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HomeMy WebLinkAboutC88-077 first amendment to FBO with Vail Beaver Creek Jet CenterFIRST AMENDMENT TO FIXED BASE OPERATOR CONCESSION AGREEMENT AND LEASE C88 -77 -17 MFS THIS FIRST AMENDMENT TO FIXED BASE OPERATOR CONCESSION AGREEMENT AND LEASE (the "First Amendment ") made and entered into this day of 1988, by and between the County of Eagle, State of Colorado, a body politic and corporate, acting by and through its Board of County Commissioners ( "County ") and VAIL BEAVER CREEK JET CENTER, INC., a Delaware corporation ( "Operator "). PRELIMINARY STATEMENT A. The County and Mountain Flying Services, Inc. have entered into a Fixed Base Operator Concession Agreement and Lease dated September 24, 1986 (the "Agreement ") whereby the County granted to said party a concession to operate as a fixed base operator at the Eagle County Airport, Eagle County, Colorado and leased to said party the property described on Exhibit A hereto �-' for the purpose of enabling said party to fulfill its obligations as a fixed base operator. The right, title and interest of Mountain Flying Services, Inc. in the Agreement has heretofore been assigned to Operator. B. The Agreement has heretofore been amended and modified by the instruments identified on Exhibit B hereto. C. County and Operator desire to further amend the Agreement as hereafter provided in this First Amendment. C") NOW, THEREFORE, in consideration of the premises and other valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the County and Operator agree that the Agreement is modified and amended as follows: 1. Obligations of Operator. A. Paragraph I.A.13 of Article Seven is hereby amended to read as follows: "13. Attendants to direct aircraft to loading and parking areas, to tie down the aircraft, to fuel aircraft, to clean windshields, to assist in removing snow from parked aircraft, and generally to provide friendly and courteous service. Such attendants shall wear uniforms proscribed by Operator so that they may be easily identified and present a professional appearance." B. The County acknowledges that items A, B, C and D of Paragraph IV of Article Seven have been provided by Operator to the satisfaction of the County. Operator is required to maintain its facilities as described in the above described items A and D. 2. Revenue and Charges. A. Notwithstanding the provisions of Paragraph B of W Article Ten, Operator shall not be obligated to pay the County �xT eight cent ($0.08) per gallon on aviation fuel sold or disbursed by Operator to commercial airlines, until the County imposes such charge on Operator to be collected from commercial airlines. B. The date 1991 in Paragraph E of Article Ten is changed to 1993. - 2 - L The County acknowledges that in order to pay the County the percentage rental specified in Paragraph E of Article Ten, the Operator will charge the percentage rental amount to all business conducted and carried on by Operator at the Airport, except where Operator is not obligated to pay percentage rental as provided in said Paragraph E. The County authorizes Operator to refer to any such charge as an "airport fee" or "airport assessment ". 3. General Operating Provisions. A. The second paragraph of Paragraph A of Article Eleven is.hereby amended to read as follows: "The County reserves the right to further develop or improve the Airport as it sees fit, regardless of the desires or views of Operator, and without interference or hindrance, except that the County may not arbitrarily violate or unreasonably diminish Operator's rights as provided elsewhere in this Agreement except on a temporary basis which would not have a material adverse effect on Operator or diminish its ability to perform the obligations undertaken by it hereunder; provided, however, that any general or partial closure of any public aircraft facilities for the purpose and dura- tion of construction or repair shall not be considered a violation or diminishing of Operator's rights or ability to perform so long as any public aircraft facilities are reasonably available to Operator, or if no public aircraft facilities are available to Operator such condition does not exist for more than two ( 2 ) consecutive des opt rr 'More than three ( 3 ) days in a five ( 5 ) dey oee j! period." w�ecs B. The last two sentences of the next to last paragraph of Paragraph'A of Article Eleven are hereby amended to read as follows: - 3 - s "The County further reserves the right to inspect Operator's books and to procure such additional financial information as may rea- sonably be required by the County in order to determine the accuracy of the amounts paid by Operator to the County under this Agreement. Notices shall be provided to Operator by the County at least forty -eight hours in advance to inspect Operator's books and records, as permitted pursuant to this paragraph." C. The last paragraph of Paragraph A of Article Eleven is hereby amended to read as follows: "Non- compliance with this subsection shall constitute a breach or default of this agreement and should such non - compliance continue for fifteen (15) days after notice' thereof has been given to Operator the County shall have the right to terminate this Agreement, or at the election of the County or the United States or both of said governments, shall have the right to enforce judicially this subsection ". D. The first sentence of Paragraph B of Article Eleven is amended to read as follows: "Operator shall use the leased premises solely for Airport purposes as set forth herein, except as otherwise provided in this Agreement, and in so doing shall enforce and comply with all applicable laws of the State of Colorado and the United States of America; and the reasonable rules and regulations of the County of Eagle as well as any and all bureaus, departments and agencies of said CC County, State of Colorado or the United States of America, as they may be amended from time to time, provided the same do not constitute an amendment of this Agreement." E. The first sentence of Paragraph F of Article Eleven is hereby amended to read as follows: "Operator shall not erect, maintain or dis- play any external sign or other advertising on the leased premises without first - 4 - obtaining the approval of the County, which approval shall not be unreasonably nor untimely withheld, provided any sign shall comply with the sign requirements promulgated by the County. 4. Leasehold Financing. The following is added generally to Article Twelve: "A. Each of the rights afforded to Operator under the Agreement to assign, transfer, encumber, pledge and otherwise hypothecate its leasehold estate in and to the Demised Premises shall also apply to the concession granted to Operator under the provisions of Article One of the Agreement (the "Concession "). Subject only to limita- tions contained herein, Operator shall be entitled, in accordance with the terms of this Article Twelve to mortgage and collat- erally assign the Concession to Mortgagee as security for any loan made by Mortgagee to Operator. In the event of foreclosure or other exercise by Mortgagee of its rights under the instruments securing such loan, Mortgagee or any other purchaser at a fore- closure sale shall be entitled to acquire and hold the Concession and to subsequently assign the same to a party or parties who acquire Operator's leasehold estate in the Demised Premises and who satisfy all require- ments of law applicable to the operation of a fixed base operation at the Airport, including the Minimum Requirements for Commercial Aviation Services and Activities as set forth in Exhibit A. B. In the event that Operator shall exercise its option under Article Two of the Agreement to renew the term of the Agreement the Concession will be automatically deemed renewed for an equivalent period. g C. Notwithstanding the provisions of Article Four or any other section of this Agreement, in the event that Mortgagee or any other purchaser at a foreclosure sale should succeed to Operator's rights under the Agree- ment, no default shall be deemed to have occurred under Article Four or any other section of this Agreement by reason of the �7= failure of Mortgagee or such purchaser to hold all licenses and permits necessary for the operation of a fixed base operation at the Airport. Mortgagee and /or such purchaser will have the right, to assign the Concession (and the leasehold estate in and to the Demised Premises) to any party or parties holding such licenses and permits with the written consent of the County, which consent shall not be unreasonably withheld. In addi- tion, from and after the commencement of foreclosure proceedings or other exercise of remedies by Mortgagee, and during any sub- sequent period during which Mortgagee or any other purchaser at a foreclosure sale is attempting to locate an assignee or trans- feree of the rights of Operator under the Agreement, but in no event later than two hundred seventy (270) days after the con- clusion of the foreclosure proceedings and the taking of possession by Mortgagee or such purchaser, Mortgagee and /or any such purchaser shall be relieved of any operating responsibility as described in Article Nine of this Agreement. Nothing in this paragraph D shall prevent the County from exercising any right afforded to the County under the provisions of this Agreement to take possession of and to operate the Demised Premises as a fixed base operation pending the assignment of the Concession by Mortgagee or by any other purchaser at a foreclosure sale to a party or parties holding such licenses and permits. D. Any rights of the County to terminate the Agreement under the provisions of Section 5.B.3. of this Agreement are subject to the notice and curative rights of Mortgagee set forth in Article Twelve of this Agreement. E. No portion of the proceeds of any financing, sale, or other transfer or disposition of the Demised Premises or the Concession shall be payable to the County by virtue of the provisions of Section 10.E. of this Agreement, or otherwise; provided, nothing in this paragraph E shall prevent the County from asserting any right which may exist at law to recover from such proceeds any rental payments or other sums then due and payable to the County.under the provisions of this Agreement. F. Any rights of the County to terminate this Agreement or to pursue any other remedy in accordance with the provisions of the last paragraph of Section ll.A are subject to the notice and curative rights of Mortgagee set forth in this Article Twelve. G. For purposes of the requirements con- tained in the paragraph which, in accordance with the provisions of Section 12.B.1. of this Agreement, is to be incorporated in any mortgage of Operator's leasehold estate and other rights under this Agreement, it will be sufficient if the purchaser of Operator's interest under the Agreement, or the person, firm or corporation to whom or to which such purchaser's right has been assigned, shall evidence its assumption of Operator's obliga- tions either in the instrument transferring the interest of Operator under the Agreement or in a separate agreement delivered to the County. H. Section 12.C.2. of this Agreement provides that, notwithstanding the provisions of Section 12.C.1., no default by Operator shall be deemed to exist as long as a Mortgagee in good faith, shall have commenced promptly to take certain actions contemplated by Section 12.C.2 and shall thereafter diligently proceed to prosecute such actions. For this purpose, the County acknowledges that such actions shall be deemed to have been commenced promptly so long as such actions are commenced within thirty days following the expiration of the ten -day period referred to in Section 12.C.l. of this Agreement. rq I. The reference in Section 12C.3. of this VIA Agreement to the notice mentioned in "Section B.l." is intended to refer to the notice requirement set forth in the introductory language of Section 12.B. J. Notwithstanding the provisions of Article Fifteen of this Agreement, the consent by the County shall be required in connection with an assignment of this Agreement arising out of - 7 - a foreclosure or deed in lieu of foreclosure, which consent shall not be unreasonably withheld. K. Nothing contained in Article Thirty shall negate, modify or otherwise affect the rights of Mortgagee under the provisions of this Agreement or this First Amendment. L. Notwithstanding anything in Article Twelve to the contrary, the Mortgagee shall not be obligated or required to cure any default of Operator which by its nature is not susceptible of being cured by Mortgagee." 5. Facility; Leasehold Improvements. A. The County acknowledges that the facilities required in Paragraphs B, C, D and F of Article Twenty -Two have been constructed by Operator to the satisfaction of the County. deleted. B. Paragraph K of Article Twenty -Two is hereby C. Notwithstanding the provisions of Paragraph O of Article Twenty -Two, Operator shall have the right to sublease a portion of the facility for non - aviation related purposes, pro- vided and to the extent such sublease does not have a term in excess of three (3) years and complies with the terms of any applicable Federal grant or rules or regulations. Preference in leasing shall be for aviation or aviation related purposes. 6. Sublease to Colorado National Guard. Operator shall have the right to sublet a portion of the premises (the "Subleased Portion ") to the Colorado National Guard (the "National Guard "). The terms of the sublease shall be subject to the approval of the County, which approval shall not be unreasonably nor untimely withheld. During the term of the sublease with the National Guard: A. The fixed base operation provisions of the Agreement shall not be applicable to the Subleased Portion; B. A rent of One Dollar will be payable by Operator to the County with respect to the Subleased Portion so long as it is subleased to the National Guard; C. No percentage rental, fuel tax, service tax or charges on fuel or services sold to the National Guard (including but not limited to the gallonage charge in Paragraph B of Article Ten) shall be payable by Operator to the County. If the sublease t, the National Guard exte beyond t expiration o the first optio eriod pursuant to Artic r e, Operat shall have an additional option for a ' ional period terminating on the terminat' date of the suble e, to be exer- cised i e manner set orth in Article Two the eement. 7. Ratification. The Agreement, as herein t°l modified and amended, is hereby ratified and confirmed and in Lr_ RL full force and effect. 8. Use of the Term Operator. For purposes of incorporating the terms of this First Amendment into the Agreement, the term "MPS" shall mean Operator. In Witness Whereof, the parties have executed this First Amendment the day and date first above written. COUNTY OF EAGLE, STATE OF COLORADO ("COUNTY") , T11 a. - 10 - VAIL BEAVER CREEK JET CENTER, INC. a Delaware Corporation ("OPERATOR") By: Its: ! €1laC L LEGAL DESCRIPTION PARCEL A JOHN OLESON A parcel of land located in Tract 55 and Section 3, all in Township 5 South, Range 85 West of the Sixth Principal Meridian according to the Independent Resurvey of said township and range as approved by the U.S. Surveyor General's Office in Denver, Colorado on June 20, 1922. All bearings contained herein being relative to a bearing of North 00 021'00" East on the line from the Witness Corner for Angle Point 3 of Tract 57 to Angle Point 2 of Tract 57. Said Parcel of land being more particularly described as follows: Beginning at the southwest corner of said parcel whence a brass cap set for Angle Point 4 of Tract 59, also being Angle Point 3 of Tract.56, Angle Point 1 of Tract 60 and Angle Point 2 of Tract 57 bears South 14 °13'45" West, 1443.98 feet; thence South 88 018'14" East, 697.80 feet; thence North 01 °41'46" East, 16.21 feet; thence South 88 °18'14" East, 329.97 feet; thence North 01 041'46" East, 50.00 feet; thence North 88 °18'14" West, 406.27 feet; thence North 01 °41'46" East, 34.79 feet; thence North 88 °18'14" West, 216.27 feet; thence South 01 041145" West, 4.00 feet; thence South 88 008'37" West 153.61 feet; thence North 89 035'06" West, 251.97 feet; thence South 01 °41'46" West, 81.85 feet to the point of beginning. Said parcel contains 1.8105 acres, more or less. AMP zll-,�,� 9 kA Ha W IT : (Pg. 1 of 3) j 7 7x` AMP zll-,�,� 9 kA Ha W IT : (Pg. 1 of 3) LEGAL DESCRIPTION PARCEL B JOHN OLESON A parcel of land located in Tract 55 and Section 3, all in Township 5 South, Range 85 West of the Sixth Principal Meridian according to the Independent Resurvey of said township and range as approved by the U.S. Surveyor General's Office in Denver, Colorado on June 20, 1922. All bearings contained herein being relative to a bearing of North 00 021100" East on the line from the Witness Corner for Angle Point 3 of Tract 57 to Angle Point 2 of Tract 57. Said Parcel of land being more particularly described as follows: Beginning at the northwest corner of said parcel whence a brass cap set for Angle Point 4 of Tract 59, also being Angle Point 3 of Tract 56, Angle Point 1 of Tract 60 and Angle Point 2 of Tract 57 bears South 31 °38'12" West, 1963.67 feet; thence South 01 °51'00" West, 107.68 feet; thence South 88 °18'14" East, 120.77 feet; thence South 01 °41'46" West, 78.16 feet; thence-South 88 °18'14" East, 238.71 feet; thence North 01 °41'46" East, 185.83 feet;'thence North 88 °18'14" West, 361.07 feet to the point of beginning. Said parcel contains 1.3188 acres, more or less. X, mffil!111! JC p m rj $$'tii A O Is 141 C - �+ ate! � 4�.. i� �'•'' 4 •.��'. Cl/ LEGAL DESCRIPTION PARCEL C JOHN OLESON A parcel of land located in Tract 55 and Section 3, all in Township 5 South, Range 85 West of the Sixth Principal Meridian according to the Independent Resurvey of said township and range as approved by the U.S. Surveyor General's Office in Denver, Colorado on June 20, 1922. All bearings contained herein being relative to a bearing of North 00 021'00" East on the line from the Witness Corner for Angle Point 3 of Tract 57 to Angle Point 2 of Tract 57. Said Parcel of land being more particularly described as follows: Beginning at the southwest corner of said parcel whence a brass cap set for Angle Point 4 of Tract 59, also being Angle Point 3 of Tract 56, Angle Point 1 of Tract 60 and Angle Point 2 of Tract 57 bears South 30 °27'10" West, 1963.80 feet; thence South 88 018'14" East, 429.88 feet; thence South 00 000'00" East, 5.71 feet; thence South 89 057'17" East, 94.37 feet; thence North 00 °00'00" East, 45.73 feet; thence North 89 009'00" West, 523.59 feet to the point of beginning. Said parcel contains 0.4768 of an acres, more or less. �XHI I BIT A V" \:mot `.3 oG•ti ay.^f! f �?. yj �. •'.it w �j:� h ��'��� •'C iii - ,ti'�ti`:�� �XHI I BIT A X, AMENDMENT TO FIXED BASE OPERATOR CONCESSION AGREEMENT AND LEASE BETWEEN THE COUNTY OF EAGLE, STATE OF COLORADO AND MOUNTAIN FLYING SERVICES, INC. THIS AMENDMENT made and entered into this - � day ,or July 1988, by and between the County of Eagle, State of Colorado, a body politic and corporate, acting by and through its Board of County Commissioners ( "County ") and Mountain Flying Services, Inc., a Colorado corporation ( "MFS "). WHEREAS, the County and MFS desire to amend Article lo, Paragraph D of that certain Fired Base Operator Concession Agreement and lease between the County and MFS dated tie 24th day of September, 1S.-86 to _educe a portion of Eagle County Airport occupied bT 'fFS to 152,766.46 square feet; and to reduce use fee of said area to a total annual area use rent of Nineteen Thousand and Ninety Five Dollars and Eighty -one Cents (519,095.81) per year payable in twelve equal monthly installments of one Thousand Five Hundred 1.1-One Dollars and Thirty Two Cents ($1591.32). WHEREAS, the property described in the attached Exhibit A is removed fro: the lease premises described herein, as MFJ S has conveyed it's interest in said property to Bill Duddy and Gene Lanham NOW, THEREFORE, the County and MFS agree to reduce the total area leased and annual area use rent in Article 10, Paragraph? D of said agreement to a total area leased of 152,766.46 square feet and annua= area use rent of $1591.32. The parties agree this document shall be effective from October 1, 1987. All other terms and conditions of the original agreement and any prior amandmen.ts thereto shall remain in full force and effect. vCOunty Commissioners COUNTY: County of Eagle, State of Colorado, By and Through its Board of County Commissioners By: Ao� George 4t. Gazes, Chairman. MOUr IN FLYING SERVICE, INC. By: J o n F.. Oleson, resident STATE OF COLORADO ) ss COUNT_' OF EAGLE ) sY70rn and subscribed to before me this - -alloy of _ V W li,,ti,�lrJtlJr'llrl� // Witness my hand and official seal. IM Mir mission expires: — com Notary Pu lic 9 -2- Mountain Flying Service, Inc. -5131 q , Eagle County Airport P.O. Box 246 Gypsum, Colo. 61637 Eagl- County Co- lissionert P.O. Pox A50 Eagle Co. "'1631 Dear Sirs, Tountain Fltrin? D zddTr and ­.r. Gana 1Pase accorriin71TT, of the leaseo area JOHN R. OLESON, Pres. & Chief Pilot (303) 524 -7575 0 (303) 328 -7756 9/10/87 Service has sold its old han7ar to -T r. Bill Lanha. 1 and ?could like to dify its yRO Bellow is a dia ra ; and le-'al &= scri -_ tion / P Igo n aq. 37 588-57-1'1 E 17+ 41,90- 00 -CO E ACS, i3 I r6(o 59q- 57 - /-7F Q/4,37 ;f en /00-00 - 00 E 't5,73" 164 total souare footage of ire area i Tr / s 11315.51 *, ;T,ic'� ecttlat?s to 53`�.t�1F/ ear or '1,4.95 --ionti to be d °leted fro-i `o,intain Flvinm Services' lease pa -,,r to Ea-le Co�irty. Thank yo;z for 'volzr consid.erati on- f" tt,is - latter. ®p T RECEIVED L �. _ Sincerely, ohn R. Oleson d7 wa Pres. T t. F11T. Ser. EXHIBITA s .