Rent for the initial 20 year Lease Term ; provided, however, that Tenant shall receive a credit against the Rent of$ I 50,000. The Rent Payment shall be paid following Landlord 's written notice to Tenant that Landlord 's waiver or satisfaction of each of Landlord's conditions precedent as set forth in Section 3.D of Article 3 and upon the earlier of(a) Tenant's issuance of the bonds as referred to above in Article 3, Section 2.F, or (b) the date Tenant commences construction under the terms of the Development Agreement on either the Premises or Landlord's golf course . 2. ~-This Lease is a net lease . Except as may be expresslv provided otherwise in this Lease, all costs incurred in connection with the construction, operation , maintenance and leasing of the Improvements and all costs incurred in connection with and in relation to the Premises shall be paid by Tenant. Landlord shall have no obligation to make any repairs , replacement s or renewal s of any kind , nature or description whatsoever to the Impro vements or the Premises . I. Real Estate Tax es . Article 5 Taxes A. Tenant shall assume, pay, bear, and discharge any and all Real Estate Taxes with respect to the Premises, or any part thereof, and all other taxes in any manner applicable to or assessed against the Premises or Buildings or any part thereof, or against any of the machinery, fixtures , equipment, or other property or items . Tenant shall pay all Real Estate Taxes directly to the taxing authorities and Tenant shall be credited all reimbursements on account ot' abatement~, refunds, or rebates of Real Estate Taxes. Landlord hereby authorizes Tenant to file and pursue any protest of the valulllion of the Premises and abatement petitions for abatement of taxes for any reason , as Tenant may deem to be appropriate . Landlord agrees to execute any form of agreement as may be necessary in connection therewith . 11 2531 2_4.doc 41 22l6<11<> 9 • • • B. In the event there is a special assessment which is included within the definition of Real Estate Taxes herein , and such assessment may be paid in periodic installments , Tenant shall pay such assessments in periodic installments or may prepay the entire special asses"ment and Tenant shall be responsible only for thos e installments relating to the period included within the tem1Tc nn of this Lease . In the event any proposed special assessment would provide for payment extending beyond the term of this Lease (excluding IIIKlan) extension period), unless Tenant agrees to pay for all of such assessment , Landlord shall have th e right to object to such assessment and to direct Tenant to object or vote to reject such assessment. C. Landlord shall cooperate with Tenant so that all invoices, 1101iecs and s1:11cmcn1 s for Real Estate Taxes shall be sent directly by the taxing authority to Tcnanl. T -,nanl shall pn>mplly provide Landlord wilh e1>pi cs o f all 1w1iees, invoices or st atement s Rea l Es tate ·ra.,cs rcecivcxl by Tenant. D. Landl ord agrees to submit to Tenant all invoices for Real Estate Taxes and notices of special assel sments with respect to the Premises within thirty (30) days after receipt by Landlord. Landlord shall furui sh Tenant with copies of all Notices of Valuation of the Premise s within ten (10) business day s after receipt thereof. If Tenant desir J to contest such in crease, Tenant shall nrotest such valuation or file an abatement petition within app li cable statutory time pen .ids . Landlord shall fully cooperate with Tenant in any such proceeding; provided L,iodlord shall not be required to in cur any costs in connection with such proceeding . 2. Proration of Taxes. If the Tenn shall expire on any date other than December · 3 I st of any yea r, the amount payable by Tenant during the calendar year in which such tennination occurs shall be prorated on the basis which the number of day s from the commencement of sa id tax fiscal year to and in cluding saiJ tennination date bears to 365. A si mil ar proration shall be made for the ta x fi sca l year in which the Tenn commences. 3. Personal Property Ta xes . Ten ant shall pay all taxe s charged against trade fixtur e'.., furni shings , equipmen t or any other personal property belonging to Tenant . Les see may cont ost any such person al property taxes, assessments or valuations ; provided. however, Tenant shail do so within the time perio d pennitted by applicable statute s . 112Hl 2 ◄doc 4122lt,~)Hb • • • Article 6 UtlUtles I. Utility Usage . Tenant shall assume, bear, pay, and discharge as its sole and separate obligation all of the applicable charges for all utilities consumed on the Premises . Except in the event of an emergency , neither Landlord nor Tenant shall take any action that interrupts or interferes with any electric, gas, water, sewage, or telephone service to the Premises or to the adjoining property owned by Landlord. Article 7 Use, Subletting, and Assignment I. ~ Subject to the restrictions set fortl1 in Section I of Article 19, Tenant shall use and occupy the Premise ; d~1ing the Tenn of the Lease for all lawful uses in accordance with the requirements of this Lease. Tenant ~hall not use the Premises , or pennit or suffer the use of the Premises by others, for any act iv ities or purposes prohibited by the laws , rules and regulations of the United States or the State of Colorado , or of the ordinances of the county in which the Premises are locat e,_;, and shall not pennit or s uffer any pollution of the Premises or any disorderly conduct , noise or nuisance upon the Premises . except as provided in the Environmental Workplan. 2. Assignment and Sublelling. It is understood and agreed that Tenant has entered in to a Disposition Development Agreement with Weingarten Miller Sheridan LLC for the redevelopment of property west of Santa Fe, and that the Premises will be incorporated in the redevelopment project. Landlord hereby consents to the assignment of this Lease to Weingarten Miller Sheridan LLC and the assumption by Weingarten Miller Sheridan LLC of all ofTenant's obligations under this Lease , provided the fonn and substance of the Assignm ent and Assumption Agreement shall be subject lo Landlord's prior wrillcn approval , which app roval shall be in Landlord 's sole discretion. Upon the occurrence of both (I) the assignment to and assumption by Weingarten Miller Sheridan LLC of this Lease: and (2) the delivery lo Landlord ofa limited guaranty by Weingarten Realty Investors , a Texas real estate .. ,vestment trust , in fonn and substance satisfactory lo Landlord , in its sole discretion, that guaranties pcrfonnuncc of all of Tenant's obligations, respo ns ibilities and covenants regarding various environmental mailers, as well as the payment of deductible amounts under any insurance policies provided by Tenant in accordance with Articles 9.3 and in accordance with any cnvironmealal insurance requirements sci forth in an Assignment and Assumption Agreement, then the obligations of the Sheridan Redevelopment Agency , as Tenant, under this Lease shall \cnninate. Prior lo the completion of th e perfonnance of all of Tenant 's obligations under the Development Agreement, there shall be no other assignments of this Lease without the prior written approval of Landlord, which approval shall be in Landlord's sole disc retion. Following completion of the pcrfonnancc of all of Tenant 's obligations under the Development Agreement , and subject lo the restri ctions sci forth in Section I of Article 19, Tenant shall have the right to assign this Lease from lime lo time without the approval of Landlord provided s uch assignee, in the reasonable detennination of Landlord, is an experienced shopping center operator; pro vided further, however, no existing guaranty or other security held by Landlord to secure Tenan t's obligations under thi Lease shall be released unless a substitute guarantor has a net worth of not less than SI 00,000,000 (One Hundred Million Dollars, or the guaranty is rep laced with substitute collateral in fonn and 112SJl2 _4.doc 412236-0Rf'J II • • • substance satisfactory to Landlord in its sole discretion . Subject to the restrictions set forth in Article 19, Section I, Tenant shall have the right, without Landlord 's consent, from time to time, to sublet portions of the Premises to sub-tenants who are or intend to conduct a trade or business on the subleased premises .1. Nun-di sturbance of Sub-lessee s. 3. Non di:,turhance of S~h lessees . No subleases of any portion of the Premises shall be affected by & cancellalion or termination of this Lease, and Landlord shall recognize the rights of the subtenants under the subleases, provided such subtenants attom to Landlord upon Landlord's request. Landlord shall enter into a customary non-disturbance and attomment ab>reement upon the request of the subtenant under a sublease and shall execute and deliver to Tenant an Estoppel Certificate in a form requested by any Subtenant or any lender to which Tenant grants a security interest in this Lease and/or the Improvements. In no event shall Landlord be obligated to execute any estoppel or non-disturbance and attomment agreement which modifies the terms of this Lease or creates any additional liability or risk for Landlord. 4. Status of Improvements and Building . As between Landlord and Tenant, at all times during any Term of this Lease, the Improvements , Building, facilities , machinery, fixtures, equipment , or other property or items erected , a part of, or in any manner associated with lhe Improvements (collectively "Tenant's Property") shall for all purposes be considered , and shall be and remain, the sole and separate real and personal property of the Tenant. Upon expiration of the Term of this Lease , by acceleration or otherwi se, al Landlord's option by written notice to Tenant within ninety (90) days following termination of this Lease, Tenant shall remove any or all of Tenant 's Property, including any improvements situated on the Premises, in which event Tenant shall restore any affected portions of the Premises to a clean, b>raded , dirt capped condition which shall satisfy any then applicable ordinances , regulations or other governmental requirements . In the event Landlord has not exercised its option to require Tenant to remove all improvement s situation on the Premises , any of Tenant's Property or improvements which Landlord ha s not required to be removed shall become the property of Landlord free of any claim by Tenant. Article 8 Mechanics Liens I . Liens . Tenant shall promptly pay when due the entire cost of all work done to the Premi ses by or at the reque st of Tenant and Tenant shall keep the Premises free ofliens for lnbor or material s. Should mechanics', materialmen's, or other lien s be filed against the Premises by reason of the acts of either party hereto ("Contracting Party"), such party shall cause the lien to be canceled and discharged of record within forty-five (45) days of the Contracting Party's receipt of actual notice of such lien. Notwithstanding the foregoing, the Contracting Party may contest , in good faith and with reas onable diligence, the validity of any such lien or claimed lien , provided that the contracting party shall give to the other party such security as may be reasonably requested by the other party to ensure the payment of any amounts claimed and to prevent any loss of any interest in the Parcels on account <l ! any such lien . If the Contracting Party contests a lien or claimed lien, then on final determination of the lien or claimed lien, the contracting party shall cause the lien to be released and, in the event of an adverse judgment , 1125312 4.dl~ ◄1 2236--011,'1 12 • • • satisfy such jud!(Jllent. Nothing herein shall be deemed to waive or impair any existing immunity of Landlord to liability or obligations for mechanics ' liens . 2. Protection of Landlord's Interest in Premises . Nothing in thi s Lease shall be construed as constituting the consent of Landlord, expressed or implied, to the performance of any labor or the furnishing of an y materials or any specific improvements, alterations of or repairs to the Premises or the improvements thereon , or any part thereof, by any contractor, subcontractor, laborer or materialman, nor as giving Tenant or any other person any right , power or authority to act as agent of or to contract for, or permit the rendering of, any services or the famishing of any material s in such manner as would give ri se to the filing of any mec han ics' liens or other claims against the fee of the Premises or the improvement s thereon . Landlord shall have the right al all reasonable tim es lo post , and keep posted. on the Premis es any notices which Landlord may deem necessary for the protection of Landlord and ii int erest in the Premise s and th e impro vements thereon from mechanics' lien s or other claims . Article 9 Indemnity and lllsurance I. indemnity . From and after the Effecti ve Dale an d con tinuing al all times thereafter during the Term hereof: A. Tenant assumes all risk of lo ss , dam age , or destructi on lo 1he Premises , Improvement s, Buildings and co ntent s, or lo any other property brought upon th e Premises , Improv eme nt s, and Building by Tenant, or by any other person, with or with out the co nsent or kn ow ledge of Tenant. Tenant hereby indemnifies and agrees lo prote ct and defend Landlord from all such loss, damage , or destru cti on including claims and ca uses of action asserted again st Landlord . B. Tenant shall indemnify and save harmles s Landlord and any of it s officers . members , employees , elected offic ial s, co ntrac tors and agent s from any and all clai ms, loss es, damages, or expenses , on acco unt of injuries lo or death of any and all perso ns whomsoever while on th e Premi ses, and any and all loss or dest ructi on of or dam age lo th e Premi ses, the Improvement s, the Building and any contents and personal property loca led upon th e Premi ses and owned by, rented lo, or in the care. custody , or control of th e parties hereto, or any of Tenant's subtenants, arising or growing oul of, or in any manner con nected with: (i) any use and occupancy of lhe Premises hy Ten an t or any subt enant s for a Permitted Use or oth erw ise; (ii) ca used or occasio ned , in whole or in part , by rea so n of or arising during the prese nc e upon the Premi ses of the pe rso n or the propert y of the Tenant, it s officers, employees, agents, subten ant s, renters , customers , invitees, li censees , serva nt s, contractors , subcontractors , matcrialmen , suppliers, workmen , laborers , and the employees and agen ts of each of th e foregoing, or any and all other person s, invited or otherwise , with or without Tenant's co nsent , while on the Premi ses; (iii) arising o ut of or resulting fr( ,n Tenant's development , sa le or marketing of the Premi ses and/or the Improvement s; and (i v) any pl ans or design s for the Improvements prepared by or on behal f of Tenant or Guarantor . 11 25)12 4,doc 412 2Jti .08b 13 • • • C. Tenant hereby indemnifies and saves harmless Landlord and any of its officers, members , employees, elected officials, contractors and agents from any and all claims, losses, damages, or expenses, on account of injuries to or death of any and all persons whomsoever, and any and all loss or destruction of or damage to any real or personal property adjacent to the Premises, caused by Tenant or any of its employees, managers, members, officers, contractors, subcontra ctors, materialmen , suppliers , workmen , laborers , subtenants, renters , customers, invitees, licensees, servants or agents. D. The foregoing indemnities shall not apply to any injuries , death , claims , losses, damages and expenses arising solely as a result of any negligence or intentional acts of Landlord or its officers , employees , contractors or agents. 2. Appear and De fe nd. Tenant further agrees that ii will appear and defend at its owr, expense, in the name an d on behalf of Landlord , all claims or suits for injuries to or death of persons or loss or destruction of or damage to property arising or growing out of or in any manner connected with or caused or occasioned by or in connection with its indemnities set forth in Article 9.1 above . 3. Tenant 's Insurance . From and after the Effective Date of thi s Lease and co ntinuing in full force and effect al all limes th ereafter throughout the enti re Term of this Lease, al Tenant 's so le cost and expense for the benefit of Landlord , Tenant, and any Mortgagee under a Le~sehold Mortgag~, as named insured , as their r~;,ective interests may appear, the Tenant shall maintain Commercial General Liability insurance for bodily injury, personal injury , and death and properly loss , destruction, and damage including contractual liability b!' which the insurer(s) without exclusion, ins ure lo the extent of the policy(ies) limits the liabilities and indemnities assumed by the Tenant under this Art icle 9, with a minimum combined single limit of not less than $25,000,000.00 per occ urr ence and in the aggregate, with a deductible in amount which is co mmercially reasonable . In the event this Lease is assigned and assumed by Weingarten Miller Sheridan LLC , payment of the deductible shall be guarant eed by Weingarten Realty Investors, a Texas real estate investment trust in accordance with the terms of it s limited guaranty as referred lo in Section 2 of Article 7. Coverage shall include , but sh all not be limited to, contractual liability , perso nal injury and death, owners and contractors protection, elevator li ability, liquor liability (lo the extent applicab le), products and completed operations, explo sion, collapse and underground coverage . These in surance requirements shall in no way limit or modify any of the liabilities, indemnities, or obligations of Tenant under any provision of this Lease. 4. Insurance Policies and Certificates. All of the insurance policies requir~'tl pursuant lo Article 9.3 shall be wrillen with compan ies licensed to do business in the State of Colorado, with a financial rating of VIII or heller and a policyhold ,:r's rating of A ICON Fl RMI or heller in the latest edition of Best's Rating Guide on Property ru,d Casualty Insurance Companies (or equivalent, if such guides is no longer published), and such policies shall provide that Landlord shall be given a minimum of thirty (30) days' wrillen notice by any such insurance company prior lo the cancellation, termination, or alteration of the terms or limits of such coverage . Copies of such po iicies sh all be delivered to Landlord endorsed premium paid by the company or agent issuing the same, or accompanied by other evidence satisfactory to Landlord that the premium s thereon have been paid . Such policies and evidence of payment shall be delivered to Landlord prior to or concurrent with the first entry upon the Premises, or any portion I 12S3 12_4.doc 4122 3tt.(Jllh 14 • • • thereof by Tenant, its contractors and subcontractors . Upon expiration of such policy, a new policy with the required endorsements attached, plus evidence of premium payment , shall be delivered to Landlord not less than thirty (30) days prior to the expiration of the then current policy term. At no time shall the amount of any deductible under any policy of insurance required hereunder exceed the amount customarily provided for similar type properties in the metropoli ,11 Denver. Colorado area . The liability in surance requirements hereunder shall be reviewed by Landlord and Tenant every three (3) years for the purpose of determining the adequacy of the limits and mutually adjusting (in consultation with their respective insurance advisors, if there are any) the minimum limits of such insurance from time to time to limits which shall be reasonable and customary for similar facilities of like size and operation. if the partie!: are unable to mutually ab'l'ee upon the adequacy of th e then existing limits or any new limits at least ninety (90) days prior to the expiration of an existing pol icy or policies, the parties shall mutually agree upon un independent insurance advisor with experience in securing or writing policies of insurunce for similar facilities oflike size and nature, who shall thereupon determine the adequacy of the then existing limits and/or establish the new limits for the insurance policies hereunder with respect to which the parties cannot agree. If the Tenant fails to obtain insurance polici es in accordance with such independent insurance advisor's determination, the Landlord may petiti on the District Court for an order requiring Tenant to obtain insurance in accordance with the requirement s of this Lease. 5. Blanket Insurance . Nothing in this Article 9 shall prevent Tenant from taking out insurance of the kind and in the amount required under a blanket insurance policy or policies (copies of which shall be delivered to Landlord) which may cover other properties owned or operated by Tenant or it s affiliates as well us the Premises. Improvement s. and, Buildings : provided, however, that any such policy of blanket insurance of the kind provided for: (i) shall specify therein the amount required by Article 9 lo be carried by Tenant and shall furnish Landlord and the holder of any leasehold mar.gage on the Premises , Improvements , and Buildings with a written statement from the insurers under such policy(ies) specifying the amount of the total insurance allocated to the Premises . Improvements, and Buildings ; and (ii) that such policies of blanket insurance shall. with respect to the Premises . Improvements, and Buildings, contain the various provisions req11ired by the provisio ns of Article 9. 6. Unearned Premiums. Upon any expirntion of the Leas e, any unearned premium s paid by Tenant occasioned by the short rate cancellation of such policy(ies) shall be payable lo Tenant. Article 10 Damage or Destruction I. Damage aml Destruction . If the Premi ses or any of the Improvements are damaged or destroyed duri ng the Term of this Lease by a fire or other casualty ("Cas ualty"), this Lease shall continue in effect, unless Tenant elects to terminate thi s Lease by giving written notice to Landlord within one hundred eighty (180) days of the date of the Casualty specifying a date of termination within sixty (60) days after the date of the notice, in which event, Tenant shall remove and raze the portion of the Premises which is damaged , remove and dispo se of all 112 5)12 4.doc 412236-086 15 • • • hazardous materials in accordance with applicable legal requirements , and, at Landlord's election, level and either pave over or seed such portion of the Premises, and pay off and discharge any Leasehold Mortgage . The balance, if any , of any insuranc, proceeds shall be retained by Tenant. In no event shall Tenant have any claim for refund of any rent paid hereunder or any other paymmts made :n connection with this Lease. Artltle 11 Eminent Domain It is the und ers tanding of Landlord and Tenant th.t under the applicable law , the Premises are not subject to being taken under power of eminent domain . However, should the Premi ses or any portion thereof hereafte: become subject to such taking, the parties agree as follows : I. Autom atic Termination. If, a!\er the execution of thi s Lease and prior to the expiration of the Term , the whole ,fthe Premises shall l•e taken under power of eminent domain by any public authority, or conveyed by Landlord to said authority in lieu of such taking (collectively, "Co ndemnati on"), then this Lease and the Term shall cease and terminate as of the date of such taki ng , subject, however, to the right of Tenant , at its election, to continue to occupy the Premises. subject to the term s and provi sions of thi s Lease, for all or such part, as Tenant may determine, of the period between th e date of such taking and the date when possessio n of the Premises shall be taken by the taking authority, without any refund of any •ent or other charges, if any, paid in advance by Tenant. In no event shall Tenant have any \aim for refund by Landlord of any rent paid hereunder or any other payments made in connection with this Lease. 2. Termination Right . If, after the execution of thi s Lease and prior to the expiration of the Term, any Condemnation shall result in a taki ng of any portion of the Improvement s, or any portion of the Premi ses, which taking in Tenant 's so le di scretion materially impedes or interferes with access to the Premis es, or materially affects the conduct of Tenant's bu siness as theretofore conducted at the Premi ses, then Tenant may , at its election , term inate this Lease by giving Landlord notice of the exercise of Tenant's election within one hundred eighty (180) day s after Tenant shall receive notice of such taking. Without limiting the generality of the foregoing, any taking of any portion of the Buildings shall automaticall; invok e the foregoing termination rights. In the event of termination by Tenan l under the provisions of 11is Article, thi s Lease and the Term shall cease and terminate as of the date of such taking, subj '.,et 'o the right of Tenant , at it s election, to continue to occ upy the Premi ses, sub_iec t to the term ., .-,d provisions of thi s Lease. for all or such part as Tenant may determine for th e p,·riod between 1:1c la te of such taking and the date when possession of the Premises shall be takrn by the approvriating authority , without refund of any rent or other charges, if any, paid in advance by Tenant. In no event shall Tenant have any claim for refimd by Landlord of any rent paid hereunder or any other payment s made in connection with thi s Lease. 3. Restoration . In the event of a Condemnation with respect to which Tenant shall not have the right to elect to terminate this Lease or, having such right , shall not elect to terminate this Lease, this Le ase and the Term shall continue in full force and effect for that portion of the Premises which shall n. ,1 ha ve been expropriated or taken . 1125)12 _4.doc 41223t--0Ab 16 • • • 4. Awan! Lease Not Tqmj1111m. In the event of a Condemnation of any portion of the Premises and/or the Improvements more than ten ( I 0) years prior to the end of the Lease Term or any Option Tenn, and the Lease is not terminated, the award paid by the condemning authority shrJI be paid to TCllllllt. S. Awan! Lease Tqmjnated. In the event of a Condemnation and the Lease is terminated , or a Condemnation ten ( I 0) years or less to the end of the Lease Term or Option Term as hemn provided and the Lease is not terminated , the award paid by the condemning authority shall be allocated as follows : A. The Leasehold Mortgagee first shall be paid the balance due on any note and Leasehold Mortgage ; then B. Second , to Landlord up to an amount equal to Landlord 's residual interest in the land value of the Premises taken ; and C. Third, th e balance of the award to Tenant. 6. Tenninatjon . In the event of any termination of this Lease as the rcs1;lt of the provisions of this Article, the Parti es, effective as of such termination , shall be rele1.sed, each to the other, from all liability and obligation s thereafter arising under this Lease , and this Leas e shall become null and void and of no further force or effect, except as to the allocati on of an award in the condemnation . Article 12 IINTENTIONALLY OMITTED! Article 13 Default I . Remedies Upon Tenant's Defaul t. h•. ,he event Tenant (and regardless of the pendency of any bankruptcy , reorganization , receivership , insolven cy or other proceedings in law, in equity or before any administrative tribunal which have or might have the effect of preventing Tenant from complying with the term s of this Lease) shall at any time be in default in the obsen,unce or performance of any of the covt nants and agreements required to be observed by Tenant hereunder (a "Default"), and any such Default shall continue for a period of thirty (30) days after written notice to Tenant and to any and all Leasehold Mortgagee(s) for monetary obligation, and sixty (60) days after written notice to Tenant and lo any and all Leasehold 1\-iortgagee(s) for all other obligations (or if such Default is incapable of being cured in a reasonable manner within sixty (60) days, and Tenant or a Leasehold Mortgagee has no t commenced to cure the same within said sixty (60) day period and thereafter diligently prosecutes the same to completion) and Tenant or any Leasehold Mortgagee shall not thereafter cure such Default, then Landlord shall be entitled as ,ts sole remedy to (a) bring suit for the collection ofthi: rent or other amounts for whic~• Tenent may be in default, or for the performa.-ice of any other covenant or agreement devolving upon Tenant and/or (b) cure such Default and seek reimbursement from Tenant for the co st of curing the Default , together with ll2ll12_4.doc ,U:;'1:)6-016 17 • • • interest RI a per annum rate equal to the Prime Rate plus five percent (5%), all without entering into possession or terminating this Lease. For purposes of this Lease, Prime Rate shall be the prime rate published i,1 the Wall Street Journal or other comparable publication in the Wall Street Journal is no longer published, adjusted with each change in the prime rate. In the event Tenar,t breaches the testrir.tions on use set forth in Article 19.1, Landlord shall be entitled to immediate injunc•;,e relict: Landlord's rights herein shall be subject in all respects lo the provisions of Article 18 below. 2. Remedies Upon Landlord's Default. In the event Landlord shall at any time be in default in the observance or perfonnance of any of the covenants and agr<-emcnls required to be perfonned and observed by Landlord hereunder and any such default shall continue for a period of sixty (60) days after written notice to Landlord (or if such default is incapable of being cured in a reasonable manner within sixty (60) days and if Landlord has not commenced to cure the same within said sixty (60) day period and thereafter diligently prosecutes the same to completion). and Landlord shall not thereaft~r cure such default, Tenant shall be entitled , at its election , to bring suit for the collection of any amounts for which Landlord may be in default, or for the perfonnance of any other covenant or agreement devolving upon Landlord. without lenninating this Lease , in addition to all remedies otherwise provided in this Lease and otherwise available al law or in e~uity under the laws of the United States or the State of Colorado. 3. Attorneys' Fees . In lhe event lhal either Landlord or Tenant commences any action for lhe collection of any amounts for which lhe oth<-r may be in default or for the pcrfonnance of any other covenant or agreement hereunder. lhe prevailing Party in n uch action shall be awarded ils costs and expenses , including , but not limited lo, all .ys' fees and expenses incurred in enforcing such obligations and /or collecting such am oanls. from the other Party lo such action . 4. Waiver of Consequential Damages. In no event shall either Landlord or Tenant have the right lo recover consequential damages of any kind from lhe other . Except as limited hercinabove, all rights and remedies may be exercised and enforced concurrently and whenever and as often as Landlord or Tcna11I shall deem necessary . Nothing contained herein shall preclude, or be deemed a waiver, of Landlord's right to recover damages sustained by Landlord which result from any activity that affects the physical play of Landlord's adjacent golf course, including but not limited to the drainage swale which Tenant intends lo install on lhe western line oflhe Premises . Landlord acknowledges that Tenant intends to develop the Premises as a retail shopping center; Landlord agrees that Tenant shall not be liable for damages arising solely from the activity occurring in connection with such retail oneration ; provided such activity does nol result in an adverse physical condition of Landlord's adjacent golf course which impairs the physical pla) of the golf course . Tenant agrees that Landlord shall not be liable for damages a,;1ing from Landlord's operation of its adjacent golf course or arising from the use of such course by any other party, including but nol limited to damages arising from golf balls landing on the Leased Premises . 11 25312 _4.doc ◄1 22 36 -086 18 • • • Article 14 Covenant of Quiet Enjoyment Landlord agrees thal Tenant shall quietly and peaceably hold, possess, and enjoy the Premises , without any hindrance or mole ;talion by the agents or employees of Landlord, and further, Landlord shall, and any additionbl 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 lhe lawful claims of all persons whosoever, except !hose claiming by or through Tenant. Tenant's use of the Premises shall not result in an adverse condition oflhc physical condition of Landlord's adjnccnl golf course which impairs the physical play of the golf course . In no event shall Landlord be liable for, or otherwise be responsible for, any injury or damage to the Premises or property of Tenant 's subtenants , or their employees, guests , invitees or any other person arising from the operation of Landlord's adjacent golf course, including bul not limited to any claim arising rrom golf balls landing on the Premises . Article 15 Subordination; Landlord's Right to Mortgage and Convey Premises Landlord may mortgage its interest in the Premises, provided such mortgage expressly prov ides I hat the rights and interests of the mortgagee thereunder arc subject and subordinate to the rights and interests of Tenant hereunder and the rights of any Leasehold Mortgagee under any Leasehold Mortgage then or !hereafter existing. Should Landlord sell . convey , or transfer its interest in the Premises or should any mortgagee of Landlord succct.-d to Landlord's interest through foreclosure or deed in lieu thereof, Tenant sha ll attom to such succeeding party as its landlord under this Lease promptly upon any such succession , provided such succeeding party assumes all of Landlord's duties and obligations under this Lease . Such succeeding party shall not be liable for any of Landlord's obligalions and dulies hereunder prior to ils assumplion of Landlord's duties and obligalions hereunder. cxcepl 1ha1 Tenant shall be cntilled to any offsets or defense which may have arisen prior to such succec-ding party's assumption , which such offsels or defenses arc specifically pro vid ed herein or arc otherwise permitted by law . Article 16 Tra nsfers by l.andlord No transfer or sale of Landlord's interesl hereunder shall release Landlord rrom any of it s obligatio ns or duties hereunder prior thereto . Landlord shall be released of any ongoing ob ligations hereunder rrom and after the dale of such tran sfer and only upon lhc assumption of all such obligation s and duties by the transferee of Landlord . No1withs1anding anything contai ned herein to the contrary, in no event shall Landlord have the right lo lran sfcr , in any manner whatsoever. or lo se ll ils inleresl hereunder prior 10 delivery of possession of the Premi ses to Tenant. 1125)1:! 4.Joc "l :!2Jho4i'8t. 19 • • • ArL~le 17 Ml1Cellueou1 I. Non-Wajycr ofPefault. No acquiescence by either Party to any default by the other Party shal; operate as a waiver of its rights wi th respect to any other breach or default , whether of the same or any other covenant or condition . 2. &!lonlina, This Lease shall not be recorded . The parties shall execute, acknowledge, and deli'ler to each other duplicate originals of a short fonn or memorandum of this Lease ("Memorandum of Lease ") in substantially the fonn of E1hlblt C attached hereto and incorporated herein, describing the Premises and setting forth the Tenn of this Lease . The Memorandum of Lease shall be recorded at Tenant 's expense . If Tenant terminates this Lease , upon requ td l of Landlord , Tenant will execute and deli ver to Landlord a termination of the Memorandum of Lease suitable for recording. 3. ~-Any noti ce, request , offer, approval , consent , or other communication required or permitted to be given by or on behalf of either Party to the other shall be given or communicated in writing by personal deli very , reputable overnight courier service which keeps receipts of deliveries (i.e., Federal Express), or United States certified mail (return receipt requested with postage fully prepaid) or express mail service addressed to the other Party as follow s: Ifto Tenant: With co pies to : lfto Landlord : With copies to : Sheridan Redevel opmP.llt Agency 4104 South Federal Boulevard Sheridan , CO 80110-5399 Attention: Executive Director Wi,,dholz & As sociates 1650 38th s1.~1. Suite I 03 W Boulder, Colorado 80301 Attn : Jim Windholz Esq . City of Englewood I 000 Englewood Parkway Englewood, Colorado 80 I I 0 Attention : City Manager City ofEnglewood I 000 Englewood Parkway Englewood , Colorado 80110 Attention: City Attorney or at such other address as may be specified from time to time in writing by either Party . All such notices hereunder shall be deemed to have been given on the date personally delivered or the date marked on the return receipt, unless delivery is refused or cannot be made, in which case the date of postmark shall be deemed the date notice has been given . 112 531 2_4.doc 41 22 =116 20 • 4. Successors and Assjgns. All covenants, promises, conditions, representations, and agreements l,crein contained shall be binding U)Xln, apply to, and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, successors (including subtenants), and permitted assigns. 5. Partial Invalidity. If any provision of this Lease or the application thereof to any person or circumstance shall to any extent be held invalid, the remainJer 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 enforceable to the fullest extent permitted by law . 6. Interpretation . In interpreting this Lease in its entirety, any additions written or typed thereon shall be given equal weight, and there shall be no inference, by operation of law or otherwise, that any i,rovision of this Lease shall be construed against either Party her to . This Lease shall be construed without regard to any presumption or other rule requiring construction against the Parties causing this Lease to be drafted. 7. Headings. Captions. and References . The section captions contained in this Lease are for convenience only and do not in any way limit or amplify any term or provision hereof. The use of the terms "hereof," "hereu nd er," and "herein" shall refer to this Lease as a whole , inclusive oftte Exhibits, except when noted otherwise . The terms "include ," "includes," and "ircluding" incorporate the meaning "without limitation." The use of the masculine or neuter i;cnders herein shall include the masculine , feminine , and neuter genders and the singular form • sha ll include the plural ,·.·hen the co nt ext so requires . • 8. Governing Law . This Lease shall be construed under the laws of the State of Colorado . 9. Execution of Documents. Landlord and Tenant shall each cooperate with the other and execute such documents as the other Party may reasonably require or request so as to enable it to conduct its operations, so long as the requested conduct or execution of documents does not derogate or alter the powers , right s, duties, and responsibilities of the respective Parties. I 0. Force Majeure. Whenever a party is required to perform an act under this Lease by a certain time , unless specifically provided otherwise in this Lease, such party may ex tend the deadline in the event of Excusable Delay. In the event a party elects to so extend a deadline, such party shall first give written notice to the other party within twenty (20) days following the commencement of the Excusable Delay setting forth the event giving rise to the Excusable Delay. The party electing to extend the deadline shall within twenty (20) days fo llowing the end of the Excusab le Delay give an additional written notice to the other party setting forth the number of days the period has been extended as a result of the Excusable Delay and the details of such delay. I I. Waiver of Landlord's Lien. Landlord hereby waives any lien it may have for rent against any and all of the property ofany of Tenant's sublessees of any portion of the Premises . I l:!S31 2 4,doc 412236 -0llti 21 • • • Article 18 Leasehold Fln ■ncln11 I . Mortgage by Tenant. Tenant may, from time to time, hypothccate, mortgage, pledge, or alienate the Improvements and/or Tenant's leasehold estate and rights hereunder. Such lien shall be referred to herein as a "Leasehold 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 shall be subordinate, junior and subject to Landlord 's ownership of the Premises and interest in this Lease . A Leasehold Mortgage shall encumber no interest in the Premises other than Tenant's interest in the Lease and the Improvements located on the Premises, in~luding any personal property of Tenant , and any subleases of portions of the Premises. A Leasehold Mortgagee or its assigns may enforce such lieu and acquire title to the leasehold estate in any lawful way and, pending foreclosure of such lien , the Leasehold Mortgagee may take possession of and operate the Premises, performing all obligations performable by Tenant, and upon foreclosure of such lien by power of sa le, 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 . Notwithstanding anything herein contained to the contrary, the Leasehold Mortgagee or any person or entity acquiring such leasehold estate shall be liable to perform the obligations imposed on Tenant by this Lease only during the period such person has ownership of said leasehold estate or possession of the Premises . Landlord agrees to provide an estoppel to any Leasehold Mortgagee upon written request therefor, provided such estoppel does not obligate Landlord to acknowledge or consent to any modifications or interpretations of this Lease not previously agreed upon by both parties in writing. 2. Notice To and Rights Of Leasehold Mortgagees . A. When giving notice to Tenant with respect to any default hereunder, Landlord shall also serve a copy of such notice upon any Leasehold Mortgagee who shall have given Landlord a written notice specifying its name and address. No such notice shall be effective against any Leasehold Mortgagee unless and un!il served on any Leasehold Mortgagee as herein provided. In the event Tenant shall default in the performance of any of the terms, covenants , agreements, and cc,ndi!l ons of this Lease to be performed on Tenant's part , any Leasehold Mortgagee shall have the right, within the grace period available to Tenant for curing suc h default or such additional time as may be granted to any Leasehold Mortgagee herein , to cure or make good , such default or to cause th e sam e to be cured or made good, whether the same consists of the failure to pay rent or the failure to perform any other obligation, and Landlord shall accept such performances on the part of any Leasehold Mortgagee as though the same had been done or performed by Tenant. B. In the case of a default by Tenant in the payment of money, Landlord will take no action to effect a termination of this Lease by reason thereof unless such default has co, • inued beyond forty-five (45) days after Landlord shall have served a copy of such notice upon Tenant and any Leasehold Mortgagee who has given Landlord notice as provided in Article 18 .2.A e ove, it being the intent hereof and the understanding of the parties that any Leasehold Mortgagee shall be allowed not less than fifteen (15) days in 11 2Hl2_4.doc 412236-086 22 • • • addition to the thirty (JO) days granted to Tenant to cure any default of Tenant in the payment of rent or in the malting of any other monetary payment required under the terms of this Lease. C. In the case of any other default by Tenant, it being the intent hereof and the understanding of the partic. that any Leasehold Mortgagee shall be allowed , in addition to any grace period granted to Tenant, a.; additional time as hereinafter specified to cure a non-monetary default of Tenant, Landlord shall t'lke no action to effect a termination of the term of this Lease by reason thereof unless such default has continued beyond the grace period available to Tenant for curing said default, and then only after Landlord shall have served a copy of a notice upon any Leasehold Mortgagee who has given Landlord notice as provided in subparagraph Article 188 .2.A above, in the payment of rent or in the making of any other monetnry payment required under the terms of this Lease within which either: a) to commence and diligently proceed to cure within thirty (30) days such default, if such default is susceptible of being cured by the Leasehold Mortgagee without obtaining possession of the Premises ; b) to commence within thirty (30) days and diligently proceed to obtain possession of the Premises (including possession by a receiver) and to cure such default within thirty (30) days following possession or the appointment of a receiver in the case of a default which is susceptible of being cured when the Leasehold Mortgagee has obtained possession thereof; or c) if such default is not susceptible of being cured by obtaining possession (including possession by a receiver) to institute foreclosure proceedings within th :·1y (30) days and thereafter to complete such foreclosure pror...eedings or otherw ,,c acquire Tenant's interest under this Lease with reasonable and contin~,:,us diligence . A Leasehold Mortgagee shall not be required to continue such possession or continue such foreclosure proceedings if the default which prompted the service of such a notice has been cured. D. In the event that this Lease is terminated by Landlord on account of any default , Landlord shall give prompt notice thereof to each Leasehold Mortgagee who has given notice to be notified . Landlord, within thirty (30) days after receiving a written request therefor, which shall be given within sixty (60) days •fter such termination, will execute and deliv<"' a new lease of the Premises to the Lease .. old Mortgagee or its nominee or to th e i:urchaser, assignee, or transferee, as the case may be, for the remainder of the term of this Lease, containing the same covenants, agreements, terms, provisions, and limitations as are contained herein, provided that the Leasehold Mortgagee shall (i) pay to Landlord, simultaneously with the d•!ivery of such new lease, all unpaid rental due under this Lease up to and including the date of the commencement of the term of such new lease and all expenses including, without limitation, reasonable attorneys' fees and disbursements and court costs incurred by Landlord in coMection with the default by Tenant and the termination and the preparation of the new lease, and (ii) the Leasehold 1125)12_4.doc 4122)6-086 23 • • • Mortgagee shall commence and diligently proceed 10 cure all defaults existing under this Lease . E. As long as there is a Leasehold Mortgagee, neither the bankruptcy nor the insolvency of Tenant shall operate or permit Landlord to terminate this Lease as long as all rent specified above and all other charges of whatsoever nature payable by Tenant continue to be paid in accordance with the term of this Lease . In the event of a filing of a petition in bankruptcy by the Tenant, and the Tenant rejects this Lease under Section 365 of the Bankruptcy Code (or any replacement thereof), the Landlord shall, upon the request of a Leasehold Mortgagee which has been approved by Lancllord, affirm this Lease , and the Landlord will enter into a new lease on the same terms and conditions with the Leasehold Mortgagee immediately upon Tenant's rejection of this Lease . In the event of a filing of a petition in bankruptcy by the Landlord , and the Landlord rejects this Lease and the Tenant does not affirm it , a Leasehold Mr •\gagec wi ll have the auth ority to affirm this Lease on behalf of the Tenant and to keep t).,; Lease in full force and effect. F. The time available to a Leasehold Mortgagee to initiate foreclosure proceedings as aforesaid shall be deemed extended by the number of days of delay of occasioned by judicial restriction against such initiation or occasioned by other circumstances beyond the Leasehold Mortgagee's control. G. During the period that a Leasehold Mortgagee shall be in possession of the Premises and/or during the pendcncy of any foreclosure proceedings instituted by a Leasehold Mortgagee, the Leasehold Mortgagee shall pay or cause 10 be paid nil charges of whatsoever nature payable by Tenant hereunder which have been accrued and are unpaid and which will thereafter accrue during said period. Following the acquisition of Tenant's leasehold estate by the Leasehold Mortgagee or its designce, either as a result of foreclosure or acceptance of an assignment in lieu of foreclosure , the Lca~ehold Mortgagee or party acquiring title lo Tenant's leaseho!d estate, whereon Landlord's right lo effect a termination 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 be and shall be deemed 10 have been waived by Land lord upon comp letion of the foreclosure proceedings or acquisition of Tenant's interest in this Lease by any purchaser (who may, but need not be, the Leasehold Mortgagee) al 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 perform the obligations imposed on Tenant by this Lease incurred or accruing after such purchaser or successor no longer has ownership of the leasehold estate or possession of the Premises. H. Nothing herein shall preclude Landlord from exercising any of Landlord's rights or remedies with respect lo any other default by Tenant during any period of any such forbearance, subject 10 the rights of any Lea se hold Mortgagee as herein provided . I. In the event two or more Leasehold Mortgagees each exercise their rights hereunder and there is~ conflict which renders it impossible lo co mply with all such requests , the Leasehold lv' . .irtgagee whose leasehold mortgage would be senior in priority I 12SJl2 _4.00C 4122 Jr.-0ll6 24 • • • if there were a foreclosure shall prevail. In the event any Leasehold Mortgagee pays any rental or other sums due hereunder which relate to p<:riods other than during its actual ownership of the leasehold estate, such Leasehold Mortgagee shall be subrogated to any and all rights which may be asserted a3ainst Landlord with respect to such period of time . Upon the reasonable request of any Leasehold Mortgagee, Landlord and Tenant shall cooperate in including in this Lease by suitable amendment from time to time any provision for the purpose of implementing the protective provisions contained in this Lease for the benefit of such Leasehold Mortgagee in allowing such Leasehold Mortgagee reaso nable means to protect or preserve the lien of its proposed Leasehold Trust Deed on the occurrence of a default under the terms of the Lease. Landlord and Tenant shall execute, deliver, and acknowledge any amendment reasonably necessary to affect any such requirement ; provided, however, that any such amendment shall not in any way affect the term or rental under this Lease nor otherwise in any material respect adversely affect any rights of Landlord under this Lease or impose any additional liability or risk on Landlord . Article 19 Additional Provisions I. RcstrjcJjons. Tenant agrees to prohibit occupancy oflhe Premi ses by Wal-Mart . by any office product sellers (excluding sellers usi ng less than 20% of their floor space lo se ll oflicc supplies), pel supply sellers (excluding sellers usi ng less than 20% of their floor space lo sell pel supplies), full service sporting good s sellers like Sports Authority, and Dick's Sporting Goods, so long as tenants with such uses arc in operation in the City Center Englewood Shopping Center arc in operation, and for two years after such uses arc no longer pres ent al the City Center Englewood Shopping Center. 2. Open Spu cc P)un. Tenant will IJcilitale and make reasonable efforts to enlist the cooperation and participation , of the City of Sheridan in the South Platte River Open Space. 3. Englewood Go)fComp)cx. Unless this Lease is lenninaled pursuant to Article ,.'.' r, or 3.3.D. Tenant shall be responsible for the cost of rebuilding the Englewood golf c11 111plcx in accordance with the terms and conditions of the Development Agreement. 4. fNew Road: Landlord's accessj. Tenanl inlcnds 111 eonslnKt a ruad running from 1hir1 h lo so uth on the western pu11iun of the Premi ses mut immediately tu the cust of a draicugc swa lc 1,, be eonslruelcd hy Tenant ( --New Road .. ). Landlord shall have the right, at its sole cos t, to obtain access from -the New Road lo its adjacent property, which access shall be at not more th an 2 location s to be determined by Landlord . The access points and Landlord's use of the access and road shall comply with all applicable laws and regulations , and Landlord shall pay any cost or incremental cost resulting from such access . S. Non-materja) Amendments requested by Sub -lessees. Upon the reasonable request of any Sub-lessee, Landlord shall cooperate in including in this Lease suitable BmL'1ldments from time to time, provided, however, 'hat any such amendment shall not in any way affect the business term s between Landlord or 1801, in cluding but not limited to the 1125)12 _~ Jl,c 412 2JMIM 25 • • • rental or lease tenn under th is Lease nor otherwise in any material respect adversely affect any rights of Landlord under this Lease or impose any additional liability or risk on Landlord . o. Publk lndo,nnilication . So long as the Tc1o , . .1 under thi s Lease is a public ur quasi-public entity, uny indemnification by the Tenunt us pruvid1.-d in this lease shall be cnfurceublc against the public ur quasi-public entity only the extent such entity has the legal authority and power to provide such indemnity. Article 20 Representations of Landlord and Tenant I. Representations of Landlord. Except as otherwise disclosed on Schedule I attached hereto, Landlord represents and warrants to Tenant that , as of the Effective Date: A. Landlord is a Home Rule Municipal Corporation validly existing under the laws of the State of Colorado. Landlord has the full right, power and authority to enter into this Agreement and to perfonn Landlord's obligations hereunder. B. This Agreement (i) has been duly authorized. executed , and delivered by Landlord; and (ii ) is the binding obligation of Landlord . C. Landlord has not granted, other than to Tenant , any outstanding option , right of first refusal or any preemptive right with respect to the purchase of all or any portion of the Premises. D. To the best ofLandlor<''s knowledge , the Premises and use and occupancy thereof is not in violation of any laws and no ,;,ritten notice of such violation has been received by Landlord and, except as noted in the following sentence, is not the subject of any existing, pending, or threatened investigation or inquiry by any governmental authority or subject to any remedial obligations under any laws pertaining to or relating to hazardous materials or other Environmental Condi ti on~ Tenant acknowledges that it has been advised thet ihe Premises are subject to ongoing : .. ,estigation and supervision by applicable agencies or departments of the State of Colorado with regard lo the Environmenta l Conditions existing on the Premises. E. There are no unrecorded easements or rights-of-way affecting any or all of the Premises except the sanitary sewer interceptor lines as previously disclosed by Landlord to Tenant. F. No lawsuit has been filed against Landlord regarding the Pr :s. G. Except as noted in the following sentence, there are no other leases, agreements or contracts in existence relating to the Premises, incl uding, without limitation, tenant leases, ~ervice contracts, or management agreements . Landlord currently has an agreement with the City of Sheridan for payment in lieu of taxes, has agreements with various concessionaires operating in its golf course facility, has one or 1125312 ◄.doc 412236.flllti 26 • • • more sign agreements for advertisi11I! at its golf course, and has agreements relating to the Golf Course Enterprise Revenue Refunding Bonds, Series 2003. None of the forgoing agreements create any obligations, restrictions or limitations relating to the Premises or its use, nor conflict with any prov,sions of this Lease . H. Landlord has received no notice from any insurance company with respect to the cancellation of any policy concerning the Premises or refusal of the insurance company to insure the Premises . I. There are no oral agreements affecting the Premises . J. There is no litigation pending with respect to the Premises relating to any environmental law violations. Landlord and Tenant acl ,10wledge that a portion of the Premises consists of a landfill which was closed several years ago. Except as disclosed with respect to the Environmental Conditions at the Premises , and as may be otherwise ascertainable by Tenant through its own investigations and due diligence , no notice of any violation of Environmental Laws or r other written communication pertaining to Environmental Conditions at the Premises has been received by Landlord from a governmental agency. K. There are no a1,'l'eements, commitments or understandings by or between Landlord and any third party pursuant to which (i) L.andlord a1,'l'ees to make the Premises part of any special assessments , specia l district , or taxing district ("As sessments"), or (ii) Landlord or its successors in inter, 11 are required to sell, grant or dedicate any part of the Premi ses or to grant any easement, water rights, rights-of-way , road or license for ingress and e1,,yess or other use in respect lo any part of the hemiscs, whether on account of the development of adjacent or nearb y real property or otherwise. Landlord has no knowledge of any Assessments heing contemplated. L. Landlord has no knowledge of any fact , condition , or actio n, present , contemplated , or threatened, which would or may result in the tenninalion or impainncnl of access to and from the Premises as such access presently exists, and Landlord is not in violation of any casements, rights-of-way, conditions, covenants and restrictions, liccnst:s, or other agreements burdening the Premises. 2. Repres entations of Tenant. Except as otherwise disclosed on Sched~lc I attached hereto, Tenant represents and warrants to Landlord that , as of the Effective Date: Tenant is an Urban Renewal Authority , validly existing under the laws of the State of Colorado. Tenant has the full right, power and authority to enter into lilis Agreement and lo pcrfonn Tenant's obligations hereunder. B. This Agreement (i) has been duly authorized, executed, and delivered by Tenant ; and (ii) is the binding obligation ofTenant. 112 5312 _◄.doc -412236.0Kti C . No lawsuit has been filed against Tenant regarding the Premises. 27 • • • 0 . Tenant has receiv,-·j no notice from any insurance company of any refusal . f th e insurance company to insure the Premises. E. There are no oral agreements made by Tenant affecting the Premises . Artie!~ 21 Right of Finl Refu11l to Purchase I . Righi of First Refusal. Landlord does hereby grant Tenant a right of first refusal to purchase the Premises and any portion thercof("Refusal Property"), to be exercised by Tenant anyt i.>· ,e during the Lease Term , in accordance with and subject to the following provisions: A. If at any time during the Lease Term , Landlord shall receive a bona fide ofte r, other th au at public auction , from a third person, for the purchase of the Refu sa l Property , which offer Landlord shall desire to accept, Landlord shall promptly deliver to Tenant a copy of such offer and Tenant may, within thirty (30) days thereafter, elect to purcha se the Refusal Property on the same term s as tho se set forth in such offer, except as provided bel ow. B. lfTenant shall not accept such offer within the thirty (30) day period, sai d right of fir st refusa l shall be deemed to have been waived and Tenant shall not have the right to purchase the Refu sa l Propert y as to the portion of the Refusal Propert y specified in the offer. but thi s Lease sha ll co ntinue otherwi se on all of the terms as those set forth. If the offer only pertain s to a port ion of the Premises, Tenant 's right of first refusal shall remain in effect as to the port ion of the Premi ses not included in such offer. If Landlord docs not consummate the sa le of the Refu sa l Property . Tenant's right offirst refusal shall remain in effect. C. If the ofter received by Landlord contains property in addition to the Refusal Property, Tenant shall be ob ligated to exercise its rights as to only the Premi sc-s, or portion thernof covered in the offe r, an d there shall be an equitable adjustment of the price . 1125 112 _-4 .doc 412236.(18(> (Remainder of Page Intentionally Left Blank) 28 • • • IN WITNESS WHEREOF, this Lease has been executed as of the date written above . 1125312_4.doc 412236-016 LANDLORD: CITY OF ENGLEWOOD A home rule municipal corporation By : Mayor TENANT: SHERIDAN REDEVELOPENT AGENCY a _________ _ By: Title: 29 • • • 112 53 12_4.doc 4122 J6.CA6 EXHIBIT A DESCRIPTION OF PREMISES • • • 1125)12_4.do< 412236-0&6 EXHIBITS ASSEMBLAGE 2 • • • 11253124.doc 412236-0&6 EXHIBITC MEMORANDUM OF LEASE • • 1125312 4.doc 412236-086 E1'IIIBIT 9 E~IGbEW909 G8bF CSMPbEl< 4