HomeMy WebLinkAbout941314.tiff RESOLUTION
RE: APPROVE LEASE AGREEMENT WITH NORTH COLORADO MEDICAL CENTER AND
AUTHORIZE CHAIRMAN TO SIGN - WELLER PROPERTY
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS,the Board has been presented with a Lease Agreement between the County of
Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and
North Colorado Medical Center, with further terms and conditions being as stated in said lease
agreement, and
WHEREAS, after review, the Board deems it advisable to approve said lease agreement, a
copy of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Lease Agreement between the County of Weld, State of Colorado, by and
through the Board of County Commissioners of Weld County, and North Colorado Medical be, and
hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chairman be, and hereby is, authorized
to sign said agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted by
the following vote on the 28th day of December, A.D., 1994.
BOARD OF COUNTY COMMISSIONERS
ATTEST: / ��//Let WELD COUNTY, COLORADO
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Weld County Clerk to the Board Webster Cha rmJannn
BY: A4- -q�j// ile / , a1/
Deputy Clerk fo the Board Dale , . Hall, Pro-Te
AP ED AS TO FORM: Lieorge
Baxter
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ounty �- Co tance L. Harbert
M Attorny
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Barbaraa/J.J. Kirkmeyer
941314
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LEASE AGREEMENT
This LEASE AGREEMENT, executed December , 1994 (the
"Lease" ) , is by and among THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF WELD, STATE OF COLORADO, a body corporate and
politic organized under the laws of the State of Colorado and the
Weld County Home Rule Charter a/k/a The County of Weld, a
Municipal Corporation, at Weld County, State of Colorado (the
"County" ) , and the BOARD OF TRUSTEES OF THE NORTH COLORADO
MEDICAL CENTER, a body corporate organized and existing under the
provisions of C.R. S . 25-3-301, as amended (the "Board" ) , and
NORTH COLORADO MEDICAL CENTER, INC. , a Colorado non-profit
corporation (the "Lessee" ) .
I. RECITALS
WHEREAS, without the benefit of a written lease agreement,
the Lessee has been leasing from the County and the Board, the
real property more particularly described on attached Exhibit A
together with any and all easements, rights and appurtenances
relating thereto (the "Property" ) ;
WHEREAS, pursuant to C.R. S . § 25-3-304 (1) , the Property is
held in the name of the County by conveyance;
WHEREAS, pursuant to C.R.S . § 25-3-313 , the Board retains
the discretion to lease the Property for such rental and for such
terms as it deems reasonable and proper to any corporation not
for pecuniary profit duly organized under the laws of the State
of Colorado for the purpose of conducting a hospital and other
purposes reasonably related thereto .
WHEREAS, the County and the Board desire to lease the
Property to the Lessee and will ,be collectively referred to
herein as the "Lessor" ;
WHEREAS, the Lessor and the Lessee desire to enter into the
Lease to evidence the existing agreement between them;
THEREFORE, in consideration of the mutual promises and
covenants contained herein, Lessor and Lessee hereby agree as
follows .
II. TERMS
Section 1 . Lease of Premises .
In consideration of the rents and covenants to be paid and
performed by Lessee and upon the terms and conditions of this
Lease, Lessor hereby leases to Lessee and Lessee hereby leases
from Lessor, the Property.
Section 2 . Term.
The effective date and term of this Lease shall commence on
January 1, 1995 (the "Commencement Date" ) and shall expire at 12
p.m. noon on the date which is ninety-nine (99) years from the
Commencement Date (the "Term" ) .
Section 3 . Rent .
(a) Lessee covenants and agrees to pay Lessor for the
Property, in lawful money of the United States, without offset ,
deduction or demand fixed rent (the "Base Rent" ) in the amount of
One Dollar ($1 . 00) per lease year. The term "lease year" refers
to the twelve-month period following the Commencement Date and
each anniversary thereafter throughout the Term.
(b) Rent shall be paid at the office of Lessor set forth
above or at any other place of which Lessor shall give Lessee
thirty (30) days' prior written notice .
(c) In addition to Base Rent, Lessee shall pay the amount
of any additional payments as and when provided in this Lease.
The term "Rent" shall include Base Rent and all other additional
payments required to be paid by Lessee under this Lease .
(d) If the Term commences after the beginning of , or
terminates before the end of, a calendar or lease year, any Rent
shall be adjusted proportionately.
Section 4 . No Abatement of Rent .
Rent shall not abate or diminish during any period of time
in which any dispute or controversy exists between the parties,
whether or not such dispute or controversy is the subject of
litigation.
Section 5 . Use of Premises .
The Lessee shall use the Property for the purpose of conduc-
ting a healthcare facility and for other purposes reasonably
related thereto. Related uses may include, by way of example and
not limitation, using the Property as a parking lot or, pursuant
to Section 7 of this Lease, for the construction of a building,
addition to a building or other improvement . The Lessee shall
not (i) use the Property for any activity or in any manner pro-
hibited by the laws of the United States, the State of Colorado
or Weld County, Colorado (ii) commit waste nor suffer or permit
waste to be committed in, on, or about the Property (iii) create
any nuisance on or interfere with property which is contiguous to
the Property (iv) do anything prohibited by a standard form of
extended coverage fire policy or that will increase the existing
rate of insurance or otherwise affect any other insurance related
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to the building or cause a cancellation of the Lessor' s insurance
or (v) breach any restriction of record, zoning ordinance or
other agreement that affects the Property. The Lessor hereby
warrants that the Lessee' s use of the Property is lawful and that
it does not breach any restriction of record, zoning ordinance or
other agreement that affects the Property.
Section 6 . Taxes and Utility Expenses .
(a) (1) Lessee shall during the Term pay and discharge or
cause to be paid and discharged, punctually, as and when the same
shall become due and payable, all taxes, special and general
assessments, water impositions and charges of every kind and
nature whatsoever, extraordinary as well as ordinary, including
without limitation gross receipts taxes or other business taxes
levied or imposed upon Lessee' s interest in the property (herein-
after referred to as "Taxes" ) , and each and every installment
thereof which shall or may during the Term be charged, levied,
laid, assessed, imposed or become due and payable upon or for or
with respect to the Property or any part thereof, or any build-
ings, appurtenances or equipment owned by Lessee thereon or
therein or any part thereof, together with all interest and
penalties thereon, under or by virtue of all present or future
laws, ordinances, requirements, orders, directives, rules or
regulations of the Federal, State, County and City Governments
and of all other governmental authorities whatsoever (all of
which shall also be included in the term "Taxes" as defined
above) and all sewer rents and charges for water, steam, heat,
gas, hot water, electricity, light and power, and other service
or services, furnished to the Property or the occupants thereof
during the Term ( "Utility Expense" ) .
(2) To the extent that the same may be permitted by
law, Lessee or its designees shall have the right to apply for
the conversion of any assessment for local improvements assessed
during the Term, in order to cause the same to be payable in
annual installments, and upon such conversion Lessee shall pay
and discharge punctually said installments as they shall become
due and payable . Lessor agrees to cooperate with Lessee in such
application and to execute any and all documents reasonably
requested by Lessee to accomplish the foregoing result; provided
such cooperation shall be without expense to Lessor.
(3) Lessee shall be deemed to have complied with the
covenants of this subsection (a) if payment of such Taxes shall
have been made either within any period allowed by law or by the
governmental authority imposing the same during which payment is
permitted without penalty or interest or before the same shall
become a currently payable lien upon the Property, and Lessee
shall deliver to Lessor satisfactory evidence of payment within
thirty (30) days after the date payment is due .
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(b) (1) Lessee shall have the right to contest in good
faith the Taxes by legal proceedings . Lessee shall conduct such
proceedings promptly at its own cost and expense and free of any
expense to Lessor. If necessary, Lessor shall cooperate and
shall execute all documents reasonably necessary to enable Lessee
to proceed with the contest . Notwithstanding the foregoing,
Lessee shall promptly pay all Taxes if at any time the Property
or any part thereof shall be subject to forfeiture because of the
non-payment of Taxes .
(2) In the event of any reduction, cancellation or
discharge, Lessee shall promptly pay the amount finally levied,
or assessed against the Property or adjudicated to be due and
payable on any such contested Taxes .
• (c) Lessor agrees that if there are any refunds or rebates
on account of the Taxes paid by Lessee, the refund or rebate
shall belong to Lessee . Unless Lessee is in default under this
Lease, any refunds received by Lessor shall be deemed trust funds
and as such are to be received by Lessor in trust and paid to
Lessee forthwith. Lessor further agrees on request of Lessee at
any time, and from time to time but without cost to Lessor, to
make application individually (if legally required) for separate
tax assessments for the Property. Lessor hereby agrees upon
request of Lessee to give Lessee such assistance in connection
with the application as shall be reasonably required by Lessee.
(d) Nothing herein or in this Lease otherwise contained
shall require or be construed to require Lessee to pay any
franchise, income, inheritance, estate, succession, transfer or
gift taxes, that are or may be imposed upon Lessor its successors
or assigns .
Section 7 . Improvements, Repairs, Additions, Replacements .
(a) Lessee shall have the ,right, at its own cost and
expense and subject to the approval requirements of any leasehold
mortgagee, to construct on any part or all of the Property, at
any time and from time to time, buildings additions to buildings
or other improvements (the "Improvements" ) as Lessee shall from
time to time determine; provided, however, that (i) the same
shall be in compliance with all then applicable building codes
and ordinances, (ii) Lessee shall first submit to the Lessor
plans and specifications therefor and obtain the written consent
of Lessor prior to constructing such Improvements, (iii) Lessee
is not in default under the terms of this Lease and (iv) the
Lessee shall use such Improvements for the purpose of conducting
a hospital and for other purposes reasonably related thereto .
Lessor shall not unreasonably withhold or delay its consent to
the construction of Improvements .
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(b) Lessee shall, at all times during the Term, at its own
cost and expense, keep and maintain or cause to be kept and
maintained in repair and good condition (ordinary wear and tear
excepted) , any Improvements erected on the Property, and shall
use all precaution to prevent waste, damage or injury. Lessor
shall not be required to furnish any services or facilities or to
make any improvements, repairs or alterations in or to the
Property.
(c) Except as set forth in subsection (d) below, title to
Improvements situate or erected on the Property and any building
equipment and other items installed thereon and any alteration,
change or addition thereto shall remain solely in Lessee .
(d) Subject to this subsection (d) , on the last day or
earlier termination of the Term, Lessee shall quit and surrender
the Property; and any Improvements constructed on the Property
shall become the sole property of the Lessor. In the event the
Lessee received the Lessor' s approval to construct Improvements
with an expected life extending beyond the term of this Lease,
the Lessor shall reimburse the Lessee for the cost of such
Improvements less straight line depreciation as of the
termination of the Term. The Lessor shall have no obligation to
reimburse the Lessee for the cost of constructing Improvements
not approved by the Lessor prior to construction as required by
this Section 7 .
(e) Lessor shall not be responsible for providing, to
Lessee or to any other party, security service of any kind or
nature for any Improvement that are now or thereafter may be
situate or erected on the Property, or for providing security
service to any parking lot, lawn or vacant land that now or
hereafter may be part of or adjacent to the Property.
Section 8 . Requirements of Public Authority.
(a) During the Term Lessee shall , at its own cost and
expense, promptly observe and comply with all present and future
laws, ordinances, requirements, orders, directive, rules and
regulations of the Federal, State, County and City Governments
and all of the other governmental authorities affecting the
Property or appurtenances thereto whether the same are in force
on the Commencement Date or may in the future be passed, enacted,
or directed, and Lessee shall pay all costs, expenses,
liabilities, losses, damages, fines, penalties, claims and
demands, including counsel fees, that may in any manner arise out
of or be imposed because of the failure of Lessee to comply with
the covenants of this Section 8 .
(b) Lessee shall have the right to contest by appropriate
legal proceedings the validity or application of any law,
ordinance, rule, regulation or requirement of the nature referred
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1 !1'
to in subsection (a) of this Section 8 and if, by the terms of
any such law, ordinance, order, rule, regulation or requirement,
compliance therewith may legally be delayed pending the
prosecution of any such proceeding, Lessee may delay such
compliance therewith until the final determination of such
proceeding. Any proceeding shall be conducted by Lessee
diligently and in good faith. If legally required, Lessee may
institute the proceeding in the name of Lessor provided Lessor
shall incur no cost or expense in connection with the proceeding.
(c) Lessor agrees to execute and deliver any appropriate
papers or other instruments which may be necessary or proper to
permit Lessee so to contest the validity or application of any
such law, ordinance, order, rule, regulation or requirement and
to fully cooperate with Lessee in such contest all without cost
or expense to Lessor.
Section 9 . Covenant Against Liens .
(a) If, because of any act or omission of Lessee, its
agents, employees, licensees, invitees (express or implied) , or
sublessees, any mechanic' s lien or other lien, charge or order
for the payment of money shall be filed against Lessor or any
portion of the Property (other than permitted leasehold Mortgages
as described in Section 21 below) , Lessee shall at its own cost
and expense, cause the same to be discharged of record or bonded
within thirty (30) days after the filing thereof; and Lessee
shall indemnify and save Lessor harmless against all costs,
liabilities, suits, penalties, claims and demands , including
counsel fees, resulting therefrom.
(b) Lessor and Lessee agree that Lessor' s interest in the
Property shall not be subject to mechanic' s liens . Lessee shall ,
prior to commencing any physical construction on the Property,
provide the notice in accordance with the statutes of the state
in which the Property is located that Lessor' s interest in the
Property shall not be subject to any mechanic' s liens and, at the
request of Lessor, provide Lessor with evidence that such notice
has been given.
Section 10 . Access to Premises .
Lessor or Lessor' s agents and designees shall have the
right, but not the obligation, to enter upon the Property at all
reasonable times to determine whether the conditions of the Lease
are being met, and to examine the Property and to show the
Property to prospective purchasers and prospective tenants, but
in the latter case only during the last six (6) months of the
Term of this Lease . Lessor shall be permitted to affix a "To
Let , " "For Rent, " or "For Sale" sign on the Property during the
last ninety (90) days of the Term in such place as shall not
interfere with the business then being conducted at the Property.
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Section 11 . Assignment and Subletting.
Except as provided in Section 21 and this Section 11, Lessee
shall not assign or sublease (in whole or in part) , or otherwise
encumber this Lease or the Property to any other person or entity
without the advance written approval of Lessor. Notwithstanding
the foregoing, the Lessee may assign this Lease or sublease the
Property (in whole or in part) to the following entities subject
to the express condition that such entities agree to use the
Property for the purpose of conducting a healthcare facility and
for other purposes reasonably related thereto: Western Health
Network, Inc . , an Arizona non-profit corporation authorized to do
business in Colorado; Lutheran Health Systems, a North Dakota
nonprofit corporation; Normedco Services, Inc . , a Colorado for
profit corporation or any other wholly owned subsidiary of the
Lessee.
Section 12 . Signs and Improvements.
Lessee shall, at no expense to Lessor, have the right to
install, erect, maintain and replace in, on, over or in front of
the Property or in any part thereof such signs that have been
approved in writing in advance by Lessor; provided, however, that
Lessee shall obtain all necessary permits and any such signs
shall comply with all applicable laws, ordinances and
governmental rules or regulations .
Section 13 . Indemnity.
(a) Lessee shall indemnify and save Lessor harmless from
and against any and all liability, damage, penalties or judgments
arising from injury to persons or property sustained by anyone
in and about the Property except as may result from the acts set
forth in subsection (b) of this Section 13 . Lessee shall , at its
own cost and expense, defend any and all suits or actions which
may be brought against Lessor ox in which Lessor may be impleaded
or involved upon any such above-mentioned matter, claim, or
claims, except as may result from the acts as set forth in
subsection (b) of this Section 13 .
(b) Except for the acts of Lessor or its subsidiaries or
affiliates which are using the Property, if any, Lessor shall not
be responsible or liable for any damage or injury to any
property, fixtures, buildings or other improvements, or to any
person or persons, at any time on the Property, including any
damage or injury to Lessee or to any of Lessee' s partners,
officers , agents, servants, employees, contractors, customers,
licensees, invitees (express or implied) or sublessees .
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Section 14 . Insurance .
(a) The term "Insurance Consultant" means an insurance
consultant and/or risk management firm or an insurance broker or
an insurance agent (which may be a consultant, firm, broker, or
agent with whom the Lessee or the Lessor regularly transacts
business) selected by the Lessee and accepted by the Lessor. The
Lessee shall maintain, or cause to be maintained, except as
hereinafter provided, the following insurance for the Lessee and
the Property:
(1) Insurance against loss and/or damage to the
Property under a policy or policies covering such risks as are
ordinarily insured against by similar healthcare facilities,
including without limiting the generality of the foregoing, fire,
lightning, windstorm, hail, explosion, riot, riot attending a
strike, civil commotion, damage from aircraft, smoke and uniform
standard extended coverage and vandalism and malicious mischief
endorsements, limited only as may be provided in the standard
form of such endorsements at the time in use in the State of
Colorado. Such insurance shall be in an amount not less than the
value of the Property including any Improvements constructed on
the Property pursuant to Section 7 of this Lease . No policy of
insurance shall be so written that the proceeds thereof will
produce less than the minimum coverage required by the preceding
sentence, by reason of co-insurance provisions or otherwise . The
term "replacement value" shall mean the actual replacement cost
of the Property (excluding foundation and excavation costs and
costs of underground flues, pipes, drains, and other uninsurable
items) , and shall be determined from time to time at the request
of the Lessor, but not more frequently than once every three
years, by an architect, contractor, appraiser or appraisal
company or one of the insurers, in any case, determined, selected
and paid for by the Lessee and approved by the Lessor; provided,
however, that any policy under this subparagraph (a) in an amount
equal to ninety percent of the replacement value of the Property
may be made subject to a deductible amount of not more than
$25, 000 per accident or casualty. All policies evidencing
insurance required by this subparagraph (a) shall be carried in
the names of the Lessee and the Lessor as insureds .
(2) Comprehensive general liability insurance,
including blanket contractual liability and personal injury
liability and automobile insurance, including owned, non-owned
and hired automobiles, protecting the Lessee and the Lessor as
their interests appear, against liability for injuries to persons
and/or property, in the minimum amount for personal injury of
$1, 000 , 000 for each occurrence and $1, 000 , 000 aggregate for each
year, and for property damage of $300 , 000 for each occurrence and
$300 , 000 aggregate for each year;
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(3) Use and occupancy (or business interruption)
insurance, covering interruption of the Lessee' s operations in
whole or in part by reason of the total or partial suspension of,
or interruption of, the Lessee' s operations caused by the damage
to or destruction of any part of the Property caused by any of
the perils described in subparagraph (a) above, with such
exceptions as are customarily imposed by insurers, in an amount
sufficient to comply with the requirements of a standard 25%
gross earnings business interruption form. All policies
evidencing insurance required by this subparagraph (c) shall be
carried in the names of the Lessee and the Lessor provided that
all losses thereunder shall be made payable directly to the
Lessor as a credit against the obligation of the Lessee to pay
rent as the same becomes due during the period of interruption of
the Lessee' s operations, as estimated by an independent insurance
consultant, and the balance of such proceeds shall be paid to the
Lessee .
(4) Workmen' s compensation insurance respecting all
employees of the Lessee and all persons engaged in work on the
Property in such amount as is required by law;
(5) Boiler insurance, including use and occupancy
coverage, with an aggregate property damage and personal injury
limit of $1, 000 , 000 ;
(6) Malpractice insurance, protecting the Lessee and
the Lessor against liability for death, injury, loss or damage
occurring during examination, diagnosis, treatment or care of any
patient or any occupant of the Property in the minimum amount of
$1 , 000 , 000 per person per occurrence and to the extent of at
least $3 , 000, 000 in the aggregate per policy year; and
(c) All such policies of insurance hereinabove described in
this Section shall be issued by and maintained in responsible
insurance companies selected by 'the Lessee, organized under the
laws of one of the states of the United States or the
Underwriters at Lloyd' s of London and authorized under the laws
of Colorado to assume the risks covered thereby. Each insurance
policy shall contain a waiver of rights of subrogation. The
Lessee will deposit annually with the Lessor policies evidencing
all such insurance, or a certificate or certificates or binders
of the respective insurers or a certificate of an Insurance
Consultant stating that such insurance is in force and effect .
Each policy shall contain a provision that the insurer shall not
cancel nor modify it without giving written notice to the Lessee
and the Lessor at least thirty (30) days before the cancellation
or modification becomes effective . Not less than 15 days prior
to the expiration of any policy, the Lessee shall furnish the
Lessor evidence satisfactory to the Lessor that the policy has
been renewed or replaced in conformity with the provisions of
this Section, or that there is no necessity therefor under the
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terms hereof . In lieu of separate policies, the Lessee may
maintain a single policy, blanket or umbrella policies, or a
combination thereof, having the coverage required herein, in
which event it shall deposit with the Lessor a certificate or
certificates of the respective insurers as the amount of coverage
in force upon the Property.
(d) At least every two years the Lessee together with its
Insurance Consultant, as defined below, shall review the
insurance coverage hereinabove required and report to the Lessor
as to the adequacy of such coverage . As a result of such review
the insurance coverage provided by this Section may be reduced or
otherwise adjusted, but only with the consent of the Lessee, or
shall be increased if recommended by such review unless otherwise
waived by the Lessor, if the corresponding provision in the Lease
is waived by the Lessor; provided that after any such reduction,
increase or other adjustment of such insurance, the revised
coverages are certified by the Insurance Consultant to be
adequate and customary for hospitals of like size and type,
taking into account the availability of such insurance, the terms
upon which such insurance is available, the cost of such
available insurance and the effect of such terms and such cost
upon the Lessee' s cost and charges for its services . The Lessor,
in its sole discretion, may waive the biennial Insurance
Consultant' s review as above provided.
(e) Upon the written request of the Lessee, the Lessor may
permit modifications to the insurance coverage hereinabove
provided in this Section, including permission for the Lessee to
participate in alternative risk management programs such as the
establishment of a self-insurance program (except with respect to
the insurance required by (a) above) and participation in a
captive insurance company, all upon such terms and conditions as
the Lessor may require . In making its decision whether to permit
such modifications the Lessor shall consider the availability of
commercial insurance, the termssupon which such insurance is
available and the cost of such available insurance . In making
any such determination, the Lessor may rely upon a written report
of an Insurance Consultant . Anything herein to the contrary
notwithstanding, the Lessor may consent to a self-insurance
program (except with respect to the insurance required by (a)
above) by the Lessee if recommended in writing by an Insurance
Consultant and the Lessor is of the opinion (which may be based
upon said recommendations) that it is in the best interests of
the Lessee . The Lessee shall pay any fees charged by such
Insurance Consultant and any expenses incurred by the Lessor.
The Lessor will not unreasonably withhold its approval for self-
insurance by the Lessee upon the conditions .
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Section 15 . Waiver of Subrogation.
All insurance policies carried by either party covering the
Property, including but not limited to contents, fire and
casualty insurance, shall expressly waive any right on the part
of the insured against the other party.
Section 16 . Destruction.
In the event that, at any time during the term of this
Lease, Improvements which Lessee has caused to be constructed on
the Property shall be destroyed or damaged in whole or in part by
fire or other casualty, then Lessee shall have the option,
subject to the rights of any fee Mortgagee or leasehold
mortgagee, to rebuild the same or to terminate this lease . In
the event of termination, Lessor (and any fee Mortgagee) shall be
entitled, subject to the rights of any leasehold mortgagee, to
such insurance proceeds .
Section 17 . Eminent Domain.
(a) In the event the whole of the Property shall be taken
by the exercise of the power of eminent domain or under threat
thereof, this Lease shall terminate as of the date possession
thereof shall be so taken by or under the condemnor.
(b) In the event less than the whole of the Property shall
be taken by exercise of the power of eminent domain or under
threat thereof and, as a consequence thereof, Lessee' s rights in
or use of the Property are substantially and materially impeded,
Lessee shall have the right, upon notice to Lessor within ten
(10) days after the earlier of the entry of a final judgment in
the condemnation actin or the delivery of possession of the
Property, to terminate this Lease, effective as of the date
possession is taken by or under the condemnor. Lessee' s right to
terminate this Lease under this subsection (b) is subject to the
prior approval of any leasehold mortgagee .
(c) In the event this Lease shall be terminated in whole or
in part pursuant to subsections (a) or (b) of this Section 17,
each party shall thereupon be released from every obligation
hereunder to the other, except :
(1) with respect to any covenants hereof breached
prior to the date of termination; and
(2) the obligation of Lessor to refund to Lessee any
rent paid to Lessor which pertains to any period subsequent to
the date of termination.
(d) (1) Any condemnation award, whether the same shall
result from agreement or from judicial or administrative
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decision, by reason of a taking or damaging by condemnation of
the Property or any portion or portions thereof or any rights or
interests therein or resulting in a requisitioning thereof by
military or other public authority for any purposes arising out
of a temporary emergency or other temporary circumstances, shall
be distributed in accordance with the following provisions :
a . the respective interests of Lessor and
Lessee in such award shall be determined in the condemnation
proceeding or by agreement among Lessor, Lessee, and all
Mortgagees, on the basis of the value of Lessor' s ownership of
the land as if it were unimproved but encumbered by the Lease and
the value of its leasehold interest in this Lease (and any
improvements subsequently constructed thereon) immediately prior
to the taking (any costs to a leasehold mortgagee for such
proceedings to be at Lessee' s expense) ; provided, however,
Lessee shall be entitled to the entire amount of any award for
any temporary taking, whether by way of damages, rent or other-
wise, except for any portion thereof allocable to a period of
time extending beyond the term of the Lease, as to which portion
Lessor shall be entitled; and provided further, however, that in
the case of a total taking, Lessee' s share shall in no event be
deemed less than the amount then outstanding on any leasehold
Mortgage (including principal, interest, and other amounts) ;
b. Lessee' s share of such award shall be paid
to the holder of any leasehold Mortgage in reduction of the
indebtedness then owing thereon and the balance thereof shall be
paid to Lessee; and
c . Lessor' s share of such award shall be paid
to the holder of any fee Mortgage in reduction of the indebted-
ness then owing thereon and the balance thereof shall be paid to
Lessor.
(2) In the event any .part or portion of the Property,
fronting on or abutting any street or highway is taken for street
widening or utility purposes by any lawful power or authority, by
the exercise of the power of eminent domain or under threat
thereof or by agreement among Lessor, Lessee and those authorized
to exercise such power, then and in such event and subject to the
prior rights of the holder of any leasehold Mortgage or fee
Mortgage, the entire award shall be the property of Lessor .
Section 18 . Utility Easements .
Lessee shall not have the right to create easements for
utilities or any other similar lien or encumbrance on the
Property (the term of which would extend beyond the Term) without
the prior written consent of Lessor, which consent will not be
unreasonably withheld or delayed. As used in this Section,
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7 _ fl
"utilities" include but are not limited to water, sewer, storm
sewer, telephone, electrical and all other utility-type liens .
Section 19 . Fee Mortgages .
(a) Lessee acknowledges that the Property is currently
unencumbered by any mortgages, deeds of trust or other liens .
(b) During the Term, Lessor shall have the right and power
to further mortgage or otherwise create any security or other
liens or encumbrances upon or affecting the fee interest in the
Property, but any such additional mortgage or other security,
liens or encumbrances shall be expressly subject and subordinate
to : (i) the terms of this Lease and any extensions or
modifications thereof; and (ii) the rights of Lessee and any
leasehold mortgagee hereunder.
(c) Each such fee Mortgage granted by Lessor shall contain
the following provisions, among others, in form reasonably
satisfactory to the applicable lending institution:
(1) A provision, unless waived by Lessee with the
consent of any leasehold mortgagee, in form reasonably
satisfactory to the applicable lending institution, pursuant to
which such lending institution shall grant the non-disturbance
assurance and attornments reasonably required by Lessee, any
leasehold mortgagee or any sublease (s) of the Property.
(2) A provision in form reasonably satisfactory to the
applicable lending institution, that both Lessor and Lessee and
any leasehold mortgagees shall receive all notices required or
desired to be given by such lending institution to Lessor and
that , if any default is not cured by Lessor within the period of
time permitted under such fee mortgage, the lending institution
shall accept performance by Lessee of the covenant in default if
the same is performed within a seasonable specified time
thereafter.
Section 20 . Easement for Parking, Ingress and Egress .
Lessor shall grant to Lessee an easement for ingress and
egress which easement shall be subject to the terms and
conditions of this Lease. A default under the easement agreement
shall be deemed a default hereunder and, in the event of such
default , Lessor shall have all of the rights and remedies
provided under Section 24 hereof .
Section 21 . Leasehold Mortgages .
Lessor hereby acknowledges and agrees that certain leasehold
Mortgages may be created in connection with certain interim and
permanent financing to be made available to Lessee and agrees
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that the provisions concerning leasehold Mortgages set forth
below shall be applicable to such leasehold mortgagees . Lessee
is hereby given the right by Lessor, without Lessor' s prior
consent, to mortgage its interest in this Lease, or any part or
parts thereof, and to assign this Lease, or any part or parts
thereof , as collateral security for such leasehold Mortgages,
upon the following conditions : (i) that all rights acquired
under such leasehold Mortgages shall be subject to each and all
of the covenants, conditions, and restrictions set forth in this
Lease (unless specifically exempted herein) , and to all rights
and interests of Lessor herein, none of which covenants,
conditions, or restrictions is or shall be waived by Lessor by
reason of the right given to Lessee to mortgage its interest in
this Lease, except as expressly provided herein; (ii) that the
note secured by the leasehold Mortgage shall provide that the
leasehold Mortgage shall, upon serving Lessee with any notice of
default under the leasehold Mortgage, simultaneously serve a copy
of such notice upon the Lessor and any such notice of default
which is not also served on the Lessor shall not be a valid
notice thereunder; (iii) that the note secured by the leasehold
Mortgage shall provide that in the event of default thereunder by
Lessee, notice of which has been given to Lessor, Lessor shall
thereupon have a period of sixty (60) days after the expiration
of the curative period or time for performance by Lessee
prescribed in the leasehold Mortgage in which to cure or cause
the cure of such default ; and (iv) that the leasehold mortgagee
will covenant and agree that in the event of default and
subsequent foreclosure of the leasehold interest, it will only
lease the Property to an individual or entity that offers the
same health care services to children as Lessee offers and that
uses the Property in strict compliance with Section 5 of this
Lease . If Lessee shall mortgage this leasehold, or any part or
parts thereof, and if the holder (s) of a leasehold Mortgage (s)
shall , within thirty (30) days of its execution, send to Lessor a
true copy thereof, together with written notice specifying the
name and address of the leasehold mortgagee, a copy of the
leasehold Mortgage as recorded, the pertinent recording date with
respect to such leasehold Mortgage (s) , and an agreement executed
by the leasehold mortgagee in a form satisfactory to Lessor that
contains all the applicable provisions in this paragraph related
to Lessor' s rights and to the use of the Property in the event of
Lessee' s default , Lessor agrees that so long as any leasehold
Mortgages shall remain unsatisfied of record or until written
notice of satisfaction is given by the holder to Lessor, the
following provisions shall apply:
(a) There shall be no material amendment or modification
nor cancellation, surrender, or termination of this Lease by
Lessee without the prior consent in writing of the leasehold
mortgagee and any such material amendment or modification,
cancellation, surrender or termination without such written
consent shall be void and Lessor shall provide the leasehold
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mortgagee with thirty (30) days' notice of any intended material
amendment or modification, revocation, surrender, cancellation or
termination of the Lease;
(b) Lessor shall , upon serving Lessee with any notice of
default under this Lease, simultaneously serve a copy of such
notice upon the holders of such leasehold Mortgages and any such
notice of default which is not also served on the leasehold
mortgagee shall not be a valid notice hereunder;
(c) A "curable default" shall be a default hereunder which
is (i) a monetary default, notice of which has been given
pursuant to subsection (b) of this Section 21 within 30 days of
the due date of any payments which are to be made to Lessor, or
30 days of the date of discovery by Lessor of such default if
such payments are to be made to other than Lessor, or (ii) a non-
monetary default, which is susceptible of being cured by the
leasehold mortgagee and notice of which has been given pursuant
to subsection (b) of this Section 21 within 30 days of the
discovery by Lessor of such default; notwithstanding the
foregoing, Lessee' s default under the Lease arising from Lessee' s
breach of any covenant made in connection with the leasehold
Mortgage shall be specifically excluded from the definition of
"curable default . " In the event of a curable default hereunder
by Lessee, notice of which has been given to the leasehold
mortgagee pursuant to subsection (b) of this Section 21, such
leasehold mortgagee shall thereupon have a period of sixty (60)
days after the expiration of the curative period or time for
performance by Lessee prescribed in this Lease in which to cure
or cause the cure of such default . Lessor will accept
performance by any such leasehold mortgagee of any covenant or
undertaking of Lessee hereunder with the same force and effect as
though performed by Lessee . The time afforded such leasehold
mortgagee to cure any default by Lessee, which reasonably
requires that the leasehold mortgagee be in possession of the
Property to do so, shall be extended to include the period of
time reasonably required to obtain such possession (by
foreclosure or otherwise) with due diligence, provided however,
that during such period all other obligations of Lessee under
this Lease, including the payment of Base Rent and any additional
Rent, are duly and timely performed. No leasehold mortgagee
shall become liable under the provisions of this Lease unless and
until such time as it becomes, and then only for those charges
becoming due during the time it remains, the owner of the
leasehold estate encumbered by its leasehold Mortgage . It is the
intention of this subsection (c) of this Section 21 that except
for any charges which it must pay or cure under this
subsection 21 (c) , any leasehold mortgagee which becomes the
tenant hereunder by foreclosure or transfer in lieu of
foreclosure of its leasehold Mortgage shall not be liable to
Lessor for any of obligations or failures to act of the Lessee
which occurred prior to the time that the leasehold mortgagee
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becomes the owner of the leasehold estate except for continuing
covenants of the tenant for repair of pre-existing conditions .
Nothing contained in this Section shall prevent or delay any
exercise by Lessor of its remedies, other than termination of
this Lease, solely as against Lessee . Lessor agrees that it will
not exercise its right to terminate this Lease as against the
leasehold mortgagee unless all three of the following conditions
obtain: (i) it is a curable default, (ii) the cure periods
available to the leasehold mortgagee have expired, and (iii) such
leasehold mortgagee has neither commenced nor completed a cure
(whether or not completion requires more than sixty (60) days so
long as a cure is being pursued diligently and in good faith) ,
nor has such leasehold mortgagee commenced proceedings in
exercise of its remedies under the leasehold Mortgages, including
foreclosure or deed in lieu of foreclosure and further transfers
therefrom (whether or not completion of such remedies or
subsequent transfers occur within the said 60-day period) ;
(d) Lessor agrees that the name of the leasehold mortgagees
may be added to the "Loss Payable Endorsement" of any and all
insurance policies required to be carried by Lessee hereunder;
(e) The leasehold mortgagees shall be given notice of any
arbitration proceedings by the parties hereto, and shall have the
right to intervene and be made a party to such proceedings, and
the parties do hereby consent to such intervention. In the event
that the leasehold mortgagees shall not elect to intervene or
become a party to such proceedings, the leasehold mortgagees
shall receive from lessee notice of, and a copy of any award or
decision made in said arbitration proceedings; and
(f) Lessor shall execute, acknowledge, and deliver to each
leasehold mortgagee, an agreement prepared by counsel to the
leasehold mortgagee (s) in form satisfactory to such leasehold
mortgagees, among Lessor, Lessee and the leasehold mortgagees,
agreeing to all of the provisions of this Section 21 and
containing provisions acceptable to the leasehold mortgagees for
attornment , non-disturbance, subordination of Lessor' s fee
Mortgages and, as appropriate, non-recognition of any accrued and
unperformed obligations of Lessee which are not capable of being
performed by a leasehold mortgagee, its nominee or transferee .
The term "leasehold Mortgage, " whenever used herein, shall also
include whatever security instruments are used in the locale of
the Property, such as, without limitation, mortgages, deeds of
trust, security deeds and conditional deeds, as well as financing
statements, security agreements, and other documentation required
pursuant to the Uniform Commercial Code . The provisions of this
Section shall survive any termination of this Lease .
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Section 22 . Quiet Enjoyment .
(a) Lessee, upon paying the Rent and all other sums and
charges to be paid by it under this Lease, and observing and
keeping all covenants, warranties, agreements, and conditions of
this Lease on its part to be kept, shall quietly have and enjoy
the Property during the term of this Lease, without hindrance or
molestation by anyone claiming through or under Lessor.
(b) Lessor represents and warrants to Lessee that it has
fee simple title to the Property and the power and authority to
execute and deliver this Lease and to carry out and perform all
covenants to be performed by it hereunder.
Section 23 . Hazardous Materials
(a) Lessee shall be solely responsible for, and shall
indemnify and hold harmless Lessor, its directors, officers,
employees, agents, successors and assigns from and against, any
loss, damage, cost, expense or liability directly or indirectly
arising out of or attributable to the use, generation, storage,
release, threatened release, discharge, disposal, or presence of
Hazardous Materials (as defined in subsection (b) ) on, under or
about the Property, including, without limitation: (i) all
foreseeable consequential damages; (ii) the costs of any required
or necessary repair, cleanup or detoxification of the Property;
and the preparation and implementation of any closure, remedial
or other required plans; and (iii) all reasonable costs and
expenses incurred by Lessor in connection with clauses (i) and
(ii) , including but not limited to reasonable attorneys' fees .
The agreements contained in this Section 23 shall survive the
expiration of the Term or the termination of this Lease by either
Lessor or Lessee unless Lessee delivers to Lessor an
environmental report in form and substance acceptable to Lessor
from an environmental consultant acceptable to Lessor showing,
subject to such limitations and .qualifications as are customarily
included in comparable environmental reports, neither any current
violation of any Hazardous Materials Laws (as defined in
subsection (b) ) nor the presence of any Hazardous Materials
existing on the Property.
(b) For purposes of this Lease, "Hazardous Materials" means
and includes those substances, including without limitation,
asbestos or any substance containing asbestos and deemed
hazardous under any Hazardous Material Law, the group of organic
compounds known as polychlorinated biphenyls, flammable explo-
sives, radioactive materials, chemicals known to cause cancer or
reproductive toxicity, pollutants, effluents, contaminants,
emissions or related materials and any items included in the
definition of hazardous or toxic waste, materials or substances
under any Hazardous Material Law. "Hazardous Material Laws"
collectively means and includes any present and future local ,
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state and federal law relating to the environment and environ-
mental conditions including without limitation, the Resource
Conservation and Recovery Act of 1976 ( "RCRA" ) , 42 U.S.C.
§ 6901, et seq. , the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ( "CERCLA" ) , 42 U. S . C.
§§ 9601-9657, as amended by the Superfund Amendments and
Reauthorization Act of 1986 ( "SARA" ) , the Hazardous Materials
Transportation Act, 49 U.S .C. § 6901, et seq. , the Federal Water
Pollution Control Act, 33 U. S . C. §§ 1251, et seq. , the Clean Air
Act, 42 U. S .C. §§ 741, et seq. , the Clean Water Act, 33 U. S . C .
§ 7401 , et seq. , the Toxic Substances Control Act, 15 U. S . C.
§§ 2601-2629, the Safe Drinking Water Act, 42 U. S .C. §§ 300f-
300j , the Colorado Underground Storage Tank Act, C.R. S .
§ 25-18-101, et seq. , and all the regulations, orders, decrees
now or hereafter promulgated thereunder.
(c) Lessee shall keep and maintain the Property in compli-
ance with, and shall not cause or permit the Property to be in
violation of any federal, state or local laws, ordinances, or
regulations relating to industrial hygiene or to the environ-
mental conditions on, under or about the Property including, but
not limited to, soil and ground water conditions . Except for
materials used in the ordinary course of operating and maintain-
ing a child abuse treatment and prevention center which are
handled and stored in accordance with appropriate governmental
regulations, Lessee shall not use, generate, manufacture, trans-
port, store or dispose of on, under or about the Property or
transport to or from the Property any Hazardous Materials .
(d) Lessee shall immediately advise Lessor in writing of
(i) any and all enforcement, cleanup, removal or other govern-
mental or regulatory actions instituted, completed or threatened
pursuant to any applicable Hazardous Materials Laws relating to
any Hazardous Materials affecting the Property; (ii) all claims
made or threatened by any third party against Lessee or the
Property relating to damage, contribution, cost recovery compen-
sation, loss or injury resulting from any Hazardous Materials
(the matters set forth in clauses (i) and (ii) above are herein-
after referred to as "Hazardous Materials Claims" ) ; and
(iii) Lessee' s discovery of any occurrence or condition on any
real property adjoining or in the vicinity of the Property that
would cause the Property to be subject to any restrictions on the
ownership, occupancy, transferability or use of the Property
under any Hazardous Materials Laws .
(e) Lessor shall have the right to join and participate in,
as a party if it so elects, any legal proceedings or actions
initiated in connection with any Hazardous Materials Claims and
to have its reasonable attorneys' fees in connection therewith
paid by Lessee .
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(f) Without Lessor' s prior written consent, which shall not
be unreasonably withheld, Lessee shall not take any remedial
action in response to the presence of any Hazardous Materials on,
under, or about the Property, nor enter into any settlement
agreement, consent decree, or other compromise in respect to any
Hazardous Material Claims, which remedial action, settlement,
consent or compromise might, in Lessor' s reasonable judgment,
impair the value of the Lessor' s interest in the Property;
provided, however, that Lessor' s prior consent shall not be
necessary in the event that the presence of Hazardous Materials
on, under, or about the Property either poses an immediate threat
to the health, safety or welfare of any individual or is of such
a nature that an immediate remedial response is necessary and it
is not possible to obtain Lessor' s consent before taking such
action, provided that in such event Lessee shall notify Lessor
as soon as practicable of any action so taken. Lessor agrees not
to withhold its consent, where such consent is required here-
under, if either (i) a particular remedial action is ordered by a
court of competent jurisdiction or any regulatory agency, or
(ii) Lessee establishes to the reasonable satisfaction of Lessor
that there is no reasonable alternative to such remedial action
which would result in less impairment of Lessor' s interest in the
Property.
Section 24 . Defaults .
In the event any one or more of the following events shall
have occurred and shall not have been remedied as hereinafter
provided, that is to say: (i) the Lessee' s failure to pay any
installment under the leasehold Mortgage when the same shall be
due and payable and the continuance of such failure beyond any
applicable cure period provided thereunder; (ii) Lessee' s failure
to perform any of the covenants, conditions, and agreements
herein contained on Lessee' s part to be kept or performed and the
continuance of such failure for a period of thirty (30) days
after written notice from Lessor specifying the nature of such
failure; (iii) the transfer of ownership of the Improvements
located upon Property without compliance with Section 11 hereof;
or (iv) Lessee' s failure to perform any of the covenants,
conditions and agreements contained in the easement agreement
described in Section 20 and the continuance of such failure for a
period of thirty (30) days after written notice from Lessor
specifying the nature of such failure.
The Lessor may, at its option, give to Lessee a notice of
election to terminate this Lease upon a date specified and,
subject to the rights of leasehold mortgagees pursuant to Section
21, and upon the date specified, the term and estate hereby
vested in Lessee shall cease and any and all other right, title,
and interest of Lessee hereunder shall cease without further
notice or lapse of time, as fully and with like effect as if the
entire term of this Lease had elapsed, but Lessee shall continue
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a 1;
to be liable to Lessor as hereinafter provided. Simultaneously
with the sending of the termination notice to Lessee, Lessor
shall send a copy of such notice to the leasehold mortgagees and
to any sublessee (s) of the Property who have previously requested
any such notices .
(a) All rent and all other amounts collectible under this
Lease which are not paid within the applicable cure period shall
bear interest at a rate equal to two percent (2%) above the
Norwest Bank, Denver, N.A. published prime interest rate charged
to commercial customers (which may not be the lowest interest
rate at which such bank makes loans) from the date due until
paid. In addition, the Lessor may, at its option, assess a late
charge of five percent (5%) of any amount due which is not paid
within any applicable cure period. The phrase "applicable cure
period" as used in this subparagraph (a) shall mean Lessee' s cure
period only, such that if a leasehold mortgagee effects a cure
within its cure period (which is subsequent to Lessee' s cure
period) , leasehold mortgagee shall not be liable for the charges
set forth above, even though Lessee shall be so liable .
(b) In the event that Lessor gives notice of a nonmonetary
default which cannot be cured within the applicable cure period
available to Lessee (30 days) , or by the leasehold mortgagee (s)
within their cure period, then Lessee shall not be deemed in
default so long as Lessee or any leasehold mortgagee on behalf of
Lessee or itself commences promptly and proceeds with due
diligence to cure the default within a reasonable period of time .
(c) In case of any default which is not cured or in good
faith contested within the time periods permitted to Lessee
and/or to the leasehold mortgagees, Lessor shall then have the
option, without further notice to Lessee or further demand for
performance, to:
(1) Institute suit against Lessee to collect each
installment of rent or other sum as it becomes due or to enforce
any other obligation under this Lease; or
(2) As a matter of right, but subject to the rights of
any leasehold mortgagee hereunder which shall be given priority,
to procure the appointment of a receiver for the Property by any
court of competent jurisdiction. All rents, issues and profits,
income and revenue from the Property or other improvements shall
be applied by such receiver to the payment of the Rent, together
with any other obligations of the Lessee under this Lease; or
(3) Subject to the rights and privileges of the
leasehold mortgagees and their nominees or transferees set forth
at subsection 21 (c) of this Lease, to re-enter and take
possession of the Property or other improvements and all personal
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property therein and to remove Lessee and Lessee' s agents and
employees therefrom, and either:
a . Terminate this Lease and sue Lessee for
damages for breach of the obligations of Lessee to Lessor under
this Lease including Rent due under terms of this Lease for the
remainder of the term subsequent to termination; or
b . Without terminating this Lease, relet,
assign or sublet the Property or other improvements or any
portion thereon, as the agent and for the account of Lessee in
the name of Lessor or otherwise, upon the terms and conditions
Lessor, in its sole discretion, may make with the new lessee (s)
for such term or terms (which may be greater or less than the
period which would otherwise have constituted the balance of the
term of this Lease) and on such conditions as Lessor may deem
desirable and may collect and receive the Rent therefor, provided
Lessor shall in no way be responsible or liable for any failure
to relet the Property or any part thereof, or for any failure to
collect any Rent due upon any such reletting. In this event, the
Rents received on any such reletting shall be applied first to
the expenses of reletting and collecting, including, without
limitation, all repossession costs, reasonable attorneys' fees,
and any real estate commission paid, alteration costs and
expenses of preparing such premises for reletting, and thereafter
toward payment of the rental and of any other amounts payable by
Lessee to Lessor. If the sum realized shall not be sufficient to
pay such Rent and other charges Lessee will pay to Lessor, within
five (5) days after demand, any such deficiency. Lessor may sue
as each deficiency shall arise if Lessee shall fail to pay each
deficiency within the five (5) day period.
In the event Lessor elects to re-enter or take possession of
the Property and the improvements thereon, Lessee shall quit and
peaceably surrender the premises to Lessor, and the Lessor may
enter upon and re-enter the Property by force, summary
proceedings, ejectment or otherwise, and may dispossess and
remove Lessee and may have, hold and enjoy the Property and the
right to receive all profits and income of and from the Property.
(d) No such re-entry or taking of possession by Lessor
shall be construed as an election on Lessor' s part to terminate
or surrender this Lease unless a written notice of that intention
is served on Lessee .
(e) If Lessee shall in good faith dispute the existence of
any default asserted by Lessor andshall give written notice of
such dispute stating Lessee' s reasons as to why no such default
exists, and shall thereafter within thirty (30) days after giving
such notice of dispute initiate an action at law or in equity to
adjudicate whether any such default exists then, notwithstanding
the other provisions of this Lease, Lessor shall not be entitled
-21-
to terminate this Lease unless and until there has been a final
adjudication (including any appeals) of the existence of such
default, and Lessee shall have had an additional ten (10) days
after such final adjudication to cure or diligently commence to
cure (if not reasonably curable within such period) such default .
(f) The enumeration of the foregoing remedies does not
exclude any other remedy, but all remedies are cumulative, and
shall be in addition to every other remedy now or hereafter
existing at law or in equity. In addition, the foregoing
remedies shall be exercised in accordance with the rights and
privileges of the leasehold mortgagees set forth at subsection
21 (c) of this Lease .
(g) In the event of any breach by Lessee of any of the
agreements, terms, conditions or covenants contained in this
Lease, Lessor, in addition to any and all other rights, shall be
entitled to enjoin such breach and shall have the right to invoke
any right and remedy allowed at law or in equity or by statute or
otherwise for such breach as though re-entry, summary
proceedings, and other remedies were not provided for in this
Lease .
In the event that either party to this Lease shall enforce
any of the provisions hereof by any action at law or in equity,
the unsuccessful party agrees to pay to the prevailing party all
costs and expenses, including reasonable attorneys' , accountant' s
and appraiser' s fees, incurred by the prevailing party, including
all such costs and expenses incurred with respect to any appeal,
and they may be included in the judgment entered in such action.
Section 25 . Bankruptcy and Insolvency.
If, after the commencement of the term of this Lease;
(i) Lessee shall be adjudicated a bankrupt or adjudged to be
insolvent; (ii) a receiver or trustee shall be appointed for
Lessee' s property and affairs; (iii) Lessee shall make an
assignment for the benefit of creditors or shall file a petition
in bankruptcy or for the appointment of a receiver; or (iv) any
execution or attachment shall be issued or involuntary petition
in bankruptcy is filed against Lessee or any of Lessee' s
property, whereby the Property or any Improvements thereon shall
be taken or occupied or attempted to be taken or occupied by
someone other than the Lessee, except as specifically permitted
under this Lease, and such adjudication, appointment, assignment,
petition, execution, or attachment shall not be set aside,
vacated, discharged, or bonded within ninety (90) days after the
issuance of the same, then this Lease will not be canceled or
terminated and the Lessee, or any party claiming by, through or
under the Lessee, and/or any trustee in bankruptcy, shall have
the right to assume or reject this Lease pursuant to Section
365 (a) of the Bankruptcy Reform Act of 1978 or any successor
-22-
statute, and any leasehold mortgagee shall have, and is granted,
the exclusive right to exercise such right to assume or reject .
In the event that the foregoing grant is held to be unenforceable
by a court of competent jurisdiction, then and in such case the
Lessee covenants and agrees that the Lessee, any party claiming
by, through or under Lessee, and/or any trustee in bankruptcy
shall not exercise its rights to assume or reject this Lease
without having first obtained the prior written consent of
leasehold mortgagee . In the event that the foregoing is held to
be unenforceable by any court of competent jurisdiction, upon the
rejection of this Lease by the Lessee and/or any trustee in
bankruptcy, the leasehold mortgagee or any assignee of the
leasehold mortgagee shall have the right to assume the Lessee' s
interest under this Lease subject to the limitations provided in
Section 21 of this Lease .
Section 26 . Waivers .
The failure of Lessor or Lessee to complain of any act or
omission on the part of the other party, no matter how long the
same may continue, shall not be deemed to be a waiver by said
party of any of its rights hereunder. No waiver by Lessor or
Lessee at any time, express or implied, of any breach of any
provision of this Lease shall be deemed a waiver of a breach of
any other provisions of this Lease or a consent to any subsequent
breach of the same or any other provision. No acceptance by
Lessor of any partial payment shall constitute an accord or
satisfaction but shall only be deemed a part payment on account .
Section 27 . Force Majeure .
In the event that Lessor, Lessee, or any leasehold mortgagee
shall be delayed in, hindered in, or prevented from the
performance of, any act required hereunder by reason of strikes,
lock-outs, labor troubles, inability to procure materials,
failure of power, restrictive governmental laws or regulations,
riots, insurrection, war or other reason beyond their control,
then performance of such act shall be excused for the period of
the delay and the period for the performance of any such act
shall be extended for a period equivalent to the period of such
delay.
Section 28 . Notice .
Every notice, approval, consent or other communication
authorized or required by this Lease shall not be effective
unless same shall be in writing and personally delivered or sent
postage prepaid by United States registered or certified mail ,
return receipt requested, addressed to the other party as
follows :
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To the Lessor:
To the Board of County Commissioners:
Clerk of the Board of County Commissioners
P. O. Box 758
Greeley, Colorado 80631
To the Trustees:
c/o North Colorado Medical Center, Inc .
1801 16th Street
Greeley, Colorado 80631
w/ a copy to :
The Weld County Attorney
P. O. Box 1948
Greeley, Colorado 80631
To the Lessee:
North Colorado Medical Center, Inc .
1801 16th Street
Greeley, Colorado 80632
w/ a copy to:
Gorsuch Kirgis L.L. C.
Attn: Ellen E. Stewart, Esq.
1401 17th Street, Suite 1000
Denver, Colorado 80202
Either party to this Lease may from time to time change its
address for receipt of notice and other communications by giving
notice to the other party in wrirting and in accordance with the
procedure set forth above in this Section.
Section 29 . Certificates .
Either party shall without charge at any time and from time
to time, within thirty (30) days after written request of the
other, certify by written instrument duly executed and acknow-
ledged to any mortgagee or purchaser, or proposed mortgagee or
proposed purchaser, or any other person, firm or corporation
specified in such request : (i) whether this Lease has been
supplemented or amended and if so the substance of the supplement
or amendment; (ii) whether the Lease is in full force and effect ;
(iii) whether any default exists under this Lease; (iv) whether
any offsets, counterclaims or defenses exist ; (v) the commence-
ment and expiration dates of the Term; and (vi) with respect to
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any other matters reasonably requested. Any certificate may be
relied upon by the party requesting and receiving it .
Section 30 . Governing Law.
The terms and conditions of this Lease shall be governed,
interpreted, constructed, regulated and enforced by the laws of
the State of Colorado. Any suit or action to enforce or
interpret any provisions of this Lease shall be brought in the
District Court, Weld County, Colorado.
Section 31 . Partial Invalidity.
If any term, covenant, condition or provisions of this Lease
or the application thereof to any person or circumstance shall at
any time or to any extent be invalid or unenforceable, the
remainder of this Lease or the application of such term or
provision to persons or circumstances other than those to which
it is held invalid or unenforceable shall not be affected and
each term, covenant, condition and provision of this Lease shall
be valid and be enforced to the fullest extent permitted by law.
Section 32 . Interpretation.
Whether the singular number is used, the same shall include
the plural , and the masculine gender shall include the feminine
and neuter genders, and vice versa, as the context shall require .
The section headings are for reference and convenience only, and
shall not enter into the interpretation of this Lease . This
Lease may be executed in several counterparts, each of which
shall be an original, but all of which shall constitute one and
the same original instrument .
Section 33 . Entire Agreement .
No oral statement or prior .written matter shall have any
force or effect . Lessee agrees that it is not relying on any
representations or agreements other than those contained in this
Lease . This Lease shall not be modified or canceled except by
writing subscribed by all parties and approved by any Mortgagee .
Section 34 . Parties .
Except as herein otherwise expressly provided the covenants,
conditions and agreements contained in this Lease shall bind and
inure to the benefit of Lessor, Lessee and their respective
successors, administrators and assigns .
Section 35 . Lessor Cooperation.
At Lessee' s or any leasehold mortgagee' s request, Lessor
shall reasonably cooperate with and assist the requesting party,
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i
at the requesting party' s sole cost and expense, in circumstances
in which the joinder or act of the owner of the fee of the
Property shall be necessary or expedient, in the context of any
legislative, quasi-legislative, judicial, quasi-judicial or
administrative proceedings, whether formal or informal, or in the
context of any agreement with any third party concerning the
Property. Nothing contained in this Section 35 shall operate as
or be deemed Lessor' s consent to assist a leasehold mortgagee in
a foreclosure or similar proceeding by subjecting Lessor' s fee
interest in the Property to the lien of a leasehold mortgagee' s
Mortgage .
Section 36 . Lease Memorandum.
Lessor and Lessee acknowledge and agree that they may enter
into a brief Memorandum of this Lease, setting forth, among other
things, the names and addresses of Lessor and Lessee; a legal
description of the Property; the Term of the Lease; the names of
the leasehold mortgagees; and any other pertinent matters
affecting title . The Memorandum will be prepared by Lessee' s
counsel at Lessee' s cost and may be recorded in the Real Estate
Records of Weld County, Colorado.
Section 37 . Non-merger.
There -shall be no merger of this Lease or of the leasehold
estate hereby created with the fee estate in the Property or any
part thereof by reason of the fact that the same person may
acquire or hold, directly or indirectly, this Lease or the
leasehold estate hereby created or any interest in this Lease or
in such leasehold estate as well as the fee estate in the
Premises or any interest in such fee estate .
The parties have signed this Lease Agreement the day and
year first-above written.
LESSOR:
THE BOARD OF COUNTY COMMISSIONERS OF THE
COUNTY OF WELD, STATE OF COLORADO,
a body corporate and politic organized
under the Charter a/k/a The County of
Weld, a Municipal Corporation, at Weld
County, State of Colorado
I L
By:
Chairman, Board of County Commissioners
W. H. Webster (1/4/S
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HOARD OF TRUSTEES OF THE NORTH COLORADO
MEDICAL CENTER, a body corporate organized
and existing under the provisions of
C.R.S. 25-3-301, as amended
lc.o
vic --Chairman, B a of Trustees
LESSEE :
NORTH COLORADO MEDICAL CENTER, INC. , a
Colorado non-profit corporation
BY: inc-4.-P Q?
Michael J. Frick, Chairman
STATE OF COLORADO )
ss .
COUNTY OF )
The foregoing instrument was , skhowledged before me
this „-,:),'S day of December, 1994, by (Ric:Li k LlisdArl , as
Chairman of the Board of County Commissioners of the County of
Weld, State of Colorado.
Witness my hand and official seal .
My commission expires : Myiorn issionUpiresJanuary10,1995 C)No�CtC//ary Pulbli?
,,,_, ,,,, ,„ ciz____
\
( S E A L )
-27-
STATE OF COLORADO
ss .
COUNTY OF 1.f.1.E._. )
The foregoing instrument was acknowledged bfore -me
this ,) Tt°'day of December, 1994 , by ,;:Xl jL-i,ua kiAcg4.:1-1v
as Chairman of the Board of Trustees of the North Colorado
Medical Center.
Witness my hand and official seal .
My commission expires : 8-// - 9
Notary Public
( S E A L )
STATE OF COLORADO
) ss .
COUNTY OF yin ✓e r
The foregoing instrument was acknowledged before me
thist504‘, day of December, 1994 , by Michael J. Frick, as Chairman
of the North Colorado Medical Center, Inc.
Witness my hand and official seal .
My commission expires : c,20 -17
�...�� � Jt , .1
0 401 Notary Public
e ( S E A'
• I
•
1
•
• i i
i
'%. OF COVO
CLK\52358\104806.4 -28-
EXHIBIT A
(TO WELLER LEASE AGREEMENT)
All of Lots One (1) , Two (2) , Thirty-Two
(32) , Thirty-Three (33) , and the North
Thirty-Four feet (N 34 ' ) of Lots Three (3)
and Thirty-One (31) , in Block 5, FIRST
ADDITION TO FAIRACRES, in the City of
Greeley, Weld County, Colorado, according to
the recorded map or plat thereof .
CLK\52358\104806.4
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