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Home My WebLink AboutC88-096 Sublease with National Guard� r C88 -96 -17 SUBLEASE THIS SUBLEASE is made this day of August, 1988 by and between Vail Beaver Creek Jet Center, Inc., a Delaware corporation ( "Sublessor ") and the State of Colorado, for the use and benefit of the Colorado Department of Military Affairs, Colorado Army National Guard ( "Sublessee "). WITNESSETH r WHEREAS the Sublessee desires to lease the parcel of real estate located between the towns of Eagle and Gypsum in the county of Eagle, State of Colorado, ('Land'), legally described in Exhibit A attached hereto and made a part hereof which land is located, at and adjacent to the Eagle County Airport ( "Airport "); and WHEREAS, the Land is a portion of the premises presently leased by Sublessor under a certain Fixed Base Operator Concession Agreement and Prime Lease ('Prime Lease ") dated September 24, 1986 as amended, by and between the County of Eagle, State of Colorado, a body politic and corporate, acting by and through its Board of County Commissioners as Prime Lessor ('Prime Lessor ") and Mountain Flying Services, Inc., a Colorado corporation ( "MFS ") as Prime Lessee, -a copy of which is attached hereto as Exhibit B and made a part hereof by reference; and WHEREAS, the balance of the real estate leased pursuant to the Prime Lease is described on Exhibit C attached hereto (the "Fuel Farm Land "); and WHEREAS, the Prime Lease has been assigned to Sublessor pursuant to that certain Bill of Sale and Assignment of Prime Lease dated July 27, 1988, and attached hereto as Exhibit D by and between MFS as Assignor and Sublessor as Assignee; and WHEREAS, the Prime Lessor consents to and approves the content and execution of this document; and WHEREAS, by a separate instrument, Sublessor is conveying to Sublessee all the buildings and improvements ( "Improvements ") located on the Land (the Land and Improvements hereafter the "Premises "); and WHEREAS, Sublessor and Sublessee are agreeable to entering into a Sublease of said Land on the terms and conditions hereinafter set forth; NOW THEREFORE, in consideration of the premises and I the covenants herein, the parties hereto agree as follows: 1. Term and Use. The Sublessor hereby sublets to the Sublessee and the Sublessee sublets from the Sublessor the Premises for a term commencing as of the date set forth above and terminating the sooner of (i) 30 September 2046, or (ii) at such time as the Sublease is earlier terminated as provided herein. Sublessee shall use the Premises for a national guard installation and for other related purposes. Any mobilization and /or absence of Sublessee's personnel from the Premises shall not be deemed an abandonment of this Sublease and its provisions shall remain in full force and effect unless otherwise terminated as provided herein. During any mobilization, the Colorado Department of Military Affairs will preserve and protect the property. Without limitation as to the foregoing, the Premises shall not be used as a fixed base operator concession. 2. Rental and Other Considerations.- Sublessee shall pay to Sublessor at the date of execution of this Sublease the sum of Seventy -Five Dollars ($75.00) as rental for the Land for the entire term of this Sublease. In addition, the National Guard agrees to provide the following during the term of this Sublease: a) one office of sufficient size for the county airport manager to utilize as a one - person office, at no cost to the county; b) space within the hangar for locating the crash /fire rescue vehicle presently owned by the county and any replacement vehicle of similar size and purpose; c) four trained support - personnel, training and related cost to-be paid by County of Eagle, State of Colorado, members of the Guard, to assist in manning the crash /fire rescue emergency vehicle. -2- 3. Matching Funding. Sublessee is applying to the National Guard Bureau, an agency of the United States government or such other agency that from time to time administers federal funding for Colorado National Guard operations, to secure matching federal funds in an amount to be determined based on the value of real property improvements conveyed and applicable regulations, but not to exceed seventy -five percent (75 %) of appraised value of such real property improvements, or such other percentage as designated by federal requirements from time to time, to be applied by Sublessee for various uses and purposes in connection with the Premises (Federal Share). In the event Sublessee receives the Federal share, or any portion thereof, Sublessee agrees to promptly pay Sublessor the amount equal to the Federal share as additional consideration for the transfer of the Improvements to Sublessee. 4. Purchaser of Fuel Farm. In the event Sublessee shall pay the amounts pursuant to Section 3 above then Sublessee shall have the right and option to sublease the Fuel Farm Land for the balance of the term of this Sublease and to purchase the improvements (the "Fuel Farm Improvements ") on the Fuel Farm Land at their fair market value. Such purchase would be with sufficient additional Federal funds to be applied for and to be authorized in the same manner and ratio as that set forth in Section 3. If the parties are unable to agree on fair market value within fifteen (15) days after Sublessee's notice of exercise, then fair market value shall be determined by the Appraisal Procedure set forth in Section 5 hereof. Said right and option shall be exercised by Sublessee giving Sublessor written notice of Sublessee's desire to purchase the Fuel Farm Improvements, and lease the Fuel Farm Land within sixty (60) days after federal funds are made available to purchase the Fuel Farm Improvements. The sale of the Fuel Farm Improvements shall be completed at a time and place mutually agreeable to Sublessor and Sublessee but in no - event shall said sale occur more—than 90 days after Sublessee exercises its option hereunder. At the closing of the sale, the Fuel Farm Land shall be added to the Land -3- 1 leased by Subleesee pursuant to this Sublease, and the Fuel Farm Land and the Fuel Farm Improvements shall then be a part of the Premises under this Sublease. 5. Appraisal Procedure. Subject to the provisions of Section 28 -3 -106, Colorado Revised Statutes ("C.R.S. ") as now or hereafter amended, all appraisals required to use the Appraisal Procedure shall be carried out as follows: (i) Either of the two affected parties to the matter to be determined may appoint an appraiser to initiate the process; (ii) Within 15 days after notice of such appointment the other party shall appoint an appraiser. (iii) Within 30 days after the second appraiser is appointed the appraisers shall have prepared their appraisal report as to the matter at issue; (iv) If the appraisal do not vary by more than 5% of the average of the two appraisals, such average shall be binding upon the parties; (v) If appraisals vary from the average by more than 5% of the average then the two appraisers shall agree upon and appoint a third appraiser within 15 days (and failing such agreement, application shall be made to the American Arbitration Association for the appointment of such a third appraiser); (vi) Such third appraiser shall submit his appraisal report within 30 days after his appointment; (vii) The three appraisals shall be averaged. If any appraisal differs by more than 10% from the average it shall be ignored and the remaining appraisals shall be averaged and such average shall be binding upon the parties; (viii) Each party shall pay the cost of the appraiser selected by it and one -have of the cost of the third appraiser; (ix) Each appraisal will assume that the property is in at least the condition in which it is required to be maintained under the terms of the Lease and is otherwise subject to the terms, conditions and options provided by the Lease. Notwithstanding anything herein to the contrary, if the relevant party fails to appoint the second appraiser as provided in (ii) above, then the single appraisal performed pursuant to (i) above shall be binding upon the parties. In the event of a conflict with the - procedure herein set forth,the provision& of Section 28 -3 -106 as now or hereafter amended shall control. -4- w 6. Fuel Requirements. Sublessor and Sublessee agree that if within one year from the date of the Sublease, Sublessor is able to obtain military contract fuel, then Sublessee will procure from said Sublessor all federal aviation fuels Sublessee requires for its military operations conducted at the Airport, in accordance with military regulations in effect at the time of purchase. Sublessee will give Sublessor such documents as may reasonably be required for Sublessor to obtain military contract fuel. 7. Assumption of Lease Obligation . With respect to the Premises only, and except as hereafter set forth, Sublessee hereby expressly assumes and agrees to timely perform all of the obligations, agreements, covenants and undertakings of Sublessor under the Prime Lease, and the terms and provisions of the Prime Lease are hereby incorporated in this Sublease as if set forth herein in full, with the term Sublessor replacing the term "County" and the term Sublessee replacing the term "NMS", provided however, that Sublessee shall not be responsible or liable for any provisions of the Lease relating to (i) the payment of rent, fuel gallonage charges or other charges payable by the Sublessor, (ii) any of the provisions relating to the fixed base operation concession granted to Sublessor, (iii) any provisions relating to the initial construction of the improvements, and (iv) any provisions inconsistent with federal or state statutes and /or regulations pertaining to the national guard flight and aircraft regulation, and facility maintenance and operations. Sublessor specifically reserves the fixed base operation concession granted to it in the Prime Lease. Sublessor also specifically assumes the obligations of Article 5 subsection (e) of the Prime Lease. 8. Subleasing and Assigpment. The Sublessee shall not have the right to re- sublet or assign this Sublease, in whole or in part, except to any agency of the United States government for an air /army aviation support facility /armory, and provided that Sublessee - shall remain liable for all of the obligations hereunder. -5- 9. Alterations. The Sublessee may make any material alteration to the Premises without the prior written consent of the Sublessor, providing however, with regard to any improvement to the Premises requiring Lessor's approval, Sublessor's approval shall also be obtained. It is acknowledged that the Lessor has a lesser right of approval of Sublessee's alterations than it would have of Sublessor's alterations as stated in the Lease. 10. Surrender of Possession. At the termination of this Sublease, by lapse of time or otherwise, Sublessee shall yield up immediate possession of the Premises to Sublessor, and title to all Improvements shall immediately vest in Sublessor without any further action of the parties. Sublessee will give Sublessor required documents of conveyance to the Improvements, and the expiration of the Prime Lease, possession and ownership will vest in turn with the county. 11. Notices. Any notice to be given hereunder shall be deemed given when personally delivered or 3 days after mailing when mailed in a properly addressed envelope, postage prepaid, by United States certified mail, return receipt requested. Notices and communications to Sublessor and Sublessee shall be properly addressed as follows: IF TO SUBLESSOR: Vail Beaver Creek Jet Center, Inc. P.O. Box 248 Eagle, CO 81631 WITH A COPY TO: Winston & Strawn One First National Plaza Suite 5000 Chicago, IL 60603 Attn: Norman Waite, Esq. IF TO SUBLESSEE: The Adjutant General Department of Military Affairs 300 Logan Street Denver, CO 80203 -4072 12. Sublessor's Warranties. Sublessor covenants and warrants to Sublessee, its successors and assigns, that it is not in default in any of its obligations under the terms of the Lease. Sublessor further covenants and warrants to Sublessee, its successors and assigns, that it will not voluntarily enter into any agreement with the Lessor which would Eel C') result in the termination of the Lease prior to the termination of this Sublease, or any extensions or renewals thereof without written consent and concurrence of Sublessee. Sublessor covenants, warrants and defends Sublessee in the quiet, peaceable enjoyment of Premises as to Sublessor's obligations under the Prime Lease, except to the extent not assumed by Sublessee un the Prime Lease. 13. Default. If default shall be made by Sublessee in any of the covenants on the part of Sublessee hereunder or on the part of Sublessee contained in the lease, and if such default shall continue for 10 days after notice to Sublessee specifying the default, then Sublessor may, if it so elects, in addition to any other remedies available to Sublessee at law or in equity, forthwith either terminate this Sublease or terminate Sublessee's right to possession of the Land and in such case Sublessee shall surrender possession of the Premises immediately and Sublessor may re -enter and repossess the Premises, including the buildings, improvements and appurtenants located thereon, for the remaining term of this Sublease. Any re -entry and repossession by Sublessor shall not release or otherwise discharge the Sublessee of its sole obligation to convey the property to the Sublessor. Re- entry by Sublessor shall not waive or postpone or otherwise prejudice the other and further rights and remedies that Sublessor may have against Sublessee, whether by statute or common law. In the event of any re -entry by the Sublessor it may sublet the Premises in whole or part, including the buildings, improvements and appurtenances thereon, to any tenant or tenants that Sublessor in its discretion deems satisfactory, for the remaining term of the Lease or any part thereof and on such rental, terms and conditions as Sublessor is able to negotiate and which Sublessor, in its discretion deems desirable under the circumstances. Any rent received by Sublessor in its subletting of the premises after re- entry shall be applied to the payment of the costs, expenses and indebtedness as follows, in such order as Sublessor in its discret4on,-nay determine: the costs incurred in effecting re- -7- u i } Jt l entry, including reasonable attorneys fees, if any; costs and expenses incurred by the Sublessor in the maintenance of the premises; taxes and insurance. Sublessor shall not be under any obligations to re -enter or sublet the Premises in the event of the default by Sublessee but the foregoing provisions for re -entry and subletting are permissive and applicable only at the election of Sublessor. 14. Governing Law. This Sublease shall be governed by the laws of Colorado. Any litigation arising out of or concerning this Sublease shall be commenced in the appropriate State court in the State of Colorado. 9 I 15. Fiscal Funding. (a) As prescribed by State of Colorado Fiscal Rules, it is understood and agreed this Sublease is dependent upon the continuing availability of funds beyond the term of the State's current fiscal period ending upon the next succeeding June 30, as financial obligations of the State of Colorado payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. Further, the parties recognize that the act of appropriation is a legislative act, and the Sublessee hereby covenants to take such action as is necessary under the laws applicable to the Sublessee to timely and properly budget for, request of and seek and pursue appropriation of funds of the Legislature of the State of Colorado which will permit Sublessee to make all payments required under this Sublease, funds required for use and operation and of the Premises during the period to which such appropriation shall apply. Sublessee also covenants to fully pursue the available appeals and review of any denial or rejection of such appropriation request. In the event there* shall be no funds made available required under this Sublease and for the use and operation of the premise, this Sublease shall terminate at the end of the then current fiscal year, with no penalty or additional cost as a result thereof to the Sublessee. (b) To make certain -the -understanding of the parties because this Sublease will extend beyond the current fiscal year, Sublessee and Sublessor understand and intend �i that the obligation of the Sublessee to pay the annual charges hereunder if any /and related occupancy expenses constitutes a current expense of the Sublessee payable exclusively from Sublessee's funds and shall not in any way be construed to be a general obligation indebtedness of the State of Colorado or any agency or department thereof within the meaning of any provision of Sections 1,2,3,4,or 5 of Article XI of the Colorado Constitution, or any other constitutional or statutory limitation or requirement applicable to the State concerning the creation of indebtedness. Neither Sublessee, nor Sublessor on its behalf, has pledged the full faith and credit of the State, or any agency or department thereof to the payment of the charges hereunder or directly related hereto, and this Sublease shall not directly or contingently obligate the State or any agency or department thereof to apply money from, or levy or pledge any form of taxation to, the payment of the annual rental charges (if any) and related charges or expenses. (c) With such limitations in mind, Sublessee contracts to Sublease the premises herein described and has reason to believe that sufficient funds will be available for the full term of this Sublease. Where, for reasons beyond Sublessee's control, Sublessee's funding entity does not allocate funds for any fiscal period beyond the one in which this Sublease is entered into, or does not allocate funds to continue this Sublease from the then current fiscal period, Sublessee having at that time exhausted all efforts to obtain funds for future fiscal period, such failure to obtain funds not resulting from any act or failure to act on the part of Sublessee, Sublessee will not then be obligated to make the payments, if any, remaining beyond Sublessee's then current fiscal period. In such event, Sublessee shall notify Sublessor of such nonallocation of funds by sending written notice thereof to the Sublessee forty -five (45) days prior to the effective date of termination. (d) The parties hereto further understand and agree that the only funds that _ have or may be so appropriated and available for payment under this Sublease in any one particular fiscal year are for the purpose and in an amount sufficient only to pay any rental RM C charges provided for herein in addition to one (1) years utilities and maintenance. Therefore, notwithstanding anything herein to the contrary, the payment by the Sublessee of any other charges, liabilities, costs, guarantees, waivers, and any awards thereon of any kind pursuant to this Sublease against Sublessee are contingent upon funds for such purpose(s) being appropriated, budgeted and otherwise made available through the State of Colorado legislature process. (e) The above Sections 15(a) thru 15(d) refer to state funding requirements and limitations only. The federal funding as set forth in Sections 3 and 4 are not subjectrto state limitations, and if the Federal share is received by the Sublessee, it shall be remitted to Sublessor as agreed in Sections 3 and 4 regardless of state funding limitations. 16. Complete Agreement. This Sublease, including all exhibits, supersedes any and all prior written or oral agreements and there are no covenants, conditions or agreements between the parties as to the Premises except as set forth herein. No prior or contemporaneous addition, deletion, or other amendment hereto shall have any force or effect whatsoever unless embodied herein in writing. No subsequent novation, renewal, addition, deletion or other amendment hereto shall have any force or effect unless embodied in a written contract executed and approved pursuant to the State Fiscal Rules. 17. Caption, Construction, and Lease Effect. The captions and headings used in this Sublease are for identification only, and shall be disregarded in any construction of the Sublease provisions. All of the terms of this Sublease shall inure to the benefit of and be binding upon the respective heirs, successors, and assigns of both Sublessor and Sublessee. If any portion, clause, paragraph, or section of this Sublease shall be determined to be invalid, illegal, or without force by a court of law or rendered so by legislative act then the remaining portions of this Sublease shall remain in full force and - effect. -10- C) C-1) 18. No Beneficial Interest. The signatories aver that to their knowledge, no state employee has any personal or beneficial interest whatsoever in the service or property described herein. 19. No Violation of Law. The signatories hereto aver that they are familiar with 18 -8 -301, et seq., (Bribery and Corrupt Influences) and 18 -8 -401, et seq.,(Abuse of Public Office), C.R.S., as amended, and that no violation of such provisions is present. 20. Controller's Approval. In accordance with the requirements of 24 -30- 202(1) C.R.S. as amended, this Sublease shall not be deemed valid until it has been approved by the State Controller, or such assistant as he may designate. 21. Consent. Unless otherwise specifically provided, whenever consent or approval of Sublessor or Sublessee is required under the terms of this Sublease, such consent or approval shall not be unreasonably withheld or delayed and shall be deemed to have been given if no response is received within 30 days of the date of request was made. If either party withholds any consent or approval, such party shall on written request deliver to the other party a written statement giving the reasons therefore. 22. Sublessee Liabilijy EVosure. The parties hereto understand and agree that liability for claims for injuries to persons or property arising out of the negligence of the State of Colorado, its departments, institutions, agencies, boards, officials and employees is controlled and limited by the provisions of 24 -10 -101, et seq., C.R.S., as amended and 24 -30 -1501, et seq., C.R.S., as amended. Any provision of this Sublease, whether or not incorporated herein by reference, shall be controlled, limited and otherwise modified so as to limit any liability of Sublessee to the above cited laws. 23. Prime Lessor's Approval. The Prime Lessor approves and agrees to the terms of this Sublease. 24. Inds. The-State, shall defend and hold harmless Sublessor. The State's obligation shall be limited to claims arising from alleged neglegent acts or omissions -11- of the Sublessee and of its employees which occurred or are alleged to have occurred during the perfomance of their duties and within their scope of employment, except where such acts or omissions are wilful and wanton. Such claims shall be subject to the limitation of the Colorado Governmental Immunity Act, 24 -10 -101, et. seq. This contract shall not be valid unless approved by the state risk manager. IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be executed by their respective officers thereunto duly authorized and their corporate seals to be hereto affixed, this day of 19 9 °' ATTEST SUBLESSOR: VAIL BEAVER CREEK JET CENTER, INC. By: _ SUBLESSEE: STATE OF COLORADO ROY ROMER, GOVERNOR ACTING BY AND THOSE THE DEPARTMENT OF MILITARY AFFAIRS APPROVED: APPROVED: STATE OF COLORADO By Roy Romer, Governor -12- 0 G of the Sublessee and of its employees which occurred or are alleged to have occurred during the perfomance of their duties and within their scope of employment, except where such acts or omissions are wilful and wanton. Such claims shall be subject to the limitation of the Colorado Governmental Immunity Act, 24 -10 -101, et. seq. This contract shall not be valid unless approved by the state risk manager. IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be executed by their respective officers thereunto duly authorized and their corporate seals to be hereto affixed, this day of SUBLESSOR: VAIL BEAVER CREEK JET CENTER, INC. ATTEST: By: . Jerry Black, Vice Pres. Charles J. Howard, President SUBLESSEE: STATE OF COLORADO ROY ROMER, GOVERNOR ACTING BY AND THOSE THE DEPARTMENT OF MILITARY AFFAIRS APPROVED: APPROVED: STATE OF COLORADO Roy Ro , Governor -12- AUG 08 188 10:0? DEPARTMENT OF MILITARY .AFFAIRS DENVER CO 281 PO4/11 C/ APPROVED: APPROVED: STATE BUILDINGS DIVISION Duane Woodard, Attorney General M. K. Ghourdjian, Directory_, BY IolQ M. K. Ghourdjian c =% Dayid`M. Kaye, First Assistant Attorney General General Legal Section' APPROVED: DMSION OF ACCOUNTS AND CONTROL James A. Stroup State Controller 13 As J �vJV .APPROVED: DMSION OF RISK MANAGrEMENT 1 flbur Miller, Ris Manager APPROVED: Oouxly of Pagle, State of Colorado by and tb ough its Board of County C on,in}iskoners :3y:�- d C APPROVED: Duane Woodard, Attorney General By David M. Kaye, First Assistant Attorney General General Legal Section APPROVED: DIVISION OF ACCOUNTS AND CONTROL James A. Stroup State Controller t By APPROVED: DIVISION OF RISK MANAGEMENT Wilbur Miller, Risk Manager 6 ATTES APPROVED: County of Eagle, State of Colorado by and through its Board of County Commissioners By: -13- CI) Exhibit A Legal Description of Land CIII Exhibit B Lease CIIII C") Exhibit C Legal Description of Fuel Farm Land 4 $ 1 j Exhibit D Agreement to Assignment