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HomeMy WebLinkAboutEVERWEST - CONTRACT - CONTRACT - 10141 FOOTHILLS FASHION MALL LEASEFOOTHILLS FASHION MALL LEASE EVERWEST, a partnership, LANDLORD L1kqlIa] CITY OF FORT COLLINS, COLORADO TENANT Dated Article 12 - MECHANICS' LIENS A TENANTS COVENANTS Tenant shall pay, or cause to be paid, all costs for work done by it or caused to be done by it on the Premises, and Tenant shall keep the Premises free and clear of all mechanics' liens and other liens on account of work done for Tenant or persons claiming under it. Tenant agrees to and shall, to the extent permitted by law, indemnify and save the Landlord free and harmless against liability, loss, damage, costs, attorneys' fees, and all other expenses on account of claims of lien of laborers or matenalmen or others for work performed or materials or supplies furnished at Tenant's direction If any claim of lien should be perfected against the Premises or any interest therein, Tenant shall, within fifteen (15) days thereafter, cause the property which is subject to the lien to be discharged therefrom either by paying the same or by recording a surety bond in accordance with the Colorado Revised Statutes B TENANTS RIGHT TO CURE, If Tenant shall desire to contest any claim of lien, it shall furnish Landlord adequate security of the value or in the amount of the claim, plus estimated costs and interest, or a bond of a responsible corporate surety in such amount conditioned on the discharge of the lien If a final judgment establishing the validity, or existence of a lien for any amount is entered, Tenant shall pay and satisfy the same at once if Tenant shall be in default in paying any charge for which a mechanics' lien claim and suit to foreclose the lien have been filed and shall not have given Landlord security to protect the property and Landlord against such claim of lien, Landlord may (but shall not be so required to) pay the said claim and any costs, and the amount so paid, together with reasonable attorneys' fees incurred in connection therewith, shall be immediately due and owing from Tenant to Landlord, and Tenant shall pay the same to Landlord with interest at the maximum legal rate from the dates of the Landlord's payments. C NOTICE OF LIEN. Should any claims of lien be filed against the Premises or any action affecting the title to such property be commenced, the party receiving notice of such lien or action shall forthwith give the other party written notice thereof Article 13 - ADVERTISING SIGNS All identification signs or insignias erected or installed by Tenant on the exterior of the building or the interior that can be seen from the exterior of the budding, must first be approved by Landlord before erected or installed. In addition, no advertising medium shall be utilized by Tenant that can be heard or experienced outside the Premises, including without limiting the generality of the foregoing, flashing lights, searchlights, musical instruments, loudspeakers, phonographs, radios, or television. Tenant shall not display, paint or place or cause to be displayed, painted or placed, any handbills, bumper stickers or other advertising devices on any vehicle parked in the parking area of the Shopping Center„ nor shall Tenant distribute or cause to be distributed, in the enclosed portion or the exterior Common Area of the Shopping Center any handbills or other advertising devices. Article 14 - FIXTURES AND PERSONAL PROPERTY A REMOVAL AND REPLACEMENT. Any trade fixtures, signs and other personal property of Tenant not permanently affixed to the Premises shall remain the property of Tenant Tenant at its expense shall immediately repair any damage occasioned to the Premises by reason of the removal of any such trade fixtures, signs, and other personal property, and upon expiration or earlier termination of this Lease, shall leave the Premises in a neat and clean condition, free of debns All improvements to the Premises by Tenant, including but not limited to light fixtures including track lighting bars and track fixtures, ceiling mounted paddle -type fans, security systems, conduit, wiring, floor coverings, carpeting, draperies, and partitions, but excluding music systems, trade fixtures and signs, telephone relay equipment and hardware, shall become the property of Landlord upon expiration or earlier termination of this Lease B PERSONAL PROPERTY TAXES Tenant shall pay before delinquency all taxes, assessments, license fees and public charges levied, assessed or imposed upon its trade fixtures, leasehold improvements and other personal property in, on or upon the Premises. In the event any such items of property are assessed with property of Landlord, then, and in such event, such assessment shall be equitably divided between Landlord and Tenant to the end that Tenant shall pay only its equitable proportion of such assessment. The parties acknowledge that Tenant's use of such personal property for public uses may be the basis for exemption of the same from taxation, and in such event Tenant shall have no obligation to pay for any portion of Landlord's assessment hereunder for any period subsequent to the time of such exemption Landlord shall determine the basis of prorating any such assessments and upon acceptance of such determination by Tenant, such determination shall be binding upon both Landlord and Tenant. No 8 taxes, assessments, fees or charges referred to in this paragraph shall be considered as taxes under the provisions of Article 6 (A) hereof Article 15 - ASSIGNING, MORTGAGING, SUBLETTING and CHANGE IN CORPORATE OWNERSHIP Tenant shall not voluntarily, involuntarily or by operation of law transfer, assign, sublet in whole or part, enter into license or concession agreements, change ownership or hypothecate this Lease or Tenant's interest in and to the Premises or permit the Premises to be occupied by anyone other than Tenant without Landlord's prior written consent which consent shall not be unreasonably withheld or delayed, provided, however, no such assignment or subletting shall relieve Tenant of any of Tenant's obligations hereunder, and performance of the covenants herein by subtenants shall be considered as performance pro tanto by the Tenant Notwithstanding the foregoing, the parties acknowledge that Tenant may sublease a portion of the Premises to Xermend, Inc , doing business as Med Ex, for a period of up to eight months, and Landlord hereby expressly authorizes and consents to such sublease. Article 16 - TENANT'S CONDUCT OF BUSINESS It is the intent of Tenant to use the Premises primarily for a youth activity center and recreation facility for substantially all of the entire term hereof, and to keep the Premises open during such hours as Tenant determines to be appropriate for such a facility The parties acknowledge that said specific intention of Tenant may be modified by Tenant during the term of the Lease in Tenant's discretion, as a result of operational considerations, changes in circumstances, or unforeseen events. Tenant shall keep sufficient personnel at the Premises during all hours the Premises are open Article 17 - REPAIRS AND MAINTENANCE A TENANTS OBLIGATIONS Tenant agrees at all times, from and after delivery of possession of the Premises to Tenant, and at its own cost and expense, to repair and maintain in good and tenantable condition, the Premises and every part thereof, excluding structural portions of the roof, exterior walls, structural parts of the Premises and structural floor (floor covering, including carpeting, terrazzo the or other flooring to be maintained by Tenant), and including without limitation the utility meters, pipes and conduits and all fixtures serving the Premises, and other equipment therein, all Tenant's signs, locks and closing devices, and all window sash, casement or frames, door and door frames, and all such items of repair, maintenance and improvement or reconstruction related thereto as may at any time or from time to time be required by a governmental agency having jurisdiction thereof. Tenant shall be responsible for reasonable inspection of the condition of, and maintenance and repair of, the built-up portion of the roof (which shall include shingles, felt, tar, insulating materials, asphalt and gravel components, layered membranes, or other similar non-structural roofing systems), at Tenant's sole cost and expense. Tenant shall, at its own cost and expense, be responsible for maintaining and repairing the air conditioning and heating (HVAC) equipment relating to the Premises. Tenant shall maintain a file and records on the HVAC equipment, including copies of paid invoices relating to the HVAC, and shall make this information available upon request by Landlord. All glass, both exterior and interior, is at the sole risk of Tenant, and any glass broken shall be promptly replaced by Tenant with glass of the same kind, size and quality Upon any surrender of the Premises, Tenant shall redeliver the Premises to Landlord in good order, condition and state of repair, ordinary wear and tear excepted, and excepting such items of repair as may be Landlord's obligation hereunder. All repair, maintenance, improvement or reconstruction work referenced herein shall be performed by fully licensed personnel B LANDLORD'S OBLIGATIONS. Subject to the foregoing provisions hereof, Landlord shall keep and maintain in good and tenantable condition and repair, the structural portions of the roof, exterior walls, structural parts of the Premises and structural floor, pipes and conduits outside the Premises for the furnishing to the Premises of various utilities (except to the extent that the same are the obligation of the appropriate public utility company), the utility meters, pipes and conduits and all fixtures serving the Premises, replacement of HVAC systems and replacement of built-up portions of the roof, provided, however, that Landlord shall not be required to make repairs necessitated by reason of the negligence of Tenant or anyone claiming under Tenant, or by reason of the failure of Tenant to perform or observe any conditions or agreements in this Lease contained, or caused by alterations, additions, or improvements made by Tenant or anyone claiming under Tenant Except to the extent that Landlord had prior knowledge of the underlying condition and unreasonably faded or refused to correct the same, Landlord shall not be liable to Tenant for any damage to any personal property of Tenant in the leased Premises caused by water leakage from roof, water lines, sprinkler or heating and air conditioning equipment (it is required for Tenant to insure against these damages, as stated in Article 9D) Notwithstanding anything to the contrary contained in this Lease, Landlord shall not in any way be liable to Tenant for failure to make repairs as herein specifically required of it unless either Landlord has actual knowledge of the underlying condition requiring repair or Tenant has previously notified Landlord in writing of the need for such repairs, and unless after such knowledge or notice, Landlord has faded to commence and complete said repairs within a reasonable period of time following receipt of the Tenant's written notification If Tenant refuses or neglects to make repairs and/or maintain the Premises, or any part thereof, in a manner reasonably satisfactory to Landlord, Landlord shall have the right, upon giving Tenant 9 reasonable written notice of its election to do so, to make such repairs or perform such maintenance on behalf of and for the account of Tenant. In such event Tenant shall be liable to Landlord for the reasonable actual costs of such work As used in this Article the expression "exterior walls" shall not be deemed to include plate glass, window cases, or window frames, doors and door frames It is understood and agreed that Landlord shall be under no' obligation to make any repairs, alterations, renewals, replacement or improvements to and upon the Premises or the mechanical equipment exclusively serving the Premises at any time except as in this Lease expressly provided Landlord, and/or Landlord's agents and employees, shall have the right, upon reasonable advance notice to Tenant, to enter the Premises at all times during regular business hours and, at all times during emergencies, to examine the Premises, to make such repairs, alterations, improvements or additions as Landlord may deem necessary or desirable, and Landlord shall be allowed to take all materials into and upon said Premises that may be required therefor without the same constituting an eviction of Tenant in whole or in part, provided that Landlord's actions hereunder shall be conducted in a manner and on a schedule so as to minimize all impacts on Tenant's use of the Premises, and provided that Landlord's actions do not substantially interfere with Tenant's said use, the rent shall in no way abate while such repairs, alterations, improvements or additions are being made, by reason of loss of interruption of business of Tenant or otherwise The Landlord shall further have the right at any time within the last six (6) months of Tenant's occupancy of the Fremises to show the Premises to prospective purchasers or tenants upon at least one (1) day advance notice to Tenant The Landlord shall further have the right during such time to place "for sale" or "for lease" signs upon the Premises. Article 18 - RECONSTRUCTION In the event the Premises or the Building of which the Premises are a part are damaged by fire or other perils covered by extended coverage insurance, Landlord agrees to forthwith repair the same, and this Lease shall remain in full force and effect, except that Tenant shall be entitled to a proportionate reduction of the rent while such repairs are being made, such proportionate reduction to be based upon the extent to which the making of such repairs shall materially interfere with the business carried on by the Tenant in the Premises If the damage is due to the fault or neglect of Tenant or its employees, there shall be no abatement of rent In the event the Premises or the Building of which the Premises are a part are damaged as a result of any cause other than the perils covered by fire and extended coverage insurance, then Landlord shall forthwith repair the same, provided the extent of the destruction be less than ten percent (10%) of the then full replacement cost of the Premises or the Building of which the Premises are a part In the event the destruction of the Premises or the Building is to an extent greater than ten percent (10%) of the full replacement cost, then Tenant shall have the option to notify Landlord of its election to terminate this Lease as of the later of (Q the date of the damage or destruct ion; or (ii)Tenant's vacation of the Premises, and Landlord shall have the option; (a) to repair or restore such damage, this Lease continuing in full force and effect, but the rent to be proportionately reduced as heremabove in this Article provided; or (b) give notice to Tenant at any time within sixty (60) days after such damage terminating this Lease as of the date specified in such notice, which date shall be no less than thirty (30) days and no more than sixty (60) days after the giving of such notice. In the event of giving such notice of election to terminate, this Lease shall expire and all interest of the Tenant in the Premises shall terminate on the date so specified in such notice and the rent, reduced by a proportionate amount, based upon the extent, if any, to which such damage materially interfered with the business carried on by the Tenant in the Premises, shall be paid up to the date of said such termination. Notwithstanding anything to the contrary contained in this Article, Landlord shall not have any obligation whatsoever to repair, reconstruct or restore the Premises when the damage resulting from any casualty covered under this Article occurs during the last twelve (12) months of the term of this Lease or any extensioni thereof, rent shall be reduced by a proportionate amount to reflect said damage or casualty. Landlord shall not be required to repair any injury or damage by fire or other cause, or to make any repairs or',replacements of any panels, decoration, office fixtures, railings, floor covering, partitions, or any other property installed in the Premises by Tenant The Tenant shall not be entitled to any compensation or damages from Landlord for loss of the use of the whole or any part of the Premises, Tenant's personal property or any inconvenience or annoyance occasioned by such damage, repair, reconstruction, or restoration, except to the extent such loss, inconvenience or annoyance, or such damage, repair, reconstruction or restoration is the direct result of Landlord's negligent acts or omissions, or the direct result of a breach by Landlord of Landlord's obligation pursuant to this Lease. Article 19 - AUTOMOBILE PARKING AND COMMON AREA EXPENSES Tenant and its employees and invitees are, except as otherwise specifically provided in this 10 Lease, authorized, empowered and privileged to use the parking and common areas in common with other persons during the term of this Lease. Landlord constructed the automobile parking and common areas (hereinafter jointly referred to as "common area"), generally upon the area shown on Exhibit "A". Landlord shall maintain and operate, or cause to be maintained and operated, said common area at all times following completion thereof, for the benefit and use of the customers and patrons of Tenant and of other tenants, owners and occupants of the land constituting the Shopping Center of which the Premises are a part. Landlord shall keep or cause to be kept said common area in a neat, clean and orderly condition, properly lighted and landscaped, and shall repair any damage to the facilities thereof, but all expenses in connection with said common area shall be charged and prorated in the manner hereinafter set forth It is understood and agreed that the phrase "expenses in connection with said common area" as used herein shall be construed to include, but not be limited to, all sums expended in connection with said common area for all general maintenance and repairs, resurfacing, painting, restriping, cleaning, sweeping and janitorial services, maintenance and repair of sidewalks, curbs, bicycle racks and parking areas; Shopping Center signs, identification signs; seasonal decorations, maintenance and repair of sprinkler systems, planting and landscaping, fountains, courts, stages and canopies, if any, parking surcharges; lighting and other utilities, directional signs and other markers and bumpers, maintenance and repair of any fire protection systems, lighting systems, storm drainage systems and any other utility systems, snow and ice removal, obtaining and operating public transportation or shuttle bus systems as used in connection with bringing customers to the Shopping Center; compliance with all environmental, remedial and other laws, ordinances, rules, regulations, requirements, directions, guidelines and orders now or hereafter in effect from time to time, personnel to implement such services, including, if Landlord deems necessary, the cost of security guards, license and permit fees; real and personal property taxes and assessments on the improvements and land comprising said common area, all costs and expense pertaining to a security alarm system for the tenants in the Shopping Center, depreciation on maintenance and operating machinery and equipment (if owned) and rental paid for such machinery and equipment (if rented), adequate public liability and property damage insurance on the common area, rent insurance covering any business interruptions, and such other insurance and/or insurance programs as Landlord may from time to time reasonably deem appropriate, together with any and all deductibles and self -insured retentions and expenses paid or reasonably incurred by Landlord in connection with any such insurance and/or insurance programs relating to any of the Common Area, and a reasonable allowance to Landlord for Landlord's supervision of said common area in the amount equal to fifteen percent (15%) of the total of the aforementioned expenses for each Annual Term Landlord may cause any or all of said services to be provided by an independent contractor or contractors. Anything to the contrary notwithstanding contained hereinabove, all expenses in connection with the original construction and installation of the common area shall be at the sole cost and expense of the owners of the Shopping Center and shall not in any event be charged to Tenant Should Landlord acquire or make available additional land not shown as part of the Shopping Center on Exhibit "A" and make the same available for parking or other common area purposes, then said expenses in connection with said common area shall also include all of the aforementioned expenses incurred and paid in connection with said additional land A PRO RATA SHARE OF COMMON AREA EXPENSES. Tenant shall pay to Landlord Tenant's pro rata share of such common area expenses, which shall not exceed a total of Fifty Five Thousand Dollars ($55,000.00) if Tenant has not caused the Premises to be exempted from real property taxes, or Forty Three Thousand Dollars ($43,000.00) if Tenant has caused the Premises to be so exempted, for any annual lease period, subject to annual adjustment based upon the Index, in the manner set forth hereinbelow In the event that the actual amount due for said payment described herein is equal to or greater than ninety-five percent (95%) of the then maximum set herein for such payment, then such maximum for the succeeding year shall be automatically increased by ten percent (10%) for the following year, in lieu of the adjustment based upon the Index that would otherwise apply Tenant's pro rata share of common area expenses shall be determined as follows: (1) From and after the date the Minimum Annual Rental has commenced, but subject to adjustment as hereinafter in this subparagraph (1) provided, Tenant shall pay Landlord on the first day of each calendar month of the term of this Lease an amount reasonably estimated by Landlord to be Tenant's share of such common area expenses Landlord may adjust Tenant's share of such expenses at the end of any quarter on the basis of Landlord's experience and reasonable anticipated costs (2) Within ninety (90) days following the end of each Annual Term, Landlord shall furnish Tenant a statement covering the Annual Term lust expired, certified as correct by a Certified Public Accountant or an authonzed representative of Landlord, showing total operating cost, the amount of Tenant's pro rats share of such common area expenses for such Annual Term and the payments made by Tenant with respect to such Annual Term as set forth in subparagraph (1) If Tenant's pro rata share of such common area expense's exceeds Tenant's payments so made, Tenant shall pay Landlord the deficiency within ten (10) days after receipt of such statement if said payments exceed Tenant's pro rata share of such common area expenses, Tenant shall be entitled to offset the excess against Additional Charges next 11 thereafter to become due Landlord as set forth in said subparagraph (1). Tenant's pro rata share of the total common area expenses for the previous Annual Term shall be that portion of all of such expenses which is equal to the proportion thereof which the number of square feet of the Premises and the land on which the Premises is situated bears to the total number of square feet of budding area of the buildings in the Shopping Center (excluding the major department store buildings). There shall be an appropriate adjustment of Tenant's share of the common area expenses as of the commencement of rentals and expiration of the term of this Lease Anything to the contrary contained in this Article 19 notwithstanding, in the event Landlord does not maintain the entire common area in the Shopping Center, in that the Major Department Stores in the Shopping Center have the right to and may maintain their respective common areas, then and in that event, for the length of time such condition may exist, Landlord's responsibility shall only be toward the maintenance and repair of those portions of the common area that are not maintained by the Major Department Stores, and the "expenses in connection with said common area" shall only refer to such areas maintained by Landlord. Failure of Tenant to pay any of the charges as in this Article 19 required to be paid shall constitute a default under the terms hereof in like manner as failure to Ioay rental when due. B PARKING AND COMMON AREAS Landlord shall at all times have the right and privilege of determining Ithe nature and extent of the common area and whether the same shall be surface, underground) or multiple -deck, and of making such changes therein and thereto from time to time which in its opinion are deemed to be desirable and for the best interests of all persons using said common area, including the location and relocation of driveways, entrances, exits, automobile parking spaces, the direction and flow of traffic, installation of prohibited areas, landscaped areas, and all other facilities thereof, provided that Landlord shall be obligated to provide such common area and parking in a manner and to an extent necessary to adequately and reasonably provide for Tenant's contemplated use of the Premises as 'a public recreational facility. Nothing contained herein shall be deemed to create any liability upon Landlord for any damage to motor vehicles of customers or employees or for loss of property from within such motor vehicles, unless caused by the negligence of the Landlord, its agents, servants or employees Landlord shall also have the right to establish, and from time to time change, alter and amend, and to enforce against Tenant and the other users of said common area such reasonable rules and regulations (including the exclusion of employees' parking therefrom) as may be deemed necessary or advisable for the proper and efficient operation and maintenance of said common area The rules and regulations may include, without limitation, the hours during which the common area shall be open for use Landlord may, if in its opinion the same be advisable, establish a system or systems of validation or other type operation, including a system of charges against non -validated parking checks of users, and Tenant agrees to conform to and abide by all such rules and regulations in its use and the use of its customers and patrons with respect to said automobile parking area, provided however, that all such rules and regulations and such types of operation or validation of parking checks and other matters affecting the customers and patrons of Tenant shall apply equally and without discrimination to all persons entitled to the use of said automobile parking facilities, and provided that the application of such requirements to Tenant's use of the Premises and common areas does not materially interfere with Tenant's contemplated use of the Premises as a public recreation facility Landlord shall at all times during the term of this Lease have the sole and exclusive control of the automobile parking areas, the parking spaces thereon, driveway, entrances and exits and the sidewalks and pedestrian passageways and other common areas, and may at any time and from time to time during the term hereof exclude and restrain any person from use or occupancy thereof, excepting, however, bona fide customers, patrons and service -suppliers of Tenant and other tenants of Landlord who make use of said areas in accordance with the rules and regulations established by Landlord from time to time with respect thereto Landlord shall have the right from time to time to close all or a portion of such areas to such extent as may be legally sufficient, in the opinion of Landlord's counsel, to prevent a dedication thereof or the acquisition of any rights therein by any person or by the public, such closing not to unreasonably interfere with the conduct of Tenant's business. The rights of Tenant in and to the areas in this Article referred to shall at all times be subject to the rights of Landlord, the other tenants of Landlord and the other owners of the Shopping Center to use the same in common with Tenant, and it shall be the duty of Tenant, to keep all of said areas free and clear of any obstructions created or permitted by Tenant or resulting from Tenant's operation and to permit the use of any of said areas only for normal parking and ingress and egress by the said customers, patrons and service -suppliers to and from the building occupied by Tenant and the other tenants of Landlord. If in the opinion of Landlord unauthorized persons are using any of said areas by reason of the presence of Tenant in the Premises, Landlord shall be entitled to enforce such rights against all such 12 unauthorized persons by appropriate proceedings. Nothing herein shall affect the rights of Landlord at any time to (remove any such unauthorized persons from said areas or to restrain the use of any of said areas by unauthorized persons C .EMPLOYEE PARKING It is understood that the employees of Tenant and the other tenants of Landlord within the Shopping Center and employees of other owners of the Shopping Center shall not be permitted to park their automobiles in the automobile parking areas which may from time to time be designated for patrons of the Shopping Center The Landlord agrees to furnish and/or cause to be furnished in reasonable proximity to the Premises either within the Shopping Center parking area, or reasonably close thereto space for employee parking. Landlord at all times shall have the right to designate the particular parking area to be used by any or all of such employees and any such designation may be changed from time to time. Tenant and its employees shall park their cars only in those portions of the parking area, if any, designated for that purpose by Landlord Tenant shall furnish Landlord with its and its employee's license numbers within fifteen (15) days after taking possession of the Premises and Tenant shall thereafter notify Landlord of any changes within five (5) days after such change occurs. If Tenant parks its cars in parking areas designated for patrons, then Landlord may charge Tenant Ten Dollars ($10.00) per day for each day or partial day per car parked in such areas, provided, however, that Landlord shall give Tenant written notice of the first violation of this provision and Tenant shall have two (2) days thereafter within which to cause the violation to be discontinued; and if not discontinued within said two-day period then the $10 00 per day charge shall commence. After notice of such first violation, no prior notice of any subsequent violation shall be required. All amounts due under the provisions of this paragraph shall be payable by Tenant within ten (10) days after demand therefor as an Additional Charge hereunder Article 20 - BANKRUPTCY - INSOLVENCY Tenant and any Guarantor agrees that in the event all or substantially all of Tenant's assets should be placed in the hands of a receiver or trustee, ,and such receivership or trusteeship should continue for a period of thirty (30) days, or should Tenant make an assignment for the benefit of creditors or be finally adjudicated a bankrupt, or should Tenant institute any proceedings under the Bankruptcy Act as the same now exists or under any amendment thereof which may hereafter be enacted, or under any other act relating to the subject of bankruptcy, wherein Tenant seeks to be adjudicated a bankrupt or to be discharged of its debts or to effect a plan of liquidation composition or reorganization, or should any involuntary proceeding be filed against Tenant under any such bankruptcy laws and such proceeding not be removed within ninety (90) days thereafter, then this Lease shall at Landlord's option terminate and any interest in and to the Premises shall not become an asset in any of such proceedings and, in any such events and in addition to any and all rights or remedies of Landlord hereunder or by law provided, it shall be lawful for Landlord to re-enter the Premises and take possession thereof and remove all persons therefrom, and Tenant shall have no further claim thereon or hereunder. If any of the actions or proceedings referred to in this Article 21 should occur with respect to any guarantor of this Lease, Landlord shall have the same options, rights and remedies under this Article as though such actions or proceedings had occurred with respect to Tenant Article 21 - DEFAULTS A DEFAULTS BY TENANT. Should Tenant at any time be in default hereunder with respect to the payment of any rental or Additional Charges payable by Tenant hereunder, and should such default continue for a period of five (5) days, or should Tenant be m default in the prompt and full performance of any other of its promises, covenants or agreements herein contained and should such default or breach of performance continue after thirty (30) days after written notice thereof from Landlord to Tenant specifying the particulars of such default or breach of performance, or should Tenant vacate or abandon the Premises then Landlord may treat the occurrence of any one or more of the foregoing events as a breach of this Lease.' As used in this Lease with respect to the Premises, the terms "vacate" and "abandon" shall be deemed to include, without limiting the broadest meaning of those terms, the failure of Tenant to be open to the public for business in the Premises for a period of one hundred and twenty (120) consecutive business days unless such failure is excused or permitted under the express terms of this Lease. In addition to any or all other rights or remedies of Landlord hereunder and by the law provided, it shall be at the option of Landlord, without further notice or demand of any kind to Tenant or any other person (1) The right of Landlord to declare the term hereof ended and to re-enter the Premises and take possession thereof and remove all persons therefrom, and Tenant shall have no further claim thereon or hereunder; or (2) The right of Landlord without declaring this Lease ended to re-enter the Premises and occupy or lease the whole or any part thereof for and on account of Tenant and upon such reasonable terms and conditions and for such rent as Landlord may deem proper and to collect said rent and any other rent that may thereafter become payable and apply the same toward the amount due or thereafter to become due from Tenant and on account of such expenses of such subletting and any other damages sustained by Landlord; and should such rental be less than that herein agreed to be paid by Tenant, Tenant shall be liable to Landlord for such deficiency together with any such relettmg the costs and expenses Landlord 13 may incur by reason thereof and should such rental be more than that herein agreed to be paid by Tenant, Landlord shall hold said sums interest free to be applied to Future rent owed hereunder, or (3) The right of the Landlord, even though it may have relet said Premises, to thereafter elect to terminate this Lease and all of the rights of Tenant in or to the Premises Should Landlord have relet the Premises under the provisions of subparagraph (2) above, it may execute any such lease, but the tenant therein named shall be under no obligation whatsoever to see to the application by Landlord of any rent collected by Landlord from such tenant, nor shall Tenant hereunder have any right or authority whatever to collect any rent from such tenant. Landlord shall not be deemed to have terminated this Lease or the liability of Tenant to pay rent thereafter to accrue or Tenant's liability for damages under any of the provisions hereof by any such re-entry or by any action in unlawful detainer or otherwise to obtain possession of the Premises, unless Landlord shall have notified Tenant in writing that it has so elected to terminate this Lease Nothing herein contained shall be construed as obligating Landlord to relet the whole or any part of the Premises In the event of any entry or taking possession of the Premises as aforesaid, Landlord shall have the right, but not the obligation, to remove therefrom all or any part of the personal property located therein and may place the same in storage at a public warehouse at the expense and risk of the owner or owners thereof B. CURABLE AND NONCURABLE DEFAULTS Notwithstanding any other provision of this Article, the parties agree that if the default complained of, other than for the payment of monies, is of such a nature that the same cannot be rectified or cured withiri the thirty (30) day period for rectification or curing as specified in the written notice relating thereto, then such default shall be deemed to be rectified or cured if the defaulting party within such period of thirty (30) days shall have commenced the rectification and curing thereof and shall continue thereafter with all due diligence to effect such rectification and curing and does so complete the same with the use of such diligence as aforesaid. If within any one Annual Term of the term hereof, either party shall have been in default under the same Article of this Lease more than two (2) times and the non -defaulting party because of such defaults shall have served upon the defaulting party within said Annual Term two (2) or more notices of any such default, then any third or subsequent default under said Article within said Annual Term shall be deemed a noncurable default and the non -defaulting party, in addition to all other rights and remedies it may have hereunder, after reasonable advance written notice to the defaulting party of the same shall be entitled to immediately terminate this Lease C. LANDLORD'S DAMAGES In the event of Tenant's default and Landlord's retaking possession of the Premises in accordance with this Article, whether this Lease is terminated by Landlord or not, Tenant shall be liable to Landlord as an additional item of damages the cost of repairs, alterations, redecorating, leasing commissions and Landlord's other expenses incurred in reletting the Premises to a new tenant D. DEFAULT BY LANDLORD. Should Landlord at any time be in default in the prompt and full performance of any of its promises, covenants or agreements herein contained and should such default or breach of performance continue after thirty (30) days after written notice thereof from Tenant to Landlord specifying the particulars of such default or breach of performance, then Tenant may treat the occurrence of any one or more of the foregoing events as a breach of this Lease In the event of a breach of this Lease by Landlord, Tenant shall be entitled at its option, a) to terminate this Lease as of a date specified in written notice to Landlord, with no further obligation to Landlord; or b) to continue in possession of the Premises hereunder and abate any amounts due to Landlord from Tenant hereunder to offset damages to Tenant as a consequence of such breach, costs reasonably incurred by Tenant in curing defaults of Landlord, and to reduce rent or charges due in proportion to those portions of the Premises or common area not available to Tenant as a result of such defaults, if any, until such time as related defaults have been corrected and Tenant damages or costs have been recovered by Tenant. E REMEDIES CUMULATIVE The remedies given to either party in this Article shall be in addition and supplemental to all other rights or remedies which such party may have under the laws then in force F NO WAIVER The waiver by either party of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition or any subsequent breach of the same or any other term, covenant or condition herein contained. The subsequent acceptance of rent hereunder by Landlord or payment of rent by Tenant shall not be deemed to be a waiver of any preceding breach of any term, covenant or condition of this Lease, other than the waiver by Landlord of the failure of Tenant to pay the particular rental so accepted, regardless of such party's knowledge of such preceding breach of the time of acceptance or payment of such rent. No covenant, term, or condition of this Lease shall be deemed to have been waived unless such waiver be in writing. G SELF-HELP In addition to such other rights of self-help set forth elsewhere in this Lease, if one party at any time fails to perform any of its obligations under this Lease in the manner reasonably satisfactory to the other party, such other party shall have the right but not the obligation, upon giving the 14 aforementioned party at least three (3) days prior written notice of its election to do so (in the event of any emergency, no prior notice shall be required) to perform such obligations on behalf of and for the account of the aforementioned party and to take all such action to perform such obligations In such event, the aforementioned party shall be liable for the curing party's costs and expenses incurred therein upon demand therefor, with interest thereon from the date such work was performed at 12% per annum or the highest lawful rate, whichever is less The performance by any party of any such obligation shall not constitute a release or waiver of the other party therefrom. Article 22 - EMINENT DOMAIN A TAKING OF PREMISES. (1) ENTIRE TAKING In the event the entire Premises shall be appropriated or taken under the power of eminent domain by any public or quasi -public authority, this Lease shall terminate and expire as of the date of such taking, and Tenant shall thereupon be released from any liability thereafter accruing hereunder For the purposes of this Article 24, a voluntary sale or conveyance in lieu of condemnation, but under threat of condemnation, shall be deemed an appropriation or taking under the power of eminent domain. (2) PARTIAL TAKING. In the event more than twenty-five percent (25%) of the Floor Area (including mezzanine, if any) of the Premises is taken under the power of eminent domain by any public or quasi -public authority, or if by reason of any appropriation or taking, regardless of the amount so taken, the remainder of the Premises is not one undivided parcel of property, either Landlord or Tenant shall have the right to terminate this Lease as of the date Tenant is required to vacate a portion of the Premises upon giving�notice in writing of such election within thirty (30) days after receipt by Tenant from Landlord of written notice that said Premises have been so appropriated or taken. In the event of such termination, both Landlord and Tenant shall thereupon be released from any liability thereafter accruing hereunder. Landlord agrees immediately after learning of any appropriation or taking to give Tenant notice thereof in writing B TAKING OF SHOPPING CENTER In the event more than twenty-five percent (25%) of the ground area of the entire Shopping Center is taken under the power of eminent domain, whether or not any portion of the Premises is so taken, Landlord shall have the right to terminate this Lease as of the date of such taking upon giving Tenant written notice of such election within thirty (30) days after Landlord has been notified of such appropriation C. AWARD In the event of any taking, the entire award or compensation for both the leasehold and reversion shall belong to Landlord without any deduction therefrom for any present or future estate of Tenant, and Tenant hereby assigns to Landlord all its right, title and interest to any such award Tenant shall execute all documents required to evidence such result. Rent and other charges for the last month of Tenant's occupancy shall be prorated if this Lease shall be terminated, and Landlord agrees to refund to Tenant any rent or other charges paid in advance Tenant's right to receive a separate award for compensation or damages for its trade fixtures and personal' property shall not be affected in any manner hereby. D ABATEMENT OF RENT If neither Landlord nor Tenant elects to so terminate this Lease, Tenant shall remain in that portion of the Premises which shall not have been appropriated or taken as herein provided, or in the event less than twenty-five percent (25%) of the Floor Area (including mezzanine, if any) of the Premises shall be appropriated under the power of eminent domain by any public or quasi -public authority, and the remainder thereof is an undivided parcel of property, then in either such event Landlord agrees, at Landlord's cost and expense, as soon as reasonably possible to restore the premises on the land remaining to a complete unit of like quality and character as existed prior to such taking and thereafter the Minimum Annual Rental and Additional Charges shall be reduced on an equitable basis, taking into account the relative value of the portion taken as compared to the portion remaining; and Landlord shall be entitled to receive the total ,award or compensation in such proceedings Tenant's right to receive compensation or damages for its fixtures and personal property shall not be affected in any manner hereby. Article 23 - LITIGATION AND ATTORNEYS FEE In the event either Landlord or Tenant shall bring any action or proceeding for damages for any alleged breach of any provision of this Lease, to recover rents, or to enforce, protect, or establish any right or remedy of either party, the prevailing party shall be reimbursed by the losing party, as part of, or incident to, such action or proceeding, all attorneys' fees and other costs incurred in the preparation and processing of such action or proceedings. In addition, a party in default hereunder shall pay all attorneys' fees and all other costs incurred by the non -defaulting party in the preparation and service of any notice or demand hereunder, whether or not a legal action is subsequently commenced Article 24 - SALE OF PREMISES BY LANDLORD 15 Any sale or exchange by Landlord of its interest in the Premises shall be subject to this Lease and the rights and obligations of Tenant hereunder; and Tenant shall attorn to Landlord's grantee or transferee. Upon any such sale or exchange and the assignment by Landlord of this Lease and assumption of liability therefor by Landlord's grantee or transferee, Landlord shall be and is hereby entirely freed and relieved of all liability under any and all of its covenants and obligations contained in or derived from this Lease arising out of any act, occurrence or omission relating to the Premises or this Lease occurring after the consummation of such sale or exchange and assignment Article 25 - MORTGAGE. ATTORNMENT A SUBORDINATION Upon the written request of Landlord or of any lessor under a sale and leaseback of the land and/or buildings in which the Premises are situated or of any mortgagee or beneficiary of Landlord, Tenant will from time to time in writing subordinate its rights hereunder to the interest of any such lessor, as well as to the lien of any mortgage or deed of trust now or hereafter in force against the land and building of which the Premises are a part, and to all advances made or hereafter to be made upon the security thereof, provided that such subordination shall be conditioned that such lessor, mortgagee or beneficiary shall recognize the rights of Tenant hereunder so long as Tenant observes and performs its obligations hereunder. If the mortgagee or beneficiary of any mortgage or deed of trust upon the Premises should at any time require that Tenant's rights hereunder be senior and superior to the lien of such mortgage or deed of trust, Tenant agrees that such mortgagee or beneficiary may, without the signature or further consent of Tenant, execute and place of record an instrument subordinating the lien of such mortgage or deed of trust to the rights of Tenant hereunder, provided that Tenant shall be furnished a copy of such instrument, together with the pertinent recording information The provisions of this Article to the contrary notwithstanding, and so long as Tenant is not in default hereunder, this Lease shall remain in full force and effect for, the full term hereof B. MORTGAGEE'S RIGHT TO CURE Tenant agrees to give any mortgagee and/or trust deed holder, by registered mail, a copy of any notice with respect to any actual or alleged default of Landlord and served upon Landlord, provided that prior to such notice Tenant has been notified, in writing (by way of notice of assignment of rents and leases, or otherwise), of the address of such Mortgagee and/or Trust Deed Holder Tenant further agrees that if Landlord shall have failed to cure such default within any time provided for in this Lease (or within twenty (20) days if no such time is provided for) and if Landlord shall not have commenced the cure promptly after notice from Tenant and continued thereafter with due diligence to completion, then the mortgagee and/or trust deed holder shall have an additional thirty (30) days within which to cure such default or if such default cannot be cured within such time, then such additional time as may be necessary provided that within such thirty (30) days, any mortgagee and/or trust deed holder has commenced and is diligently pursuing the remedies necessary to cure such default (including but not limited to commencement of foreclosure proceedings, if necessary to effect such cure), in which event this Lease shall not be terminated while such remedies are being so diligently pursued. Nothing contained in this Paragraph shall give Tenant any right to terminate this Lease which Tenant did not have without the existence of this Paragraph C ATTORNMENT In the event any proceedings are brought for foreclosure, or in the event of the exercise of the power Of sale under any mortgage or deed of trust made by Landlord covering the Premises, Tenant shall attorn to the purchaser upon any such foreclosure or sale and recognize such purchaser as Landlord under this Lease. D ESTOPPEL CERTIFICATE Within ten (10) days after written request therefor by Landlord, or in the event that upon any sale, assignment or hypothecation of the Premises or the land thereunder by the Landlord an offset statement shall be required from Tenant, Tenant agrees to deliver in recordable form a certificate in a form reasonably satisfactory to Tenant and addressed to any proposed mortgagee, beneficiary or purchaser or to the Landlord certifying that this Lease is in full force and effect (if such be the case) and that there are no defenses or offsets thereto known to Tenant as of the time of such certificate, without waiving any such defenses, offsets or claims not then known to Tenant, or stating those known and claimed by Tenant Article 26 - QUIET POSSESSION Landlord agrees that Tenant, upon paying the rent and performing the covenants and conditions of this Lease, shall quietly have, hold and enjoy the Premises during the term hereof or any extension thereof; subject, however, to the provisions of this Lease and to all mortgages, deeds of trust, ground or underlying leases, agreements and encumbrances to which this Lease is or may become subordinate Ariicle 27 - CAPTIONS AND TERMS The captions of Articles of this Lease are for convenience only and, are not a part of this Lease, and do not in any way limit or amplify the terms and provisions of this Lease Except as otherwise 16 IN WITNESS WHEREOF, the Landlord and Tenant have duly executed this Lease as of the day and year first above written. LANDLORD EVERWEST, a Colorado general partnership By EVERITT ENTERPRISES, INC., a Colorado corporation, General Partner f� 1 ' By. 1� � _ ROBERT S EV IVTT,/�Chh rman of the Board Atte //`�----7 JACK A GILLUM, Vice President TENANT* CITY OF FORT COLLINS, COLORADO, a municipal corporation By er Attest JAUA Ala TY _ Wanda t. Kralicek, bty Cferk Approved as to Form Carrie M Daggett, Assistant �!t orney 20 TABLE OF CONTENTS Article 1 FUNDAMENTAL LEASE PROVISIONS Article 2 EXHIBITS Article 3 PREMISES Article 4 TERM Article 5 RENTAL Article 6 OTHER PAYMENTS BY TENANT Article 7 POSSESSION AND USE Article 8 UTILITY SERVICES Article 9 INDEMNITY - INSURANCE - WAIVER OF SUBROGATION Article 10 TITLE OF LANDLORD/NONDISTURBANCE Article 11 TENANT'S RIGHT TO MAKE ALTERATIONS Article 12 MECHANICS' LIENS Article 13 ADVERTISING SIGNS Article 14 FIXTURES AND PERSONAL PROPERTY Article 15. ASSIGNING, MORTGAGING, SUBLETTING and CHANGE IN CORPORATE OWNERSHIP Article 16 TENANT'S CONDUCT OF BUSINESS Article 17 REPAIRS AND MAINTENANCE Article 18 RECONSTRUCTION Article 19 AUTOMOBILE PARKING AND COMMON AREA EXPENSES Article 20 BANKRUPTCY - INSOLVENCY Article 21 DEFAULTS BY TENANT Article 22 EMINENT DOMAIN Article 23 LITIGATION AND ATTORNEY'S FEE Article 24 SALE OF PREMISES BY LANDLORD Article 25 MORTGAGE, ATTORNMENT Article 26 QUIET POSSESSION Article 27 CAPTIONS AND TERMS Article 28 NOTICES Article 29 OBLIGATIONS OF SUCCESSORS Article 30 CONSENT OF LANDLORD AND TENANT Article 31 EFFECT OF HOLDING OVER RENT Article 32 RELOCATION Article 33 MISCELLANEOUS EXHIBIT "A" - SITE PLAN EXHIBIT "B" - LEASE PLAN EXHIBIT "C" - CONSTRUCTION/ALTERATIONS CRITERIA EXHIBIT "D" - NOT INCLUDED EXHIBIT "E" - TENANT'S CERTIFICATE EXHIBIT "F" - NOT INCLUDED EXHIBIT "G" - NOT INCLUDED EXHIBIT "H" - NOTICE OF LEASE EXHIBIT "I" - RELOCATION AREA BOUNDARIES 7 7 8 8 8 9 9 9 10 10 13 13 15 15 15 16 16 16 17 17 17 17 17 18 1 2 2 2 3 3 4 5 5 E/ _ IOpMLL9 ` J%, CCwYEIEnCE GEIflFII 4 -61 - EXHIBIT "A IV EAST owA ow Row wffrlw� w I nano nnnmNrownmmwnununnunmoun m-m— n - wisimmmu _- , DfHiIIID ' Im�rnwcrm "p giinmmml• - crmnr c\S�ULLM it — (u'. �n""""' luu c ON [..'.T EOOnlll9 PARKw AY � C _ /'1 \ _ �\\\\\e\\\�\� I. unn MI R s LLi" wn.� d6w mmnnm LL mimnlln" l_ { � _ �5J OIIIIIIHflllllflllil = 1all Iill 1 lil(n� VIIIHIH}flflllfllll = 'V"{r`nirlm;Hii� �• .r�� .__ Gnnn fHIIHf10 OIIiflflliilllHlHil "°"'°'°'" ����� `� J �1111111iff 'llnll _ 7111ll W1� v WAnE wH111111110 1— _ 91q m CE ER / IlCA IlIII}IIIIIB = _ _ Cl - - bimmmm�r Syr �/f, �� " 9111{IIIIHf110 DIIIIIlH I-01111110 _ ru`�!�yy%;r/'%D - �., BflIIIHIHIIIO DII}HHI OIHIIIO _ � ��'�, r>�y • - KAST IIo11MTWo now n Oj I a 7 Premises CdyoPrt Collins YouthCtr 7/15/0) Legal Description located in the 9 of the Plat of Foothtlfs F the City of Fort Collins Fashion Mall Ex County of Lari panston mer, State of Colorado Exhibit "B° City of Ft Collins Pg 1 of Y EXHIBIT "C" CONSTRUCTION/ALTERATIONS GUIDELINES This Exhibit 'C' sets forth basic obligations, covenants, and responsibilities for the construction of improvements and/or any and all alterations to the Premises, whether initially or otherwise, throughout the Lease Term Improvements and/or alterations are subject to Landlord's prior approval, of which will not reasonably be withheld I. GENERAL PROCEDURES FOR PREPARING PLANS AND SPECIFICATIONS A. CONSTRUCTION DRAWINGS. The submission of construction drawings shall be in two phases (1) preliminary design drawings and (2) final working drawings Tenant's Colorado Licensed architect and/or engineer firm shall verify at job site dimensions, locations of structural members and other physical conditions affecting Tenant's construction drawings and shall review for compliance with governing codes, ordinances and/or regulations of authorities having jurisdiction, at the time of work being completed 1. Preliminary Design Drawings. Tenant shall submit to Landlord one (1) reproducible set of prints detailed and dimensioned preliminary design drawings, together with three (3) copies thereof, which drawings shall, at a minimum, consist of the following a Sketches or elevations of the exterior of the Building, including graphics, signage, and lighting (Signage may be handled by Tenant's sign manufacturer) b A floor plan showing all partitions, doors, fixtures and other construction c A reflected ceiling plan d A sample board of exterior materials mounted on foam core or card stock Clearly label all materials and reference to floor plans and elevations The submission must be complete in order to fairly evaluate the proposal and prevent continuation of work on an unacceptable design Based on a fast track schedule, Landlord shall review and comment on the preliminary design drawings within five (5) working days of receipt Tenant shall revise such drawings to satisfy any comments or conditions of Landlord and then resubmit the same to Landlord for its approval within five (5) working days of their receipt by Tenant Note Final working drawings received prior to Landlord's approval of the preliminary design drawings shall be reviewed and commented on as a combined review 2. Final Working Drawings. Within thirty (30) calendar days after receipt of Landlord's approval of the preliminary design drawings, Tenant shall submit to Landlord one (1) reproducible vellum set of prints of the working drawings, together with five (5) copies thereof, as well as three (3) sets of specifications which shall adhere to and be in accordance with the approved preliminary design drawings Working drawings shall, at a minimum, consist of the following engineer a A floor plan b Overall sections c Reflected ceiling plan (including electrical lighting plan) d Plan, elevation, and section of the exterior of the Building e Interior elevations f Color and finish schedules g Applicable details h Electrical plan prepared by a Colorado licensed electrical engineer i Electrical details and fixture and panel schedules j Mechanical/plumbing plan prepared by a Colorado licensed mechanical k Samples of flooring materials Exhibit C City of Ft Collins Page 1 of 4 I Specifications for architectural, structural, electrical, mechanical, and signage under separate submittal by sign company Landlord will review and comment upon the working drawings submitted by Tenant within ten (10) working days of their receipt by Landlord Based on the schedule, Landlord may return plans approved as noted If any of the working drawings or specifications are returned to Tenant, Tenant shall revise such drawings to satisfy any comments or conditions of Landlord and then resubmit the same to Landlord for approval within ten (10) working days of their receipt by Tenant Upon final approval of the working drawings, all sets of prints and specifications shall bear Landlord's and Tenant's stamps of approval The contractor shall keep one (1) Landlord -approved set of working drawings, together with one (1) set of specifications, at the job site at all times B. APPROVAL OF CONSTRUCTION DRAWINGS. The aforementioned construction drawings and specifications are subject to Landlords approval, which approval shall not be unreasonably withheld Changes, modifications or alterations of reasonable nature impacting overall design intent of or to Tenant's construction drawings or specifications requested by Tenant following their approval by Landlord shall be initially processed and approved by Landlord No such design changes, modifications or alterations of or to the said approved construction drawings or specifications shall be made without the prior written approval of Landlord after written request therefor by Tenant Changes due to field conditions will not require written approval if said approval delays the schedule II. TENANT'S OBLIGATIONS AND RESPONSIBILITIES A It is understood Tenant is taking the Premises "as -is" and Landlord shall not be obligated to do any construction or to make any improvements whatsoever Unless otherwise specified in the Lease, and with Landlord's prior approval, any and all improvements required by Tenant, shall be the Tenant's responsibility at Tenant's sole cost and expense, including, for example but not be limited to, the purchase and/or installation and/or performance of the following (including any and all applicable architectural and engineering services and fees and necessary permits and licenses therefor) 1 Plumbing, including connections to utility systems In the event Tenant desires sanitary sewer connections in locations other than where stub -ups exist, all work associated with connection to furnished lines Removal and replacement of existing floor slabs shall be in accordance with approved construction practices 2 Toilet room fixtures, including urinals, floor drains, showers and lavatories as required by the building code of the City of Fort Collins, and any other equipment or furnishing desired by Tenant 3 Electrical, mechanical, and other fixtures and equipment, including, telephone conduit, meter sockets, lighting panels, power outlet boxes, switches, fixtures, lamping and equipment installation and hook-up, sprinkler system, heating and air conditioning systems, air distribution ducts, diffusers, and registers 4 Alterations and additions to any wall or floor, including penetration or reinforcements required to accommodate Tenant's Work During the construction, fixturing and merchandise stocking of Tenant's Premises, Tenant, at its sole expense, shall provide trash removal service at areas designated by Landlord It shall be the responsibility of Tenant and Tenant's contractors to daily remove all visible trash and debris from the property ADDITIONAL PROVISIONS A Tenant accepts the Premises "as -is" and waives any right or claim against Landlord for any cause directly or indirectly arising out of the condition of the Premises and all the improvements thereon, and Tenant shall thereafter save and hold harmless Landlord from any liability Prior to the commencement of Tenant's Work, Tenant shall submit the following items to Landlord in writing 1 A statement setting forth the name and address of all contractors involved in Tenant's Work 2 A statement setting forth the proposed commencement date of construction and the estimated completion dates of all construction work, including fixturing work Exhibit C City of Ft Collins Page 2 of 4 3 Certificates of Insurance as called for herein Tenant's contractors shall not be permitted to commence any Tenant's Work until all required Insurance has been obtained and certificates have been received by Landlord Tenant shall secure, pay for and maintain or cause Its contractor(s) to secure, pay for and maintain, during the continuance of construction and fixturing work in the Premises, the following insurance in the following amounts, which shall be endorsed in all policies to Include Landlord, Tenant's architect, and Landlord's mortgagees or beneficiaries and their employees and agents as Insured parties, and which shall provide in all policies that Landlord shall be given thirty (30) days prior written notice of any alteration or termination of coverage, in the amounts as set forth below 1 Workmen's compensation Employer's liability Insurance with limits of not less than $100,000 00 and as required by state law and any Insurance required by any employee benefit acts or other statutes applicable where the work is to be performed, as will protect Tenant's contractors and subcontractors from any and all liability under the aforementioned acts 2 Comprehensive general liability insurance (including contractor's protective liability) in an amount not less than $500,000 00 per person and $1,000,000 00 per occurrence, whether Involving personal injury (or death resulting therefrom) or property damage or a combination thereof, with a minimum aggregate limit of $1,000,000 00 Such Insurance shall provide for explosion and collapse coverage and contractual liability coverage and shall hold harmless Landlord and Tenant's architect, Landlord's agents, employees, representatives, contractors and licensees, against any and all claims for personal injury, Including death resulting therefrom, and damage to the property of others, whether such operations are performed by Tenant's general contractor, subcontractors or any of their subcontractors, or by anyone directly or Indirectly employed by any of them 3 Comprehensive automobile liability Insurance, Including the ownership, maintenance and operation of any automobile equipment, owned, hired and non -owned in the following amounts (a) Bodily injury, each person $500,000 (b) Bodily injury, each occurrence $500,000 (c) Property damage, each occurrence $250,000 (d) Property damage, aggregate $250,000 Such insurance shall cover the general contractor and subcontractor against any and all claims for bodily injury, Including death resulting therefrom, and damage to the property of others, arising from operations under the contract, whether such operations are performed by Tenant's general contractor, subcontractors, or any of their employees or by anyone directly or Indirectly employed by any of them 4 Tenant's protective liability Insurance Tenant shall provide owner's protective liability Insurance as will insure Tenant against any and all liability to third parties for damage because of bodily injury liability (or death resulting therefrom) and property damage liability of others or a combination thereof which may arise from Tenant's Work, and any other liability for damages which the general contractor and/or subcontractors are required to insure under any provisions herein Said insurance shall be provided in minimum amounts as follows (a) Bodily injury, each person $500,000 (b) Bodily injury, each occurrence $500,000 (c) Property damage, each occurrence $250,000 (d) Property damage, aggregate $250,000 5 Tenant's builder's risk insurance Tenant shall provide a completed Value Form "all physical loss" builder's risk coverage on its work, naming the interests of the Landlord, its general contractor and all subcontractors, as their respective interest may appear, within a distance of 100 feet of the Premises 6 Tenant shall obtain insurance endorsements for the benefit of both parties hereto and a waiver of subrogation from its insurance company or companies B. CONSTRUCTION: TENANT'S WORK. The cost of any construction shall be borne by Tenant, and Landlord's obligations hereunder shall be limited to those expressly provided herein Tenant shall pay or cause to be paid all costs for work done and materials installed by Tenant or caused to be done or installed by Tenant on the Premises, and Tenant shall furnish to Landlord satisfactory evidence of such payments Any failure of Tenant to pay for said work or material shall constitute a default under the terms of this Lease in like manner as the failure to pay rent Tenant shall utilize contractors or subcontractors with prior experience for the crafts and trades within the areas of their responsibility and approved by Landlord Tenant shall confine construction work in the Premises and shall work in an orderly manner and without interference of other occupants of the Shopping Center or their patrons At no time will any construction materials project into public areas or, areas of adjacent properties The requirements of Occupational Safety and Health Administration Exhibit C City of Ft Collins Page 3 of 4 (OSHA) prepared by the Department of Labor shall govern If Tenant falls to comply with these requirements, Landlord may take remedial action (at Tenant's cost) as deemed necessary by Landlord to protect the public All repair of damage caused by Tenant, Its agents or contractors, to any such areas outside of the Premises shall be at the sole cost and expense of Tenant Actual repair of any such damage shall be completed by Landlord's contractor and billed to Tenant Any exterior storage of materials shall be in a manner and in location(s) designated by Landlord All contractors engaged by Tenant shall be bondable and licensed contractors, having good labor relations, capable of performing quality workmanship In the event that Tenant's contractors willfully violate the requirements of the Lease, Landlord may order Tenant's contractors to remove themselves, their equipment and their employees from Landlord's property It shall be the responsibility of Tenant to obtain all necessary licenses, permits and Letter of Occupancy required by the City of Fort Collins or other governmental agency prior to opening Where Tenant's final approved construction drawings and specifications are in conflict with this Exhibit 'C', the approved Plans and Specifications shall prevail C. LANDLORD FINAL WALK-THROUGH AND PUNCH LIST. Prior to the store opening for business, Tenant shall notify the Landlord that the Premises are ready for a final walk-through The Landlord shall inspect the Premises and prepare, if necessary, a punch list of any incomplete or non -conforming items Tenant shall make reasonable changes to the Landlord's satisfaction within thirty (30) days after store opening IV. DESIGN CRITERIA A. STRUCTURAL. Any structural changes in and/or additions and reinforcements to Landlord's structure required to accommodate Tenant's Work shall be Tenant's responsibility at Tenant's sole cost and expense, and the same shall conform to all applicable code requirements, regulations and ordinances, and the Plans and Specifications S. ROOF. 1 Any roof penetrations, satellite or antenna installations required by Tenant must be a part of the Plans and Specifications Any subsequent roof penetrations, satellite or antenna installations must first be approved by Landlord 2 All flashing, counter -flashing and roofing repairs shall be performed only by roofing subcontractors designated by Landlord, at Tenant's sole cost and expense C. CEILINGS. The use of wood or other combustible material above ceilings or in any other attic spaces is prohibited D. HAZARDOUS MATERIALS. Tenant hereby expressly acknowledges and agrees that Tenant's Work and obligations under this Exhibit 'C' are subject to the provisions of Paragraph C of Article 7 of the Lease ("Hazardous Materials") Exhibit C City of Ft Collins Page 4 of 4 EXHIBIT "E" TENANT'S CERTIFICATE RE Lease Dated for premises in Foothills Fashion Mall, Fort Collins, Colorado (Date) EVERWEST, a general partnership 215 E Foothills Parkway, Suite 220 Fort Collins, CO 80525 Gentlemen The undersigned, as Tenant in the above Lease in which EVERWEST, a partnership, is Landlord, hereby certifies that the undersigned entered into possession and occupancy of the leased Premises on , _, that said Lease is in full force and effect and has not been modified, supplemented or amended in any way except by instrument dated , that all conditions in said Lease to be performed by Landlord have been satisfied, and on this date the undersigned knows of no existing defenses or offsets against the enforcement of said Lease by Landlord, that no rental has been paid in advance except as provided in said Lease, and that minimum rental for the month(s) of — has been paid Very truly yours, BY Title BY Title TENANT Exhibit "E" City of Ft Collins Pg 1 of 1 EXHIBIT "H" NOTICE OF LEASE TO WHOM IT MAY CONCERN You are hereby notified that the undersigned, EVERWEST, a general partnership, is the owner in fee of the following described property situated in the County of Lanmer, State of Colorado 415 East Monroe, in Foothills Fashion Mall which is located in Tract 1 of the Plat of Foothills Fashion Mall Expansion located in the City of Fort Collins, County of Lanmer, State of Colorado, You are further notified that THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, is in possession of said property as tenant under a lease for a term beginning July 15, 2001, and ending July 14, 2011 , and any extensions or renewals thereof, but has no other right of claim thereto, and that said owner will not be responsible for any labor, materials, tools, machinery or equipment used in the construction, alteration, addition to, removal to or repair of the said property, or any part thereof, and said property shall not be subject to any lien for such labor, materials, tools, machinery or equipment Dated ��/, at Fort Collins, Colorado. LANDLORD TENANT EVERWEST, a Colorado general partnership By EVERITT ENTERPRISES, INC, a Colorado corporation, General Partner lnn By R BERT S EVERITT, Chairman of the Board Attest JACK A GILLUM, Vice President CITY OF FORT COLLINS, COLORADO, a municipal corporation BY' — LZ � - John F Pischbach, City Manager Attest 4 Wanda * Krapcek, dy Clerk O• Approved as to Fort Carve M Daggett, Assi n Attorney 21 R E -nom AfzE:i, EAST OWALLOW ROAD r_ /=- 1. flf � LOIIVEME14CCwEI1CC L1111EN - / cJ L�j ❑ l �; u L11 I-1 I_ _.I auuHm T r --,A—� r jai= oIIIIIHo I` _ ICI ill IlryYll Il�•l.n I � I I J I � — _ •.LL-Ul;illlll 1�iuL..11L.l lull") (l Imo„ _I_ .�7 L—J ti Cl 17// CA.'.t Ep011 r51,^. fAIIA,•I AY �,(,� I Eyr V ,.,, llN//`— //�//"-�'n`�' clol>� \llli�/%lr7 C, - 'U y� 1 FA511011 MALL u 11 1 nromnrppnufy/i UIIIIIIIIIIIIIII'- _� �1 IIIIIIIUII ,4 .{IM o� !niunminnrin — °° ^\ M11011111111111111 � / I OHIIIIHIIIIII111111 (jnmmL 011 IIIIII Q 011111111111111111111 J- \ -► i 1 l IJ I P i ilgppYq 12 VIIIIIIIIINIIO 011111111 ,� 01111110 _; ?:, {)IIIIIIIINIIIO OIIIHIff 01111110 = �. d � ,`/�,� ;i, a ; FI muiLu -ll F.UU„ r FAST ROnSt TOOYM ROAD 5 n.--- .OT TO SCALE AUGUST 20 IUUO LEASE AGREEMENT Article 1 - FUNDAMENTAL LEASE PROVISIONS LANDLORD EVERWEST, a Colorado general partnership TENANT THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation Date July 15, 2001 Lease Term. Ten (10) Years Beginning 12 00 a.m on the "Commencement Date" of July 15, 2001, and ending 11.59 p.m. on the "Termination Date" of July 14, 2011 ("Lease Term"), with a potential renewal for an additional ten (10) years, subject to mutual agreement by the parties as to fair market rent for said extension term and approval by Landlord's lender, as set forth in Article 4(C), below In the event that Landlord shall permit Tenant possession of the Premises prior to the Commencement Date of the term, such early possession shall be subject to all the provisions of this Lease Said early possession shall not advance the Commencement Date of Minimum Annual Rental or the Termination Date heremabove provided, unless otherwise specified herein Security Deposit. None Minimum Annual Rental Yrs 1 - 5 7/15/01 - 12/31/06 $249,128 OO/Yr $20,760 671Mo Yrs 6 - 10 1/1/06 - 7/14/11 The Minimum Annual Rent shall be increased at the beginning of the sixth (6th) Annual Term by the cumulative increase in the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics Consumer Price Index, Sub -group "All Items" entitled "All Urban Consumers", "United States City Average (1982-84=100)" (hereinafter the "Index") Further, the Minimum Annual Rent shall be increased at the beginning of the seventh (7th) Annual Term and each succeeding Annual Term thereafter ("Adjustment Date") by any increase in the Index In determining the percent increase in the Index for the sixth (6th) Annual Term, the Index number for November 2001 published in December 2002 shall be compared to the Index number for December 2006. In determining the percent increase in the Index for the seventh (7th) Annual Term and each succeeding Annual Term thereafter, the Index number for the month of November published in December immediately preceding each Adjustment Date (the "Adjusted Index Number") shall be compared to the Index for the month of November one year earlier (the "Base Index Number"). If the Index shall cease to be published, then, for purposes of this Article 1, there shall be substituted for the Index such other index as the Landlord shall determine which reasonably reflects and monitors consumer prices. If the Bureau changes the way in which the Index is calculated then, for purposes of this provision, Landlord shall have the right to discontinue using the Index and calculate the increase in the Minimum Annual Rental by using* (i) the percentage equivalent to the preceding CPI increase, or (u) four percent (4%), whichever of (Q or (iq is greater. Option To Renew See Lease Term above, and Article 4(c), below. Address of Landlord* EVERWEST 11411 N Tatum Blvd. Phoenix, Arizona 85028 Premises Address. 415 E Monroe Fort Collins, Colorado 80525 PAYMENT ADDRESS/MANAGEMENT OFFICE 215 E. Foothills Pkwy, Suite 220 Fort Collins, Colorado 80525 Mailing Address of Tenant* City of Fort Collins Recreation Director 214 N Howes St Fort Collins, Colorado 80521 With a copy of notices to. City of Fort Collins Real Estate Services Office P O Box 580 Fort Collins, Colorado 80522 Floor Area of Premises. 26,224 square feet Permitted Uses* For a public youth recreational facility, office, storage and other related uses, general public recreational uses, and for no other purpose whatsoever, provided that Tenant may sublease any portion of the Premises for any use or purpose subject to the written consent of Landlord as set forth hereinafter Article 2 - EXHIBITS The following drawings and special provisions are attached hereto as exhibits and made a part of this Lease EXHIBIT "A" - General site plan outlining the location of the Premises within the Shopping Center known as Foothills Fashion Mall, located in the City of Fort Collins, County of Lanmer, State of Colorado, hereinafter referred to as the "Shopping Center" The site plan shows, among other things, the principal improvements which have been constructed by Landlord within said Shopping Center Tenant acknowledges that the plan shown on Exhibit "A" is tentative and shall not be deemed a warranty, representation or agreement on the part of Landlord that the Shopping Center will be or will continue to be exactly as indicated on said Exhibit Tenant acknowledges Landlord may change the shape, size, location, number and extent of improvements, parking areas, entrances and exits shown thereon and eliminate or add any improvements or buildings to any portion of the Shopping Center, provided that Landlord shall not change the size or location of the Premises, or change such common areas to an extent or in a manner that will not provide the common areas reasonably necessary for Tenant's intended use of the Premises consistent with the ratio of leased space to parking as required by major tenants in the Shopping Center, without Tenant's consent EXHIBIT "B" - Legal Description of Shopping Center EXHIBIT "C" - Construction Alterations Criteria EXHIBIT "D" - Intentionally Excluded EXHIBIT "E" - Tenant's Certificate EXHIBIT "F" - Intentionally Excluded EXHIBIT "H" - Notice of Lease EXHIBIT "I" -Relocation Area Boundaries Article 3 - PREMISES Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, for the term, at the rental, and upon the covenants and conditions hereinafter set forth, the space referred to herein as the "Premises", and shown on Exhibit "A" The Premises shall not include and Tenant shall have no rights with respect to the land beneath the Premises or any improvements below floor slab level or above the interior surface of the ceiling of the Premises or air rights above the Premises Tenant acknowledges that Tenant has inspected the Premises, is familiar with its condition and accepts the same "as is" and Landlord shall not be obligated to do any construction or to make any improvements in the Premises, except as may be required in connection with Landlord's reconstruction obligations pursuant to Article 18 Article 4 - TERM A COMMENCEMENT OF TERM The term of this Lease shall begin July 15, 2001, and end July 14, 2011, unless sooner terminated as hereinafter provided It is understood and agreed this Lease is contingent upon the Tenant's annual budgeting and appropriation of funds sufficient and intended to meet Tenant's annual obligation hereunder, in the sole discretion of the City Council of Tenant Tenant reasonably believes that Tenant will have a need for the Premises for the duration of the original Lease Term However, if funds sufficient to pay all obligations of the Tenant hereunder for the next successive annual term have not been appropriated at the end of any existing term, Tenant shall notify Landlord as soon as reasonably practicable of such nonappropnation, and shall vacate the Premises prior to such expiration, and this Lease shall in such event automatically terminate at the end of such existing term, and such nonappropnation shall not constitute a default hereunder The parties acknowledge and agree that the financial obligations of the Tenant hereunder shall constitute only a current expense of Tenant and shall not in any way be construed to be a multiple fiscal year obligation of Tenant, nor a debt of Tenant or pledge of Tenant's credit B DELIVERY OF POSSESSION. Landlord agrees to deliver to Tenant, and Tenant agrees to accept the Premises "as is" in its existing condition as of July 15, 2001 2 C EXTENSION OF LEASE TERM The parties acknowledge and agree that it is their intent to make reasonable efforts to negotiate a renewal of this Lease for an additional ten (10) years, provided such negotiations are finalized and mutually agreed to by Landlord and Tenant prior to the first month of the final annual term of this Lease Article 5 - RENTAL Tenant agrees to pay for the use and occupancy of the Premises the sums of money determined as provided in this Article 5, at the times and in the manner provided A. MINIMUM ANNUAL RENTAL (1) The Minimum Annual Rental shall be payable in twelve (12) equal monthly installments during each Annual Term, in advance, on the first day of each calendar month, without setoff, deduction or demand, commencing July 15, 2001 If any Annual Term should be less then twelve (12) months, the Minimum Annual Rental for such Annual Term shall be prorated on the basis of the number of full calendar months in such Annual Term plus any additional days as hereinafter provided in this paragraph Should the rental period commence on a day other than the first day of a month, or end on a day other than the last day of a month, then the rental for such fractional month shall be computed on a daily basis for the period from the date of commencement to the end of such calendar month and at an amount equal to one -three hundred sixtieth (1/360) of said Minimum Annual Rental for each day, and thereafter shall be computed and paid as aforesaid B ANNUAL TERM As used in this Lease, "Annual Term" shall mean each period of twelve (12) consecutive months commencing on each January 1st and ending at midnight on the next succeeding December 31st except that the first Annual Term shall begin when Minimum Annual Rental shall commence and shall end at midnight on the next succeeding December 31st, except for the term beginning January 1, 2011, which shall end at midnight on July 14, 2011 Annual Term shall also include any partial Annual Term at the beginning or end of the Lease Term C PLACE OF PAYMENT All rental and other payments shall be paid to Landlord at its management office in the Shopping Center, or at such other place as may from time to time be designated by Landlord in writing at least ten (10) days prior to the next ensuing payment date. Article 6 - OTHER PAYMENTS BY TENANT A PROPERTY TAXES AND INSURANCE EXPENSE In addition to the rental provided for in Article 5, Tenant shall pay to Landlord the total of (1) real estate taxes and assessments levied and assessed upon the Premises and the underlying realty, including the cost of protesting said taxes or negotiating the same with any governmental authority, which shall not exceed Eighty-five Thousand Dollars ($85,000 00) in any given Annual Term, subject to annual adjustment based upon the Index, and (2) the cost to Landlord of the insurance required to be maintained by Landlord on the Premises under Article 9F of this Lease, which shall not exceed Five Thousand Dollars ($5,000 00) in any given Annual Term, subject to annual adjustment based upon the Index The parties acknowledge and agree that Tenant shall not be obligated to pay any real estate taxes and assessments as of the effective date of the removal of the Premises from the tax rolls pursuant to Colorado law, if such removal has occurred For any partial Annual Term of the term hereof such amount shall be prorated on a time basis In the event that the actual amount due for either payment described herein is equal to or greater than ninety-five percent (95%) of the then maximum set herein for such payment, then such maximum for the succeeding year shall be automatically increased by ten percent (10%) for the following year, in lieu of the adjustment based upon the Index that would otherwise apply Payment of the same shall be made in the following manner. 1 Commencing on the date that Minimum Annual Rental commences, and thereafter on the first day of each calendar month, Tenant shall pay to Landlord, along with the Minimum Annual Rental, an amount estimated by Landlord to be Tenant's monthly pro rata share of the annual costs of real estate taxes and assessments, if applicable, and insurance premium. 2 Within one hundred and twenty (120) days following the end of the Annual Term, Landlord shall furnish Tenant a statement certified as correct by an authorized representative of the Landlord setting forth the amount of real estate tax and assessments, if applicable, and insurance cost and showing in reasonable detail the manner in which Tenant's pro rata share thereof has been computed and the payments made by Tenant during such Annual Term as required in subparagraph (1) If the actual costs exceed Tenant's payments so made, Tenant shall pay Landlord the deficiency within ten (10) days after receipt of said statement, provided that Tenant's total payment shall not exceed the maximum set forth in Article 6A, above. If Tenant's payments exceed the actual costs, Tenant shall be entitled to offset the excess against payments next thereafter to become due to Landlord as set forth above. costs shall be that portion of all cos s, after deducting therefrom the 3 V , buildings in the Shopping Center, exclusive of the Floor Area occupied by ma merit stores, reasonably calculated by Landlord. With respect to any assessing may be levied against or upon the Premises, or which under the laws then i y bebe evidenced by improvement or other bonds, or which may be paid in annu ents, only the amount of such annual installment (with appropriate proration fo is year) and statutory interest shall be included within the computation of the annuaLta*e n assessments levied against the Premises, unless the Premises have been removed B LIMITATION ON TAXES, ETC. Nothing herein contained shall be construed to include as a tax which shall be the basis of real estate taxes, any inheritance, estate, succession, transfer, gift, franchise, corporation, income or profit tax or capital levy that is or may be imposed upon Landlord, provided, however, that if, at any time after the date hereof the methods of taxation shall be altered so that in lieu of or as a substitute for the whole or any part of the taxes now levied on real estate as such, there shall be levied, assessed or imposed (1) a license fee measured by the rents receivable by Landlord from the Shopping Center thereof, or (2) a tax or license fee imposed upon Landlord which is otherwise measured by or based in whole or part upon the Shopping Center thereof, or (3) an income or franchise tax, then the same shall be included in the computation of real estate taxes hereunder, computed as if the amount of such tax or fee so payable were due if the Shopping Center were the only property of Landlord subject thereto, provided that Tenant shall not be obligated to pay the same if the Premises have been removed from the property tax rolls, as provided in Article 6A, above, and in any event such no such obligation shall be imposed upon Tenant except at the beginning of a new annual Lease period and subject to ninety (90) days advance written notice by Landlord C PROTEST OF TAXES In the event Landlord contests or negotiates with any governmental authority the amount of validity of any real estate tax and a refund or a reduction in taxes is obtained, Tenant shall receive the benefit of such refund or reduction, less the costs and attorney's fees incurred in obtaining such refund or reduction, and the amount of real estate taxes paid by Tenant for the year to which such refund or reduction applies shall be adjusted to reflect such refund or reduction, less said costs and attorney's fees, except that all real estate tax and assessment obligations assigned to Tenant hereunder shall be nullified upon the removal of the Premises from the property tax rolls, which removal Landlord acknowledges and agrees Tenant shall be entitled to pursue . D OTHER TAXES Any excise, transaction, sales or privilege tax (except income tax) now or hereafter levied or imposed upon Landlord by any government or governmental agency on account of, attributed to or measured by rental or other charges or prorations payable by Tenant hereunder shall be paid by Tenant to Landlord along with the rental or other charges or prorations otherwise payable hereunder E. ADDITIONAL CHARGES All taxes, assessments, insurance premiums, charges, prorations, reimbursements, costs and expenses which Tenant assumes or agrees to pay under this Lease, together with all other sums which may become due under this Lease, shall be referred to herein as Additional Charges and, in the event of their non-payment at the time provided in this Lease, they shall nevertheless be collectible with the next monthly installment of Minimum Annual Rental, and Landlord shall have with respect thereto all rights and remedies herein provided in the event of nonpayment of rent. Tenant shall be entitled to advance written notice of the basis and amount of any such Additional Charges, pursuant to Article 6(A), above. Notwithstanding anything herein to the contrary, Tenant's obligation to pay any such Additional Charges shall be contingent upon the appropriation of funds sufficient and intended therefore by the City Council of Tenant, in its discretion. F LATE PAYMENT If Tenant shall fad to pay, when the same is due and payable, any rent or any Additional Charges, such unpaid amounts shall bear interest at the lesser of one and one half percent (1-1/2%) per month from the date due to the date of payment Article 7 - POSSESSION AND USE A TENANT'S USE AND POSSESSION Possession of the Premises shall be delivered to Tenant free and clear of all tenants and occupants and the rights of either, and also free of liens and encumbrances, except those specified in Article 10 hereof Tenant shall use the Premises solely for the purposes specified in Article 1 Tenant shall not use or permit the Premises to be used for any other purpose or purposes whatsoever without the prior written consent of Landlord Tenant further covenants and agrees that it will make reasonable efforts to prevent the use the Premises or any part thereof for conducting therein a secondhand store, auction, distress, fire sale, bankruptcy, liquidation sale and/or going -out -of -business sale, or for any use or purpose in violation of the laws of the United States of America, or the laws, ordinances, regulations and requirements of the State, County and City where the Shopping Center is situated, or other lawful authorities, and that during said term the Premises, and every part thereof, shall be kept by Tenant in a clean and wholesome condition, free of any objectionable noises, odors or nuisances, and that all health and police regulations shall in all respects and at all times be fully complied with by the Tenant. The parties acknowledge that Tenant's use of the Premises will 4 result in the use of and presence on the Premises by the general public, and that Tenant shall be obligated to make reasonable efforts to regulate the use of the Premises by such persons but shall not be liable for the acts or omissions of such persons. Tenant shall not display or sell merchandise outside the defined exterior walls of the Premises, nor allow carts, racks, sale tables, portable signs, or any sort of merchandise rack or fixtures used for selling merchandise or any other objects to be stored or to remain outside the defined exterior walls of the Premises, without the prior written consent of Landlord In addition, Tenant will not solicit in any manner in any of the automobile parking and common areas or the enclosed mall of the Shopping Center Tenant shall not, without prior written consent of the Landlord, sell merchandise from vending machines or allow any coin or token operated vending machines outside the defined exterior walls of the Premises No aerial or antenna shall be erected on the roof or exterior walls of the Premises without first obtaining, in each instance, the written consent of Landlord. Any aerial or antenna so installed without such written consent shall be subject to removal, without notice at any time B OTHER OCCUPANTS Tenant further covenants and agrees that Tenant and Tenant's employees will not disturb, trespass on or interfere with the business or occupancy of other tenants or occupants of the Shopping Center or of owners of adjacent or contiguous property In any event, Landlord shall not be liable to Tenant for any disturbance, trespass or interference by another tenant or occupant of the Shopping Center, but shall make reasonable efforts to regulate the actions of such tenants and occupants to prevent such disturbance, trespass or interference. C HAZARDOUS MATERIALS Tenant further covenants and agrees not to use, generate, manage, treat, manufacture, store or dispose of on, under or about the Premises or transport to or from the Premises any Hazardous Materials, except in full compliance with any applicable laws or regulations. For the purpose of this Lease, "Hazardous Materials" shall include but not be limited to flammable explosives, radioactive materials, hazardous wastes, toxic substances or related materials, and any and all substances defined as "hazardous substances," "hazardous materials," "hazardous wastes" or "toxic substances" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U S.C. Section 9601, et sea ; the Hazardous Materials Transportation Act, 49 U S C. Section 1901 et sec ; the laws of the State of Colorado or any rules or regulations adopted and guidelines promulgated pursuant to said laws, as all such laws, rules or regulations may be amended or replaced from time to time Tenant further covenants and agrees to pay all reasonable costs and expenses associated with all audits, tests, investigations, "cleanup", reports and other such items reasonably necessary in response to any breach by Tenant under this Paragraph C Article 8 - UTILITIES AND SERVICES Commencing on the date Tenant takes possession of the Premises, Tenant shall pay for all water, gas, heat, light, power, sewer charges, telephone service, trash removal, and all other services and utilities supplied to the Premises together with any taxes thereon If Tenant requires additional heating or cooling, Tenant shall pay a reasonable charge determined by Landlord including any special controls, equipment, labor costs and administrative expenses related thereto Landlord shall not be liable for, and Tenant shall not be entitled to, any reduction of rental by reason of Landlord's failure to furnish any of the foregoing when such failure is caused by accident, breakage, repairs, strikes, lockouts or other labor disturbances or labor disputes of any character, or by any other cause, similar or dissimilar, beyond the reasonable control of Landlord Wherever heat -generating machines or equipment are used in the Premises which affect the temperature otherwise maintained by the air conditioning system, and/or if Tenant requires water or electric current in excess of that usually furnished or supplied for the use of the Premises, Landlord may, but shall not be required to, upgrade such machines, equipment, electrical, and/or water systems at Tenant's request, and in such event the cost thereof, including the cost of installation, and the cost of operation and maintenance thereof, shall be paid by Tenant to Landlord upon demand by Landlord Article 9 - INDEMNITY - INSURANCE - WAIVER OF SUBROGATION A LANDLORD HELD HARMLESS BY TENANT. To the extent permitted by law and the Charter of the City of Fort Collins, Tenant covenants with Landlord that Landlord shall not be liable for any damage or liability of any kind or for any injury to or death of persons or loss or damage to any property of Tenant or any other person during the term of this Lease, arising out of or in any way related to the use, occupancy and enjoyment of the Premises or the Common Areas by Tenant or any person thereon or holding under said Tenant, unless the same shall be attributable solely to the negligence of Landlord, or as otherwise set forth herein In addition, Landlord shall not be liable to Tenant for any injury, damage, or loss arising out of or in any way related to any act, omission, or negligence of lessees or occupants of the Shopping Center or of other owners of adjacent or contiguous property, all claims for any such injury, damage, or loss being hereby expressly waived by Tenant For purposes of this Paragraph A only, the term "Landlord" shall be deemed to include Landlord, the fee owner of the Shopping Center if other than Landlord, and their respective agents, servants, employees and contractors B TENANTS INSURANCE OBLIGATIONS. The parties agree that the Tenant is currently self- 5 insured as allowed by Colorado law. So long as Tenant remains so self -insured, Landlord shall be named as an additional insured therein and Tenant will not be required to provide other liability insurance hereunder A certificate of self-insurance shall be delivered to Landlord and shall provide that said coverage shall not be changed, modified, reduced or canceled without thirty (30) days prior written notice thereof being given to Landlord In the event this Lease is terminated pursuant to the provisions of Article 18 hereof during any period that Tenant is self insured such improvements and/or other items to be insured under subparagraphs (3) and (4) Landlord's entitlement to self-insurance proceeds hereunder shall not be affected by such termination. Tenant agrees that from and after the date Tenant elects not to self -insure, Tenant will carry and maintain, at its sole cost and expense, the following types of insurance, in the amounts specified and in the form hereinafter provided for. (1) PUBLIC LIABILITY AND PROPERTY DAMAGE Bodily injury liability insurance with limits of not less than One Million Dollars ($1,000,000 00) per person and Three Million Dollars ($3,000,000 00) per occurrence insuring against any and all liability of the insured with respect to said Premises or arising out of the maintenance, use or occupancy thereof, and property damage liability insurance with a limit of not less than One Million Dollars ($1,000,000.00) per accident or occurrence. Also such property damage insurance shall specifically insure damage to all personal property of Tenant in the leased Premises caused by water leakage from roof, water lines, sprinkler or heating & air conditioning equipment. (2) PLATE GLASS Tenant shall be responsible for the maintenance of the plate glass on the Premises. (3) AIR CONDITIONING EQUIPMENT, ETC. Tenant shall obtain Boiler and machinery insurance on all air conditioning equipment, boilers, and other pressure vessels and systems, whether fired or unfired, located in the Premises. If these objects and the damage that may be caused by them or result from them are not covered by Tenant's extended coverage insurance, then such boiler insurance shall be in an amount not less than One Hundred Thousand Dollars ($100,000.00). (4) TENANT IMPROVEMENTS. Tenant shall obtain Insurance covering all of Tenant's leasehold improvements, trade fixtures, wall and window covering, carpeting, equipment and all other items of personal property from time to time in, on or upon the Premises, in an amount not less than eighty percent (80%) of their full replacement cost from time to time during the term of this Lease, providing protection against any peril included within the classification of "Fire and Extended Coverage", together with insurance against sprinkler damage, vandalism and malicious mischief. Any policy proceeds shall be used for the repair or replacement of the property damaged or destroyed unless this Lease shall cease and terminate under the provisions of Article 18 hereof (5) POLICY FORM All policies of insurance provided for herein shall be issued by responsible insurance companies acceptable to Landlord and qualified to do business in the State of Colorado, and shall be issued in the name of Tenant and Landlord as additional insured, which policies shall be for the mutual and joint benefit and protection of Landlord and Tenant, and certificates thereof shall be delivered to Landlord immediately upon issuance and thereafter within thirty (30) days prior to the expiration of the term of each such policy All public liability and property damage policies shall contain a provision that Landlord, although named as an additional insured, shall nevertheless be entitled to recovery under said policies for any loss occasioned to it, its servants, agents, contractors and employees by reason of the negligence of Tenant All public liability and property damage policies shall also name as additional insured Sears, Roebuck and Company, Mervyn's, J.C. Penney Properties, Inc , and Foley's Department Store As often as any such policy shall expire or terminate, renewal or additional policies shall be procured and maintained by Tenant in like manner and to like extent. All policies of insurance delivered to Landlord must contain a provision that the company writing said policy will give to Landlord twenty (20) days notice in writing in advance of any cancellation or lapse or the effective date of any reduction in the amounts of insurance All public liability, property damage and other casualty policies shall be written as primary policies, not contributing with and not in excess of coverage which Landlord may carry E BLANKET POLICY Notwithstanding anything to the contrary contained within this Article 9, Tenant's obligations to carry the insurance provided for herein may be brought within the coverage of a so-called blanket policy or policies of insurance carried and maintained by Tenant, provided, however, that Landlord (and, in all public liability and property damage insurance, all of the corporations named in subparagraph D (5) above) shall be named as an additional insured thereunder as its interests may appear and that the coverage afforded Landlord and such corporations will not be reduced or diminished by reason of the use of such blanket policy of insurance, and provided further that the requirements set forth herein are otherwise satisfied I F LANDLORD'S INSURANCE OBLIGATIONS Landlord shall at all times during the term hereof maintain in effect a policy or policies of insurance covering the Premises , in amount not less than eighty percent (80%) of full replacement cost (exclusive of the cost of excavations, foundations and footings) from time to time during the term of this Lease or the amount of such insurance which Landlord's mortgage lender may require Landlord to maintain, whichever is the greater, providing protection against 6 any peril generally included within the classification "Fire and Extended Coverage", together with insurance against sprinkler damage, vandalism and malicious mischief Landlord's obligation to carry the insurance provided for herein may be brought within the coverage of a so-called blanket policy or policies of insurance carried and maintained by Landlord, provided that the coverage afforded will not be reduced or diminished by reason of the use of such blanket policy of insurance G INSURANCE USE RESTRICTIONS Tenant agrees that it will make reasonable efforts to avoid carrying any stock of goods or conducting activities in or about the Premises that will in any way tend to increase the insurance rates upon the building of which the Premises are a part, except as expressly provided for herein. Upon notice to Tenant by Landlord that such change in use of the Premises has resulted or likely will result in an increase in Landlord's insurance premiums, Tenant agrees to alter such changed use of the Premises as necessary to eliminate such increase, or to increase the insurance payment due from Tenant pursuant to Article 6A, as necessary to offset the increased insurance premium If Tenant installs upon the Premises any electrical equipment which constitutes an overload on the electrical lines of the Premises, Tenant shall at its own expense make whatever changes are necessary to comply with the requirements of the insurance underwriters and any governmental authority having jurisdiction thereover, but nothing herein contained shall be deemed to constitute Landlord's consent to such overloading Tenant shall, at its own expense, comply with all requirements, including the installation of fire extinguishers or automatic dry chemical extinguishing system, of the insurance underwriters or any governmental authority having jurisdiction thereover, necessary for the maintenance of reasonable fire and extended coverage insurance for the Premises as a result of such overloading by the Tenant. Article 10 - TITLE OF LANDLORD/NONDISTURBANCE Landlord covenants that as of the date hereof there are no liens upon its estate other than (a) the effect of covenants, conditions, restrictions, easements, mortgages, trust deeds, encumbrances and rights of way of record, including but not limited to those certain documents entitled Amended construction, Operation and Reciprocal Easement Agreement recorded in Book 1509 at Page 201 of the records of the Larimer County Clerk and Recorder, Restatement of Amended Construction, Operation and Reciprocal Easement Agreement recorded in Book 1956 at Page 796 and Amendment Number 1 to Restatement of Amended Construction, Operation and Reciprocal Easement Agreement recorded at Reception No. 88042996, herein referred to collectively as the "Agreement", it being understood that the aforementioned Agreement shall not prevent Tenant from using the Premises for the purpose set forth in Article 1; (b) the effect of any zoning laws of the City of Fort Collins, and (c) general and special taxes not delinquent. Tenant agrees that as to its leasehold estate it, and all persons in possession or holding under it, will conform to and will not violate the terms of the aforementioned Agreement Article 11 - TENANT'S RIGHT TO MAKE ALTERATIONS A PERMITTED ALTERATIONS Landlord agrees that Tenant may, at its own expense and after giving Landlord notice in writing of its intention to do so, from time to time during the term hereof, make alterations, additions and changes in and to the interior of the Premises (except those of a structural nature) in compliance with requirements in the plans and specifications approved by Landlord and Tenant, provided that the value of the Premises is not thereby diminished In addition, no alterations, additions or changes shall be made to the exterior walls or roof of the Premises, nor shall Tenant erect any mezzanine or increase the size of same, if one be initially constructed, unless and until the written consent and approval of Landlord shall first have been obtained. In no event shall Tenant make or cause to be made any penetration through the roof of the Premises without the prior written approval of Landlord. Tenant shall be directly responsible for any and all damages resulting From any violation of the provisions of this Article. B CONSTRUCTION REQUIREMENTS All alterations, additions or changes to be made to the Premises shall be under the supervision of competent, licensed parties. All work with respect to any alterations, additions, and changes must be done in a good and workmanlike manner and diligently prosecuted to completion to the end that the Premises shall at all times be a complete unit except during the period of work. Upon the termination of Tenant's leasehold estate such alterations, additions or changes shall be considered as improvements and shall not be removed by Tenant but shall become a part of the Premises. Any such changes, alterations and improvements shall be performed and done strictly in accordance with the laws and ordinances relating thereto In performing the work of any such alterations, additions or changes, C INSURANCE REQUIREMENTS In the event that Tenant shall make any permitted alterations, additions or improvements to the Premises under the terms and provisions of this Article 11, Tenant agrees, pursuant to Article 9, to carry such insurance as required by Article 9 (D) covering any suFh alteration, addition, or improvement, unless Tenant has self -insured in accordance with Article 9, it being expressly understood and agreed that none of such alterations, additions or improvements shall be insured by Landlord under such insurance as it may carry upon the building of which the Premises are a part, nor shall Landlord be required under any provisions for reconstruction of the Premises to reinstall any such alterations, improvements or additions. 7