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Home My WebLink AboutC88-130 Third amendment to FBO concession agreementC88- 130 -17 Howard THIRD AMENDMENT TO FIXED BASE OPERATOR CONCESSION AGREEMENT AND LEASE THIS THIRD AMENDMENT TO FIXED BASE OPERATOR CONCESSION AGREEMENT AND LEASE (the "Third 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 Howard Air Services, Inc., a Colorado corporation ( "HAS ") entered into that certain Fixed Based Operator Concession Agreement and Lease, dated August 1, 1986, which agreement was supplemented by Addendum No. 1, dated August 4, 1986, both of which documents were recorded in the Official Records on June 3, 1987, in Book 463 at Page 756 as Reception No. 359982. Such agreement was further amended and supplemented by: (i) a Lease Addendum and Modification, dated June 10, 1987, and by a Second Amendment and Modification, dated June 29, 1987 (the "Second Amendment "), which documents were recorded in the Official Records on June 10, 1987, in Book 464 at Page 155 as Reception No. 360380; (ii) an Estoppel Certificate and Agreement, dated June 29, 1987, executed by the County, recorded in the Official Records on July 1, 1987, in Book 465 at Page 379 at Reception No. 361603; and (iii) a First Amendment to g b Fixed Based Operator Concession Agreement and Lease, dated July 26, 1988 (the "First Amendment ") recorded in the Official Records in Book 488 at Page 549. The Fixed Based Operator Concession Agreement and Lease, as supplemented and modified, shall herein- after be referred to as the "Agreement ". The right, title and interest of Howard Air Services, Inc. in the Agreement has here- tofore been assigned to Operator. B. County and Operator desire to revoke the First Amendment and the Second Amendment and to further amend the Agreement as hereafter provided in this Third Amendment. 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 - 2 - G__ maintain its facilities as described in the above described items A and D. C. Operator will supply fuel on the north side of the airport provided Operator may use two -way radio communications and may cross over the runways to provide this service if not prohibited by an applicable FAA rule or regulation. 2. Revenue and Charges. A. Notwithstanding the provisions of Paragraph B of Article Ten, Operator shall not be obligated to pay the County 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. 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 - 3 - 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 weeks nor more than three (3) weeks in a five (5) week period." B. The last two sentences of the next to last paragraph of Paragraph A of Article Eleven are hereby amended to read as follows: "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 - 4 - 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 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 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 - 5 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 in effect from time to time. 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. C. The County will deliver to Mortgagee, simultaneously with the delivery thereof to Operator a copy of any notice given in accordance with Article Three of the Agreement of the County's intention to lease either "Parcel B" or "Parcel C" to a third party, if the mortgagee has made such request in writing, and provided an address for such notices to be sent. D. It is understood and agreed that if Operator shall mortgage or encumber its interest under this Agreement, then, not- withstanding any other restriction or limita- tion set forth herein, the Mortgagee or any other purchaser at a foreclosure sale shall have the right to acquire, own and hold the interest of Operator under and pursuant to this Agreement (including both the concession granted to Operator in Article One hereof and the leasehold estate granted to Operator in Article Three hereof), and to thereafter assign such interest, with the written con- sent of the County which consent shall not be unreasonably withheld, to a party or parties who hold all licenses and permits necessary or required for the operation of a fixed base operation at the Airport. Without limiting the generality of the foregoing provisions, no default shall be deemed to have occurred under Article Four or any other article or section of this Agreement by reason of the c c failure of Mortgagee or any other purchaser at a foreclosure sale to hold all licenses and permits necessary or required for the operation of a fixed base operation at the Airport. In addition, from and after commencement of foreclosure proceedings or other exercise of remedies by the Mortgagee, and during any period during which the Mortgagee or any other purchaser at a fore- closure sale is attempting to locate an assignee or transferee of the interest of Operator under this Agreement, the Mortgagee and /or such purchaser shall be relieved of any operation responsibility as described in Article Nine hereof. If the fixed base operation shall be suspended during any such period of time, the County may, in order to preserve its investment in the Airport, at any time after commencement of foreclosure proceedings by the Mortgagee, enter upon the premises leased to Operator pursuant to this Agreement and make interim use of the fixed base facilities to allow the continued opera- tion of the Airport. This interim use of the premises may be accomplished by the County directly or by any of its representatives or designees, specifically including an FBO operator which is operating under a contract with the County. Any such temporary operator shall vacate the premises upon thirty (30) days prior written notice from the Mortgagee or any other purchaser at a foreclosure sale (but in no event less than six (6) months after the County enters the premises pursuant to this section) that a duly licensed operator is prepared to assume operation of such facilities at the end of such thirty (30) day period or at the end of such six (6) months period, as the case may be, and any agreement made by the County with a third party operator shall so provide. Any net profit derived from the interim operation of such facilities by the County shall inure to the benefit of the County, subject to the rights of the Mortgagee. E. 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. - 7 - C F. 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 F 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. G. 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. H. 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. I. 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.1. of this Agreement. C J. The reference in Section 12C.3. of this Agreement to the notice mentioned in "Section B.1." is intended to refer to the notice requirement set forth in the introductory language of Section 12.B. K. Notwithstanding the provisions of Article Fifteen of this Agreement, the consent by the County shall not be required in connection with an assignment of this Agreement arising out of a foreclosure or deed in lieu of foreclosure, but shall be required in connection with a subsequent assignment of this Agreement by the purchaser at the fore- closure sale, which consent shall not be unreasonably withheld. L. 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. M. 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. N. With respect to the loan heretofore made to HAS by Textron Financial Corporation in the event of a conflict between the pro- visions of this Section 4 and the Estoppel Certificate and Agreement dated June 29, 1987 executed by the County, the provisions of said Estoppel Certificate shall prevail ". 5. Facility; Leasehold Improvements. A. The County acknowledges that the facilities required in Paragraphs B, C and D of Article Twenty -Two have been constructed by Operator to the satisfaction of the County. deleted. B. Paragraph J of Article Twenty -Two is hereby - 9 - U; l C. Notwithstanding the provisions of Paragraph N 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. Option to Lease Additional Space The County hereby grants to operator the right to operate a concession on and to lease the property owned by the County described on Exhibit C hereto (the "Additional Parcel "), on the terms and conditions hereafter set forth. Such option may be exercised by notice given to the County at any time prior to August 1, 1989 (the "Expiration Date "). Upon exercise of the option, the County and Operator shall execute a lease (the "New Lease ") with respect to the Additional Parcel and all of the terms and provisions of the Agreement shall be applicable to the Additional Parcel, provided that (a) rent for the Additional Parcel shall not commence until the first to occur of (i) comple- tion of construction by Operator of a hanger on the Additional Parcel or (ii) one year after Operator's notice of exercise of the option is given to the County and (b) the New Lease shall not grant the Operator the right to operate a fixed base operator concession, and all provisions in the Agreement relating to the fixed base operator concession shall be deleted from the New - 10 - 0 Lease. Operator shall substantially complete the building within thirteen (13) months after the exercise of the option. Notwithstanding anything to the contrary herein, the exercise of the option shall be revoked if Operator fails to commence construction of a hanger on the Additional Parcel within one (1) year after Operator's notice of exercise of its option was given to the County. 7. Public Terminal Lease. It is agreed that in the event the County fails to perform any of its covenants under the Public Terminal Lease between HAS and the County, such failure shall not result in a default under the Agreement. 8. Revocation of First Amendment and Second Amendment. The First Amendment and the Second Amendment are hereby revoked in their entirety. 9. Ratification. The Agreement, as herein modified and amended, is hereby ratified and confirmed and in full force and effect. 10. Use of the Term Operator. For purposes of incorporating the terms of this Third Amendment into the Agreement, the term "Howard" shall mean Operator. In Witness Whereof, the parties have executed this Third Amendment the day and date first above written. COUNTY OF EAGLE, STATE OF COLORADO ( "COUNTY ") VAIL BEAVER CREEK JET CENTER, INC. a Delaware Corporation By Its:ct ATTEST z. / k Secretary a x � t _ i 1 O t t i 8 t r - 't , t o , U Is I t t t t ' N i t a£ ; t 3y0.£O95 t o 3,F0.£o85 i ol __- pp'OB -�'- V• ' t r wz ' I N w- wr om N GN NO n m N (J) ' i pCOEE ' . N m N, II u J m C --ii C ]uO1NO SC 00 01 Opn� � '� A l AOI pOp ••O+,�t�rOp �' �]eweC � '9 ii�oOjA ��IAE OiO C� p