HomeMy WebLinkAbout071 - 06/04/2024 - APPROVING THE FIRST AMENDMENT TO THE HANGAR GROUND LEASE AGREEMENT WITH IC LOVELAND, LLC, FOR THE AEORDINANCE NO.071,2024
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROVING THE FIRST AMENDMENT TO THE HANGAR
GROUND LEASE AGREEMENT WITH IC LOVELAND,LLC,
FOR THE AERO FNL HANGAR DEVELOPMENT AT THE
NORTHERN COLORADO REGIONAL AIRPORT
A.The City of Fort Colins (“City”)and the City of Loveland (“Loveland”)
(collectively,the “Cities”)jointly own property located in Loveland known as the Northern
Colorado Regional Airport.
B.The Cities currently operate and maintain the Airport pursuant to that certain
Amended and Restated Intergovernmental Agreement for the Joint Operation of the Fort
Collins-Loveland Airport,dated January 22,2015,as amended (the “IGA”).
C.The Cities are parties to that certain Amended and Restated Hangar
Ground Lease Agreement (“Ground Lease”),dated August 22,2022,with IC Loveland,
LLC,as lessee,with an initial term of 25 years with the option of three 5-year extensions.
The Ground Lease was approved by the Northern Colorado Regional Airport Commission
pursuant to its authority under the IGA and City Code Section 23-113(3).The Ground
Lease was executed by the Chair of the Airport Commission.
D.IC Loveland,LLC is developing hangars upon the leased premises,which
project is known as the Aero FNL development.
E.IC Loveland,LLC has requested the Ground Lease be amended to remove
the condominium structure for the marketing of individual hangar units and to replace it
with a subleasing structure,which would be a deviation from the standard ground lease
form utilized at the Airport.The proposed First Amendment is attached hereto as Exhibit
F.The First Amendment to the Ground Lease was presented to the Airport
Commission at its April 18,2024,meeting and the Airport Commission voted unanimously
to recommend the City Council and the Loveland City Council approve the First
Amendment.
G.Section 23-113 of the City Code allows the City Council to lease any and all
interests in real property owned in the name of the City if the City Council first finds that
the lease is in the best interests of the City,with such leases being approved by resolution
unless the proposed term of the lease exceeds twenty (20)years,in which event the lease
must be approved by the City Council by ordinance.
H.City Council finds that the amendment of the Ground Lease is in the best
interest of the City and its residents in that it will allow for the marketing of the individual
hangars in a manner suitable for IC Loveland,LLC,which in turn will promote the success
of the development and continued lease revenue for the Airport.
In light of the foregoing recitals,which the Council hereby makes and adopts as
determinations and findings,BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1.The First Amendment to the Amended and Restated Hangar Ground
Lease Agreement with IC Loveland,LLC,attached hereto as Exhibit “A”and incorporated
herein by reference is hereby approved.
Section 2.The Mayor is authorized to execute the First Amendment in
substantially the form as Exhibit “A,”with such additional terms and conditions as the City
Manager,in consultation with the City Attorney,determines to be necessary and
appropriate to protect the interest of the City or effectuate the purposes of this Ordinance.
Introduced,considered favorably on first reading on May 21,2024,and approved
on second reading for final passage on June 4,2024.
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ATTEST:......~[SEAL
_______
Interim City Clerk LORd”
Effective Date:June 14,2024
Approving Attorney:Ryan Malarky
EXHIBIT A TO ORDINANCE NO.071,2024
FIRST AMENDMENT TO HANGAR GROUND LEASE AGREEMENT
(5232,5240,5250,5260,5270 Stearman Street)
THIS FIRST AMENDMENT TO HANGAR GROUND LEASE AGREEMENT (this
“Amendment”)is entered into as of ____________—‘2024 (the “Effective Date”),by and between the
CITY OF LOVELAND,COLORADO AND THE CITY OF FORT COLLINS,COLORADO (the
“Cities”),and IC LOVELAND INVESTORS,LLC,a Colorado limited liability company (“Lessee”).
RECITALS
WHEREAS,the Cities,the Commission,and Lessee (as assignee)are parties to that certain
Amended and Restated Hangar Ground Agreement dated as of August 22,2022 (the “OriginalAgreement,”
and as amended hereby,the “Agreement’)whereby Lessee leases from the Cities the parcel of land
consisting of approximately 3.665 acres located at the Northern Colorado Regional Airport (the “Airport”)
described in Exhibit A to the Original Agreement (the “Leased Premises”);and
WHEREAS,the Commission does not have authority under that certain Amended and Restated
Intergovernmental Agreement for the Joint Operation of the Fort Collins-Loveland Municipal Airport dated
January 22,2015 due to the substantive changes made in this Amendment to the Original Agreement;
WHEREAS,Lessee has requested the Cities amend the Original Agreement to remove the
condominium structure set forth in the Original Agreement and replace it with a subleasing structure;and
WHEREAS,the Cities and Lessee have agreed to amend certain terms,covenants,and conditions
of the Original Agreement as set forth in this Amendment.
AGREEMENT
In consideration of the following terms and conditions,the Cities and Lessee agree as follows:
1.Capitalized Terms.All capitalized terms contained in this Amendment,unless
specifically defined herein,shall have the meaning ascribed to them in the Original Agreement.
2.Fourth Recital.The fourth Recital of the Original Agreement is hereby deleted in its
entirety and is amended and restated as follows in its entirety to remove reference to a condominium
structure:
WHEREAS,Lessee is a Colorado limited liability company and desires to construct a
hangar building or buildings and other improvements installed or constructed on the Leased
Premises in accordance with the terms and conditions hereof (“Hangars”);and
3.New Recital.After the amended and restated fourth Recital set forth in Section 2 above,
a new Recital is hereby added to Agreement:
WHEREAS,Lessee desires to sublease to tenants (“Tenants”)all or portions of the
Hangars (as defined below)pursuant to subleases for the use or occupancy of such Hangars
(“Tenant Subleases”);and
EXHIBIT A TO ORDINANCE NO.071,2024
4.Defined Terms.Throughout the Original Agreement,including,but not limited to,
paragraphs 3.1,5.2,6.1,6.3,6.10,15.3,and 18.5 of the Original Agreement:
4.1 the term “Condominium Declaration”shall be replaced by the term “Tenant
Subleases;”
4.2 the terms “Condominium Unit’and “Hangar Condominium Unit”shall be
replaced by the term “Hangar;”
4.3 the terms “Unit Owners”and “hangar tenants”shall be replaced by the term
“Tenants;”
4.4 the term “Act”,referring to the Condominium Ownership Act,is hereby deleted;
and
4.5 the term “Condominium Association”is hereby deleted.
5.Use of Leased Premises.The words “operation of a hangar building (the “Hangers”)...”
in the first sentence of paragraph 3.1.1 shall be replaced by the words “operation of Hangars...”
6.Assiunment and Sublettin!.Article 13:Assignment and Sublease of the Original
Agreement is hereby deleted and is amended and restated in its entirety as follows:
ARTICLE 13:ASSIGNMENT AND TENANT SUBLEASES
13.1 Consent to Assignment.The prior written consent of the Cities shall be
required for any assignment or transfer of this Agreement and of the leasehold estate
created hereby,except in connection with a leasehold mortgage.Consent to assignment of
this Agreement may be withheld by the Cities in the event (a)Lessee is in default of any
of the terms or conditions of this Agreement,(b)the assignee or transferee (the “Assignee”)
does not deliver to the Cities its written agreement to be bound by all of the provisions of
this Agreement in a form satisfactory to the Cities,or (c)the Assignee does not submit
proof of insurance as required in Articles 8 and 9.Consent to assignment shall not
otherwise be unreasonably withheld.Upon the granting of written consent by the Cities
and assignment of this Agreement,Lessee shall be released by the Cities from its
obligations under this Agreement.
13.2.2 Conditions of Assignment.Each assignment of this Agreement shall,
among other terms,conditions,and restrictions,require the Assignee to comply with all
terms and conditions of this Agreement.Lessee and any Assignee shall be jointly and
severally responsible for compliance with the terms and conditions of this Agreement;
provided,that,notwithstanding the foregoing,or any other provision of this Agreement to
the contrary (including by way of example and not in limitation,the provisions of Articles
9,18,and 21),the person above identified as Lessee (“Initial Lessee”)shall not be
responsible for noncompliance of any Assignee,and Initial Lessee’s obligations under this
Agreement shall terminate at such time that Initial Lessee (i)assigns this Agreement to an
Assignee and the consent of the Cities is obtained pursuant to paragraph 13.1,or (ii)holds
no ownership interest in any Hangar,whichever event first occurs (“Initial Lessee
Termination”)and all obligations of Lessee under this Agreement shall thereupon be the
responsibility of the Assignee of this Agreement.Following Initial Lessee Termination,
EXHIBIT A TO ORDINANCE NO.071,2024
except as the context otherwise indicates,the Assignee of this Agreement shall exercise
the rights and fulfill the responsibilities of Lessee hereunder as Lessee.
13.3 Tenant Subleases.
13.3.1 Other than in the manner set forth in in this Article 13,Lessee
shall not subdivide,sublease,or fractionalize either its ownership of the
Improvements or leasehold interest in the Leased Premises.
13.3.2 Lessee shall have the right and obligation to construct
Improvements and sublease Hangars on the Leased Premises in accordance with
applicable law,without the prior consent of the Cities,except that Lessee shall not
have the right to subdivide,sublease or fractionalize either its ownership of the
Improvements or its interest in the Leased Premises,except in accordance with a
map of the Leased Premises previously approved by the Cities.By way of
clarification,and not by limitation,the restrictions on assignment contained in
paragraph 13.1 shall not apply to subleasing by Lessee of an individual Hangar to
a Tenant pursuant to a Tenant Sublease that is in compliance with the terms and
conditions of this Agreement.
13.3.3 Any such Tenant Sublease shall be subject and subordinate to this
Agreement.Lessee shall cause any future Tenant Sublease,entered into by Lessee
or any Tenant of Lessee,to contain provisions substantially similar to the following
provision:
If at any time during the term of this lease the leasehold estate of
lessor shall terminate or be terminated for any reason,lessee agrees,at
the election and upon demand of any owner or overlessor of the Leased
Premises or Improvements,or of any mortgagee in possession thereof,or
of any holder of a leasehold now or hereafter affecting premises which
include the Leased Premises,to attorn,from time to time,to any such
owner,overlessor,mortgagee,or holder,upon the terms and conditions
set forth herein for the remainder of the term demised in this lease.The
foregoing provisions shall inure to the benefit of any such owner,
overlessor,mortgagee,or holder,and shall apply to the tenancy of the
lessee notwithstanding that this lease may terminate upon the termination
of any such leasehold estate and shall be self-operative upon any such
demand,without requiring any further instrument to give effect to said
provisions.Lessee,however,upon demand of any such owner,
overlessor,mortgagee,or holder,agrees to execute,from time to time,an
instrument in confirmation of the foregoing,in which lessee shall
acknowledge such attornment and shall set forth the terms and conditions
of its tenancy,which shall be the same as those set forth herein and shall
apply for the remainder of the tent originally demised in this lease.
Nothing contained in this Section shall be construed to impair any right,
privilege or option of any such owner,overlessor,mortgagee,or holder.
13.3.3 Upon the sublease or the assignment of a Tenant Sublease of any
Hangar,Lessor or Tenant (as applicable)shall provide the Cities with notification
of the Tenant Sublease,providing the Cities with the name,address,and other
EXHIBITATO ORDINANCE NO.071,2024
contact information for the Tenant and a description of the aircraft to be regularly
stored in such Hangar.
13.3.4 At all times during the term of this Agreement,the Tenant
Subleases shall provide the following:the date on which this Agreement is
scheduled to expire;a legal description of the Leased Premises;a statement that
the Tenants have no right to redeem any reversion in the Leased Premises or this
Agreement;a statement that Tenants have no right to remove any Improvements
on the Leased Premises,including at or after termination of this Agreement;and a
statement that Tenants have no right to renew this Agreement at or after
termination,other than the contingent right of Lessee to do so under paragraph 1.3
above.
13.3.5 The Tenant Subleases shall require that with respect to Hangars
and the Tenant’s use thereof;and activities of Tenants on the Airport,each Tenant
shall comply with applicable terms of this Agreement and shall take no action
which is in violation of any term or condition of an applicable term of this
Agreement.The Tenant Subleases shall provide that any act or omission of a
Tenant which is contrary to or violates an applicable term of this Agreement,or
of any Airport rule or regulation,shall be a violation of the terms of the Tenant
Sublease,and shall contain adequate provisions for Lessee’s enforcement of such
requirements.Before or at the closing of any sublease or assignment of a Tenant
Sublease with respect to a Hangar,the prospective Tenant of the Hangar shall be
required to sign and deliver to the Cities,on a form acceptable to the Cities,a
declaration providing the prospective Tenant’s name,address and contact
information,and acknowledging that such prospective Tenant has been provided
with a copy of this Agreement and the Tenant Sublease,has read this paragraph
13.3,and understands the prospective Tenant’s obligations to comply with the
applicable terms of this Agreement.
7.Requirements for Condominiumization.Article 31 of the Original Agreement is hereby
deleted in its entirety.
8.Notice Address of Lessee.Paragraph 23.2 of the Original Agreement is hereby amended
to provide that all notices to Lessee shall be addressed as follows:
IC Loveland Investors,LLC
8084 S Wallace Ct.Ste A
Englewood,CO 80112
Garv.roffe@cvvress16.com
9.Counterparts/Electronic Silinatures.This Amendment may be executed in multiple
counterparts,each of which shall be effective upon delivery and,thereafter,shall be deemed to be an
original,and all of which shall be taken as one and the same instrument with the same effect as if each party
had signed on the same signature page.This Amendment may be transmitted by DocuSign or by electronic
mail in portable document format (“pdf”)and signatures appearing on DocuSigned and/or electronic mail
instruments shall be treated as original signatures.
10.Interpretation of Amendment.In the event of any conflict between the Original
Agreement and this Amendment,the terms of this Amendment shall control.Except as expressly amended,
EXHIBITATO ORDINANCE NO.071,2024
supplemented,or modified by this Amendment,the Agreement shall continue in full force and effect with
respect to the Premises,as amended hereby.
11.Binding Effect.This Amendment shall bind and inure to the benefit of the parties hereto
and their respective successors and assigns.
12.Submission.Submission of this Amendment by the Cities to Lessee for examination
and/or execution shall not in any maimer bind the Cities and no obligations on the Cities shall arise under
this Amendment unless and until this Amendment is fully signed and delivered by the Cities and Lessee.
13.Modification.A modification of any provision herein contained,or any other amendment
to this Amendment,shall be effective only if the modification or amendment is in writing and signed by
both the Cities and Lessee.
14.No Third Party Beneficiaries.Except as otherwise provided herein,no person or entity
shall be deemed to be a third party beneficiary hereof,and nothing in this Amendment (either expressed or
implied)is intended to confer upon any person or entity,other than the Cities and/or Lessee (and their
respective nominees,successors and assigns),any rights,remedies,obligations,or liabilities under or by
reason of this Amendment.
15.Construction.This Amendment shall not be construed as if it had been prepared by only
the Cities or Lessee,but rather as if both the Cities and Lessee had prepared the same.
[Remainder ofpage left blank;signature page follows 7
EXHIBITATO ORDINANCE NO.071,2024
IN WITNESS WHEREOF,the Cities and Lessee have caused this Amendment to be executed as of the
Effective Date set forth above.
IC LOWLAND INVESTORS,LLC,
a Colorado limited liability company
By:
Name:
Title:
Date:_______________________
CITY OF FORT COLLINS,COLORADO
A Municipal Corporation
By:____
Title:
ATTEST:
By:Date
Title:
APPROVE AS TO FORM:
Assistant City Attorney
CITY OF LOVELAND,COLORADO
A Municipal Corporation
By:___
Title:
ATTEST:
Date
City Clerk
APPROVE AS TO FORM:
Acting Deputy City Attorney