HomeMy WebLinkAboutRALLY 5 CANOPY - 2310 & 2350 E HARMONY - MINOR AMENDMENT - MA220149 - SUBMITTAL DOCUMENTS - ROUND 2 - APPLICATIONCreating a canopy to "connect" Rally5 (2310 E. Harmony, Ste 101) and Rally5 Annex (2350 E. Harmony, Ste. 103). This
canopy is to provide cover for customers and staff to move between the two spaces.
Attached to this application is a letter containing legal information, including the Deed and Lease, evidencing the ownership
and tenancy of the buildings and the common area.
Jeffrey i.Johnson JcI—ItJSJtJ 3235.College Avenue,Suite 1DanielC.Muffly
Fort Collins,CO 80524PeterJ.Dauster*
(970)482-4846 PhoneRyanS.Thorson*
Benjamin D.Kramer (970)482-3038 Fax
Daniel M.St.John 11*
rthorson@nocolawgroup.comEzekielRauscher
.4lso Licensed In Wyoming A Professional Corporation www.nocolawgroup.com
December 19,2022
City of Fort Collins Planning Department
Re:FoCo Harmony,LIJC —Ownership of 2310 and 2350 E.Harmony Road,Fort
Collins,Colorado (“Buildings”)and Tenancy of Common Area between
Buildings
Ladies and Gentlemen:
Our firm represents FoCo Harmony,LLC (“Applicant”)which owns those certain buildings
commonly known as 2310 and 2350 E Harmony Road.Fort Collins,Colorado.Applicant also
leases the common area between the Buildings (“Leased Premises”)from the Association and has
the right to do so for up to 30 years.I’m attaching a copy of the Deed and Lease which demonstrate
Applicant’s ownership and tenancy of the Buildings and Leased Premises.
Please call if you have questions or comments.
Very truly yours,
JOHNSON MUFFLY &DAUSTER,PC
By;
______
‘ji S.Thorson
Enclosures
Angela Myers,Clerk &Recorder,Larimer County,CO
RECEPTION #20220026479,4/26/2022 9:14:41 AM,I of 3,$23.00 Doe Fee $680.00 Electronically Recorded
SPECIAL WMUWCrY DEED
Harmony Executive Park II,LLC,a Colorado limited liability company,whose address is
144 N.Mason Street,#4,Fort Collins,Colorado 80524 (“Grantor”),for the consideration of SIX
MILLION EIGHT HUNDRED THOUSAND AND 00/100 DOLLARS ($6,800,000.00)hereby sells
and conveys FoCo Harmony,LLC,a Colorado limited liability company,whose address is 1218W.
Ash Street,Unit F,Windsor,Colorado 80550 (“Grantee’,the following real property in the County
of Larimer,State of Colorado,to wit:
Parcel A:
Building Envelope 81 and 82,The Pads at Harmony,Filing 1,
City of Fort Collins,
County of Larimer,7 I953o7StateofColorado
ParcelS:
Those beneficial easements described in Article 9,Sections 2 and 9,of the
Declaration of Covenants,Conditions,Restrictions for The Pads at Harmony
Recorded January 9,2008 at Reception No.20080002044,County of Larimer,State
of Colorado,
with all its appurtenances,and except and subject to real property taxes for 2022 and subsequent
years,and those certain permitted exceptions set forth on Exhibit A,which is attached hereto and
incorporated by reference herein;and Grantor hereby warrants the title against all persons claiming
by through or under the Grantor.
Signed this day of efOr I ,2022.
Harmony Executive Park II,LLC,
a Colorado limited liability company
By 3.7)..ALYC4
J.D.Padilla,Manager
STATE OFplorjda
Polk ss.
COUNTY OF
This record was acknowledged before me this 22nd day of April —,2022,by J.D.Padilla,
Manager of Harmony Executive Park II,LLC,a Colorado limited liability company.
who produced driver license as identification.
Witness my hand and official seal.
My commission expires:08/03/2024
____________________________________
Nntrny Piihlir Nip A Hamilton
*r4iA A AMPLTON
$IEn:4tt Notay PUIIIk -State of Fb,kja5<)5 comrnsionuHH2’s4
*i Expires on A,JWjst 3.2024
%aW’
HH27454
Notarized online using audio-video communication
RECEPTION #20220026479,4/26/2022 9:14:41 AM,2 of 3,523.00 Doe Fee 5680.00 Electronically Recorded
Angela Myers,Clerk &Recorder,Larimer County,CO
EXHIBIT A
[Permitted Exceptions]
RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THEREFROM SHOULD
THE SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED IN UNITED STATES
PATENT RECORDED MAY 18,1886,IN BOOK 32 AT PAGE 80-
ACCESS RIGHTS AS RESERVED AND DEFINED IN DEED RECORDED MAY 15,1970 IN BOOK 1433 AT PAGE 641
AND AMENDED DEED RECORDED AUGUST 28.1973 IN BOOK 1569 AT PAGE 374
RIGHT OF WAY EASEMENT AS GRANTED TO PUBLIC SERVICE COMPANY OF COLORADO IN INSTRUMENT
RECORDED NOVEMBER 08,1973,IN BOOK 1578 AT PAGE 488.
tERMS,CONDITIONS AND PROVISIONS OF DECLARATION OF RECIPROCAL EASEMENT AND AGREEMENT
RECORDED DECEMBER 21,2004 UNDER RECEPTION NO.20040121628.
TERMS,CONDITIONS AND PROVISIONS OF DECLARATION OF RECIPROCAL EASEMENT AGREEMENT
RECORDED DECEMBER 27,2004 AT RECEPTION NO.20040123056 AND ASSIGNED MARCH 11,2005 AT
RECEPTION NO.2005019535 AND ASSIGNED AUGUST 15,2005 AT RECEPTION NO.2005068283 AND ASSIGNED
AUGUST 26,2005 AT RECEPTION NO.2005072343
TERMS,CONDITIONS AND PROVISIONS OF DECLARATION OF JOINT ACCESS AGREEMENT RECORDED
NOVEMBER 02,2006 UNDER RECEPTION NO.2006083034.
TERMS,CONDITIONS AND PROVISIONS OF DECLARATION OF JOINT ACCESS EASEMENT RECORDED
NOVEMBER06,2006 UNDER RECEPTION NO.2006084190.
TERMS,CONDITIONS AND PROVISIONS OF DECLARATION OF JOINT ACCESS EASEMENT RECORDED
MARCH 02,2007 UNDER RECEPTION NO.20070016187.
EASEMENTS,CONDITIONS,COVENANTS,RESTRICTIONS,RESERVATIONS AND NOTES ON THE PLAT OF
THE PADS AT HARMONY,FILING I RECORDED MARCH 07,2007 UNDER RECEPTION NO.20070017402 AND
SURVEYOR’S AFFIDAVIT OF CORRECTION RECORDED MAY 5,2011 AT RECEPTION NO.20110027040.
RESTRICTIVE COVENANTS,WHICH DO NOT CONTAIN A FORFEITURE OR REVERTER CLAUSE,BUT
OMIITING ANY COVENANI’S OR RESTRICTIONS,IF ANY,BASED UPON RACE,COLOR,RELIGION,SE)
SEXUAL ORIENTATION,FAMILL&L STATUS,MARITAL STATUS,DISABILITY,HANDICAP,NATIONAL
ORIGIN,ANCESTRY,OR SOURCE OF INCOME,AS SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS,
EXCEPT TO THE EXTENT THAT SAID COVENANT OR RESTRICTION IS PERMITtED BY APPLICABLE LAW,AS
CONTAINED IN INSTRUMENT RECORDED JANUARY 09,2008,UNDER RECEPTION NO.20080002044.FIRST
AMENDMENT RECORDED DECEMBER 21,2011 AT RECEPTION NO.20110079896.SECOND AMENDMENT
RECORDED JANUARY 27,2012 AT RECEPTION NO.20120005721.
TERMS,CONDITIONS AND PROVISIONS OF MEMORANDUM OF LEASE RECORDED NOVEMBER 18,2010
UNDER RECEPTION NO.20100071537.
ALL MATtERS AS SHOWN ON ALTAJACSM LAND TITLE SURVEY RECORDED APRIL 30,2021 AT RECEPTION
NO.20210043571
ANY FACTS,RIGHTS,INTERESTS OR CLAIMS WHICH MAY EXIST OR ARISE BY REASON OF THE MATtERS
SHOWN ON ALTAJNSPS LAND TITLE SURVEY CERTIFIED
____
PREPARED BY NORTHERN ENGINEERING,
JOB #1924-001,INCLUDING BUT NOT LIMITED TOA.PERr,OI A FFNrF.PATIO,LANDSCAPING OUTSIDE OF
THE PROPERTY LINES
ANY FACTS,RIGHTS,INTERESTS OR CLAIMS WHICH MAY EXIST OR ARISE BY REASON OF THE
MATtERS SHOWN ON ALTA/NSPS LAND TITLE SURVEY CERTIFIED PREPARED BY NORTHERN
RECEPTION #20220026479,4126/2022 9:14:41 AM,3 of 3,S23.00 Doc Fcc 5680.00 Electronically Recorded
Angela Myers,Clerk &Recorder,Larimer County,CO
ENGINEERING,JOB #1924-001,INCLUDING BUT NOT LIMITED TO:A.FENCE,PATIO AN!)LANDSCAPING
OUTSIDE OF PROPERTY LiNES
LEASE AGREEMENT(2310 and 2350 Harmony Road,Fort Collins,Colorado)
This Lease Agreement (“Lease”)is entered into effective as of Aprila—2022 (“Effective_
Dat&’)by The Pads at Harmony Owners Association,a Colorado non-profit corporation
C’Landlord”),and FoCo Harmony,LLC,a Colorado limited liability company (“Tenant”).
I.Definitions The following capitalized words or phrases shall be as defined below.In
addition,other capitalized words and phrases may be defined elsewhere in this Lease.
1.1 Association.“Association”means The Pads at Harmony Owners Association,a
Colorado nonprofit corporation,which is the Landlord under this Lease.
1.2 Building(s).“Building(s)”means those certain buildings located at the Property.
1.3 Commencement Date.“Commencement Date”means the date Tenant,as buyer,
acquires the Property from its current owner,Harmony Executive Park II LLC,a Colorado limited
liability company,as seller,pursuant to that certain Agreement to Sell and Purchase Real Estate
between such parties dated January 6,2022,as amended (“Acquisition”).
1.4 DecJaration.“Declaration”means that certain Declaration of Covenants,
Conditions and Restrictions for The Pads at Harmony recorded on January 9,2008 at Reception No.
20080002044 in the real property records of Larimer County,Colorado.
1.5 Lease Term “Lease Term”means the term of this Lease.
1.6 Lease Year.“Lease Year”means the twelve-month period starting on the
Commencement Date,and each subsequent twelve-month period during the Lease Term starting on
each anniversary of the Commencement Date.
1.7 Owners.“Owners”means the persons or entities owning record fee simple title
to any Building,or portion thereof.Upon closing of the Acquisition,Tenant will be the Owner of the
Buildings.
1.8 Premises.“Premises”means the real property together with all improvements
located thereon as depicted on Exhibit A,attached and incorporated by reference.The Premises is a
part of the common area owned in trust by the Association for the benefit of the members of the
Association pursuant to the Declaration and is adjacent and adjoining to the Property.
1.9 Property.“Property”means the real property and improvements located
thereon,commonly known as 2310 and 2350 Harmony Road,Fort Collins,Colorado,and legally
described as:
Building Envelopes BI and 82,The Pads at Harmony,Filing 1,
County of Larimer,
State of Colorado.
2.Lease pf Premises.Landlord leases the Premises to Tenant,and Tenant leases the Premises
ftom Landlord,under the terms and conditions ofthis Lease.
3.Lease Term.
3.1 Initial Term.The Lease Term shall commence on the Commencement Date.
Tenant shall receive possession of the Premises on the Commencement Date.Unless sooner
terminated as provided in this Lease,the initial Lease Term shall end on May 31,2027,subject to
Tenant’s right to extend the Lease as set forth below.
3.2 Options to Extend Tenant shall have the option to extend this Lease for two (2)
additional periods of five (5)years each,on the same terms and conditions set forth herein (each an
“Extension Option”).Each Extension Option shall be automatically exercised by Tenant without
having to provide written notice to Landlord,unless Tenant provides written notice to Landlord that
it desires not to exercise the Extension Option no less than thirty (30)days prior to the expiration of
the then existing Lease term.
4.&aj.Tenant shall pay the following base rent in the amount of ONE HUNDRED FIFTY
DOLLARS (“Base Rent”)to Landlord in total,for the entire Initial Term and both Extension
Options,which amount shall be paid by Tenant contemporaneous with the execution of this Lease.
Base Rent shall be non-refundable to Tenant under any circumstances,including without limitation,
Tenant’s election not to exercise any Extension Option.
5.Security Deposit.There is no security deposit payable by Tenant in connection with this
Lease.
6.Utilities.Tenant shall be solely responsible for and promptly pay all charges for heat,water,
gas,electric,sewer service,telephone,internet and other communications services,together with any
other utility service used or consumed on the Premises
Landlord shall not be liable for,and Tenant shall not be entitled to,any rent reduction by
reason of Landlord’s failure to furnish any of the foregoing utility services when such failure is
caused by accident,breakage,repairs,strikes,lockouts or other labor disturbances or labor disputes
of any character,or by any other cause,similar or dissimilar,beyond the reasonable control of
LandlorcL Landlord shall not be liable for loss of or injury to property arising as a result of failure to
furnish any of the foregoing unless said failure is due to any intentional or grossly negligent act or
omission of LandlorcL
If any utility company supplying service to the Premises determines that an additional
service,impact fee,and/or assessment,or any other type of payment or penalty is necessary due to
Tenant’s use and occupancy of the Premises,nature of operation and/or consumption of utilities,said
expense shall be borne solely by Tenant.Said expense shall be paid promptly,and any repairs or
modifications requested by the utility company shall be performed by Tenant immediately.
7.Taxes.
7.1 Real Property Taxes and Assessments Tenant shall be responsible for and timely
pay Landlord any increase in the real property taxes and government assessments for the Premises
resulting from the improvements located on the Premises or which would not have been imposed but
for Tenant’s use or occupancy of the Premises pursuant to this Lease.
7.2 Personal Property Taxes/Other Business Taxes.Tenant shall pay,or cause to be
paid,before delinquency,any and all taxes levied or assessed and which become payable during the
term hereof upon all of Tenant’s leasehold improvements,equipment,furniture,fixtures and personal
property located in the Premises.In the event any or all of Tenant’s leasehold improvements,
equipment,furniture,fixtures and personal property shall be assessed and taxed with the Premises,
Tenant shall pay to Landlord its share of such taxes within 15 days after delivery to Tenant by
Landlord of a statement in writing setting forth the amount of such taxes applicable to Tenant’s
property.In addition,Tenant shall pay,or cause to be paid,before delinquency,any and all other
taxes arising from the operation of Tenant’s business on the Premises including,without limitation,
any city,county and state sales tax and withholding tax.
8.Insurance.
8.1 Insurance.Tenant,at its sole cost and expense,shall procure and maintain such fire
and casualty,loss of rents and such other insurance for the Premises as it may deem proper and
appropriate from time to time.Tenant shall additionally procure,pay for,and maintain
comprehensive public liability insurance providing coverage from and against any loss or damage
occasioned by any accident or casualty on,about or adjacent to the Premises.Said liability policy
shall be written on an “occurrence basis”with limits of not less than $1,000,000 per occurrence and
$2,000,000 in the aggregate.Tenant shall also procure,pay for and maintain such property insurance
as Tenant considers necessary covering Tenant’s leasehold improvements,trade fixtures and other
personal property.Certificates for such insurance shall be delivered to Landlord and shall provide
that said insurance shall not be changed,modified,reduced or cancelled without 30 days’prior
written notice to Landlord.Landlord shall be named as an additional insured on all of Tenant’s
insurance policies.Should Tenant fail to properly purchase and maintain appropriate liability or
casualty insurance,Landlord shall have the right,but not the obligation,to purchase the same,upon
providing Tenant with fifteen (15)days prior written notice of Landlord’s intention to do so.
Following such notice and failure of Tenant to purchase and maintain the foregoing insurance,
Landlord may expend such monies as may be necessary to purchase and maintain such insurance and
Tenant shall within fifteen days of notice be responsible for reimbursement to Landlord of the same,
plus ten percent (10%)of the cost thereof.
8.2 Mutual Subrogation Waiver.Landlord and Tenant grant to each other,on behalf of
any insurer providing fire and extended coverage to either of them covering the Premises or other
improvements thereon or contents thereof a waiver of any right of subrogation any such insurer of
one party may have against the other or as against Landlord or Tenant by virtue of payment of any
loss under such insurance.Such a waiver shall be effective so long as Landlord and Tenant are
empowered to grant such waiver under the terms of their respective insurance policy or policies,and
such waiver shall stand mutually terminated as of the date either Landlord or Tenant gives notice to
the other that the power to grant such waiver has been so terminated.
9 Signs.Tenant may erect,install or place any sign or other advertising material on or in the
vicinity of the Premises in accordance with the Association’s sign criteria provided Tenant obtain
Landlord’s prior written consent.Landlord approves Tenant’s proposed initial signage which is
attached hereto as Exhibit B,which is incorporated by reference herein.All signs must meet
applicable code regulations and be properly permitted.Tenant shall maintain all signage or other
advertising material which has been approved in good condition and repair.Upon expiration or
sooner termination of this Lease,all signage or other advertising material of Tenant must be removed
and all damage caused by the removal shall be fully repaired at the expense of Tenant.
10.Use.
10.1 Permitted Use.The Premises may be used as a patio for outdoor seating for
restaurant and bar purposes,and for no other purposes except those approved in writing by Landlord.
The Premises is intended to serve as additional seating area for certain restaurants located in the
Buildings.Notwithstanding the foregoing,Landlord makes no representations or warranties to
Tenant whatsoever that the Premises may be lawftilly utilized by Tenant for such uses or that it will
be suitable for Tenant’s intended purposes.Tenant shall not commit or suffer any waste on the
Premises.
10-2 Hazardous Materials.Tenant shall not cause,permit,or suffer any Hazardous
Materials (as hereinafter defined)to be brought upon,kept,used,handled,stored,generated,treated,
recycled,placed,buried or disposed on the Premises,the Buildings,or adjacent property without the
prior written consent of Landlord,which consent may be withheld,conditioned,or delayed in
Landlord’s sole and absolute discretion-Upon breach of the foregoing,Tenant shall,at Tenant’s sole
expense,cure such breach by taking all action prescribed by any applicable Hazardous Materials
Laws (as hereinafter defined)or by any governmental authority with jurisdiction over such matters.
Tenant shall indemni&and hold Landlord harmless from any and all claims,judgments,damages,
penalties,fmes,costs,liabilities,expenses or losses (including,without limitation,diminution in
value of the Leased Premises,damages for loss or restriction on use of all or part of the Leased
Premises,sums paid in settlement of claims,investigation of site conditions,or any cleanup,removal
or restoration work required by any federal,state or local governmental agency,attorneys’fees,
consultant fees and expert fees)which arise as a result of or in connection with any breach of the
foregoing covenants or any other violation of any Hazardous Materials Laws by Tenant.“Hazardous
Materials”shall mean (a)any chemical,material,substance or pollutant which poses a hazard to the
Leased Premises or to persons on or about the Leased Premises or would cause a violation of or is
regulated by any Hazardous Materials Laws,and (b)any chemical,material or substance defined as
or included in the definitions of “hazardous substances,”“hazardous wastes,”“hazardous materials,”
“extremely hazardous waste,”“restricted hazardous waste,”“toxic substances,”“regulated
substances,”or words of similar import under any applicable federal,state or Local law or under the
regulations adopted or publications promulgated pursuant thereto,including,but not limited to,the
Comprehensive Environmental Response,Compensation and Liability Act of 1980,as amended,42
U.S.C.Section 9601,et seq.;the Hazardous Materials Transportation Act,as amended,49 U.S.C.
Section 6901,et seq.;the Solid Waste Disposal Act,42 U.S.C.Section 6991,et seq.;the Federal
Water Pollution Control Act as amended,33 U.S.C.Section 1251,et seq.;and Section 25-15-101,et
seq.,Section 25-16-101,et seq.,Section 25-7-101,et seq.,and Section 25-8-101,et seq.of the
Colorado Revised Statutes.“Hazardous Materials Laws”shall mean any federal,state,or local laws,
ordinances,rules,regulations,or policies (including,but not limited to,those laws specified above)
relating to the environmental,health and safety or the use,handling,transportation,production,
disposal,discharge,or storage of Hazardous Materials,or to industrial hygiene or the environmental
conditions on,under or about the Leased Premises.Said term shall be deemed to include all such
laws as are now in effect or as hereafter amended and all other such laws as may hereafter be enacted
or adopted during the term of this Lease.
11.Compliance with Laws and Reaulations.Tenant,at its sole cost and expense,shall comply
with all laws and regulations of any governmental entity,board,commission,or agency having
jurisdiction over the Premises;including,without limitation,obtaining and maintaining any permits
or other required governmental approvals for use of the Premises as a patio for outdoor seating for
restanrant and bar purposes.
12.Access-Landlord shall provide access to the Premises by and through other real property
owned by Landlord.
13.Trash Removal.Tenant shall contract and pay for trash removal service for the Premises.
14.Condition of Premises.Tenant accepts the Premises in its “as is”condition as of the
Commencement Date,subject to any liens and encumbrances (including easements)of record;
including without limitation,the Declaration,and without any warranty of fitness for use or
occupation express or implied,it being agreed that Tenant has had the opportunity to examine the
condition of the Premise&Landlord shall have no obligation to perform any alterations,repairs,or
improvements to the Premises prior to the Commencement Date.
15.Maintenance and Repairs.Tenant,at its sole cost and expense,shall be responsible for all
maintenance,repair and replacement of the Premises so that the Premises are in good condition,
normal wear and tear excepted.Tenant shall keep the Premises clean and in good sanitaiy condition
as required by applicable laws,ordinances,resolutions,and regulations and by the provisions of any
applicable declaration of covenants,conditions,and restrictions.Tenant shall be responsible to
arrange for ice and snow removal and ongoing cleaning and sweeping,regular power washing,and
similar maintenance and repair.Should Tenant fail to properly repair and maintain the Premises in
accordance with this Lease,Landlord shall have the right,but not the obligation,to maintain and
repair the Premises,upon providing Tenant with fifteen (15)days prior written notice of such
intention to do so.Following such notice and failure of Tenant to perform such repairs andlor
maintenance,Landlord may expend such monies as maybe necessary to properly repair and maintain
the Premises and Tenant shall within fifteen days of notice be responsible for reimbursement to
Landlord of the same,plus ten percent (10%)of the cost thereof.
16.Intentionally Deleted.
17.Alterations and Improvements.If Tenant wishes to make any alterations or improvements
to the Premises,Tenant must obtain the prior written consent of Landlord before doing so,which
consent shall be granted,conditioned,or withheld in Landlord’s sole and absolute discretion.
Landlord approves Tenant’s proposed plans for its initial alterations and improvements,which are
shown on the site plan attached hereto as Exhibit A.To the extent Landlord does not respond to
Tenant’s written request for alternations or changes to the Premises within ten (10)days of notice
from Tenant such request will be deemed denied;provided that if Tenant provides a second written
request and Landlord does not respond within five (5)days then such request will be deemed
approved.All alterations or improvements will be made at Tenant’s sole expense.Landlord
acknowledges that Tenant intends to improve the Premises for seating and other uses associated for
use by the occupants of the Buildings.Any alterations or improvements consented to by Landlord
must comply with the following provisions.All such alterations and improvements shall be done in a
good and workmanlike manner without impairing the structural soundness of the Premises and in
compliance with the building and zoning laws and with all other laws,ordinances,orders,rules,
regulations,and requirements of all federal,state,and municipal governments.Ftuthermore,such
alterations,and improvements shall not be commenced until any contractor or subcontractor engaged
for such purpose shall deliver to Tenant (with a copy to Landlord)a certificate evidencing that proper
worker’s compensation insurance is in full force and effect,covering any persons performing such
work.In addition,no such alterations and improvements shall be commenced until Tenant shall have
procured and paid for all required municipal and other governmental permits and authorizations of
the various municipal departments and governmental subdivisions having jurisdiction over the
matter.
18.Return of Possession.At the expiration or earlier termination of this Lease or Tenant’s right
of possession,Tenant shall surrender possession of the Premises to Landlord in broom-clean
condition and good repair,free of debris (normal wear and tear,and casualty damage excepted),
Hazardous Materials,Tenant’s personal property,and any leasehold improvements.Any property of
Tenant left in or about the Premises after the expiration or other termination of this Lease shall be
deemed abandoned and Landlord may retain or dispose of same and Tenant shall pay all costs of
disposal upon demand,plus ten percent (10%)of the cost thereof.
19.Liens.Tenant agrees to pay or cause to be paid promptly all bills and charges for material,
labor,or otherwise in connection with or arising out of any alterations,additions or changes made by
Tenant or its agents to the Premises,and Tenant agrees to indemni&and hold Landlord harmless
against all mechanic’s liens and claims of liens for labor and materials,or either of them,filed
against the Premises,or any part thereof,and from and against any expense and liability in
connection therewith,which arise from work performed by or on behalf of Tenant,its contractors or
other agents.Tenant shall,however,have the right to contest any mechanic’s liens or claims filed
against the Premises,provided Tenant shall diligently prosecute any such contest,shall file the
necessaiy bond to discharge the Premises from the lien within ten (10)days after the recording of any
such lien,shall otherwise effectively stay or prevent any sale of the Premises under foreclosure or
otherwise,and pay or otherwise satis&any final judgment adjudging or enforcing such contested lien
and thereafter procure record satisfaction or release thereof.Tenant also agrees in any such contest,at
Tenant’s cost and expense,to defend the same on behalf of Landlord.
20-Damage or Destruction.If the Premises are totally or partially destroyed by fire or other
casualty Tenant shall undertake and complete such repairs with due diligence.
21.Condemnation.If the entire Premises are taken through condemnation proceedings or
otherwise by any governmental entity or other entity having the power of condemnation,this Lease
shall terminate as of the date that legal title to the Premises vests in the condemning authority,or the
date such authority takes possession of the Premises,whichever is earlier-If only a portion of the
Premises is so taken,the Lease shall be terminated as to that part of the Premises so taken.
In either a total or partial condemnation,Landlord shall have the exclusive right to any award made
by the condemning authority,and Tenant waives and relinquishes any and all claim Tenant may have
against such award and all other claims for compensation or damages against Landlord arising from
such condemnation.
22.Assignment and Subletting.
22.1 Transfers Prohibited.Except as set forth in Section 22.2 and 22.3 below,Tenant
shall not,without the prior written consent of Landlord,which consent will not be unreasonably
withheld,conditioned or delayed:(1)assign,transfer,or encumber this Lease or any estate or
interest herein,whether directly or by operation of law;(2)permit any other entity to become Tenant
hereunder by merger,consolidation,or other reorganization;(3)sublet any portion of the Premises;
(4)grant any license,concession,or other right of occupancy of any portion of the Premises;or (5)
permit the occupancy of the Premises by any parties other than Tenant,.
22.2 Compulsory Assignment.Tenant shall assign its interest under this Lease to any
successor-in-interest of Owner such that the party comprising “tenant”under this Lease and the
Owner shall always be the same party.Such assignment shall be self-operative,without the need for
any flirther documentation.Any such assignment of the Lease is permitted without Landlord’s prior
written consent.Tenant will provide Landlord written notice of any such assignment within thirty
(30)days thereof.
22.3 Approved Sublease to Occupant of Building(s).Tenant,without the prior written
consent of Landlord,may sublease all or a portion of the Premises to an occupant of the Building,
provided that such occupant is a tenant in the Building(s),operates a restaurant,and has agreed in
writing to comply with the requirements of this Lease.
23.Quiet Possession.Subject to Tenant’s compliance with the terms of this Lease,Tenant shall
peaceably and quietly have,hold,occupy and enjoy the Premises during the Lease Term.
24.Subordination.Tenant agrees that this Lease shall be subordinate to any deed of trust,
mortgage,or ground lease that may now exist or which may hereafter encumber the Premises and to
any and all advances to be made thereunder,and all renewals,replacements and extensions thereof.
Tenant shall execute and deliver whatever instruments may be required for the above purposes,and if
it fails to do so within 10 days after demand in writing,Tenant makes,constitutes and iwevocably
appoints Landlord as its attorney-in-fact in its name,place and stead to do so.In the event of the sale
or assignment of Landlord’s interest in the Premises to the beneficiazy of a deed of trust or mortgage,
or in the event of any proceedings brought for the foreclosure of any deed of trust mortgage
encumbering the Premises,Tenant shall attom to the purchaser and recognize such purchaser as
Landlord under this Lease.
25.Tenant’s Hold Harmless and Indemnification Agreement.Tenant shall indemnit’and
hold Landlord harmless from and against any and all claims,liabilities,losses,expenses,costs,
judgments,and/or demands,including court costs and attorneys’fees arising from or related to:(a)
Tenant’s use or occupancy of the Premises,(b)any act or omission of Tenant,its agents,contractors,
servants,employees,licensees,customers or invitees in or about the Premises,and (c)any Lease
breach or default on the part of Tenant.
26.Acts or Omission of Others.Landlord,its employees and agents,shall not be responsible or
liable to Tenant or to Tenant’s guests,invitees,employees,agents or any other person or entity,for
any loss or damage that may be caused by the acts or omissions of other owners,tenants,their guests
or invitees,occupying any other part of the project in which the Premises are located,or by persons
who are trespassers on or in the Premises,or for any loss or damage caused by or resulting from the
bursting,stoppage,backing up or leaking of water,gas,electricity or sewers,or caused in any other
manner.
27.Interest on Past Due Obligations.Any amount payable by Tenant to Landlord not paid
when due shall bear interest at 18%per annum from due date until paid.Payment of such interest
shall not excuse or cure any default by Tenant under this Lease.
28.Late Charge.Tenant shall pay,in addition to any interest on past due obligations,a late
charge of $250 for any payment due to Landlord which is not paid within five days after the due date.
29.Holding Over.If Tenant remains in possession of the Premises after the termination of this
Lease,whether by expiration of the Lease Term or otherwise,without a written agreement as to such
possession,Tenant shall be deemed a tenant at sufferance.The Base Rent during such holdover
tenancy shall be $5,000 per month.No holding over by Tenant shall operate to renew or extend this
Lease without the written consent of Landlord to such renewal or extension having been first
obtained.
30.Modification or Extensions.No modification or extension of this Lease shall be binding
upon the parties unless in writing and signed by the parties.
3 1.Status Statement.If Landlord requests,Tenant agrees to execute,acknowledge and deliver
to Landlord a statement in writing certiing that this Lease is unmodified and in full force and effect
(or if there have been modifications,that the same are in full force and effect as modified and stating
the modifications);Tenant has accepted and occupied the Premises;Tenant has not paid rent in
advance;Tenant is not aware of any prior assignment of this Lease by Landlord;Tenant has no
offsets against the rent or claims against Landlord;amount of the total monthly rent then being paid
by Tenaut;and,the date to which rent and other charges have been paid.
32.Notice.All notices,demands and requests which may be or are required to be given by
either party to the other shall be in writing.Those given to Tenant shall be properly given if
personally served on Tenant or an employee of Tenant,posted on the Premises,or mailed to Tenant
by United States certified mail,return receipt requested,postage prepaid,addressed to Tenant at the
Premises as follows:
TENANT:
FoCo Harmony,LLC
do Steve Lauer
1220 W Ash Unit F,
Windsor,CO 80550
or at such other place as Tenant may from time to time designate in a written notice to Landlord.
Those given to Landlord shall be properly given if personally served on Landlord or if mailed to
Landlord via United States certified mail,return receipt requested,postage prepaid,addressed to
Landlord at:
LANDLORD:
The Pads at Harmony Owners Association
144 North Mason Street,Suite 4,
Fort Collins,Colorado 80524
or at such other place as Landlord may from time to time designate in a written notice to Tenant.
Any notice given by personal service or posting shall be effective upon such service or posting.Any
notice given by mail shall be effective as of the date of mailing.
33.No Recording of Lease —Notice to Mortgaaee.Landlord and Tenant agree not to record
this Lease (or a memorandum of this Lease)with the Laz-imer County Clerk and Recorder.Tenant
consents to Landlord’s assignment of rents and of Landlord’s interest in this Lease to a secured
lender of Landlord.Tenant further agrees,if requested to do so by Landlord,that it will give to said
lender a copy of any request for performance given by Tenant to Landlord or notice of default given
by Tenant to Landlord,and if Landlord fails to cure such default,Tenant will give said lender a 60-
day period in which to cure the same.Said period shall begin with the last day on which Landlord
could cure such default before Tenant has the right to exercise any remedy by reason of such default.
All notices to the lender shall be sent by United States certified mail,return receipt requested,
postage prepaid.
34.Controlling Law —Venue.This Lease shall be interpreted under Colorado law.My
dispute resulting in litigation shall be resolved in court proceedings instituted in Larimer County,
Colorado and in no otherjurisdiction.
35.Landlord Not a Partner With Tenant.Nothing contained in this Lease shall be deemed to
make Landlord a partner,agent,associate of,or in joint venture with,Tenant in the conduct of
Tenant’s business.The relationship between the parties is and shall at all times remain solely that of
landlord and tenant
36.Partial Invalidity.If any term,covenant or condition of this Lease,or the application
thereof to any person or circumstance,shall be ruled invalid or unenforceable to any extent,the
remainder of this Lease or the application of such term,covenant or condition to persons and
circumstances other than those to which it has been held invalid or unenforceable,shall not be
affected thereby,and each term,covenant and condition of this Lease shall be valid and shall be
enforced to the fullest extent permitted by law.
3L Default.The occurrence of any one or more of the following events shall constitute a default
and breach of this Lease by Tenant:
37.1 The failure by Tenant to make any payment of rent or any other payment required to
be made by Tenant hereunder,within 10 days after written notice Landlord.
37.2 The failure by Tenant to observe or perform any of the covenants,conditions or
provisions of this Lease to be observed or performed by Tenant,other than described in Sections
37.1 above,where such failure shall continue for a period of 30 days after written notice thereof by
Landlord to Tenant;provided,however,that if the nature of Tenant’s default is such that more than
30 days are reasonably required for its cure,then Tenant shall not be deemed to be in default if
Tenant commences such cure within said 30 day period and thereafter diligently prosecutes such cure
to completion.
38.Default Remediea In the event of any default or breach by Tenant,Landlord may at any
time thereafter,with or without notice or demand and without limiting Landlord in the exercise of a
right or remedy which Landlord may have by reason of such default or breach,elect to:
38-1 Terminate Tenant’s right to possession,in which case this Lease shall terminate and
Tenant shall immediately surrender possession of the Premises to Landlord,else Landlord may,using
reasonable force,if necessary,and without committing a trespass or becoming liable for any loss or
damage that may be occasioned thereby it-enter and take possession of the Premises.In such event
Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of
Tenant’s default including,but not limited to,the cost of recovering possession actually paid;the
worth at the time of award by the court having jurisdiction thereof of the amount by which the unpaid
rent for the balance of the Lease Term after the time of such award exceeds the amount of such rental
loss for the same period that Tenant proves could be reasonably avoided;and that portion of the
leasing commission paid by Landlord and applicable to the unexpired term of this Lease.In the
event Tenant shall have abandoned the Premises,Landlord shall have the option of (i)taking
possession of the Premises and recovering from Tenant the amount specified in this paragraph,or (ii)
proceeding under the provisions of the following Section 382;or
38.2 Maintain Tenant’s right to possession,in which case this Lease shall continue in
effect whether or not Tenant shall have abandoned the Premises In such event Landlord shall be
entitled to enforce all of Landlord’s rights and remedies under this Lease,including the right to
demand the entire amount of rent herein reserved or agreed to be paid for the entire term of this
Lease as if the whole rent for the entire term were payable in advance.
In addition to the foregoing remedies,Landlord may pursue any other remedy now or
hereafter available to Landlord under Colorado law.
In the event of any default or breach by Landlord,Tenant shall have all rights and remedies now or
hereafter available to Tenant under Colorado law.
39.Attorneys’Fee&In the event either party initiates legal proceedings or retains an attorney to
enforce any right or obligation under this Lease or to obtain relief for the breach of any covenant
hereof,the party ultimately prevailing in such proceedings shall be entitled to recover all costs and
reasonable attorneys’fees.
40.Administrative Charges.In the event any check,bank draft or negotiable instrument given
for any money payment due under this Lease shall be dishonored at any time and from time to time,
for any reason not attributable to Landlord,Landlord shall be entitled,in addition to any other
remedy that may be available (a)to collect from Tenant an administrative charge of$lO0.O0 or three
times the face value of the check,bank draft or negotiable instrument,whichever is smaller,and (b)
at Landlord’s sole option,to require Tenant to make all future rental payments by cash or cashier’s
check.
41.Entire Agreement.This Lease sets forth all the promises,agreements,conditions,and
understandings between Landlord and/or its agents and Tenant relative to the Premises,and there are
no pmmises,agreements,conditions,or understandings either oral or written,between them other
than as set forth in this Lease.
42.Waiver.The waiver by Landlord of any term,covenant or condition shall not be deemed to
be a waiver of such term,covenant or condition,or any subsequent breach of the same or any other
term,covenant or condition.The subsequent acceptance of rent by Landlord shall not be deemed to
be a waiver of any preceding breach by Tenant of any term,covenant or condition of this Lease,
other than the failure of Tenant to pay the particular rental so accepted,regardless of Landlord’s
knowledge of such preceding breach at the time of the acceptance of such rent.
43.Time of the Essence Time is of the essence of this Lease.
44.Survival of Terms.To the extent necessary to give them effect,the terms of this Lease shall
survive its termination.
45.Miscellaneous.All marginal notations and paragraph headings are for purposes of reference
and shall not affect the true meaning and intent of the Lease Terms.Throughout this Lease,
wherever the words “Landlord”and “Tenant”are used,they shall include and imply to the singular,
plural,persons both male and female,and business entities,and in reading this Lease,the necessary
grammatical changes required to make its provisions mean and apply as aforesaid shall be made in
the same maimer as though originally included in this Lease.
46.Noise.Tenant may,during regular operating hours,play music at a reasonable noise level
which does not unreasonably disturb other tenants of the Buildings at the Property;provided that in
no event shall such noise levels exceed municipal noise control laws,regulations,ordinances,or
standards.
47.WAiVER OF TRIAL BY J1JRY.LANDLORD AND TENANT WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM,ACTION,PROCEEDING OR
COUNTERCLAIM BY EITHER PARTY AGAINST THE OTHER ON ANY MATFERS ARISING
OUT OF OR IN ANY WAY CONNECTED WITH TmS LEASE,THE RELATIONSHIP OF
LANDLORD AND TENANT,AND/OR TENANT’S USE OR OCCUPANCY OF THE PREMISES
OR BUILDING (INCLUDING ANY CLAIM OF INJURY OR DAMAGE OR THE
ENFORCEMENT OF ANY REMEDY UNDER ANY CURRENT OR FUTURE LAWS,
STATUTES,REGULATIONS,CODES OR ORDINANCES).
48.Termination of Lease.If the Acquisition has not occurred on or before the date that is thirty
(30)days after the Effective Date of this Lease,then either party may terminate this Lease upon
written notice to the other party given at any time after the expiration of such 30-day period and prior
the completion of the Acquisition.
[Sign ature pages follow]
IN WITNESS WHEREOF,the parties hereto have executed and delivered this Lease on the
day and year first above written.
LANDLORD:
THE PADS AT HARMONY OWNERS ASSOCIATION,
a Colorado nonprofit corpoiation
...X P%C4
By:
__________________________
Name:JJJ.PadiLla
Title:President
TENANT:
FOCO ONY LLC,
•te abif pan
Stve Lauer,Manager
EXhIBIT A
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Depiction of Premises
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