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Home My WebLink About20001607 e ©rc/6 DEPARTMENT OF PLANNING SERVICES 1555 N. 17th Avenue, Greeley, CO 80631 Phone (970) 353-6100, Ext. 3540, Fax (970)304-6498 USE BY SPECIAL REVIEW APPLICATION Application Fee Paid &c2O Receipt# n52 7 LI Date Recording Fee Paid Receipt# Date Application Reviewed by: ,f4 . TO BE COMPLETED BY APPLICANT: (Please print or type, except for necessary signature) LEGAL DESCRIPTION OF SPECIAL REVIEW PERMIT AREA: s�/7 NW '/c/ c A!'/z Scv V/ $ -3—&8 PARCEL NUMBER: / 0 ri 0 ? a 0 0_5-a(12 d:git number-found on Tax I.D. Information or obtained at the Assessor's Office. Section 8 , T 3 N, R £7? W-Total Acreage 7C -Zone District Overlay Zone Property Address (if available) / 23 V We.2 3 LI% &7 ?0,s--/ 3 Proposed Use U4 q/esoJe/// / /V-WS-Pry SURFACE FEE (PROPERTY OWNERS) OF AREA PROPOSED FOR THE SPECIAL REVIEW PERMIT Name: —Pow, L; - n Address: 11, 31G. w c e 3 2093 Cite/State/Zip: Eer oRof, �� Home Telephone: 535 - 6 77-Business Telephone Name: Address: City/State/Zip: Home Telephone: Business Telephone APPLICANT OR AUTHORIZED AGENT (if different than above) *1 Name: / PI? L ire es 4 SA rd A5 `101 II;13-4,1 �e r a C g eNf l Address: / 13- toe,e 3 V34 City/State/Zip: Pi C-D 80313 Home Telephone: 9 7o-53 -34ZS9 Business Telephone: 9'70 - 5 35 (Q70) V3-1-18'17DEPARTMENT OF PLANNING SERVICES USE ONLY Case # Floodplain: ❑ Yes o No Geologic Hazard: ❑ Yes ❑ No I hereby state that alf statements and plans submitted with the application are ue correct to e best of my knowledge. Rev: 1-27-97 ti1: azure: Owner or Author V Agent 2000-1607 - e"1 r 1 r Use by Special Review Questionnaire 1. Explain, in detail, the proposed use of the property. We propose to use this property as a wholesale/retail nursery. We would like to begin by selling trees and shrubs,but in the future, 2001, branch out into other nursery and landscape products to include,but not limited to: packaged fertilizers, potting soil, gardening tools,pond supplies, gardening gifts, and all other landscape materials and supplies. In 2 to 5 years, we would consider buying the 5 to 10 acres to the east of this property with the idea of growing trees or expanding our nursery holding on that additional property. This would be done through a recorded exemption amendment. 2. Explain how this proposal is consistent with the intent of the Weld County Comprehensive Plan. Our vision of this project is to enhance the agricultural area in which we are located. The immediate surrounding agricultural land is not currently in production and we feel we can add to the look and feel o the agricultural area by putting in a small business that is agricultural in nature. As new subdivisions move into the area, it is becoming more and more important to try and maintain the agricultural area. Trees can play an important part in land preservation and air quality. 3. Explain how this proposal is consistent with the intent of the Weld County Zoning Ordinance and the zone district in which it is located. The intent of the A (Agricultural) District according to the Weld County Zoning Ordinance, is to "maintain and promote agriculture as an essential feature of the county". Because nursery products are agricultural related, we feel this is consistent with the intent of the county. We feel we can be an asset to the county in promoting agriculture as an essential feature of Weld County. 4. What type of uses surround the site? Explain how the proposed use is consistent and compatible with surrounding land uses. The land use directly surrounding the property is agricultural the immediate surrounding 85 acres is not currently in production. We feel we can put these 5 — 15 acres back into useful agricultural production. In addition, within an approximate 2-mile radius, housing developments are being built. We feel we can be an asset to these new developments by providing trees and shrubs to the community and help promote agriculture within the area. 5. Describe, in detail, the following: a. How many people will use this site? In the coming year, we anticipate approximately 10 customers per day. It's hard to anticipate how many landscapers will actually visit the business as opposed to doing business over the phone. We will also be making deliveries on a daily basis. As we expand to retail, of course these numbers will go up. b. How many employees are proposed to be employed at this site? Currently, we have 4 employees, as this business is seasonal we could have 8 employees during the summer and if the additional 15 acres is purchased we would have to expand that number to approximately 12 employees. r"\ r0") e^"` c. What are the hours of operation? Our hours of operation are from 7:30 am to 5:30 pm Monday through Friday and Saturday 8:00 to 12:00, March through October. In November, we will cut our hours to 8:00 to 4:30 Monday through Friday. d. What type and how many structures will be erected(built) on this site? Current completed structures on the site include an office warehouse combination, and another building that is currently being used by the landowner for storage of woodworking materials. This is the building that we hope to use as a retail center in the future. Future structures may include, but would not be limited to: a loading dock, hoop house, holding bins for bark dust, landscape rock, etc. e. What type and how many animals, if any,will be on this site? Currently, no animals are on site, however it is possible that we would have domestic animals in the future. f What kind(type, size, weight) of vehicles will access this site and how often? Other than employee vehicles and customer vehicles,we will be receiving loads of nursery stock via semi-trucks. These loads may be as often as 2 times a month during peak season and non-existent during the winter months. We also will have a small tractor and an all terrain type vehicle that will be used around the nursery. Future equipment purchases may include,but are not limited to: delivery van, small backhoe, and a tree spade. (Th g. Who will provide fire protection to the site? Fire Protection is provided by Mountain View Fire District with a sprinkler system installed in the office warehouse building with a horn light assembly. h. What is the water source on the property? (Both domestic and irrigation). Water source to the,preperty is through Little Thompson Water District. We are applying for a permit to dig a holding pond from which to irrigate. We have future plans to buy shares of water and draw from om e Supply Ditch through Consolidated Supply and Big Thompson Water Districts. The water share purchase should be completed in late 2000 or early 2001. i. What is the sewage disposal system on the property? (Existing and proposed). Sewage Disposal is engineered septic. j. If storage or warehousing is proposed, what type of items will be stored? Storage may include but is not limited to: Nursery products, nursery equipment and other landscape products. 6. Explain the proposed landscaping for the site. The landscaping shall be separately submitted as a landscape plan map as part of the application submittal. Landscaping of the proposed 5 acres will include some trees planted along the west property line, grass and shrubs surrounding the building and trees planted around the pond. 7. Explain any proposed reclamation procedures when termination of the Use by Special Review activity occurs. Reclamation will not need to occur. ' ' "es en) re-% 8. Explain how the storm water drainage will be handled on site. Storm water drainage will be directed into the pond to be recycled onto the nursery stock. 9. Explain how long it will take to construct this site and when construction and landscaping is scheduled to begin. Basic construction and landscaping on this site is completed. The pond will be completed just as soon as the necessary permit can be obtained. Future construction for additional items in 5d would be completed over the next 5 to 10 years. The north building will need some interior work in order to use it for the retail business. 10. Explain where storage and/or stockpile of wastes will occur on this site. Storage and wastes will be contained and collected by a refuse collector. Some inventory waste, for example, trees and branches may be ground up and recycled as compost. Jun 12 00 07: 30a TriAle B Trees 9.7535 4132 p. 1 1234 WCR 34.3/4 ^ Berthoud,CO 80513 970-535-4131 Phone TRIPLE B Trees & Shrubs 970-535-4132 Fax lax To: Chris Gathman Front Bill Berg Fax: 970-304-6498 pubes: 1 • Phone: Date: June 12,2000 Re: Water source •Comments: Chris, As a follow up to our phone conversation last week, I am sending you this fax with information relative to the digging of the proposed pond on the property located at 1234 34 3/4 WCR We have employed the services of two engineering firms.One was responsible for doing a soil sample as well as finding the water table while the other was responsible for the design and engineering of the pond itself. This should satisfy the weld county requirements we were instructed to complete before applying for a permit to build the pond.Our first priority is to complete the necessary steps,ie.use by special review,etc.so that we will be allowed to legally purchase the 5 acres and buildings currently located at the above-mentioned address. Our plans are to have the pond dug in late fall of this year after our selling cycle for this year is over. After the pond is dug we have approximately five different options as to how we could best fill and use the pond.We hope to explore each one in more detail over the winter and than make a decision that will be implemented in the spring of 2001.Some of our options include: • Working with some of our neighbors who currently have more than enough water/water rights • Buying/leasing/renting our own water share or shares and pumping it out of the supply ditch • The property owner that borders our property has applied to the state to dig a well and we have shared in that effort. These are just some of the options we have explored and investigated prior to making the decision to purchase the property.I hope this information helps if I can answer any other questions please feel free to give me a ralL Regards, Bill Berg • < r 1 LEASE-OPTION AGREEMENT This AGREEMENT is made this 22- day of May, 199 Xd between limited Paul Linn and Ann Linn, Landlord, and Triple B Nursery, LLC, a Colon mited liability company,Tenant. p- P WITNESSETH THAT In consideration of the mutual terms, promises, and conditions herein, the parties agree as follows: 1. Lease of Premises. The Landlord hereby leases to the Tenant, and the Tenant hereby leases from the Landlord, the land of approximately 5 acres and the south shop located in the building located at 1234 WCR 34 3/4, Berthoud, Colorado, more fully descri+bed on Exhibit "A" attached hereto as depicted on the drawing attached hereto as Exhibit "B", hereinafter referred to as the "Leased Premises" or the "Premises". Landlord reserves the right to allow itself and/or its other tenant to occupy the north shop area and to have non- exclusive rights to access and parking on and through the leased premises to serve the north shop area. The Leased Premises does not include any water rights which can be used for irrigation purposes. Together with all appurtenances thereto, and all fixtures attached thereto, in present condition. 2. Condition of Property. Tenant has examined, and accepts the building, improvements, and any fixtures, in present condition. No representation, statement, or warranty, express or im- plied, has been made by or on behalf of Landlord as to such condition, or as to the use that may be made of such property. In no event shall the Landlord be liable for any defect in such property or for any limitation on its use. Except as otherwise provided in this lease, Tenant shall return the property to Landlord upon expiration or termination of this lease, in present condition, ordinary wear and tear excepted. 3. Term. The term of this lease shall be 5 years, commencing on June 1,1999 and ending at noon on May 31, 2004. A. Holdover. Should the Tenant hold over and remain in possession of the Leased Premises after the expiration of this lease without the Landlord's consent, it shall not be deemed or construed to be a renewal or an extension of this lease but shall only operate to create a month to month tenancy which may be terminated by the Landlord at the end of any month upon ten (10)days prior written notice to the Tenant. B. Early Termination Landlord and Tenant are seeking to obtain the approval of Weld County for governmental approval to use the leased premises for purposes of a plant nursery and retail sales outlet. If such approval is not received from Weld County on or before.December 1,1999, Tenant shall have the right to elect to terminate the remaining term of this lease, provided Tenant gives written notice to Landlord, of its election to terminate this lease • agreement on or before December 5,1999 and provided Tenant vacates the premises on or before December 31,1999, with Tenant to be responsible for the lease payments due through December 31,1999. 4. Delivery of Possession. • The Tenant shall be entitled to possession of the Leased Premises at noon on the date of commencement of the lease term. 5. Rental. Tenant shall pay to the Landlord, at such place as the Landlord may desig- nate in writing, rent in an initial amount based on $2,000.00 per month commencing June 1,1999. On June 1, 2000 and each June 1st thereafter during the term of this lease, the rental amount shall increase by $140.00 per month over the amount of the monthly rental paid during the prior year. • Tenant shall pay the.rental due June 1,1999 prior to taking possession. • Tenant will pay a late charge equal to five percent of any monthly rental payment not paid within 5 days of when due to offset Landlord's administrative expenses. 6. Use. The Tenant may use the Leased Premises for purposes of office use only until such time, and provided Landlord and Tenant are.successful in obtaining the approval of Weld County for governmental approval to use the leased premises for purposes of a plant nursery and retail sales outlet. if approval is not received from Weld Coumt:y on or before December 1,1999, Tenant shall have the right to elect to terminate the remaining term of this lease provided Tenant vacates the premises on or before December 31„1999, with Tenant to be responsible for the lease payments due through December 31,1999. Tenant shall not use nor permit the leased property or any part thereof to be used f<or any unlawful business, or use, nor for any business, or use, deemed extra-hazardous or which would void or make voidable any insurance coverage, nor in any manner which is in violation of any.present or future governmental laws or regulations. It shall be Tenant's sole and exclusive responsibility to meet.alEl fire and safety regulations of any govern •ental entity having jurisdiction over the Leased Premises; at Tenant's sole expense. Tenant shall not allow any odors, fumes, vibrations, or noise which would cause disruption of normal activities on adjacent premises or create a nuisance. The Tenant shall indemnify the Landlord against all costs, expenses, liabilities, losses, damages, injunctions, suits, fines, penalties, claims, and demands, including reasonable a'ttorney's fees, arising out of any violation of or default in this covenant by Tenant. In the event Tenant proposes to make • any additional use of the premises, it shall notify Landlord and such additional use shall only be made upon Landlord's written consent which shall not be unreasonably withheld. Tenant shall not engage in any business wherein hazardous substances are used or any hazardous materials released or threatened to be released, including, but not limited to, the business of.generating, transporting, storing, treating or disposing of haz- ardous substances or hazardous waste except in conformance with all applicable laws and regulations concerning the use, storage and transportation of hazardous materials. Haz- ardous Waste or Hazardous Materials shall include, but shall not be limited to, substances defined as "hazardous substances" in the Comprehensive Environmental Response, Com- pensation and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601 et. seq; or Colo. 3 r Rev. Stat. §§ 25-16-101 et seq..or 25-15-101 et seq.; the Hazardous Materials Transporta- tion Act of 1975, 49 U.S.C. §§ 1401 et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 69.0'l et seq; or any amendments or supplements thereto,. The Leased Premises=shall not be used for the storing or disposal of waste or for storing or dis- posal of hazardous substances during the term of the lease except conformance with all applicable laws and'regulations concerning the use, storage and transportation of hazardous materials. Tenant shall comply with all applicable environmental laws, rules and regu- lations concerning the Tenant's business. Tenant shall provide to Landlord copies of all reports required by environmental agencies within (15) fifteen days of filing. Tenant shall provide Landlord monthly with copies of manifests and any paperwork related to the generation, transportation and disposal of hazardous substances.from the premises during the prior month. Landlord shall have.the right to review Tenant's files for any reports, manifests, and other paperwork related to the terms of this paragraph in order to ensure Tenant's compliance. 7. Possession and Quiet Enjoyment. The Tenant, upon the payment of the rent and upon the performance of all the terms of this lease, shall at all times while the lease is in force, peaceably and quietly possess.and enjoy the Leased Premises without any disturbance froth the Landlord or from any other person claiming through the Landlord. 8. Maintenance and Repairs. All maintenance and repairs shall be performed by Tenant, at its own expense, including all necessary repairs and replacements to pipes, heating systems, plumbing systems, electrical systems, window glass, doors, fixtures, interior decorations, septic tank and leach field and all other appliances and appurtenances. Such repairs and replacements, interior and exterior, ordinary as well as extraordinary, shall be made promptly, as and when necessary. All such repairs and replacements shall be in quality and class at least equal to.the original work. On default of the Tenant in making such repairs or replacements, the Landlord may, but shall not be required to, make such repairs and replacements for the tenants.account, and the expense shall constitute and be collectable as additional rent, together with interest thereon at the rate of eighteen percent per annum until paid. Tenant shall not allow or permit any waste of the Leased Premises, and shall keep the leased grounds free of trash or debris. Tenant shall not store any items outside the building without prior written consent from Landlord, and shall use only such storage areas as may be designated by Landlord. 9. Condition Upon Surrender. The Tenant shall vacate the Leased Premises in the same condition in which the Premises now is, ordinary wear and tear excepted, and shall remove all of the Tenants property, so that the Landlord can repossess the Leased Premises not later than noon on the day upon which this lease or any extension ends, whether upon notice, holdover or other- wise. The Landlord shall have the same rights to enforce this covenant by ejectment and for damages or otherwise.as for the breach of any other condition or covenant of this lease. Except as otherwise provided herein, the Tenant may at any time prior to the termination of /'1 /" 4 eTh this lease or any renewal or extension, remove all materials, equipment, and property of every other sort.or nature,installed and owned by the Tenant; provided that such pro is removed without suibstantioat *pity to the Leased Premises. No inter)/ shall be considered substantial isuprompti',y,corrected,by restoration to the condition prior to the installation of such property. Any such property'not retrieved shall become the property of the Landlord. 10. Alterations. Upon Landlord's prior written consent, the Tenant shall have the right, from time to time, to make non-structural alterations and improvements to the Leased Premises provided that prior to commencement of any such work, the Landlord shall in each case have approved in writing the plans and specifications for such work, which consent shall not be unreasonably withheld. If Within thirty days after such plans and specifications are submitted by the Tenant to the Landlord for such approval, the Landlord shall have not given the Tenant notice of disapproval, stating the reason for such disapproval, such plans.and,specifications shall be considered approved by the Landlord. All work done by Tenant shall conform to all applicable governmental regulations and requirements with all required permits to be paid for by Tenant. If any such work done by Tenant causes damage to the structural portions,or roof of the Leased Premises, then the costs of all maintenance and:repairs.to such damaged parts or roof shall thereafter be the responsibility of Tenant. Notwithstanding the fact that alterations may be made by the Tenant, during the lease!term or any renewal or extension, the Tenant shall have the duty to return the Leased Premises upon termination or expiration of the lease, to the Landlord in the same condition as when received by the Tenant, ordinary wear and tear excepted; provided, however, that Landlords shall have the option to require Tenant to leave all such alterations, improvements and fixtures in place,in which case the same shall'be and remain the property of Landlord. Further, in connection with any improvements and alterations to the leased premises, Tenant shall indemnify the Landlord from any lien arising out of any such work performed or materials furnished, and shall indemnify and hold harmless the Landlord from any liability or loss, of any type or nature, including reasonable attorney's fees, arising out of any lien or claim based on work performed or materials furnished. Landlord shall have the'right to require Tenant to furnish adequate bond or other security acceptable to Landlord* of any such work,performed by Tenanit, and shall have the right to require adequate len waivers on any,such work performed by Tenant. Landlord shall also have the right to post notice of non-liability for any such work, at appropriate places in the Leased Premises. 11. Signs. Tenant shall place no signs on the Leased Premises without prior written consent of Landlord, with consent shall not be unreasonably withheld, and all permitted signs shall be placed in compliance with applicable laws and regulations. 12. Taxes. The Tenant shall pay as additional rent, all real estate taxes, assessments, • and other charges, as shall,from and after the date hereof, be assessed upon the Leased Premises and any appurtenances or improvements, only to the extent that such charges exceed the base year 1999 real estate taxes. Landlord shall be responsible to pay the amount of the 1999 base year taxes. The Tenant shall pay one-twelfth (1/12) of the estimated additional rent, with each monthly rental payment. Such payments shall be separately I^\ em 5 accounted for by Landlord, and shall be used to make prompt payment of such taxes as they come due. If the estimated patyments mmade by Tenant are not sufficient to fully pay such additional rent as such itemn+s eerie due,Tenant sl aoll pay to Landlord any amount necescary to make up the deficiency within, thirty (,3'0) days of notice from Landlord. Landlord shall have no obliga¢hon to pay any interest to Tenant on additional rent, but Landlord shall give Tenant an aannual accounting showing credit for such payments made by Tenant, and debits for paymrents made by'Lamtdlord. If Tenant fails to make any required payment to Landlord, Landlord may, b' t shamlt not,be required to, pay any such tax and shall become entitled to rePaymrent from the Tenafit without demand, together with interest thereon at the rate of eighteen',percent 48%) per annum. The real,estate taxes, assessments, water and sewer rents, and other charges for the year in which the term of this lease shall begin, as well as for the year imn which the lease shall end, shall be apportioned so that the Tenanttshalllrpay only theportions that correspond with the portions of such years as are within such lease term. Thhe Tenant may in good faith contest, by appropriate proceeding iand at the Tenants,expense, in the Landlordls or Tenant's name, whenever necessary, any assessment,,and maymdefer payment thereof, provided=that Tenant shall deposit with Landlord sum which sfeti.`at least twenty-five percent(2,5j%) greater than the amount of the item so conceited Pius rectal interest and penalties,. The Landlord may pay such contested item out of in sums anty so deposuted in case of undue delay the prosecution of such proceeding or if,Landlord deemscit necessary for the.protection of the LeasedTremises. Landlord shall refund any exdess monies held on deposit after payment or conclusion of the,dispute. Tenant shall be responsible to pay all taxes assessed against Tenant's personal property and/or fixtures which Tenant places on the premises. 13. Utilities. The Landlord shall not be required to furnish to Tenant any facilities or ser- vices of any kind, such as but not limited to, water, hot water, heat, gas electricity, light, and power. The Tenant shall pay all charges for propane, gas, electricity, light, heat, power, water and lawn watering, and telephone or other communication services or other utilities used, rendered, or supplied, upon or in connection with the Leased Premises,and the Tenant shall indemmniify the Landlord against any liability or damages on any such account. In the event Tenant fails to pay the utility bills as they come due, Landlord may have the utility services placed into its name in order to prevent damage to the premises, and Landlord may declare a default under the lease. 14. Insurance. The Landlord shall keep the building and improvements insured throughout the term of this lease against losses as Landlord deems appropriate. Landlord shall pay any premium on such policy and Tenant shall reimburse Landlord for 100 percent of any increase in the insurance premium over the 1999 base year amount of the insurance premium paid by Landlord. Such insurance premiums owed by Tenant shall be considered as additional rent and shall be due within!twenty (20) days after Landlord has made demand for the same. Landlord shall have no obligation to insure Tenant's property. Tenant shall maintain, at the sole expense of the Tenant, the following in- surance throughout the term of this lease: 6 r A. Liability. Claims for liability and property damage under a comprehensive general broad form liability policy wrth such-punits as may be reasonably requesited by the Landlord from time to time, but aot less thaw.$500,0 0 0.00 combined'single.!limit liability'policy. All such hability and propertyWdarnage insurance shall specificalPly insure the performance by Tenant of the indemnity agreement as to liability under this lease agreement. B. Tenant Improvements. Insurance covering all attached improvements and fixtures including ceiling, electrical and light, partitioning, walls, restrooms, carpeting, etc., whether provided by Landlord or not, in any amount not less than 100,percent(100%) of their full replacement cost value, providing protection agai st any peril included within the classification of broad form. Insurance covering all of Tenaht's leasehold improvements, alterations, additions or improvements, trade fixtures, merchandise and„personal property from time to time, in on or upon the Preimses, in an amount not less than eighty percent (80%) of their full re- placement cost from time to time du4g the term of this lease, providing protection against any peril included within a broad form policy. Any policy proceeds shall be used for the repair or replacement of the property damaged or destroyed unless this lease shall cease and terminate due to destruction of the premises as provided below. C. Other. r""+ Against such other hazards and in such amounts as the holder of any mort- gage or deed of trust to which the lease is subordinate may require from time to time. D. Other Provisions Regarding Tenant's Insurance. All insurance required of Tenant in this lease shall be effected under en- forceable policies issued by insurors of recognized responsibility licensed to do business in this State. At least fifteen days prior to the expiration date-of any such policy, a certificate evidencing such insurance shall be delivered by the Tenant to the Landlord. Within fifteen days after the premium on any policy shall become due and payable, the Landlord shall be furnished with satisfactory evidence of its payment. All,policies of insurance shall name the Landlord as an additional insured and the Tenant as the insured, as their respective in- terests may appear. At the request of the Landlord any insurance policy shall be made payable to the holders of any mortgage or deeds of trust to which this lease is at any time subordinate,as the interest of such holders may appear. To the extent obtainable, all poli- cies shall contain an agreement by the insurors that any loss shall be payable to the Land- lord or the holder of any such mortgage or deed of trust, notwithstanding any act or negli- gence of the Tenant which might.otherwise result in forfeiture o€such insurance, and that such policies shall not be canceled except upon ten (10) days prior written notice to the Landlord or the holders of any mortgage or deed of trust to whom loss may be payable, and that the coverage afforded thereby shall not be affected by the performance of any work in or about the leased property. • • If the Tenant provides any insurance required of Tenant by this lease in the form of a blanket policy, the Tenant shall furnish satisfactory proof that such blanket policy complies in all respects with the provisions of this lease, and that the coverage thereunder is /i- at least equal to the coverage which would be provided under a separate policy covering only the leased premises. !1 trit 7 If the definition of insurance industry policy language relating to broad form insurance or other term changes, the insurance requirements hereunder shallbe modified to conform to the e'xistmg tnsuranee rndiustry, lancguage, however,the coverages regi o un- der this lease shall not be less itliatithOSeei.cistifigtit the time of the effective 4beginning date of this lease. 15. Right of Entry. Upon reasonable notice by Landlord to Tenant, the Landlord and its repre- sentatives may enter th4e Leased Premises at any reasonable time for the purpose of inspect- ing the Leased,Premtrses, performing any work which the Landlord elects to undertake made necessary by reason of tenant's default under the terms of this lease, exhibiting the Leased Premises for sale, lease, or mortgage financing, or posting,notices of notrresponsi- bility under any mechanic's.lien law. Landlord does reserve the right to go upon and deal with the Leased Premises or any part thereof for.the purpose of itnplenrenting a common development plan for any project of which the Leased',Premises'may be apart, and to install non-exclusive roadways and other street improvements for use by vehicles; pedestrians, and for parkiEng, to undertake such drainage programs to handle underground and surface drainage water and to make any other changes or improvements as Landlord may deem ad- visable in the exercise of Landelord's sole discretion; provided, however, that any such ac- tion by Landlord shall not unreasonably interfere with the rights of Tenant. 16. Casualty Damage. If the Leased Premises, shall be so damaged by fire br other casualty as to render them wholly untenantable, and if such damage shall be so great that a competent ar- chitect,in good standing,selected by Landlord shall certify in writing to Landlord and Ten- ant that the Premises, with the exercise of reasonable diligence, cannot be made fit for occupancy within one hundred eighty (180) working days, then this lease shall cease and terminate from the date of the occurrence of such damage; and Tenant thereupon shall sur- render to Landlord the"Premises and all interest hereunder, and Landlord may reenter and take possession of the P"r,"emises and remove Tenant therefrom. Tenant shall pay rent and other charges duly apportioned,up to the time of such termination of this lease. If, however, the damage shall be such that said architect shall certify that the Premises can be made tenantable within a one hundred eighty(180) day period, then, ex- cept as hereinafter provided Landlord shall repair the damage in a competent manner to the extent of the insurance proceeds received by Landlord. • If the fire or other casualty causing injury to the Premises or other parts of the Building shall have been caused by the negligence or misconduct of Tenant, its agents, servants or employees, or by any other person entering upon the Premises under express or implied invitation of Tenant, such injury shall be repaired by Landlord at the expense of Tenant. In case the Building shall be so injured or damaged, whether by fire or oth- erwise (though the Premises may not be affected„or if affected, can be repaired within said one hundred eighty (180) days) that Landlord within sixty (60) days after the happening of �,� such injury shall decide not to reconstruct or rebuild the Building, then, notwithstandng anything contained herein to the contrary, upon notice in writing to that effect given by Landlord to Tenant within said sixty (60) days, Tenant shall pay the rent properly appor- 8 tinned up to such date, this lease shall terminate from the date of delivery of said written notice and both parties hereto shall be freed and discharged of all further obligations here- under. Notwithstanding the foregoing„ in the event the holder of a mortgage granted by Landlord, covering the Leased Premises,fails to authorize the repair or restora- tion of the Premises or fails to release the insurance proceeds, or if Landlord elects not to restore the Premises at its sole election, then this lease shall terminate as of the date Land- lord notifies Tenant of such event.and the!rental payments and other charges due under the lease shall be apportioned to such notice date. 17. Condemnation. If the whole of the Leased Premises or such portion thereof which will make the Leased Premises unsuitable for the.purposes herein leased, is condemned for any public use or purpose by any legally constituted authority, then in either of such events this lease shall terminate from the time when possession is taken by such public authority and rental shall be accounted for as of the date-Of the surrender of possession. Landlord shall receive the entire award or consideration for the lands and imiprovernents taken and Tenant waives any claim to such award,except that Tenant may separately claim and recover from the condemning authority the value of any personal property owned by Tenant. 18. Assignment and Subletting. r'"'t The Tenant shall not assign, mortgage, or encumber this lease, nor sublet or permit the Leased Premises or any part thereof to be used by others, without the prior written consent of the Landlord in each instance, which consent shall not be unreasonably withheld. If this lease is assigned, or if the Leased Premises or any part thereof is.stibket, or occupied by anyone other than the Tenant, the Landlord may, after default by the Tenant, collect rent from the assignee, stub-tenant, or occupant and apply the net amount collected a.g,Sst all renit herein reserved. No such assignment, subletting, occupancy, or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee,sub- tenant, or occupant as tenant, or a release of Tenant from further performance by the Tenant of the covenants in this lease. The consent by the Landlord to air assi-gnment or subletting shall not be construed to relieve the Tenant from obtaining the consent in writing of the Landlord to any further assignment or subletting. 19. Subordination to Mortgage. This lease shall be subject and subordinate at all times to the lien of any ex- isting and/or future mortgages and trust deeds on the Leased Premises. Although no in- strument or act on the part of the Tenant shall be necessary to effectuate such subordination the Tenant will, execute and deliver such further instruments subordinating this lease to the lien of any such mortgages or trust deeds as may be desired by the mortgagor or holder of such trust deeds. The Tenant hereby appoints the Landlord as his attorney in fact, irrevoca- bly, to execute and deliver any such instrument for the Tenant. Tenant further agrees at any time and from time to time upon not less than ten (10) days prior written request by Land- lord, to execute, acknowledge, and deliveri to Landlord an estoppel.affidavit in form accept- able to Landlord and the holder of any existing mortgage or deed of trust encuumbering the Leased Premises. Tenant's failure to deliver such statement within such time shall be conclusive upon Tenant (1) that this lease is in full force and effect, without modification except as may be represented by Landlord; (2) that there are no uncured defaults in Land- • ter re) lord's performance; and (3) that not more than one (1) month's rent has been paid in ad- vance. Further, upon request, Tenant Shall supply to Landlord a corporate resolution certi- fying that the party srgmng this statement on behatlf of Tenant is properly authorized to do so, if Tenant is a corporation. Tenant agrees with Lender and Landlord that if there is a foreclosure of any such mortgage or deed of trust and pursuant to such foreclosure, the Public Trustee or other appropriate officer executes and delivers'a deed to the lender or its designee to the Leased Premises„or in the event Landlord conveys the Leased Premises to the lender or its designee in lieu of foreclosure, Tenant will attom to such grantee of the lease Premises, rather than to Landlord, to perform all of Tenant's obligations under the lease, and Tenant shall have no right to terminate the lease by reason of the foreclosure or deed'given in lieu thereof. • Provided Tenant is not in default under the terms of this lease and Tenant is then in possession of the Leased Premises, tenant's rights of quiet enjoyment arising out of the lease shall not be affected or disturbed by Lender in the event of a default by Landlord and any sale of the premises through foreclosure of any deed of trust or otherwise. 20. Indemnity. The Tenant shall indemnify and hold harmless the Landlord from and against all liabilities, penalties, damages,judgments, and expenses, including reasonable attorney's fees incurred by Landlord in defending or satisfying any claim of any type or nature,includnS Personal injiury claims or property d wage•clams,"arising out of the use, occupancy, or control of the leased property or any of its appurtenances by Tenant. A. Hazardous Materials Indemnification Tenant hereby agrees to indemnify Landlord and hold Landlord harmless • from and against any and all claims, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial action require- ments, enforcement actions of any kind and all costs anti expenses incurred in connection therewith (including but not limited to attorneys' fees and expenses),.arising directly or in- directly, iri whole or in part, out of the presence on or under the Leased Premises, of any Hazardous Materials (as defined herein) or any releases or discharges of any Hazardous Materials by Tenant or any employees, agents, contractors or subcontractors of Tenant or other persons occupying or present on the Leased Premises, in connection with the han- dling, treatment, removal, storage, decontamination, cleanup, transport or disposal of any Hazardous Materials at any time located or present on, under or about the leased premises. The foregoing indemnity shall further apply to any residual contamination on or under the Leased Premises or affecting any natural resources and to any contamination of any of the Leased Premises and/or natural resources arising in connection with the generation, use, handling, storage, transport or disposal of any such Hazardous Materials and irrespective of whether any of such activities were or will be undertaken in accordance with applicable laws, regulations, codes and ordinances. For purposes of this Agreement, the terms "disposal," "release," "threatened release," "hazardous substances," and "hazardous wastes" shall mean and in- clude any hazardous, toxic or dangerous waste, substance or material or any disposal, dis- charge, release or threatened release or any defined as such in any federal, state or local /"1 10 fie\ statute, law, ordinance, code, rule, regulations, order or decree regulating, relating to, or imposing/lability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material as now or at any time hereafter in effect. 21. Security. The Tenant shall deposit with the Landlord the sum of $600.00, on or before June 1,1999, as security for the full and faithful performance by the Tenant of all the terms of this lease required to be performed't y the Tenant. Such sum shall be returned to the Tenant within sixty(60) days after the expiGration of this lease, provided the Tenant has fully and faithfully carried out all terms. OthOrwise, the Landlord may use, apply,or retain the whole or any part of such amount to the extent required for the payment of any rent or other obligation as to which the Tenant is in default under the terms of this lease. In such event Tenant shall upon written demand from,Landlord, immediately remit to Landlord a sufficient amount in cash to restore such deposit to its original amount. Landlord shall have the right to,commingle such deposit with other funds of Landlord and Tenant shall not be entitled to interest on the monied held on deposit. In the event of a sale of the Leased Premises by the Landlord,ithe Landlord shall have the right to transfer such security to the purchaser to be held under ithe terms of this,lease, and the Landlord shall thereupon be released from all liability for the return of such security to the Tenant, and the Tenant shall look solely to the new landlordefor the return of such security. The Tenant shall not assign nor encumber the money d $sited as security„ and neither the Landlord nor its successors or assigns shall be bound by any such assignna'ent or encumbrance. re% 22. Default. The occurrence of any of the following shall constitute an event of default: (1) Delinquency in the due and punctual payment of any rent or additional rent payable un- der this lease. (2) Delinquency by the Tenant in the performance of or compliance wi!Eh any conditions contained rn this lease other than those referred to it the foregoing subparagraph (1), for a period of ten (10)days after written notice thereof from the Landlord to the Ten- ant, except for any default not susceptible of being cured within such ten (10) day period, in which event the time permitted to the Tenant to cruse such default shall be extended for as long as shall be reasonably,necessary to cure such default, provided the Tenant commences promptly and proceeds diligently to cure such default, and provided further that such period of time shall not be so extended as to jeopardize the interest of the Landlord in this lease or so as to subject the Landlord or the Tenant to any civil or criminal liabilities. (3),Filing by the Tenant in any court pursuant to any statues, either of the United States or any state, of a petition in banbuptcy or insolvency, or for reorganization, or for the appointment of a re- ceiver or trustee of all or a portion of the Tenant's property, or an assignment by the Tenant for the benefit of creditors. (4) Filing against the Tenant in any court pursuant to any statute, either of the United States or of any state, of a petition in bankniptcy or insolvency or for reorganization, or for appointment of a receiver or trustee of all or a portion of the Tenant's property, if within ninety days after the commencement of any such proceeding against the Tenant such petition shall not have been dismissed. A. Upon the occurrence of an event of default, the Landlord at any time thereafter may give written notice to•the Tenant specifying such event of default and stating that this lease shall terminate on the date specified in such notice, which shall be at least t.., three days after the giving of such notice, and upon the date specified in such notice this lease and all rights of the Tenant shall terminate. Upon the expiration of this lease pursuant to this article, the Tenant shall peacefully surrender the Leased Premises to the Landlord, 11 and the Landlord, at any time after such expiration, may without further notice reenter the Leased Pratt*?and repossess it by force, summary proceedings, ejectment, or otherwise, and may dispi ossess the1Tertant ands remove the Tenant and all Other persons and property from the Leased.+Premises and may have,hold, and enjoy the Leased Premises and the right to receive all rental income therefrom. B. At any time after any such termination the Landlord may relet the Leased Premises or any part thereof, in the name of the Landlord or otherwise, for such term (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 (which may include concessions or free reign) as.the Landlord, in its reasonable discretion, may determine, and may collect and receive:the:rent therefor. The Landlord shall in no way be responsible or liable for any failure torelet the Leased Premises or any part thereof, or for any failure to collect any rent due upon any such reletting. C. No such termination of this lease shall relieve the Tenant of its liability and obligations under this lease, and such liability and obligations shall survive any such termination. In the event of any such termination, whether or not the Leased Premises or any part thereof shall hatve,been relet, the Tenant shall pay to the Landlord the rent and ad- ditional rent required to ibe paid by the Tenant up to the time of such termination and there- after the Tenant, until the end of what would have been the term of this lease in the absence of such termination, shall be liiable to the Landlord for, and shall pay to the Landlord, as and for liquidated and agreed cuwrent damages for the Tenant's default: (1) The equivalent of the amount of the rentEand additional rent which would be payable under this lease by the e"'" Tenant if this lease were st Sin effect, less(2) The net proceeds of any reletting effected pursuant to the provisions of aragra'ph p of this article, after deducting all the Landlord's expenses in connection with such reletting, including, without limitation, all repossession costs, brokerage commissions, legal expenses, reasonable attorney's fees, alteration costs, and expenses of preparation of sheh teletting.The Tenant shall pay such current damages, herein called deficiency;, to the Landlord,monthly on the days on which the rent and addi- tional rent would have teen payable under this lease if this lease were still in effect. Noth- ing herein contained Shall limit or prejudice the right of the Landlord to prove for and obtain damages by reasons of such termination. D. The Tenant hereby expressly waives, so far as permitted by law, the service of any notice of Wention to reenter provided for in any statute, or of the institution of legal proceedings to that end. The Tenant, for and on behalf of itself and all persons claiming through or under the Tenant, also waives any right of redemption or reentry or re- possession or to restore idle operation of this lease in case the Tenant shall be dispossessed by a judgment or by warrant of any court or judge or in case of reentry or repossession by the Landlord. In case of any litigation under this lease, the Landlord and the Tenant, so far as permitted by law, waive trial by jury in any action, proceeding, or counterclaim brought by either of the parties hereto,against other on any matter arising out of or in any way connected with this lease,the relationship of Landlord and Tenant, the Tenant's use or oc- cupancy of the Leased Premises, or any claim of injury or damage; and further agree that the party not in default shall be entitled to recover, from the party in default, all costs and reasonable atto ney s fees incurred by the nondefaulting party in enforcing its rights under this lease agreement. E. The terms "enter", "reenter", "entry" or "reentry", as used in this lease fleN • are not restricted to their technical legal meaning. 12 F. Any amounts not paid by Tenant to Landlord when due shall draw in- terest at the rate of eighteen percent,per annum from due date until paid. Payment of such interest shall not excuse or cure any default by Tenant under this lease. G. No assent, express or implied, to any breach of one or more of the covenants or terms of this lease shall'be deemed or construed to be a waiver of any suc- ceeding or other breach. H. As security for Tenant's payment of all rent, damages, and all other payments required to be made by this lease agreement Tenant hereby grams to Landlord a • lien upon all property of Tenant now or subsequently located upon the Leased Premises. If Tenant abandons or vacates any substantial portion of the Leased Premises or is in default in the payment of any rentals, damage,or other payments required to be paid by this lease, Landlord may enter upon the I Pnsed!Premises,:and take possession of all or any part of the personal property, and may sell alinr any part of ithepersonal property at a public or private sale, in one or successive sales, with or without notice,to the highest bidder for cash dekv- ering to the highest bidder,all of Tenant's title and interest in the personal property sold. The proceeds of any such sale of pers',onal property shallbe applied by Landlord toward the cost of the sale arid then toward the payment of all sums then due by Tenant to Landlord under the terms of this lease and any excess shall be sent to Tenant. Landlord agrees to subordinate thelien granted herein, to a financial institution to permit Tenant to pledge its personal property as Collateral for a loan, provided, that the financial institution executes an agreement with Landlord that such lender agrees to remove collateral within forty-eight(48) hours of receipt ofnoitice from Landlord that Tenant is in default and if lender fails to timely remove such collateral that Lender shall be obligated to Landlord for the rent and additional rent accruing under the lease while the collateral remains on the Leased Premises. I. Notwithstanding anything to the contrary contained herein, Landlord's li- ability under this lease agreement shall be limited to Landlord's interest in the Leased Premises. J. In case of any litigation under this agreement, the prevailing party shall be entitled to recover reasonable attorneys fees and costs. In the event of a default by Tenant after Tenant has given notice of intent to exercise the option to purchase as hereinbelow specified, Landlord may elect to treat this entire lease agreement and the option contained herein as terminated, in which case all payments made by Tenant as option money and security deposit shall be forfeited and retained by Landlord as liquidated damages; alternatively Landlord may elect to treat this agreement as remaining in full force and effect and shall have the right to an action for specific performance or damages, or both, or such other relief as may be available to Landlord under the terms specified hereinabove. If Landlord should default with respect to this agreement after notice of intent to exercise the option has been given by Tenant as hereinbelow specified, Tenant shall have the right to treat this entire agreement as terminated, but Tenant shall not receive a refund of Tenant's option money, except to the extent any part thereof may be recoverable as actual damages. Tenant may also recover such other damages as may be available under law; or Tenant may elect to treat this agreement as remaining in full force and effect and Tenant shall thereupon have the right to an action for specific performance or damages, or both, and such other relief as may be available to Tenant as hereinabove specified. • 13 f • 23. Option In consideration of the additional non-refundable sum of $10.00, paid by Tenant to Landlord concurrently herewith as option money and part payment toward the option pace, LanillordSei$bdy,grannts to Tenant the right,and option to purchase the subject property, (whiell propert' does not include any water nights which .may have been historically been used•ori diestibleit property) at any tithe prior to May 31, 2004, under the following conditions: A. Exercise of Option Provided Tenant is not at such time in default with respect to this lease agreement, Tenant may exercise this option by giving written notice of such intent to Landlord at any time after Landlord has Obtained the approval of Weld Cotmty for a recorded exemption process which permits the lands on which the Leased Prem>ises are situated, (hereinafter referred to as the "Property") to be conveyed as a separate lot, provided however, Tenant shall only be permitted to elect to exercise its option to,purchase, and to give notice of its election to exercise the option, during the period •of June 1st through December 31st o€each year, with t ie closing to occur not later than 30 days after Tenant gives its notice of election to purchase. B. Purchase Price The purchase price for the first year of this lease agreement shall be a total of$260,.000.00, Beginning. June 1, 2000 and each June 1st thereafter diming the term of this lease agreement, the purchase price shall,be increased by 7:0 percent overtire price amount fink prior lease year. Such price shall be payable in cash or certified funds at time of closing. C. Closing • Closing shall occur no later than 30 days after Tenant gives notice of intent to exercise this option (Which notice may only be given in accordance with the time parameters set forth in Paragraph 23 A above). D. Title and Conveyance At, or before, the closing after Tenant gives written notice to Landlord of its election to exercise the option to purchase the subject property, Landlord shall furnish Tenant with a current commitment for title insurance policy in an amount equal to the purchase price. Landlord shall deliver the title insurance policy to Tenant after such closing and shall pay the premium thereon. Title shall be merchantable m Landlrord, and subject to no encumbrance. ha the event Landlord cannot provide merchantable title at time of closing or within 30 days there Ater, 9 enant shall be entitled to a return of the$10:,00 paid as option monies. Conveyance shall be by a good and sufficient general warranty deed, at time of closing, conveying the property free and clear of all taxes except taxes for the year o€ closing, and subject to easements and rights-of-way of record prior to, execution of this agreement, any resitrictive covenants of record prior to•execution of this agreement, and any building and zoning regulations. General taxes for the year of closing and rents due from re", encumbrance shall be prorated between Landlord and Tenant to the date of closing. Any encumbrance required to be,paid may be paid with proceeds from closing. 14 E. Failure of Option In the event Tenant fails to exercise the option to purchase the property or in the event the closing does not occur on or before January 30, 2,0©4, then the option shall expire and all things of value paid to Landlord shall remain Landlord's and Tenant shall not be entitled to eland any monies or ctedit for monies previously paid to Landlord. 24. Miscellaneous The paragraph captions contained in this agreement are for convenience only and shall not in any way limit or be deemed to construe or interpret the terms or provisions hereof. This agreement•shall be construed and enforcedin accordance with the laws of the State of Colorado. The parties acknowledge that each have been advised to seek independent legal advice before entering into this agreement, and that each has done so to the extent desired. 25. Notices Any notice from one party to the other, required by the terms of this agreement, shall be delivered by first class mail, postage prepaid, addressed to the respective parties as follows: Landlord: Paul Linn and Ann Linn Berthoud, CO 80513 • Tenant: Triple B Nursery,LLC 1234 WCR 34 3/4 Berthoud, CO 80513 26. Binding Effect This agreement shall bind and extend to the heirs, representatives, successors and assigns of the parties hereto. IN WITNESS WHEREOF, the parties have signed this agreement on the date set forth hereinabove. Landlord: Tenant: Triple B Nurs , L Pa Linn . by • inn Wn erg, Manager E.I.N. r^ 15 The undersigned agrees to person y g' the payment and performance of Tenant as set forth hereinabo' . illiam Berg Draft 5/21/99 n Hello