HomeMy WebLinkAboutresolution.council.121-21 RESOLUTION # 121
(Series of 2021)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING THE FIRST AMENDMENT TO CORRECTED
SUBLEASE BETWEEN THE CITY OF ASPEN AND INDEPENDENT FILMS,
INC., DB/A ASPEN FILM, A COLORADO NONPROFIT CORPORATION
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 the First
Amendment to Corrected Sublease between Independent Films, Inc. d/b/a Aspen
Film, a Colorado Nonprofit Corporation and the City of Aspen, a Colorado
Municipal Corporation, a true and accurate copy of which 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 First
Amendment to Corrected Sublease between Independent Films, Inc. d/b/a Aspen
Film, a Colorado Nonprofit Corporation and the City of Aspen, a Colorado
Municipal Corporation, a copy of which is attached hereto and incorporated herein
and does hereby authorize the City Manager to execute said agreement on behalf
of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City
of Aspen on the 231 day of November 2021.
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Torre, Mayor
I, Nicole Henning, 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 a meeting held November 23, 2021.
Nicole Henning, City Jerk
FIRST AMENDMENT TO CORRECTED SUBLEASE
This FIRST AMENDMENT O CORRECTED SUBLEASE (this "First Amendment")is made
and entered into as of this T day of1e`i `'f021,by and between the City of Aspen, a
Colorado home rule municipal corporation(the"City"or"Landlord")and Independent Films,Inc.,
a Colorado nonprofit corporation ff enant').
RECITALS
A. Landlord and Tenant entered into a Sublease as of the 16'h day of February 2007,that
was recorded in the real estate records of Pitkin County, Colorado, on February 16,
2007, as Reception No. 534584, and a copy thereof with certain corrected exhibits,
titled Corrected Sublease,was recorded June 20,2008,as Reception No.550453,Pitkin
County, Colorado, (collectively, the "Sublease% by which Landlord subleased to
Tenant the property described therein(the"Premises').
B. For the purpose of financing the cost of acquiring certain property in the City,including
the Premises,known as the Isis Theater Condominiums(the"Prior Project'),there has
previously been executed and delivered:
a. A Lease Purchase Agreement dated as of February 1,2007(the"2007 Lease"),by
and between the City,as lessee, and the City of Aspen Public Finance Authority,
as Lessor(the"Authority');and
b. A Mortgage and Indenture of Trust dated as of February 1, 2007 (the '2007
Indenture'), by and between the Authority and The Bank of Cherry Creek,N.A.
(now UMB Bank,n.a.),as Trustee(the`2007 Trustee").
c. A Special Warranty Deed dated as of February 15, 2007, conveying the Prior
Project from CC Aspen, LLC, an Arizona limited liability company, to the
Authority(the"Leased Property'); and
C. Pursuant to the 2007 Indenture,there were issued to investors the City of Aspen Public
Facilities Authority Taxable Certificates of Participation, Series 2007A (the '2007
Certificates').
D. Pursuant to the 2007 Indenture,the 2007 Certificates are subject to redemption prior to
maturity on any date on and after March 1,2017,from moneys received by the 2007
Trustee from exercise of the City of its option to purchase the Leased Property.
E. Pursuant to the 2007 Lease,the City had the option to purchase the Leased Property
and to cause the redemption of the 2007 Certificates.
F. The Leased Property now consists-solely of the Premises.
G. The City Council of the City(the"Council")determined that it was in the best interests
of the City and its inhabitants that the City exercise its option to acquire the Leased
Property in order to refinance the 2007 Certificates at a lower interest rate and to make
certain improvements to the Premises(collectively,the"2020 Project").
H. To accomplish the 2020 Project,the City acquired fee title to the Premises,and leased
the Premises to Zion Bancorporation,National Association(the 112020 Trustee"),and
the 2020 Trustee has leased the Premises back to the City pursuant to Lease Purchase
Agreement,dated as of October 23,2020(the"2020 Lease')between the 2020 Trustee,
as lessor,and the City,as lessee.
I. Contemporaneously with the execution and delivery of the 2020 Lease, the 2020 .
Trustee executed and delivered an Indenture of Trust(the"2020 Indenture)pursuant
to which there were executed and delivered certain certificates of participation (the
"2020 Certificates") dated as of their date of delivery that evidence proportionate
interests in the right to receive certain revenues as provided in the Indenture,that are
payable solely from the sources therein provided, and do not directly or indirectly
obligate the City to make any payments beyond those appropriated for any fiscal year
during which the Lease shall be in effect.
L The proceeds of the 2020 Certificates are to be utilized for the 2020 Project as well as
for the payment of the costs of execution and delivery of the Certificates.
K. The 2020 Project will benefit the Tenant by reducing the rents payable to the City under
the Sublease for a limited period of time and providing for improvements to the
Premises.
L. As a result of the COVID-19 pandemic, and the discontinuance of operations on the
Premises for several months,Tenant failed to pay certain amounts due Landlord under
the Sublease.
M. Landlord and Tenant desire to provide for the current payment of certain amounts due
Landlord and to modify certain payment obligations for the next year.
N. Landlord and Tenant desire to amend the Sublease upon and subject to the terms and
conditions set forth herein.
AGREEMENT
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT
AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED,Landlord and Tenant
agree as follows:
1. Definitions. All defined terms herein shall have the same meaning as in the Sublease
except as otherwise provided in this First Amendment
2. Revised References. All references in the Sublease to the following terms shall have the
following meanings:
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a. "Authority"shall no longer have any force or effect.
b. "Certificate Insurer" or "Financial Guaranty" shall no longer have any'force or
effect.
c. "COP"shall mean the 2020 Certificates as defined in this First Amendment.
d. "Indenture"shall mean the 2020 Indenture as defined in this First Amendment.
e. "Premises"shall mean the property described in Exhibit A hereto.
3. Section 2.01 of the Sublease. Section 2.01 of the Sublease is modified by the addition of
the following:
As of the date of this agreement,the Premises shall be more specifically described
as set forth in Exhibit A. Landlord shall use commercially reasonable efforts in
worldng with Tenant to verify the actual square footage of the Premises and to
cause the Declaration to be amended to reflect the actual square footage of the
Premises and the Building. Tenant's Commercial Unit Pro-Rata Share shall be
modified based on the corrected square footages. Landlord shall cooperate with
Tenant in Tenant's efforts to recover any excess association assessments paid by
Landlord that was included in Common Area Expenses Maintenance,provided that
such cooperation shall be at no cost to Landlord.
4. Section 2.02 of the Sublease. Section 2.02 of the Sublease is modified by the addition of
the following:
Pursuant to the express terms and conditions of the Declaration,the Landlord and
Tenant 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 o£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. The Landlord and Tenant
agree that with respect to the Premises, 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 Landlord pursuant to the terms thereof.
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S. Section 2.03 of the Sublease. Section 2.03 is amended to read:
The City has entered into the 2020 Lease with the 2020 Trustee and has caused the
issuance of the 2020 Certificates to finance the 2020 Project.
6. Section 2.05 of the Sublease. Subsections (a), (b), (d), (e), and (fl of Section 2.05 are
deleted.
7. Section 2.06 of the Sublease. Section 2.06 of the Sublease is deleted.
8. Section 4.01 of the Sublease. Section 4.01 is hereby deleted in its entirety and replaced
with the following: -
Within seven(7)days of execution and delivery of this First Amendment,Tenant shall pay
Landlord $159,415 as Base Rent from April 2020 through August 2021. Commencing
September 2021,Base Rent shall be one twelfth of the annual debt service(principal and
interest)on the COPs,which shall be payable on the 15"of each month.
9. .Section 4.02 of the Sublease. Section 4.02 Reserve Account,of the Sublease is amended
to read as follows:
(a) In addition to the Base Rent required to be paid as set forth at Section 4.01,
Tenant shall pay to Landlord the sum of$150.00 per month as and for a capital
reserve fimd as described in(b)below.
(b) The City shall deposit to an Improvement Account held by the City, $80,000
from the proceeds of the 2020 Certificates and amounts previously held in a
Reserve Account established by the Sublease,along with payments made pursuant
to (a) above. The Tenant shall undertake to construct or cause to be constructed
improvements to the Premises which will be funded as set forth in this Section.
Before commencing the improvements to the Premises,the Tenant shall provide to
the Landlord a description of the improvements and a budget for the costs of the
improvements. Initially,Landlord and Tenant agree that the City will disburse up
to $80,000 for Tenant's cost of air conditioning chiller improvements to the
Premises as needed to complete such improvements, in the City's reasonable
discretion. The Tenant shall provide the City with lien waivers from each person
paid for costs of the improvements. Upon completion of the improvements and
payment of the amounts in the requisition, the City shall apply any balance
remaining in the Improvement Account to the payment of Monthly Base Rent due
from the Tenant In the future, the funds in the Improvement Account may be
applied as necessary to pay the costs of capital repairs or improvements to the
Premises pursuant to similar procedure as the set forth in this paragraph(b)and any
unused funds shall be applied to last mouth's Base Rent,Common Area Expenses
or Impositions.
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10..Section 6.03 of the Sublease. The following paragraph shall be added at the and of Section
6.03 of the Sublease:
Within seven(7)days of execution and delivery of this First Amendment,Tenant shall pay
Landlord$64,287,for Common Area Expenses for the period April 2020 through August
2021.To the extent Landlord is entitled to a refund of any assessments paid pursuant to the
Declaration based on a modification of Tenant's Commercial Unit Pro-Rata Share in
accordance with Section 3 of this First Amendment, Landlord shall promptly reimburse
Tenant for any such amounts previously paid by Tenant under the Sublease.Payment of
$25,000 of Common Area Expenses for the period April 2020 through August 2021 shall
remain in suspense until such time as Tenant's Commercial Unit Pro-Rate Share is verified
based on the corrected square footages in accordance with Section 3 of this First
Amendment, provided that such amount shall be payable no earlier than September 1,
2022.Tenant shall not be assessed for Common Area Expenses for the period September
2021 through August 2022.However, the Common Area Expenses accrued and paid by
the City for the period of September 2021 through August 2022, shall be deemed a loan
under such terms and conditions as may be mutually agreed to between the parties at a later
date.
I L.Section 6.04 of the Sublease. The second sentence of Section 6.04 of the Sublease is
deleted.
12._Section 7.01 of the Sublease. Tenant shall pay no Impositions for the period September
2021 through August 2022.However,the Impositions accrued and paid by the City for the
period of September 2021 through August 2022,shall be deemed a loan under such terms
and conditions as may be mutually agreed to between the parties at a later date.
13.Section 13.02 of the Sublease. Section 13.02 of the Sublease is deleted.
14. Section 13.04 of the Sublease.Section 13.04 of the Sublease is deleted.
15. aiv .Landlord waives any Event of Default as of the date of this First Amendment.Any
Payment due but deferred pursuant to this agreement shall not be deemed an Event of
Default unless not paid as set forth herein.
16.Confli In the event of a conflict between any term or provision contained in this First
Amendment with any term or provision contained in the Lease,the terms and provisions
of this First Amendment shall control.
17.Counterparts. This First Amendment may be executed in counterparts,each of which shall
be deemed an original part and all of which together shall constitute a single agreement.
18.Signnatures. This First Amendment may be signed and/or transmitted by facsimile,e-mail
of a pdf document or using electronic signature technology(e.g.,via DocuSiga or similar
electronic signature technology), and such signed electronic record shall be valid and as
effective to bind the party so signing as a paper copy bearing such party's hand-written
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signature. The parties consent and agree that (i) to the extent a party sigas this First
Amendment using electronic signature technology,by clicknng"sign",such party is signing
this First Amendment electronically, and (iu) the electronic signatures appearing on this
First Amendment shall be treated,for purposes of validity,enforceability and admissibility,
the same as hand-written signatures.
19.Ratificati .on. Except as expressly amended and modified herein,all terms,covenants and
conditions of the Sublease shall remain unchanged and in full force and effect; and the
Sublease,as herein amended and modified,is hereby ratified and confirmed. Any fiuther
modification of the Sublease shall require the express written approval of all parties.
[See next page for signatures]
Y
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IN WITNESS WHEREOF,the parties hereto have signed this First Amendment on the date first
set forth above.
CITY OF ASPEN,COLORADO, INDEPENDENT FILMS,INC.,a Colorado
as Lessee non-profit corporation
By:.= -� C�l T By:
-_
_ _.
Susan nli4
xecutive uector
5ar G, 044
C�►�' r'1��A e(�
(SEAL)
Attest:
c
By:
Nicole Henning,City Cler
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STATE OF COLORADO )
COUNTY OF PITKIN )Ss.
CITY OF ASPEN )
The foregoing instrument was acknowledged before me this day of DeWm�
2021,by and Nicole Henning,as TkY t and City Clerk,respectively,of the City of Aspen,
Colorado. SaYa 04-' Ma of ajr
WITNESS my hand and official seal.
TARAL NELSON
NOTARY PUBLIC
STATE OF COLORADO Notary Public
NOTARY ID 20014030017
SEAL) MY COMMISSION EXPIRES SEPTEMSER 25,2025
STATE OF COLORADO )
}
COUNTY OF PITKIN )ss.
CITY OF ASPEN )
The foregoing instrument was acknowledged before me this day of November,
2021,by Susan Wrubel, as Executive Director of Independent Films,Inc.,a Colorado non-profit
corporation.
ENOTARY
RYL CRAMER _
ARY PUBLIC
OF COLORADO
ID 20164046644 Notary Public
XPIRES DECEMBER 15,2024
(SEAL) -
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EXHIBIT A
DESCRIPTION OF PREMISES
Commercial Unit A,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 and as
defiaed and described by the Condominium Declaration for Isis Theater Condominiums
recorded December 9, 1999 as Reception No. 438433 and First Amendment to the
Condominium Declaration recorded September 29,2011 as Reception No.583123.
406 E.Hopkins Avenue,Unit A,Aspen,CO 81611
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A-1