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HomeMy WebLinkAbout113 - 07/15/2025 - APPROVING A COLLATERAL ASSIGNMENT OF A LEASE AT THE NORTHERN COLORADO REGIONAL AIRPORTORDINANCE NO. 113, 2025 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROVING A COLLATERAL ASSIGNMENT OF A LEASE AT THE NORTHERN COLORADO REGIONAL AIRPORT A.The Cities of Loveland and Fort Collins (collectively the "Cities" and "Loveland" or "Fort Collins" individually) jointly own and operate the public airport known as the Northern Colorado Regional Airport (the "Airport"). B.On November 10, 2022, the Northern Colorado Regional Airport Commission approved a ground lease of Airport property for the maintenance and operation of a hangar building with Gamebird Condominium Association (the "Lease"), which was partially subleased to CO Fire Aviation Leasing, Inc. (the "Sublessee") on January 1, 2024 {the "Sublease"). C.Article 13 of the Lease requires the Cities' written consent for any lease assignments; further, Sections 3 and 6 of the Sublease require the Sublessee to comply with all Lease terms, including that any assignments of its Sublease must be made in compliance with the Lease. D.FMS Bank is a lender (the "Lender") with which the Sublessee has arranged financing, and the Lender has requested a collateral assignment of the Sublease as security on the loan. E.The Lender's Collateral Assignment of Lease, attached hereto as Exhibit A serves as a confirmation of the Cities' authority to consent and approve the assignment and, in addition, provides the Lender with rights to receive notice of any Sublessee default, to cure such defaults, and request a new lease if the Sublease is terminated. F.City Council desires to approve the Lender's Collateral Assignment of Lease, which acknowledges the assignment provides the Lender rights to receive notice of any Sublessee default, to cure such defaults, and request a new lease if the original Sublease is terminated. G.City Council finds that approval of the Lender's Collateral Assignment of Lease is in the best interests of the Airport, the City and its residents, and serves the public purpose of furthering economic development of 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 City Council approves the Lender's Collateral Assignment of Lease in the form attached hereto as Exhibit A and incorporated herein by this reference. -1- Section 2. The City Council hereby authorizes the City Manager to execute the Lender's Collateral Assignment of Lease on behalf of the City and, after consultation with the City Attorne)', to further modify the Lender's Collateral Assignment of Lease in form or substances as necessary to fulfill the purposes of this Ordinance and protect the best interest of the City. Introduced, considered favorably on first reading on July 1, 2025, and approved on second reading for final passage on July 15, 2025. Sr. Deputy City Clerk Effective Date: July 25, 2025 Approving Attorney: Dianne Criswell Exhibit: Exhibit A -Collateral Assignment of Lease -2- WHEN RECORDED MAIL TO: FMS Bank Main Bank 520 Sherman Street Fort Morgan, CO 80701 FOR RECORDER'S USE ONLY COLLATERAL ASSIGNMENT OF LEASE THIS COLLATERAL ASSIGNMENT OF LEASE (“Assignment”) is given as of the ___ day of ___________, 2025, by CO Fire Aviation Leasing, Inc., a Colorado corporation (“Assignor”) whose address is 23101 Highway 52, Fort Morgan, CO 80701 to FMS BANK (together with its successors and assigns, the “Assignee”) whose address is 520 Sherman Street, Fort Morgan, CO 80701. RECITALS A.Assignor is the sublessee of certain real property known as 5263 Stearman Street, Loveland, CO 80538 (“Property”) pursuant to that certain Lease between Cities of Loveland and Fort Collins, Colorado acting by and through the Northern Colorado Regional Airport Commission (“Ground Lessor”) and Gamebird Flyers Condominium Association dated November 10th, 2022 (“Ground Lease”), and recorded on November 15, 2022 at Reception # 20220066921 of the Larimer County Recorder’s Office; and that certain Sublease between Gamebird Flyers Condominium and CO Fire Aviation Leasing, Inc., a Colorado corporation dated January 1, 2024, and recorded on June 12, 2024 at Reception # 20240023678 of the Larimer County Recorder’s Office. B.Assignor desires to borrow funds in the original principal amount of $920,000.00 (“Loan”) pursuant to a Promissory Note (“Note”) of even date herewith, made by Assignor payable to Assignee. C.Assignor desires to obtain a loan or loans from Lender (the “Loan”), which will be secured by, among other things, a deed of trust in favor of Lender encumbering all of the Assignor Interests in the Ground Lease. The deed of trust and all future deed of trusts encumbering the Assignor Interests (whether in favor of Lender or another lender) shall each hereinafter be referred to as a “Deed of Trust.” D.It is a condition of the Lender’s agreement to make the Loan that Ground Lessor execute and deliver this Agreement showing its consent to the Deed of Trust granted in favor of Lender. NOW, THEREFORE, in consideration of the foregoing premises, the parties agree as follows: EXHIBIT A TO ORDINANCE NO. 113, 2025 TERMS AND CONDITIONS 1. Confirmations. Ground Lessor hereby confirms the following: (a) The Leased Premises is owned by Ground Lessor. Ground Lessor has not made any assignment or transfer of, or created any options, purchase rights or other interests in, or mortgaged or encumbered the Leased Premises, except for the Ground Lease and easements and rights-of-way and liens of record, which existing easements and rights-of-way and liens of record are acknowledged and accepted by Assignor and the Lender. No consent or approval of any other person or entity is required in order for Ground Lessor to enter into, or as a condition of the effectiveness of, this Agreement. (b) All amendments to the Ground Lease are set forth in Exhibit “A” attached hereto. Aside from any of these amendments, the Ground Lease has not been amended or modified in any respect, and the Ground Lease remains in full force and effect. (c) All rent and other amounts due under the Ground Lease have been paid through the date hereof and, to Ground Lessor’s knowledge, all covenants and conditions required under the Ground Lease to be performed and observed by the tenants thereunder have been performed and observed, and there are no existing defaults under the Ground Lease. 2. Consents. Ground Lessor confirms and acknowledges that, pursuant to the terms of the Ground Lease, no consent of Ground Lessor was or is required for tenants thereunder to assign or sublease their leasehold estates as contemplated hereby with respect to the Loan, provided that no such assignment or sublease has released or, except as otherwise provided herein, shall release the tenant thereunder from liability under the Ground Lease, and in the event Tenant’s interest under the Lease is so assigned or sublet to Lender, its successors or assigns (as applicable, the “Assignee”), such Assignee shall have the right to further assign or sublet the Tenant’s interest in the Lease without the need to obtain the consent of Ground Lessor. Ground Lessor hereby consents to Assignor’s execution of the Deed of Trust encumbering the Assignor Interests; provided, however, that Ground Lessor expressly does NOT subordinate its interest in the Leased Premises to the interest of Lender or any other lender with respect to the Assignor Interests. 3. Non-Disturbance. Ground Lessor agrees that, except as stated otherwise in the Ground Lease, so long as no uncured event of default has occurred under the Ground Lease, and during any cure periods provided by the Ground Lease or this Agreement, Ground Lessor will not disturb Assignor or its subtenants in their possession of the Leased Premises under the Ground Lease. 4. Notice and Cure Rights. Ground Lessor agrees that it shall provide Assignor, Lender, and any future holder of a Deed of Trust which gives written notice of its Deed of Trust to Ground Lessor (collectively, the “Notice Parties”) with notice (sent in the manner set forth in paragraph 10 below) of any defaults under the Ground Lease, and Ground Lessor agrees that an opportunity shall be afforded to the Notice Parties to cure such defaults as follows: (a) The tenant under the Ground Lease shall first have the right to remedy any such defaults, for the periods allowed by the Ground Lease (if any). (b) If the tenant fails to cure such defaults within the periods allowed by the Ground Lease (if any), the Notice Parties shall then have the right to remedy such defaults for a period of thirty (30) days after receipt of notice; provided, however: (i) if any non-monetary defaults are of a nature that EXHIBIT A TO ORDINANCE NO. 113, 2025 they cannot be completely corrected within such thirty (30) day period, then such defaults shall be deemed to have been remedied if a Notice Party commences the cure thereof within such thirty (30) day period and proceeds to complete such cure with reasonable diligence thereafter; and (ii) the Notice Parties shall have such longer period to correct any such non-monetary defaults as may be required to complete any foreclosure proceedings or other remedial actions which the Notice Party elects to pursue to obtain possession or control of the Leased Premises, including, but not limited to, any delays which the Notice Party may encounter as a result of bankruptcy proceedings instituted by or on behalf of Assignor or by a creditor of Assignor, so long as during such longer cure period the Notice Party proceeds with reasonable diligence and causes all rent and other amounts due under the Ground Lease to be paid to Ground Lessor, and otherwise performs the covenants of the tenant under the Ground Lease to the extent the same can be performed without having possession or control of the Leased Premises. After obtaining possession of the Leased Premises, the Notice Party shall continue to proceed with reasonable diligence to cure any non-monetary defaults reasonably capable of cure. Upon assignment by such Notice Party of the Ground Lease, such Notice Party shall be deemed to be relieved of any and all obligations and liability under the Ground Lease. (c)In order to exercise their cure rights, the Notice Parties shall be required to cure defaults under the Ground Lease only to the extent that such defaults relate to the Leased Premises, and not to any adjacent or other property belonging to Ground Lessor. If the default is a failure to make rental or other monetary payments that relate both to the Leased Premises and to other property owned by Ground Lessor, the amount that a Notice Party shall be required to pay in order to cure such default shall be only that portion of such payment that relates to the Leased Premises (pro rata according to ground area). (d) Notwithstanding Ground Lessor’s agreement to give the Notice Parties notice of any defaults under the Ground Lease, Ground Lessor shall not under any circumstances whatsoever be liable to any party for any failure to give such notice, but the cure periods provided above shall not begin to run as to any Notice Party unless and until such Notice Party has received notice of the defaults, and at such time, the Notice Party shall have the right to cure such defaults as provided above. 5. Attornment. If any leasehold interest of Assignor under the Ground Lease with respect to the Leased Premises is terminated prior to the expiration of the term of the Ground Lease, Ground Lessor agrees that the Lender or any future holder of a Deed of Trust, or such party’s designee (the “New Tenant”) shall have the option to request a new lease (the “New Lease”), to be granted in the Cities’ sole discretion, for the Leased Premises (or portion thereof subject to such terminated leasehold interest) with New Tenant as the lessee, for the balance of the term or terms of the Ground Lease and any extensions thereof, effective as of the date of such termination, upon the same terms and conditions as are contained in the Ground Lease; provided, however, that (i) the New Tenant shall make written request for the New Lease within sixty (60) days after the date it is notified of the termination of the Ground Lease; (ii) the New Tenant shall pay or cause to be paid to Ground Lessor within such sixty (60) day period all unpaid sums which at such time would have been payable under the Ground Lease but for such termination, and shall cure all defaults under the Ground Lease which remain uncured as of such date to the extent required to be cured in accordance with Section 4(b) above; and (iii) the New Tenant pays all of Ground Lessor’s expenses in connection with obtaining the New Lease. In the event of a New Lease, any subleases entered into by Assignor as sublessor shall remain in effect in accordance with their respective terms, and the New Tenant shall become the sublessor under any such subleases. 6.Limitations on Obligations. If a Notice Party succeeds to the interests of a tenant under the Ground Lease, such Notice Party will not be: EXHIBIT A TO ORDINANCE NO. 113, 2025 (a)bound by any amendment or modification of the Ground Lease made without its written approval; or (b)liable for the payment of rent or other amounts due or for any default, act or omission of any party relating to any adjacent or other property owned by Ground Lessor. 7.Future Consents. Whenever the consent of any party hereunder is required under the Ground Lease or this Agreement, such consent will not be unreasonably withheld. 8.Amendments and Binding Effect. This Agreement and, so long as this Agreement is in effect, the Ground Lease, may be modified, amended, or terminated (other than in accordance with the terms thereof as modified hereby) only by an agreement in writing signed by the parties hereto. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. 9.Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original but all of which together shall constitute one and the same instrument. 10.Notices. All notices given under this Agreement shall be in writing and will be considered properly given if mailed by first class United States Postal Service delivery, postage prepaid, certified with return receipt requested, or if personally delivered to the intended addressee. Notice by mail shall be effective three (3) days after deposit in a regularly maintained mail depository of the United States Postal Service. Notice personally delivered will be effective when received by the addressee. For purposes of notices, the addresses of the parties are as follows: If to Ground Lessor: Northern Colorado Regional Airport Commission Attn: Airport Manager 4900 Earhart Drive Loveland, CO 80538 With a copy to: Loveland City Attorney’s Office 300 E. Third Street Loveland, CO 80537 If to Assignor: Christopher Doyle CO Fire Aviation Leasing, Inc. 23101 Highway 52 Fort Morgan, CO 80701 If to Lender: FMS Bank Attn: Keri Fox EXHIBIT A TO ORDINANCE NO. 113, 2025 520 Sherman Street Fort Morgan, CO 80701 Any party may change its address for notices by giving written notice to the Notice Parties in accordance with this paragraph 10. 11.Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above. Ground Lessor: City of Loveland, a Colorado municipal corporation By: _______________________________ Name:_____________________________ Title:______________________________ ATTEST: City Clerk APPROVED AS TO FORM: Deputy City Attorney Ground Lessor: City of Fort Collins, a Colorado municipal corporation By: _______________________________ Name:_____________________________ Title:______________________________ ATTEST: City Clerk APPROVED AS TO FORM: Senior Assistant City Attorney EXHIBIT A TO ORDINANCE NO. 113, 2025 Assignor: CO Fire Aviation Leasing, Inc. By: _______________________________ Name:_____________________________ Title:______________________________ Lender: FMS BANK By: _______________________________ Name:_____________________________ Title:______________________________ EXHIBIT A TO ORDINANCE NO. 113, 2025 STATE OF COLORADO ) ) ss COUNTY OF _________ ) The foregoing instrument was acknowledged before this ______ day of______________, 2025, by___________________, as ____________________ of CO Fire Aviation Leasing, Inc., a Colorado corporation. Witness my hand and official seal. My commission expires: _____________ _______________________________ Notary Public STATE OF COLORADO ) ) ss COUNTY OF _________ ) The foregoing instrument was acknowledged before this ______ day of______________, 2025, by___________________, as ____________________ of FMS Bank, a national banking association. Witness my hand and official seal. My commission expires: _____________ _______________________________ Notary Public EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A AMENDMENTS TO GROUND LEASE EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025 EXHIBIT A TO ORDINANCE NO. 113, 2025