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HomeMy WebLinkAbout196 - 12/19/2006 - AUTHORIZING THE CITY MANAGER TO ENTER INTO A SECOND AMENDMENT TO THE LONG-TERM LEASE FOR CIVIC CENTE ORDINANCE NO. 196, 2006 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE CITY MANAGER TO ENTER INTO A SECOND AMENDMENT TO THE LONG-TERM LEASE FOR CIVIC CENTER VILLAGE ADJACENT TO THE CIVIC CENTER PARKING STRUCTURE WHEREAS,the City and Phelps Program Management,LLC,a Delaware Limited Liability Company("PPM"), entered into that certain ground lease dated September 14, 1998, as amended by the First Amendment to Ground Lease by and between them and dated November 7, 2000 (together referred to as the"Ground Lease"),for the lease to PPM of the ground floor area along the western face of the Civic Center Parking Structure building("Civic Center Village"); WHEREAS,on December 1,2003,PPM assigned to Post Modem Development,Inc.("Post Modern"),PPM's leasehold interest in the Civic Center Village,and all PPM's rights and obligations set forth in the Ground Lease,pursuant to that certain Assignment of Interest in Ground Lease and General Warranty Deed to Improvements and Assumption by Grantee",by and between PPM and Post Modern; and WHEREAS, the City Manager has negotiated with Post Modern an amendment to the Ground Lease for the purpose of providing a specific parking benefit to Post Modem in connection with Post Modem's use of Civic Center Village; and WHEREAS, the City Manager has negotiated additional amendment provisions to clarify the respective rights and responsibilities related to the awnings that were previously installed by PPM along the western face of the Civic Center Parking Structure, above Civic Center Village;and WHEREAS, the City Manager has further negotiated amendment language to confirm the City's understanding regarding responsibility for maintenance and repair of certain utility service lines installed on the Civic Center Parking Structure property for the benefit of Civic Center Village; and WHEREAS, pursuant to the Council's authority in Section 23-111 and Section 23-114 of the City Code, the City Council has previously adopted Ordinance No. 145, 1998, authorizing the Ground Lease, and Ordinance No. 103, 2001, approving and ratifying the First Amendment to the Ground Lease; and WHEREAS, the City Manager has requested that the Council authorize the execution of a Second Amendment to Ground Lease, in substantially the form attached hereto as Exhibit A and incorporated herein by this reference(the"Second Amendment"), to modify the Ground Lease for Civic Center Village as described above. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby finds that the Ground Lease,as modified by the Second Amendment, is for the benefit of and in the best interest of the City. Section 2. That the City Council hereby authorizes the City Manager to execute the Second Amendment, together with such additional terms and conditions as the City Manager, in consultation with the City Attorney,determines to be necessary or appropriate to protect the interests of the City. Introduced, considered favorably on first reading, and ordered published this 5th day of December, A.D. 2006, and to be presented for final passage on the 19th day of December, A.D. 2006. Mayor ATTEST: 4W�4 �* City Clerk Passed and adopted on final reading on the 19th day of Peeipber, A.D. 2006. J Mayor ATTEST: City Clerk EXHIBIT"A" SECOND AMENDMENT TO GROUND LEASE This Second Amendment to Ground Lease (the "Second Amendment") is entered into by and between the CITY OF FORT COLLINS, COLORADO, a Colorado home rule city (the "Landlord") whose address is 300 LaPorte Avenue, Fort Collins, Colorado 80522-0580, and CIVIC CENTER LLC, a Colorado limited liability company (the "Tenant") whose address is 144 North Mason Street, Suite 4, Fort Collins, Colorado 80524. RECITALS WHEREAS, Landlord and Phelps Program Management, LLC, a Delaware Limited Liability Company ("PPM") entered into that certain ground lease dated as of September 14, 1998, as amended by the First Amendment to Ground Lease by and between them and dated November 7, 2000 (together referred to as the "Ground Lease'), for the lease to PPM of a portion of that certain property owned by and located in the City of Fort Collins more specifically described in Exhibit "A" attached to the Ground Lease (the "City Property"), the leased portion of which is more specifically described on Exhibit `B" attached to the Ground Lease (the"Demised Premises"); and WHEREAS, on December 1, 2003, PPM assigned to Tenant PPM's leasehold interest in the Demised Premises, and all PPM's rights and obligations set forth in the Ground Lease, pursuant to that certain Assignment of Interest in Ground Lease and General Warranty Deed to Improvements and Assumption by Grantee",by and between PPM and Tenant; and WHEREAS, the parties desire to amend the Ground Lease for the purpose of providing a specific parking benefit to Tenant in connection with Tenant's use of the Demised Premises; and WHEREAS, the parties further desire to amend the Ground Lease to clarify their respective rights and responsibilities related to the awnings that were previously installed by PPM along the western face of the City Property, above the Demised Premises; and WHEREAS, the parties further desire to amend the Ground Lease to confirm their understanding regarding responsibility for maintenance and repair of certain utility service lines installed by Tenant on the City Property. NOW, THEREFORE, in consideration of the Demised Premises and the covenants, agreements and consideration set forth in the Ground Lease and as provided herein, the parties hereto agree as follows: 1. Ground Lease Terminology. The capitalized terms used and not defined herein shall have the meaning as set forth in the Ground Lease 2. Maintenance of Awnings. The parties acknowledge and agree that Section 7.03 of the Ground Lease, relating to Maintenance Work, is hereby amended to add the following new language after the existing language: Tenant shall be responsible for the maintenance, repair or replacement of the awnings on the western face of the City Property, above the windows along the western face of the Demised Premises, which consist of six straight canvas awnings and two arched metal awnings. The parties acknowledge that said awnings are and shall continue to be the property of Landlord. Tenant shall be entitled to a credit on the next successive payment of Base Rent in an amount equal to fifty percent (50%) of the costs reasonably and actually incurred by Tenant to maintain and repair said awnings. Landlord shall be entitled to make any such repairs promptly upon a failure of Tenant to complete the same in a timely manner, and shall in such event be entitled to reimbursement by Tenant within thirty (30) days of mailing of a written invoice for any costs incurred by Landlord in carrying out said maintenance, repair or replacement. Tenant shall be solely responsible for costs associated with the replacement or modification of the awnings, and any such replacement or modification shall be subject to advance written approval by the Landlord, in its sole discretion. Any approval by the Landlord hereunder shall be in addition to and shall not in any way affect regulatory review or permit requirements applicable to the replacement or modification of the awning and work related thereto. 3. Maintenance of Utility Service Lines Servin¢ the Demised Premises. The Ground Lease shall be amended to add a new Section 7.17, as follows: Section 7.17. The parties acknowledge that Landlord has installed certain sewer service-related improvements on the City Property to facilitate Landlord's operation and maintenance of the City Property, and that Tenant has also installed certain utility service lines, including but not limited to sewer service lines, on and under the City Property in the areas set forth in the REA, which service lines provide utility service to the Demised Premises. The parties expressly acknowledge and agree that Tenant's rights to maintain said utility service lines pursuant to the REA are conditioned upon Tenant's maintenance and repair of the same, and failure by Tenant to properly operate and adequately maintain its improvements on the Demised Premises and in said easement areas shall constitute a default of this Ground Lease and the REA. Tenant further acknowledges that Tenant shall be responsible for any and all damage to the City Property or to other property owned by Landlord, or other damage or injury, resulting from Tenant's operation and maintenance of said utility service lines or Tenant's negligent acts or omissions in connection therewith. 4. Parkine Permit. The Ground Lease shall be amended to add a new Article XIV, and a new Section 14.01 therein, as follows: ARTICLE XIV PARKING Section 14.01. Beginning as of the effective date of this Second Amendment, set forth in Paragraph 8, below, Tenant shall be entitled, for so long as Tenant continues to exercise its rights under this Article without interruption and to timely pay to Landlord all amounts due hereunder, to purchase two (2) monthly full-time parking permits in the City's Civic Center Parking Structure (the "Parking Permits"). Tenant shall be obligated to pay: 1) an initial charge, payable prior to issuance of the Parking Permits, for Landlord's costs in establishing the 2 Designated Parking Spaces, as said Spaces are hereinafter defined, in the amount of Three Hundred Dollars ($300.00); and 2) a monthly charge for each of the Parking Permits equal to one and one-half (1'/z)times the market rate for a standard monthly parking permit for the Parking Structure, to be received by Landlord prior to issuance of the Parking Permits and no later than the first day of each subsequent month. Tenant may pay for said Parking Permits for up to one (1) calendar year at a time. The Parking Permits shall entitle the Tenant to at all times, except as otherwise provided herein, park two (2) vehicles in the Parking Structure, in two spaces designated by Landlord's Parking Services Office in accordance with this Section. Said designated parking spaces shall be clearly marked as reserved and unavailable for general public parking, and shall, as of the effective date of this Amendment, be those certain parking spaces located on the first level, next to the north wall in the far northeast and far northwest corners of the section of spaces immediately east of the LaPorte entrance and exit lanes, as shown on Exhibit C attached hereto and incorporated herein by this reference (the "Designated Parking Spaces"). Landlord may, from time to time when necessary for Landlord's operation and management of the Parking Structure, in Landlord's reasonable discretion, change the location of the Designated Parking Spaces to other locations on the ground floor level of the Parking Structure at Landlord's sole cost and expense, with advance written notice to Tenant no less than sixty (60) days in advance of any such change. Tenant's use of the Designated Parking Spaces shall be contingent upon compliance with such procedures as may be required, in Landlord's discretion, to enable Landlord to enforce improper use of the parking spaces, such as, for example, the display of a rear-view mirror hang tag to be provided. The Parking Permits shall not permit or entitle Tenant to parking in the Parking Structure except in the Designated Parking Spaces. Landlord may, from time to time, temporarily prohibit use of the Parking Structure, or the Designated Parking Spaces, in order to allow Landlord to carry out such operational or maintenance activities as Landlord deems necessary or appropriate, such as, for example, restriping of spaces, pressure washing, snow removal, and repairs. Tenant shall not be entitled to take direct action to prevent or enforce against unauthorized use of the Designated Parking Spaces, and Landlord's enforcement of the restriction on use of the Designated Parking Spaces shall be conducted consistent with, and as part of, Landlord's routine enforcement of general restrictions on use of the Parking Structure. By agreeing to allow Tenant to purchase the Parking Permits and use the Designated Parking Spaces, Landlord does not confer to Tenant any property interest in the Parking Structure, or any representations or warranties as to the safety or security of the Parking Structure or fitness of the Parking Structure for any particular use or need of Tenant. Landlord shall be entitled to the benefit of all limitations, restrictions and procedural protections set forth in the Colorado Governmental Immunity Act in connection with Tenant's use or occupation of the Parking Structure. Landlord further notes, and Tenant acknowledges, that the Parking Structure is open to the public and may be unattended, and that Tenant's exercise of any rights under a Parking Permit purchased by Tenant shall be at Tenant's own risk. 5. Notice of Amendment. Landlord shall, upon fulfillment of the conditions precedent set forth in Paragraph 6, below, cause a notice of this Second Amendment to Ground Lease to be recorded in the real property records of the Clerk and Recorder of Larimer County, Colorado, and shall provide evidence of such recording to Tenant promptly upon completion. 6. Reaffirmation. Except as amended and modified by this Second Amendment, the Ground Lease shall be and remain in full force and effect. 3 7. Miscellaneous. This Amendment shall be governed by Colorado Law and shall be construed in accordance with the miscellaneous provisions set forth in Article XIII of the Ground Lease to the same extent and as if such terms and provisions were set forth in this Amendment. 8. Conditions Precedent: Effective Date of Second Amendment. This Second Amendment shall not be effective until Landlord has submitted the same for recordation pursuant to Paragraph 5, above, which submission shall be completed promptly after each of the following events have occurred: a. The City Council of the City of Fort Collins (herein after "the Council") approving the Second Amendment by the Council's final adoption of a related ordinance, in its discretion, on or before January 16, 2007. If Council does not pass such an ordinance on second reading on or before January 16, 2007, then this Second Amendment shall be automatically terminated. If, however, Council does pass such an ordinance on or before January 16, 2007, but within ten (10) days of the passage of the ordinance a notice of protest against the ordinance has been filed with the City Clerk of the City of Fort Collins Pursuant to Section 2(b) of Article X of the Charter of the City of Fort Collins, then the time for fulfillment of this condition precedent shall be stayed until either the Council repeals the ordinance or the electors vote to repeal or approve the ordinance in accordance with Section 2(c) of Article X of the Charter of the City of Fort Collins. In the event the ordinance is repealed by Council or by the electors, then this Second Amendment shall be automatically terminated. If the Council does not repeal the ordinance and if the electors approve the ordinance, then this condition precedent shall as be effective as of the date of elector approval. b. The parties shall properly execute and deliver to one another the general release forms as described in and attached to that certain letter from Carrie M. Daggett, Senior Assistant City Attorney to Timothy L. Goddard, legal counsel for Landlord and Tenant, respectively, dated November 10, 2005. c. Tenant shall have paid to Landlord the amount of Two Thousand Eight Hundred Dollars ($2,800.00) in good funds. 4 IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be executed as of the day and year first above written. TENANT: CIVIC CENTER, LLC By: Name: Title: [SEAL] LANDLORD: THE CITY OF FORT COLLINS: By: Name: Darin A. Atteberry Title: City Manager ATTEST: City Clerk APPROVED AS TO FORM: Assistant City Attorney 5 STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The undersigned, a notary public in and for the above said County and State, does hereby acknowledge that on the day and year set forth below, personally appeared in his capacity as for Civic Center, LLC, a Colorado limited liability company, being duly sworn by and personally known to the undersigned to be the person who executed the foregoing instrument in the capacity set forth above, acknowledged to the undersigned that he voluntarily executed the same for the purposes therein stated. WITNESS my hand and official seal, this_day of 12006. [SEAL] Notary Public for the State of Colorado My Commission Expires: STATE OF COLORADO ) ss. COUNTY OF LARIMER ) The undersigned, a notary public in and for the above-said County and State, does hereby acknowledge that on the day and year set forth below, personally appeared Darin A. Atteber y, in his capacity as City Manager of the City of Fort Collins, Colorado, a Colorado municipality, being duly sworn by and personally known to the undersigned to be the person who executed the foregoing instrument in the capacity set forth above, acknowledged to the undersigned that he voluntarily executed the same for the purposes therein stated. WITNESS my hand and official seal, this day of 12006. [SEAL] Notary Public for the State of Colorado My Commission Expires: 6 EXHIBIT A Description of City Property TRACT A AND TRACT B OF A FINAL PLAT OF REPLAT OF LOTS 24 THROUGH 39, INCLUSIVE, BLOCK 21, OF THE TOWN MAP OF THE TOWN OF FORT COLLINS, COUNTY OF LARIMER, STATE OF COLORADO, EXCEPTING THEREFROM THE FOLLOWING: THAT PORTION OF TRACT B, OF A FINAL PLAT OF A REPLAT OF LOTS 24 THROUGH 39, BLOCK 21, OF THE TOWN OF FT. COLLINS, LARIMER COUNTY, COLORADO DESCRIBED AS FOLLOWS: CONSIDERING THE WEST LINE OF SAID TRACT B AS BEARING SOUTH 00006'30" EAST AND WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. COMMENCING AT THE NORTHWEST CORNER OF TRACT C OF SAID FINAL PLAT OF A REPLAT OF LOTS 24 THROUGH 39, BLOCK 21, OF THE MAP OF THE TOWN OF FT. COLLINS, LARIMER COUNTY, COLORADO, THENCE SOUTH 15°32'49" EAST 19.48' TO THE TRUE POINT OF BEGINNING, THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 1.94 FEET; THENCE SOUTH 89°45'22" WEST, A DISTANCE OF 0.45 FEET; THENCE SOUTH 00014'38" EAST, A DISTANCE OF 53.78 FEET; THENCE SOUTH 89045'22" WEST, A DISTANCE OF 0.66 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 17.93 FEET; THENCE SOUTH 89°45'22" WEST, A DISTANCE OF 0.66 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 32.64 FEET; THENCE NORTH 89045'22" EAST, A DISTANCE OF 1.33 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 39.07 FEET; THENCE SOUTH 89°45'22" WEST, A DISTANCE OF 0.66 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 14.71 FEET; THENCE NORTH 89045'22" EAST, A DISTANCE OF 0.66 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 39.07 FEET; THENCE SOUTH 89°45'22" WEST, A DISTANCE OF 0.66 FEET; THENCE SOUTH 00014'38" EAST, A DISTANCE OF 17.93 FEET; THENCE SOUTH 89045'22" WEST, A DISTANCE OF 0.66 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 32.64 FEET; THENCE NORTH 89°45'22" EAST, A DISTANCE OF 1.33 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 57.00 FEET; THENCE SOUTH 89°45'22" WEST, A DISTANCE OF 0.66 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 9.89 FEET; THENCE NORTH 89°45'22" EAST, A DISTANCE OF 50.80 FEET; THENCE NORTH 00°14'38" WEST, A DISTANCE OF 332.75 FEET; THENCE SOUTH 89045'22" WEST, A DISTANCE OF 28.80 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 16.14 FEET; THENCE SOUTH 89°45'22" WEST, A DISTANCE OF 20.88 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 0.378 ACRES, MORE OR LESS. A-1 AND INCLUDING IMPROVEMENTS THEREON COMPRISING THE FIRST FLOOR OF THE BUILDING EXTENDING FROM THE BOTTOM FLOOR SLAB TO THE CEILING SLAB OF SUCH FIRST FLOOR WHICH IS ESTIMATED TO BE APPROXIMATELY 1417" TALL. COUNTY OF LARIMER, STATE OF COLORADO. A-2 EXHIBIT B Demised Premises THAT PORTION OF TRACT B, OF A FINAL PLAT OF A REPLAT OF LOTS 24 THROUGH 39, BLOCK 21, OF THE TOWN OF FT. COLLINS, LARIMER COUNTY, COLORADO DESCRIBED AS FOLLOWS: CONSIDERING THE WEST LINE OF SAID TRACT B AS BEARING SOUTH 00006'30" EAST AND WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. COMMENCING AT THE NORTHWEST CORNER OF TRACT C OF SAID FINAL PLAT OF A REPLAT OF LOTS 24 THROUGH 39, BLOCK 21, OF THE MAP OF THE TOWN OF FT. COLLINS, LARIMER COUNTY, COLORADO, THENCE SOUTH 15°32'49" EAST 19.48' TO THE TRUE POINT OF BEGINNING, THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 1.94 FEET; THENCE SOUTH 89045'22" WEST, A DISTANCE OF 0.45 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 53.78 FEET; THENCE SOUTH 89045'22" WEST, A DISTANCE OF 0.66 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 17.93 FEET; THENCE SOUTH 89°45'22" WEST, A DISTANCE OF 0.66 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 32.64 FEET; THENCE NORTH 89°45'22" EAST, A DISTANCE OF 1.33 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 39.07 FEET; THENCE SOUTH 89°45'22" WEST, A DISTANCE OF 0.66 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 14.71 FEET; THENCE NORTH 89°45'22" EAST, A DISTANCE OF 0.66 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 39.07 FEET; THENCE SOUTH 89°45'22" WEST, A DISTANCE OF 0.66 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 17.93 FEET; THENCE SOUTH 89045'22" WEST, A DISTANCE OF 0.66 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 32.64 FEET; THENCE NORTH 89045'22" EAST, A DISTANCE OF 1.33 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 57.00 FEET; THENCE SOUTH 89°45'22" WEST, A DISTANCE OF 0.66 FEET; THENCE SOUTH 00°14'38" EAST, A DISTANCE OF 9.89 FEET; THENCE NORTH 89°45'22" EAST, A DISTANCE OF 50.80 FEET; THENCE NORTH 00°14'38" WEST, A DISTANCE OF 332.75 FEET; THENCE SOUTH 89045'22" WEST, A DISTANCE OF 28.80 FEET; THENCE SOUTH 00014'38" EAST, A DISTANCE OF 16.14 FEET; THENCE SOUTH 89°45'22" WEST, A DISTANCE OF 20.88 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 0.378 ACRES, MORE OR LESS. AND INCLUDING IMPROVEMENTS THEREON COMPRISING THE FIRST FLOOR OF THE BUILDING EXTENDING FROM THE BOTTOM FLOOR SLAB TO THE CEILING SLAB OF SUCH FIRST FLOOR WHICH IS ESTIMATED TO BE APPROXIMATELY 14'7" TALL. COUNTY OF LARIMER, STATE OF COLORADO. Bt EXHIBIT C Location of the Designated Parking Spaces LaPorte Avenue rB Designated Spaces 1 0 1 h M a S 0 n S t r e e t . -- Booth N C_1