HomeMy WebLinkAboutresolution.council.102-19 RESOLUTION # 102
(Series of 2019)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING AN AGREEMENT BY, BETWEEN, AND AMONG
ASPENFILM, FKA INDEPENDENT FILMS, INC., D/B/A ASPENFILM, A
COLORADO NONPROFIT CORPORATION ("ASPENFILM"), ISIS RETAIL
GROUP, LLC, A COLORADO LIMITED LIABILITY COMPANY ("IRG"), THE
CITY OF ASPEN, A COLORADO MUNICIPAL CORPORATION (THE
"CITY"), AND THE CITY OF ASPEN PUBLIC FACILITIES AUTHORITY, A
COLORADO NON-PROFIT CORPORATION ("CAPFA") AND AUTHORIZING
THE CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF
THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council an Agreement by,
between, and among AspenFilm, fka Independent Films, Inc. d/b/a AspenFilm, a
Colorado Nonprofit Corporation; Isis Retail Group, LLC, a Colorado Limited
Liability Company ("IRG"); the City Of Aspen, a Colorado Municipal
Corporation; and the City of Aspen Public Facilities Authority, a Colorado Non-
Profit Corporation, regarding and concerning the sale by IRG of its interest in the
property in the ISIS THEATER CONDOMINIUMS, according to the
Condominium Map thereof recorded December 9, 1999 in Plat Book 52 at Page 1
as Reception No. 438434 and the First Amended Condominium Map recorded
September 29, 2011 in Book 98 at Page 14 as Reception No. 583124 and the
Second Amended Condominium Map recorded September 11, 2014 in Plat Book
108 at Page 6 as Reception No. 613396, to a third party buyer. A true and
accurate copy of the Agreement is attached hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Agreement
by, between and among AspenFilm, fka Independent Films, Inc. d/b/a AspenFilm,
a Colorado Nonprofit Corporation; Isis Retail Group, LLC, a Colorado Limited
Liability Company; the City of Aspen, a Colorado Municipal Corporation; and the
City of Aspen Public Facilities Authority, a Colorado Non-Profit Corporation, a
copy of which is attached hereto and incorporated herein and does hereby
authorize the City Manager to execute said agreement and all closing and other
documents set forth therein, as approved by the City Attorney, on behalf of the
City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City
of Aspen on the 23rd day of September 2019.
Torre, Mayor
I, Linda Manning, duly appointed and acting City Clerk do certify that
the foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at ame *n9 held September 23, 2019.
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Linda Manning, City C erk
RESOLUTION
of
CITY OF ASPEN PUBLIC FACILITIES AUTHORITY
A RESOLUTION OF THE CITY OF ASPEN PUBLIC FACILITIES
AUTHORITY, APPROVING AN AGREEMENT BY, BETWEEN, AND
AMONG ASPENFILM, FKA INDEPENDENT FILMS, INC., D/B/A
ASPENFILM, A COLORADO NONPROFIT CORPORATION ("ASPENFILM");
ISIS RETAIL GROUP, LLC, A COLORADO LIMITED LIABILITY COMPANY
("IRG"); THE CITY OF ASPEN, A COLORADO MUNICIPAL CORPORATION
(THE "CITY"); AND THE CITY OF ASPEN PUBLIC FACILITIES
AUTHORITY, A COLORADO NON-PROFIT CORPORATION ("CAPFA")
AND AUTHORIZING THE CITY OF ASPEN FINANCE DIRECTOR PETE
STRECKER, A MEMBER OF THE BOARD OF DIRECTORS TO EXECUTE
SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City of Aspen Public Facilities
Authority an Agreement by, between, and among AspenFilm, fka Independent
Films, Inc. d/b/a AspenFilm, a Colorado Nonprofit Corporation; Isis Retail Group,
LLC, a Colorado Limited Liability Company ("IRG"); the City of Aspen, A
Colorado Municipal Corporation; and the City of Aspen Public Facilities
Authority, a Colorado Non-Profit Corporation, regarding and concerning the sale
by IRG of its interest in the property in the ISIS THEATER CONDOMINIUMS,
according to the Condominium Map thereof recorded December 9, 1999 in Plat
Book 52 at Page 1 as Reception No. 438434 and the First Amended Condominium
Map recorded September 29, 2011 in Book 98 at Page 14 as Reception No. 583124
and the Second Amended Condominium Map recorded September 11, 2014 in Plat
Book 108 at Page 6 as Reception No. 613396, to a third party buyer. A true and
accurate copy of the Agreement is attached hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF
DIRECTORS OF THE CITY OF ASPEN PUBLIC FACILITIES AUTHORITY,
A COLORADO NON-PROFIT CORPORATION
That the City of Aspen Public Facilities Authority hereby approves that
Agreement by, between and among AspenFilm, fka Independent Films, Inc. d/b/a
AspenFilm, a Colorado Nonprofit Corporation; Isis Retail Group, LLC, a
Colorado Limited Liability Company; the City Of Aspen, a Colorado Municipal
Corporation; and the City of Aspen Public Facilities Authority, a Colorado Non-
Profit Corporation, a copy of which is attached hereto and incorporated herein and
does hereby authorize the City of Aspen Finance Director Pete Strecker, a member
of the Board of Directors to execute said agreement and all closing and other
documents set forth therein, as approved by the City Attorney, on behalf of the
City of Aspen Public Facilities Authority.
INTRODUCED, READ AND ADOPTED by the Board of Directors of the
City of Aspen Public Facilities Authority on the 23 d day of September 2019.
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Torre, Chairman
I, Linda Manning, duly appointed and acting as Secretary of the City of
Aspen Public Facilities Authority do certify that the foregoing is a true and
accurate copy of that resolution adopted by the Board of Directors of City of
Aspen Public Facilities Authority at a meeting held September 23, 2019.
Linda Manning, City Clerk
AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of the day of September,
2019 ("Effective Date"), by and among ASPENFILM, FKA Independent Films, Inc. d/b/a
AspenFilm, a Colorado nonprofit corporation ("AspenFilm"), ISIS RETAIL GROUP, LLC, a
Colorado limited liability company ("IRG"), THE CITY OF ASPEN, a Colorado municipal
corporation (the "City"), and THE CITY OF ASPEN PUBLIC FACILITIES AUTHORITY, a
Colorado non-profit corporation("CAPFA"), but solely with respect to the provisions of Sections
5, 6 and 7 hereof.
WITNESSETH:
WHEREAS, the City, as landlord, and IRG, as tenant, entered into that certain Sublease
as of February 16, 2007 and recorded February 16, 2007 as Reception No. 534584, Pitkin
County, Colorado, and a copy thereof with certain corrected exhibits, titled "Corrected
Sublease", was re-recorded on June 20, 2008 as Reception No. 550452 (the "Corrected Isis
Sublease"), regarding certain premises legally described as Commercial Units A-2 and A-3
("Commercial Units A-2 and A-3") (which are sometimes collectively referred to in the
Corrected Isis Sublease as "Commercial Unit I" and which Commercial Units A-2 and A-3
formerly comprised portions of"Commercial Unit A"), and Residential Units C and D ("Units C
and D"), ISIS THEATER CONDOMINIUMS, according to the Condominium Map thereof
recorded December 9, 1999 in Plat Book 52 at Page 1 as Reception No. 438434 and the First
Amended Condominium Map recorded September 29, 2011 in Book 98 at Page 14 as Reception
No. 583124 and the Second Amended Condominium Map recorded September 11, 2014 in Plat
Book 108 at Page 6 as Reception No. 613396 (as so amended, the "Condo Map"), and as defined
and described by the Condominium Declaration for Isis Theater Condominiums recorded
December 9, 1999 as Reception No. 438433 and the First Amendment to Condominium
Declaration of Isis Theater Condominiums recorded September 9, 2011 as Reception No.
583123, County of Pitkin, State of Colorado (as so amended, the "Condo Declaration") (Units A-
2, A-3, C and D shall collectively be referred to herein as the "Isis Property");
WHEREAS, the City and IRG are also parties to that certain Assignment of Renovation
Agreement dated as of February 16, 2007 (the "Assignment of Renovation Agreement"), a copy
of which is annexed to the Corrected Isis Sublease as "Exhibit B";
WHEREAS, the City, IRG, and AspenFilm are parties to that certain Memorandum of
Understanding made as of November 29, 2006 (the "Memorandum of Understanding"), a copy
of which is annexed to the Corrected Isis Sublease as "Exhibit MOU-1%
WHEREAS, the City, as landlord, and AspenFilm, as tenant, entered into that certain
Sublease as of February 16, 2007 and recorded February 16, 2007 as Reception No. 534584,
Pitkin County, Colorado, and a copy thereof with certain corrected exhibits, titled "Corrected
Sublease", was re-recorded on June 20, 2008 as Reception No. 550453 (the "Corrected
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AspenFilm Sublease"), regarding certain premises legally described as Commercial Unit A
(referenced in the Corrected Isis Sublease as "Commercial Unit 2" and formerly known as a
portion of"Commercial Unit A"), ISIS THEATER CONDOMINIUMS, according to the Condo
Map and as defined and described by the Condo Declaration (which property shall be referred to
herein "Commercial Unit A" or as the "AspenFilm Leased Propgm") ;
WHEREAS, the City and CAPFA are parties to that certain Lease Purchase Agreement
as of February 1, 2007 and recorded February 16, 2007 as Reception No. 534584, Pitkin County,
Colorado, and a copy thereof with certain corrected exhibits, titled "Corrected Lease Purchase
Agreement", was re-recorded on June 20, 2008 as Reception No. 550450 (the "Corrected Lease
Purchase Agreement"), and pursuant to Section 9.01(c)thereof, the City exercised its option to
purchase the Isis Property from CAPFA, after having received notice from IRG pursuant to
Section 2.05(c) of the Corrected Isis Sublease, by which IRG exercised its option to purchase the
Isis Property from the City, and as a result of the exercise of such rights by the City and by IRG,
and the direct deeding of the Isis Property by CAPFA to IRG's designee, the Corrected Lease
Purchase Agreement terminated as to the Isis Property, and the Corrected Isis Sublease is also
terminated;
WHEREAS, by this Agreement, the parties mutually desire to confirm the termination
and discharge of any and all rights and obligations of the City and CAPFA under the Corrected
Lease Purchase Agreement as to the Isis Property, and the termination and discharge of the
Corrected Isis Sublease and any and all other rights, and obligations of the City, IRG,
AspenFilm, and any successor in interest to IRG as owner of the Isis Property with respect
thereto ("IRG Successor"), including but not limited to, the rights and obligations of the City and
IRG as provided for in the Assignment of Renovation Agreement and also any rights, and
obligations of IRG and any IRG Successor in the Memorandum of Understanding, but expressly
excluding from such termination and discharge any rights, and obligations of the City and
AspenFilm to each other in the Memorandum of Understanding, all of which rights and
obligations are expressly reserved by the City and AspenFilm;
WHEREAS, the Corrected AspenFilm Sublease is currently in effect;
WHEREAS, the Corrected Isis Sublease and the Corrected Aspen Film Sublease each
contain certain rights of first negotiation and rights of acquisition with respect to Commercial
Units A-2 and A-3, and to Commercial Unit A;
WHEREAS, by this Agreement, the parties also desire to amend and restate, and
memorialize in their entirety their agreement with respect to certain provisions of the Corrected
Isis Sublease and the Corrected AspenFilm Sublease which reference certain rights of first
negotiation and rights of acquisition with respect to Commercial Units A-2 and A-3, and
Commercial Unit A;
WHEREAS, the Condo Declaration sets forth certain "Special Declarant Rights" (as such
term is defined in the Condo Declaration) which were reserved to the "Declarant" (as such term
is also defined in the Condo Declaration);
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WHEREAS, by this Agreement, the parties also desire to acknowledge and agree that
pursuant to the terms of and conditions of the Condo Declaration, all of the Special Declarant
Rights thereunder have expired, certain of the voting rights proxies coupled with an interest
provided for therein are terminated and are of no force or effect, and that all voting rights
associated with the Isis Property and the AspenFilm Leased Property as provided for under the
Condo Declaration may only be exercised by the respective owner(s) of the Isis Property and the
AspenFilm Leased Property; and
WHEREAS, by this Agreement, CAPFA and the City desire to amend certain provisions
of the Occupancy and Use Deed Restriction, Agreement, and Covenant dated February 16, 2007,
and recorded February 16, 2007 as Reception No. 534579, Pitkin County, Colorado (the
"Occupancy and Use Deed Restriction") with respect to Units C and D.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, AspenFilm, IRG, the City, and CAPFA (but as to CAPFA, solely with respect to
the provisions of Sections 5, 6 and 7 hereof) hereby agree as follows:
1. Termination of Corrected Isis Sublease, and Assignment of Renovation
Aareement; Termination of Certain Rights and Obligations of IRG and IRG Successors
Under Memorandum of Understanding. The Corrected Isis Sublease and the Assignment of
Renovation Agreement are terminated, discharged and released as of the Effective Date, and are
no longer of force or effect. All rights and obligations of IRG and any IRG Successor under the
Memorandum of Understanding are no longer of force or effect, but any rights and obligations of
the City and AspenFilm to each other in the Memorandum of Understanding are expressly
reserved by the City and AspenFilm.
2. Cross Options. Section 2.05(d) of the terminated Corrected Isis Sublease set forth
certain "cross option" rights in favor of AspenFilm to purchase the Commercial Units A-2 and
A-3 upon the occurrence of certain events described therein after March 1, 2010, but prior to
March 1, 2017. Section 2.05(d) of the Corrected AspenFilm Sublease sets forth certain "cross
option" rights in favor of IRG to purchase the Commercial Unit A upon the occurrence of certain
events described therein after March 1, 2010, but prior to March 1, 2017. As a result of the
termination of the Corrected Isis Sublease and the non-occurrence of such prescribed events, the
parties acknowledge and agree that the cross option set forth in Section 2.05(d) of the Corrected
Isis Sublease and the cross option set forth in Section 2.05(d) of the Corrected AspenFilm
Sublease are no longer of any force or effect.
3. First Rights to Negotiate Assignment of Subleases.
a. Section 13.02(a) of Corrected Isis Sublease and Section 13.03 of Corrected
AspenFilm Sublease; First Right to Negotiate Assignment of Corrected AspenFilm
Sublease. Section 13.02(a) of the Corrected Isis Sublease contained certain terms and conditions
in favor of IRG and the City to be included in the Corrected AspenFilm Sublease with respect to
the right to negotiate for an assignment of the Corrected AspenFilm Sublease during the term of
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the Corrected AspenFilm Sublease. Such terms and conditions are set forth in Section 13.03 of
the Corrected AspenFilm Sublease, but neither IRG, nor any successor in interest to IRG as
owner of Commercial Units A-2 and A-3, is a party to the Corrected AspenFilm Sublease. The
City no longer has any right or interest with respect to such matters as result of the termination of
the Corrected Isis Sublease. Since such terms and conditions of the Corrected AspenFilm
Sublease are for the benefit of IRG and any successor in interest to IRG as owner of Commercial
Units A-2 and A-3, the parties acknowledge and agree that IRG and any successor in interest to
IRG as owner of Commercial Units A-2 and A-3 is hereby made an express, third-party
beneficiary with respect to such provisions of the Corrected AspenFilm Sublease, which shall be
enforceable by IRG or any successor in interest to IRG as owner of Commercial Units A-2 and
A-3 during the term of the Corrected AspenFilm Sublease.
b. Section 13.02(a) of Corrected AspenFilm Sublease and Section 13.03 of
Corrected Isis Sublease; First Right to Negotiate Assignment of Corrected Isis Sublease.
Section 13.02(a) of the Corrected AspenFilm Sublease set forth certain terms and conditions in
favor of AspenFilm and the City to be included in the Corrected Isis Sublease with respect to the
right to negotiate for an assignment of the Corrected Isis Sublease during the term of the
Corrected Isis Sublease. Such terms and conditions were set forth in Section 13.03 of the
Corrected Isis Sublease. As a result of the termination of the Corrected Isis Sublease, the parties
acknowledge and agree that such terms and conditions of Section 13.02(a) of the Corrected
AspenFilm Sublease (and Section 13.03 of the Corrected Isis Sublease) are no longer of any
force or effect.
4. First Rights to Negotiate Acquisition of Commercial Unit A and Commercial
Units A-2 and A-3.
a. Section 13.04 of Corrected AspenFilm Sublease; First Right to Negotiate
Acquisition of Aspen Film Premises (Commercial Unit A). Section 13.04 of the Corrected
AspenFilm Sublease is hereby deleted in its entirety. In lieu thereof, IRG and AspenFilm hereby
agree as follows:
No sale of the fee simple interest in Commercial Unit A to any for-profit entity
shall occur in violation of the following provisions, and any sale of Commercial Unit A shall be
subject to the following provisions: If at any time, the owner of the Commercial Unit A (the
"AspenFilm Premises Owner") determines that it wishes to sell its interest in all or a portion of
the Commercial Unit A to a for-profit entity, the AspenFilm Premises Owner shall, before listing
Commercial Unit A for sale or offering it for sale or accepting an offer for its sale from a third
party, whether or not said offer is solicited by the AspenFilm Premises Owner, first offer to the
owner of Commercial Units A-2 and A-3 (collectively,the "Isis Premises Owner"), the
opportunity to negotiate the terms for and acquire Commercial Unit A. As such, the AspenFilm
Premises Owner shall provide written notice to the Isis Premises Owner of its intent to sell
Commercial Unit A and shall propose a price and the terms for such sale (the "Initial Offer").
The parties shall have a period of thirty (30) days from the receipt of said notice by the Isis
Premises Owner to negotiate the terms of the sale and in the event they are unable to agree upon
said terms, then the AspenFilm Premises Owner shall be free to sell Commercial Unit A to a
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third party, provided that: (i) such sale occurs within six (6) months of the date of the Initial
Offer; (ii)the price for said sale shall be for a price which is no less than ninety percent (90%) of
the price offered in the Initial Offer; and (iii) the material terms of said sale shall be no less
favorable to the AspenFilm Premises Owner than those which were contained in the Initial Offer.
Any sale which is in violation of these provisions shall be voidable in an action brought by the
Isis Premises Owner to enforce the terms of this provision. If at any time subsequent to an Initial
Offer and the failure of the AspenFilm Premises Owner and the Isis Premises Owner to agree
upon the terms of said sale, the AspenFilm Premises Owner desires to sell the Commercial Unit
A on a date which is later than six (6) months of the date of the Initial Offer, or is for a price
which is less than ninety percent (90%) of the price contained in the Initial Offer and/or which
contains material terms less favorable to the AspenFilm Premises Owner, then the AspenFilm
Premises Owner shall provide another offer to the Isis Premises Owner(the "Subsequent Offer")
and the same provisions hereof which pertain to an Initial Offer shall apply to all Subsequent
Offers. This sequence of offers and negotiations shall continue for as many times as necessary to
afford the Isis Premises Owner the rights to negotiate the terms for and acquire Commercial Unit
A as are provided for herein.
b. First Right to Negotiate Acquisition of Commercial Units A-2 and A-3.
IRG and AspenFilm hereby agree as follows:
No sale of the fee simple interest in Commercial Units A-2 and A-3 to any for-
profit entity shall occur in violation of the following provisions, and any sale of Commercial
Units A-2 and A-3 shall be subject to the following provisions: If at any time, the Isis Premises
Owner determines that it wishes to sell its interest in all or a portion of the Commercial Units A-
2 and A-3 to a for-profit entity, the Isis Premises Owner shall, before listing Commercial Units
A-2 and A-3 for sale or offering it for sale or accepting an offer for its sale from a third party,
whether or not said offer is solicited by the Isis Premises Owner, first offer to the AspenFilm
Premises Owner the opportunity to negotiate the terms for and acquire Commercial Units A-2
and A-3. The Isis Premises Owner shall provide written notice to the AspenFilm Premises
Owner of its intent to sell Commercial Units A-2 and A-3 and shall propose a price and the terms
for such sale (the "Initial Offer"). The parties shall have a period of thirty (30) days from the
receipt of said notice by the AspenFilm Premises Owner to negotiate the terms of the sale and in
the event they are unable to agree upon said terms, then the Isis Premises Owner shall be free to
sell Commercial Units A-2 and A-3 to a third party, provided that: (i) such sale occurs within six
(6) months of the date of the Initial Offer; (ii) the price for said sale shall be for a price which is
no less than ninety percent (90%) of the price offered in the Initial Offer; and (iii)the material
terms of said sale shall be no less favorable to the Isis Premises Owner than those which were
contained in the Initial Offer. Any sale which is in violation these provisions shall be voidable in
an action brought by the Commercial Units A Owner to enforce the terms of this provision. If at
any time subsequent to an Initial Offer and the failure of the Isis Premises Owner and the
AspenFilm Premises Owner to agree upon the terms of said sale, the Isis Premises Owner desires
to sell the Commercial Units A-2 and A-3 on a date which is later than six (6) months of the date
of the Initial Offer, or is for a price which is less than ninety percent (90%) of the price contained
in the Initial Offer and/or which contains material terms less favorable to the Isis Premises
Owner, then the Isis Premises Owner shall provide another offer to the AspenFilm Premises
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Owner(the "Subsequent Offer") and the same provisions hereof which pertain to an Initial Offer
shall apply to all Subsequent Offers. This sequence of offers and negotiations shall continue for
as many times as necessary to afford the AspenFilm Premises Owner the rights to negotiate the
terms for and acquire Commercial Units A-2 and A-3 as are provided for herein.
c. AsnenFilm's Waiver of AspenFilm's Rip-ht to Negotiate Acquisition of
Commercial Units A-2 and A-3. Prior to the termination of the Corrected Isis Sublease, IRG
negotiated for the sale of the Isis Premises to Isis Aspen Holdings, LLC, a Colorado limited
liability company, which is a for-profit entity, on certain terms and conditions which are set forth
in a written contract for purchase and sale between IRG as seller and Isis Aspen Holdings, LLC
as purchaser. The City, and AspenFilm for itself, and its successors and assigns, expressly
acknowledge and agree that each previously irrevocably waived all its rights under Section 13.04
of the Corrected Isis with respect to the proposed sale of the Isis Premises by IRG as seller and
Isis Aspen Holdings, LLC as purchaser.
5. Termination of Declarant Rights. Pursuant to the express terms and conditions of
the Declaration, the parties hereby acknowledge and agree that all of the Special Declarant
Rights thereunder have expired and are of no force or effect. In connection with such Special
Declarant Rights, the City and CAPFA previously entered into that certain Assignment of
Declarant Rights and Irrevocable Proxy Coupled with an Interest in Voting Rights dated
February 16, 2007 and recorded February 16, 2007 as Reception No. 534580, Pitkin County,
Colorado (the "Assignment of Declarant Rights"). In addition to providing for an assignment of
the Special Declarant Rights to the City, Section 3 of the Assignment of Declarant Rights also
provided for the irrevocable appointment of the City as attorney-in-fact and proxy (the "Proxy")
with full power of substitution to vote all of the votes of the Isis Theater Condominium
Association, Inc., a Colorado non-profit corporation, and which is referred to as the
"Association" under the Declaration. Each of the City and CAPFA acknowledges, agrees, and
confirms to IRG and any IRG Successor, and to AspenFilm, that the Proxy has terminated with
respect to the Isis Property, and the power to vote all of the votes of the Association with respect
thereto may be exercised solely by the owner of the Isis Property or its authorized designee, from
time to time. Each of the City and CAPFA further acknowledges, agrees, and confirms to IRG
and any IRG Successor, and to AspenFilm that, with respect to the AspenFilm Leased Property,
the power to vote all of the votes of the Association shall remain subject to the Proxy with
respect thereto and may be exercised solely by the City pursuant to the terms thereof.
6. Termination of Corrected Lease Purchase Agreement as to Isis Property; Direct
Deedin . The City and CAPFA hereby confirm the termination and discharge of any and all
other rights, and obligations of the City and CAPFA under the Corrected Lease Purchase
Agreement as to the Isis Property as a result of the City's exercise of its option to purchase the
Isis Property from CAPFA pursuant to Section 9.01(c) of the Corrected Lease Purchase
Agreement and the exercise by IRG of its purchase option to acquire the Isis Property from the
City pursuant to Section 2.05(c) of the Corrected Isis Sublease.
For the convenience of the parties, they have agreed that if requested by IRG, the
conveyance of the fee title to the Isis Property pursuant to Section 9.01(c) of the Lease Purchase
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Agreement, and pursuant to Section 2.05(c) of the Corrected Isis Sublease shall be made directly
by CAPFA to a designee of IRG. The deed conveying the Isis Property to IRG's designee shall
be in the form of a Special Warranty Deed and shall be subject only to the exceptions to title as
set forth in Exhibit A attached hereto and made a part hereof.
The parties acknowledge and agree that any deed conveying the Isis Property from
CAPFA to IRG's designee shall be subject to Ordinance No. 13, Series 1990, of the City of
Aspen, providing for a Housing Real Estate Transfer Tax, or to Ordinance No. 20, Series 1979,
of the City of Aspen, providing for a Real Estate Transfer Tax.
IRG shall pay the premiums for title insurance for a title policy for the benefit of IRG's
designee and all prorations shall be allocated as though IRG was the purchaser of the Isis
Property from the City; provided that rents and security deposits shall be allocated as though
IRG was conveying the Isis Property to IRG's successor. All proceeds from the conveyance of
the Isis Property to IRG's designee remaining after payoff of the Certificates of Participation or
"COP" financing provided for in the Corrected IRG Sublease, and allocations, debits and credits
from prorations with respect thereto, shall be retained by IRG.
The City Attorney is authorized to approve of the form and content of the deed and
closing documents and to have them executed by the appropriate officers of CAPFA and the
City.
The terms of this Section 6 shall supersede and replace any inconsistent terms contained
in other agreements between CAPFA and the City, and the City and IRG, and shall be given
paramount effect in the event of any such inconsistency.
7. Amendment to Occupancy and Use Deed Restriction. CAPFA and the City agree
that Paragraph 6 of the Occupancy and Use Deed Restriction is no longer required in order to
fulfill the purposes thereof. Therefore, CAPFA and the City agree that Paragraph 6, of the
Occupancy and Use Deed Restriction is hereby deleted in its entirety, and is of no further force
or effect. Except as so modified by this Agreement, all other terms and condition of the
Occupancy and Use Deed Restriction shall remain in full force and effect.
8. Successors and Assigns. This Agreement and the covenants and conditions contained
in this Agreement shall be binding upon and inure to the benefit of the parties hereto, and each of
their respective successors and assigns, and the benefits and burdens created hereby shall run
with the land with respect to Commercial Unit A and to Commercial Units A-2 and A-3.
9. Governing Law. This Agreement and all provisions hereunder shall be governed by
and construed in accordance with the laws of the State of Colorado without reference to any
conflict of law provisions.
10. Entire Agreement; No Amendment. This Agreement constitutes the entire
agreement and understanding between the parties with respect to the subject of this Agreement
and shall supersede all prior written and oral agreements concerning this subject matter. This
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Agreement may not be amended, modified or otherwise changed in any respect whatsoever
except by a writing duly executed by authorized representatives of the parties hereto. Each party
acknowledges that it has read this Agreement, fully understands all of this Agreement's terms
and conditions, and executes this Agreement freely, voluntarily and with full knowledge of its
significance. Each party to this Agreement has had the opportunity to receive the advice of
counsel prior to the execution hereof.
11. Attorneys' Fees. In the event any legal action or proceeding is commenced to
enforce the obligations set forth in this Agreement, the substantially prevailing party shall be
entitled to an award of all reasonable costs and expenses including reasonable attorneys' fees.
12. Counterparts. This Agreement may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which, when so executed and
delivered, shall be deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same instrument; and any signature page from any such counterpart or
any electronic facsimile thereof may be attached or appended to any other counterpart to
complete a fully executed counterpart of this Agreement and any telecopy or other facsimile
transmission of any signature shall be deemed an original and shall bind such party.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
ISIS RETAIL GROUP, LLC, a Colorado limited
liability company
By:
Courtney Lord, Manager
STATE OF COLORADO )
ss
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this day of ,
2019 by Courtney Lord, as Manager of ISIS RETAIL GROUP, LLC, a Colorado limited liability
company.
Witness my hand and official seal.
My commission expires:
Notary Public
[SEAL]
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THE CITY OF ASPEN, a Colorado municipal
corporation
STATE OF COLORADO )
ss
COUNTY OF PITKIN )
The regoing instrument was acknowledged before me this day of ,
2019 by Y� �"f'-�"' , as IMQhAVX of The City of Aspen, a Colorado
municipal corporation.
Witness my hand and offic'a l
4�IqC2
My commission expires:
TARA L. NELSOt,,' Jotary Public
NOTARY PUBLIC
STATE OF COLORADO
[SEAL] NOTARY ID f'20C;1 fir, 3;7
�.� Commission Expk'�s 202 9
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ASPENFILM, FKA Independent Films. Inc. d/b/a
AspenFilm, a Colorado
nonprofit corporation
By:
STATE OF COLORADO )
ss
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this day of ,
2019 by , as of ASPENFILM, FKA
Independent Films, Inc. d/b/a AspenFilm, a Colorado nonprofit corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
[SEAL]
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50679895.1
Solely with respect to the provisions
of Sections 5, 6, and 7 hereof:
THE CIT"F A N-PUBLIC FACILITIES
AUTHO Y, a 1 onon-profit corporation
By: j.
STATE OF COLORADO )
ss
COUNTY OF PITKIN )
Th foregoing instrument was a ��,,ow1�d� bef re e this L. day of
2019 by , as 44 "Or�tA O4r� of The City of Aspen Public
Facilities Authority, a Colorado non-pro 1 co or i n.
Witness my hand and officia seal
My commission expires: ?i
TARA L. NELSON
NOTARY PUBLIC
STATE OF COLORADO � Notary Public
NOTARY ID#200140,K.)-.7
fey Commission Expires Se;;temt-:r 25,20
[SEAL]
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Exhibit A to Agreement
(List of Permitted Exceptions to Title to Direct Special Warranty Deed from CAPFA to IRG's
Designee)
1. Taxes and assessments for the years 2019 and subsequent years, a lien not yet due or payable.
2. Reservations and Exceptions as set forth in the Deed from the City of Aspen of record
providing as follows: "That no title shall be hereby acquired to any mine of gold, silver ,
cinnabar or copper or to any valid mining claim or possession held under existing laws recorded
December 9, 1887 in Book 59 at Page 144, recorded December 12, 1887 in Book 59 at Page 160,
recorded November 30, 1888 in Book 59 at Page 521.
3. Notice of Historical Designation recorded January 13, 1975 in Book 295 at Page 515.
4. Easement for encroachment set forth in Deed recorded May 16, 1978 in Book 347 at Page 988
and Ratification and Extension recorded May 7, 1998 as Reception No. 416608.
5. All matters shown on Survey recorded May 4, 1995 in Book 4 at Page 41.
6. Ordinance No. 58, Series of 1995 recorded May 15, 1996 as Reception No. 392717.
7. Shared Sewer Service Agreement recorded December 1, 1999 as Reception No. 438114.
8. Condominium Declaration for Isis Theater Condominiums recorded December 9, 1999 as
Reception No. 438433 and First Amendment recorded September 29, 2011 as Reception No.
583123.
9. All matters shown on the Condominium Map of the Isis Theater Condominiums recorded
December 9, 1999 in Plat Book 52 at Page 1 as Reception No. 438434 and the First Amended
Condominium Map recorded September 29, 2011 in Book 98 at Page 14 as Reception No.
583124 and the Second Amended Condominium Map recorded September 11, 2014 in Plat Book
108 at Page 6 as Reception No. 613396.
10. Articles of Incorporation recorded December 30, 1999 as Reception No. 439066.
11. Resolution No. 98-18 recorded April 29, 2004 as Reception No. 496984.
12. Occupancy and Use Deed Restriction Agreement and Covenant recorded February 16, 2007
as Reception No. 534579.
13. Ordinance No. 6, Series of 2007 recorded April 10, 2007 as Reception No. 536448.
12. Agreement entered into as of the day of September, 2019 and recorded as Reception No.
by and among AspenFilm, FKA Independent Films, Inc. D/B/A AspenFilm, Isis
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Retail Group, LLC, a Colorado limited liability company, the City of Aspen, a Colorado
municipal corporation, and the City of Aspen Public Facilities Authority, a Colorado non-profit
corporation.
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