HomeMy WebLinkAbout2004 Ordinance No. 067•
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ORD INANCE NO it-2
SER IES OF 2004
BY AUTHOR ITY
CONTRACT NO.
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COU CIL BILL NO . 66
INTR ODUCED BY COUN C IL
MEMBER BRADSHAW
AN ORD INANCE Au rHORI Z ING AN AGREEMENT BETW EEN GENERAL
ELECTR IC CAP ITAL BUSI NESS ASSET FUNDING CORPORATION AND TH E
CIT Y OF ENGLEWOO D, CO LORA DO REGARDING TH E LA ND LEASE WITH
ROCKY MOUNTAIN MOB ,LLC .
WHEREAS , Euglewood Parkw ay between Sou th Elali Street and Cherokee Stree t wa s
ex te n<led in 2000 10 co nfo rm 10 th e ali gn ment in th e Ci ty Ce nter Ma ster Plan; and
WH EREAS, with th e 2000 ali gnm ent th e ex ist ing portion of We st Girard between
Elatl <it rcc t and the ro und abou t, was no longer req uired for stree t purposes ; and
WHEREAS, the Englewood Ci ty Co un cil au th ori zed th e dedica tion of the ali gnm ent
of the Englew oo d Parkwa y between South Elati an d Sou th Cheroke e by th e passage of
Ord in ance No. 4, Ser ie s 2002 /2003; and
WHEREAS, Deve lopment Solutions , In c. purchased th e form er Cit y Hall property
located at 3400 South Elati and ass igned the project of building a medi cal office /sur ge ry
ce nt er to Rocky Mountain MOB, LL C; an d
WHERE AS, Rocky Mountain MOB LL C reque sted th at th e Girard Avenue Ri ght -o f•
Way be lease d to th em to provide additi onal parking ; and
WHEREAS , :he City Council of th e Cit y of Eng lewood approved th e lea se of the
Ri ght -of-Way by the pas sage of Ordin ance No . 56, Series 2003: and
WH EREAS, constru cti on of the parking lot has been compl eted in co nfo nn ancc to
1grcc mcnt and in coo rdinati on with th e owne rs of the re tail propert y to th e north
r o); a,1d
'HER r AS, Rock y Mount ain MOB is securi ng a loan fr om th e Ge nera l Eh-ctric
Ca pita: 1-t 11:;:11-:ss As set Fu nding Co rp oration and th e loa n is to be se cured , in )J art , by all of
th eir ri ght s, 1nl ~ and int ere st und er th e Lease ; and
WHEREAS, Genera l Elec tri c Ca pit al Bu si ne ss Asse t Funding Co rporation (th e lender)
has reque sted an agreement with th e Cit y th at pro vid es th em with ri ght s and notifi ca ti on
in case of defau lt , fo reclosure or lease terminat io n; an d
WH EREAS , wi1 h th e pa ss age o f th is Ordi nance autho ri zes th e City en teri ng i1110 such
Agreemen t;
NOW , THEREFORE , BE IT ORP.~INED BY THE CITY COUN CIL OF TH E
CIT Y OF ENG LEWOOD , OLORADO, AS FOLLOWS :
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~. The Cit y Co un cil of !h e City of Englewood , Colorad o hen.by auth ori zes
the ''Agre ement Regarding Ground Lea se '' wi th Ge nera l Ele ctric Capi tal Bu sin ess Ass et
Fund ing Co rporati on, attach ed heret o as Attac hm ent I, pcrlaining 10 Roc ky Mountain
MOB , LLC .
Sec tion 2. The Mayor and Ci ty Cie rk arc authorized to execute and :.lll cst sa id
"Ag reeme nt Regarding Ground Lease" for and on behalf of th e Cit y uf Eng lewood .
Introduced , re ad in full , and pa ssed on fir st rea ding on the 6th da y of December, 2004 .
December, 2004.
Read by tit le and pa ssed on final rea ding on the 20th day of Decem ber, 2004.
Publi shed by titl e as Ordinance No . (LJ., Series of 2004, on th e 24 th day of
December, 2004.
I, Loucrishia A. Ellis, City Clerk of the City of Englewood, Co lorado, hereby
certify that the abo\"e and foregoing is a tru e c~yr9f th e Ordinan e passed on final
reading and publi shed by titl e a, Ordinance NolJ2.,L., Series of .
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From : Ct'S.CflliENT $l.UT I 00 cro.P 003 893 0'251
AFTER RECQBQING RETURN ro,
G1n1ra l Elet111c Capital Bu1lnt11
Auel Funding CorponaUon
Middle Mlll<ot Rlak/Opona i on, Oepanma nt
10900 NE ◄th Strool , S-Jilo 500
Bellevue , Wulllngtcn 980~
Ann : Susen Vocgd
Loan No . 001 -1940-001
n11s INf[WMENJ PREPARED BY:
Jonkanf & IICMII.
• proflNionel COll)Orotion
Gaorgo C. O\Jnlap , Jr., Eaq .
14-◄6 R•~• Avenue, Su ite 3200
Dallaa , Texas 76202
11/10/2004 17:29 //009 P JJJ2/007
[spaca abav. ruer,,td for ncordtr'I UM oU)'J
AGREEMENT REGARDING GROUND LltASE
THIS AGREEMENT REGARDING GROUND LEASE (th!J "Agteement") is made
and executed to be effective as of the __ day of November, 2004, by CITY OF
ENGLEWOOD, COLORADO, a Colorado municipal corporation ("Landlord "), in filvor of
GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION, a
Delaware corporation ("Lender ");
RECITALS :
A. Landlord is the owner of the real property located in Arapahoe County, Colorado ,
which is more particularly de.s cribed oo ~ attached u, and made l part of thi s Aerccment
for all purposes, and all ri ghts, privileges and appurtenances thereto (collectiv el y, the
"i'r<>perty '1,
B. PurSU&J\t to a ceitai n Ground Lease (the "Lease ") dated September I, 2003,
Landlord leased the Property 10 ROCKY ~Ot".'l'TAIN MOB , LLC, a Colorado limited
liability co mpany ("TenADt"),
C. Tenant has requested that Lender advance a loan (th e "Loan ") to Tenant to be
secured, In part. by the li en and pro visions of a certa:n Commen:ial Leasehold Deed ofTrust (the
"Deed of Trust") covering all of Tenant's right, titl e and interest under the Lease and certa in
other assets and rights of Tenant
OALU.S◄ 66SI 11"3 12416-22222
Fr om :OC'IB.OPIENT SQUT l(}IS 00P :m 893 0251 11/10/2004 17:ll 11$9 P ,003/007
D. The collateral c,Jv ered by the Deed oi Trust Is colle ctively called the "Mortgaged
Property ." The Deed of Trust and all of tho oth er documents and in struments which evidence or
secure the Loan are sometimes collective ly called the "L oan Documents.··
E. As a condition to Lende(s agreement to ad vance the Loan to Tenan~ an d as a
material inducement to Lender to do so, Lender is requ iring that Tenant obta in this Agreem ent
for the benefit ofLender .
NOW, THEREFORE, for and in con,iderat ion of the sum ofTEN DOLLARS ($10 .00)
and other good and valuable consideration, the receipt and su ffic ien cy of which are hereby
acknowledged and confessed, Landlord bereby agrees as follows:
1. Acknowledgement by Land)ord . Landlord :u:knowledges that the Deed of Trust
constitutes a "Leasehold Mortgage " under the terms of the Lease and that this Agreement
constitutes notice to Landlord of the Deed of Trust pursuant to Sectio n 11 (c) of the Deed of
Trust.
2. Acquisition of Property by Lender. If Lender shall become the owner of the
Mortaaacd Property as a result of a foreclosure of the Deed of Tn>st, or If the Mortgaged
Property shall be sold by reason of a foreclosure of the Deed of Trust to any third party , or if the
Mortgaged Property shall be transferred by deed-in-l ieu of forecl osure (any such foreclosure or
deed-in-lieu of foreclosure being collectively called a "Foreclosure "), then the Lease shall
continue as a cLient lease between Lend<:1' or the third party who acquires the Mo111agcd Property
at a Foreclos ure (Lender and any such third party being collectively ca lled the "Suc cessor
Owner"), provided that the Successor Owner sball not be:
(a) liable or responsi ble for any prior act or om ission of Tenan t;
(b) subject to any claims or defenm which Landlord mig ht have against
Tenant;
(c) obligated to cure any prior default by Tenant under the Lease which
cannot reasonably be cured by the Successor Own er ; or
(d) bound by any ar.iendment to ti,e Lease not approved by Lend er in writ ing.
3. Representat io ns bv Landlyrd. Landlord hereby re presen ts and wannnts the
following to Lender :
(a) The Lease has not been amended, and the Lease is In fu ll force and effect ;
('c ) Tenant Is not in default of any of its obli1ations under the Lease and no
evenu have occurred whi ch, with notic e, the passag e of time or both ,
would constitute a default in any of Tenant's obli 11ations under the Lease;
OALLAS466SI\IY) 1241 6-22222
Agrttmcm Rcprd in1 Ground Lt.u•
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(c) The rent payable under the Lease has been paid in full for the entire term
of the Lease ;
(d) The "Parking Improvements" (as such term i< defined in the Lea.e) bave
been constructed in accordance with the terms of tho Lease; and
(e) Landlord has all requisite power and authority to exec\lle and deliver this
Agreement .
4. Covenants and Agreements gf Landjord . Landlord hereby covenants to and
agrees with and for the benefit of Lender as follows:
(a) The Lease shall not be amended lller the date of this Aiireemcnt without
Lender's prior wr inen conse nt ; and
(b) In the event of any termin ation of the Lease (i ncluding, without limitation,
any termination pursuant to the Federal Bankruptcy Code), (i) Lender
shall have the right to request that Landlord enter into a new lease
•~ent with Lender or its designee within one hundred eighty (180)
days after the date on which Lender receives wrinen norice of the
tenninati on of the Lease, and (ii) Landlord and Lender (or it s des ignee)
shall enter into such new lease agreement on the same terms and
conditions as the Lease, as modifi ed by this Agreement, within thirty (30)
days after Landlord receives Lender's reques~
S. Notices. All notices be &iven under !his Ag,eement (and under the Lease to
Lender) shall be in writing and shall be deemed to have been given on the earlier of (a) the date
of receipt by the addressee or (b) three (3) bus iness days after deposit In the United States mail,
registered or certified, return rece ipt request,~. first -c l us postage prepaid, addressed to Landlord
or Lender as follows;
Land lord :
Lender :
City of Enslewood
1000 Eng lewood Parkway,
Englewood, Colorado 801 10
General Electric Capitol Busine ss
Asset Fun uing Corporation
I 0900 NE 4th Street, Suite 500
Bellevue, Washin &1on 980 04
Ann: Middle Market Risk/Operat ions Department
The address to which any notico or other writing must be sent to either part)' to th is Agreement
may be changed upo n written notice ~iven by such party as provided obove .
6. !&!!fiig. In the event of any conflict between the term s of this Asrecmcnt and
any of tbe terms of the Lease, the terms of th is A'lJCement shall govern and control .
Agrccmcn1 Repcdina: Grotmd LeaH
0 Al.U.S"66Sllhl l::'416-lZlll
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7. 111•1&1 or Inyaljd Prpyj,Jpns . If any rorm or provis ion o!thb Agreement is hold to
be illc1al, invalid or uncnfor,:cable, the laplity, validity and enforceab ility of the remaining
tennJ an~ prov isioni of this Aareement shall not be aft'ect<d thereby, and in lieu of •••ch illegal,
inval id •Jr unenforcable tffln or provis ion, there shall be added alllomalically to this Agreement
a legal, val id and enforceable term or prov ision as 1U11i1ar as po"lblo to the term or provisi on
.w:lared Illegal. Invalid, and unenforcoablo.
8. Oovemjng Law. This Agreement and all of th o transactions contemplated herein
shall be governed by and COIIStnlcd in accordance with tho laws of tho State of Colorado.
9. ~-The captions herein me iNerted only for convOllience of reference and
in no way define, limit, or desc:lbe the scope or inllnt of this A~I or any puticular
J)ll'llr&J)h or section oflhls Agreomoot, er tho proper conllnlction ofthls Agreement
JO. Succes.,ors and Anl!RP, This Agreement shall Inure 10 the benefit of and be
binding upon the parties to this AlfOCIIIODI and their~•• heirs, succosson and assigns .
ltXECUTl:D, ACKNOWLEDGED AND DELIVERED on the date first abo ve
written .
DAIJ.AS466J l ltvl 12'1 16-?ml
LANDLORD :
CITY OF KNGLJ:WOOD, COLORADO,
a Colorado municipal corporation
By:
Print Douglas Gar re t t
Its : Mayor
A1'TEST :
Loucr i sh i a A. i l lis , City Cl e rk
A.....,... R.o1oudi•1 Orollllll Lase
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Fr om : OC\'8.0PIENT ro. I CNS ffirul 303 893 0251 11/23/2004 12 :22 #989 P .002/002
EXHIBIT A
LEGAL DESCRlPTIC!Y
A PARCEL OF LAND LOCATED IN THE SOUTHWEST QUARTER (SW¼) OF SECTION
34, TOWNSHIP 4 SOUTH. RANGE 68 WEST OF THE 6™ PRINCIPAL MERIDJAN, CITY
OF ENGLEWOOD, COUNTY OF ARAPAHOE, STAT£ OF COLORADO, MORE
~ARTICULARLY DESCRIBED AS FOLLOWS :
COMMENCING AT THE NORTHEAST CORNER. OF THE SE 1/., SW V., SW¼ OF SA.ID
SECCTON 34; TIJENCE N 77°30'51" E272 .09 FEET TO THE TRUE POINT OF
BEGINNING, SAID POINT BElNG ON THE SOUTH SIDE OF WEST GIRARD A VEN1.JE
AS DEFINED BY THE GIRARD PLACE SUBDIVISION (RECEPTION NO. 27 7666 7);
THE NCE ALO NG THE SAID sour.n LINE OF WEST GIRARD AVENUE N 89°50'22"W
534 .0~ FEET ; THENCE ALONG THE ARC OF A NON-TANGENT CURVE TO THE IUGm
HA YING A RADn;S OF 17 5.00 FEET, A CENTRAL ANGLE OF 38°46'37', A LENGTrl OF
118 .44 FEET AND A CHORD BEARINGN 70°00'07"E 1!6.19FEET TO A POINiON THE
SOUTH LINE OF TI!E VACATION LINE FOR WEST GIRARD A VENUE (RECEPTION
NO. 29 39714); THENCE S 89°50'22" E 92.53 FEET ALONG THE SAID SOUTH LINE ;
THENCE ALONG THE A..~C OF A CURVE TO THE LEr""T HAVlNGARADilJS OF !Bi .so
FEET, A CENTRAL ANGLE OF 14°42'14", A LENGTH OF 46.SB FEET AND A CHORD
BE ARING N 82 °48 ' 31 " E 46 .45 FEET TO A POINT OF REVERSE· CURVATURE ; THENCE
ALONG TI-re ARC OF A REVERSE CURVE HAVING A RADIUS OF 218 .50 FEET, A
CENTRAL ANGLE OF 7°59' 12'', A LENGTI-! OF 30 .46 FEET AND A CHORD BEARING
N 79°27'00" E 30.43 FEET TO A PO!NT ON THE NORTH LINE OF WEST GIRARD
AVTh1JE AS DEFINED BY TI-!E GIRARD PLACE SUBDIVLSION (RECEPTION NO.
2776667); THENCE S 89°50 '22" E 302.87 FEET ALONG THE NORTH I..INE OF SAID
WEST GIRARD A VENUE ; THENCE ALONG THE ARC OF A NON-TANGENT CURVE TO
THE IUGHT HA YING A RADIUS OF 20 .00 FEET , A CENTRAL ANGLE OF 61 °30' IO ", A
LENGTH OF 21.47 FEET AND A CHORD BEARINGS 34°24'33" W 20.45 FEET; THENC E
S 65°09'36" W 20 .00 FEET ; THENCE ALONG THE ARC OF A CURVE TO THE LEFT
HA V!NG A RADIUS OF 29 .00 FEET, A CENTRAL ANGLE OF 65°00 '00", A LENGTH OF
32 .90 FEET AND A CHORD BEARINGS 32'39'38" W 3 l.16 FEET TO THE TRU1 ?OINT
F BEGINNING .
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Apccmc-:,,t Reprdln & Oro 141d l.eue
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COUNCIL COMMUN ICATION
Date:
D ece mb er 6. 2004 I
Agenda Item:
11 a i, I
Subject:
Gro und Lease Agreement-,'v1edical Bu ildin g
Initiated By:
Public W o rks Departmen t I
Staff Source:
Rick Kahm , Direc tor
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
Counci l approve d Ordinance No. 4, Series 1002/2003 dedicatin g th e alignment of th e Engle wood
Parkway between So uth Elati Stree t and South Cherokee Str ee t. ·
Counci l approved Ordinance No. 56 , Series 2003 au th ori zing th e lease oi a porti o n of th e fo rm er
Wes t Gira rd Aven ue to Rocky M ountain MOB, LLC.
RECOMMENDED ACTION
Staff reco mm ends that Cit) Cou ncil adopt an ordinan ce approv in g an ,1gree ment wit h General
Electric Capi tal Business Asse t Fun ding Co rp orati on rega rdin g th e land lease wi th Roc ky Mountain
MOB. LL C.
BACKGROUND, ANALYS IS , AND ALTERNATIVES IDENTIFIED
The Englewood Park wa1•, between Sou th Elati St ree t and Cherokee St ree t, was ex tended in 2000 10
conio rm to th e alig nm en t in th e Ci tyCen ter Master Plan . Due to th is new alignment. the ex istin g
po rt io n oi W est Gi rard. betwee n Elat i Str ee t and th e round abo ut. was no long er requi red fo r str ee t
pur poses .
De, elop men t So lutions . In c. pu rch as ed the iorm er Ci tv Hall proper ty in 2003 and assign ed th e
projec t o i buildin g a medical office/sur ge rv ce nt er to Rocky ,\1 o unta in ,\10B. LLC. Rocky Mountain
MOB, LLC req uest ed th at th e Girard A, enue righ t-oi-\\ av be leased 10 th em to prov ide addit iona l
pa rking. Counci l apprm eel th e lease oi the :--ight-ol-'., av in Augus t, :!003. Cons truc ti on oi th e
parki ng lot has been comp leted in co nfor mance to the agre ement and in coordi nati on with the
ow ners oi the retail propert~ to th t north !Kimco ).
Rod.\ 1\.l ountain i\108 1s secu r111 • .1 loan tram 1h e General Elec tri c C.1pi t.1I Busrness Ass et Fund in g
Corpo r,1ti on. The loan is to be sec Jrecl . 111 p.ut . bv JI I oi th eir rights , titl e, and int erest under the
le,1:,1= Th e le nd er has req uest ed an Jgre ement w ith til t' Cit\ that pr m ides th em wi th rights .md
nQti ii c.11 io n 111 c.1 se o i d iau 1t. rore clos ure. or lease terrn 111ati on.
FINANCIAL IMrACT
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