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HomeMy WebLinkAboutC09-205 Northside Hangars Phase I-AGROUND SUBLEASE NORTHSIDE HANGARS PHASE I-A This Ground Sublease Northside Hangars Phase I-A is made as of this 25t" day of June, 2009, by and between Northside Hangar, LLC, a Colorado limited liability company (hereinafter referred to as "Sublessor") and Vail HangAir, LLC a Colorado limited liability company (hereinafter referred to as "Sublessee") with regard to the following facts. RECITALS A. Sublessor is the lessee under fhat certain Hangar Ground Lease dated June 24, 2008, with Eagle County, Colorado, acting through its Board of County Commissioners (the "Lessor") which was recorded in the real property records of Eagle County, Colorado, on July 9, 2008, as Reception No. 200814455 ( as amended from time to time, the "Master Lease"). The Master Lease concerns certain real property located on the north side of the Eagle County Airport as generally described on Exhibit A-2 attached to the Master Lease (the "Property"), and among other things, requires the construction of hangars on the Property (the "Project"). B. Sublessee desires to sublease from Sublessor a portion of the Property, identified as Phase I-A in the Master Lease, and more particularly set forth on Exhibit B-1 or B-2 of the Master Lease, as applicable (the "Subleased Premises"), in order to develop and construct a portion of the Project. The Subleased Premises are legally described on Exhibit A attached to this Sublease. Sublessor has agreed to sublease the Subleased Premises to Sublessee upon the terms, covenants and conditions herein set forth. C. Sublessee acknowledges that the Master Lease contemplates the Project and the Subleased Premises will be submitted to condominium form of ownership in accordance with a Declaration for Northside Hangars Condominiums ("Declaration") to be drafted in accordance with the requirements of the Colorado Common Interest Ownership Act as set forth in Article 33.3, Title 38, Colorado Revised Statutes (the "Act"), and recorded, along with a condominium map, in the real property records of Eagle County, Colorado, whereby the airspace, above the Project including the improvements therein shall be purchased by third party purchasers. Sublessee shall be the declarant under the Declarations and shall timely draft and record the same, in accordance with the requirements of the Act and the Master Lease. AGREEMENT In consideration of the mutual covenants contained herein, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows. 1. Definitions. Any capitalized term used in this Sublease without separate definition herein shall have the meaning given that term in the Master Lease. 2. Sublease. Sublessor hereby subleases and demises to Sublessee and Sublessee hereby hires and takes from Sublessor the Subleased Premises for the purpose of development of Phase I-A of the Project in accordance with the terms and conditions contained in the Master Lease, including but not limited to the development standards, ongoing use BUS RE~26479842 D ~_ v~'~> r"" standards, timing for construction, and maintenance obligations set forth in Sections 4 and 5 of the Master Lease. The Sublessor shall have the right, upon reasonable prior notice to Sublessee, to enter upon and inspect the Premises. 3. Term and Extensions. 3.1 Term. The Sublease term shall commence on June 25, 2009. The Sublease term (the "Term") shall end on October 30, 2038. 3.2 Option Periods. Provided that Sublessee is not then in default hereunder, and further provided that the term of the Master Lease has been so extended, Sublessee have the option to extend the Term of this Sublease for two (2) separate and successive option periods of five (5) years (each, an"Option Period") commencing the day immediately following the expiration of the initial Term or the immediately preceding Option Period. .Sublessee shall exercise this option by giving written notice to Sublessor in accordance with Section 8.5 below not before two hundred ten (210) days prior and not later than one hundred twenty (120) days prior to the expiration of the initial Term or the immediately preceding Option Period. 4. Rent and Additional Pavments. 4.1 Rent. After the commencement of the term of this Sublease, Sublessee shall pay Rent to Sublessor (or, upon notice from Sublessor to Sublessee, directly to Lessor) in the manner and amount set forth in Section 3 of the Master Lease as to the Subleased Premises, subject to adjustment as set forth therein (the "Phase I-A Rent"). In accordance with Section 3(A) of the Master Lease and the Declaration, Sublessee's obligation to pay Phase I-A Rent shall be assumed by the condominium association and individual condominium unit owners upon creation of the common interest community, and upon such assumption, Sublessee shall be released from any obligation to pay Phase I-A Rent to Sublessor and/or Lessor. 4.2 Administrative Charge. In conjunction with and at the same time as each payment of Rent made under this Sublease, Sublessee agrees to pay to Sublessor an administrative charge of 3% of the amount of the Phase I-A Rent payment. 4.3 Sublease Fee. Upon execution of this Sublease, and in consideration of Sublessor's agreement to enter into same, Sublessee shall pay to Sublessor the amount of $10,000.00, which is a nonrefundable fee earned at the time of this Sublease, and is not a deposit of any kind. 4.4 Additional Payments. Sublessee shall also be responsible to the party to whom it is responsible to pay Phase I-A Rent for: (i) reimbursements to Lessor for the utilities, road and fence construction contemplated under Section 1(B)(ii) of the Master Lease to the extent of the proportion of the Subleased Premises to the Project; (ii) costs of extending utility services solely to the Subleased Premises, in accordance with Section 3(D) of the Master Lease (Sublessee shall also be entitled to the reimbursements, if any, provided in Section 3(D) of the Master Lease); and (iii) to the extent of the proportion of the Subleased Premises to the Project, taxes and other governmental charges applicable to 2 BUS_RE~2647984.2 the Subleased Premises or Sublessee's operations thereon, in accordance with Section 9 of the Master Lease. 5. Use. Sublessee covenants and agrees to use the Sublease Premises only for Lessee's Use, as defined in the Master Lease. 6. Master Lease. Sublessee and this Sublease shall be subject in all respects to the terms of, and the rights of the Lessor under the Master Lease as to the Subleased Premises. Except as otherwise expressly provided herein, the covenants, agreements, terms, provisions and conditions of the Master Lease insofar as they relate to the Subleased Premises and insofar as they are not inconsistent with the terms of this Sublease are made a part of and incorporated into this Sublease as if recited herein in full, and the rights and obligations of the Lessor and the Lessee under the Master Lease, unless otherwise delineated in this Sublease, shall be deemed the rights and obligations of Sublessor and Sublessee respectively hereunder and shall be binding upon and inure to the benefit of Sublessor and Sublessee respectively. As between the parties hereto only, in the event of a conflict between the terms of the Master Lease and the terms of this Sublease, the terms of this Sublease shall control. Lessor's Performance Under Master Lease. 71 Sublessee recognizes that, in the absence of full performance by Lessor under the Lease, Sublessor is not in a position to render any of the services or to perform any of the obligations required of Lessor by the terms of the Master Lease. Therefore, notwithstanding anything to the contrary contained in this Sublease, Sublessee agrees that performance by Sublessor of its obligations hereunder are in some cases conditional upon due performance by the Lessor of its corresponding obligations under the Master Lease and Sublessor shall not be liable to Sublessee for any consequence of default of the Lessor under the Master Lease. Sublessor shall use its reasonable efforts to enforce the terms of the Master Lease a$er notice from Sublessee of any Lessor breach, but Sublessor shall otherwise have no liability to Sublessee in the event of Lessor's failure or refusal to comply with any of the provisions of the Master Lease. This Sublease shall remain in full force and effect notwithstanding the Lessor's failure or refusal to comply with any provisions of the Master Lease and Sublessee shall pay the Phase I-A Rent and all other charges provided for herein without any abatement, deduction or setoff whatsoever, except that Sublessee shall have no obligation to pay Phase I-A Rent or other charges to the extent that Sublessor is entitled to, and does in fact, abate or offset such amounts pursuant to the terms of the Master Lease. Notwithstanding the immediately preceding sentence, this Sublease shall be terminated and all parties relieved of further obligations hereunder only if Lessor's breach is of such a nature as to constitute an eviction or constructive eviction of Sublessee and such breach is not cured under the terms of the Master Lease. Sublessee covenants and warrants that it fully understands and agrees to be subject to and bound by all of the covenants, agreements, terms, provisions and conditions of the Master Lease as to the Subleased Premises. Furthermore, Sublessee and Sublessor covenant not to take any action or do or perform any act or fail to perform any act which would result in the failure or breach of any of the covenants, agreements, terms, provisions or conditions of the Master Lease on the part of the Lessee thereunder. BUS_RE~26479842 7.2 After the commencement of this Sublease as defined in Section 3 above, whenever the consent of Lessor shall be required by, or Lessor shall fail to perform its obligations under, the Master Lease, Sublessor agrees to use its commercially reasonable efforts to obtain such consent and/or performance on behalf of Sublessee. However, the inability or failure of Sublessor to obtain the consent or performance of Lessor under the Master Lease shall not be a default hereunder by Sublessor, nor shall it relieve Sublessee af from its obligations under this Sublease. In the event any consent is required from Lessor under the Master Lease, Sublessor shall first have a right to consent, and Sublessee shall not seek Lessor consent until it has received consent of Sublessor. Subject to the immediately preceding sentence, Sublessee shall seek all approvals from Lessor as required b~ the Master Lease, including but not limited to approvals for condominium documents, changes to site plans, construction specifications, landscaping, roads and t~iways, and alterations or additions to improvements. Sublessee agrees to reimburse Sublessor far its reasonable expenses in seeking or obtaining Lessor's consent to the extent that such expenses are related to the Subleased Premises. 7.3 Sublessor represents and warrants to Sublessee that the Master Lease is in full force and effect, all obligations of both Sublessor and, to the best of Sublessor's knowledge, Lessor thereunder have been satisfied and Sublessor has neither given nor received a notice of default pursuant to the Master Lease. 7.4 Sublessor covenants not to modify the Master Lease so as to materially adversely affect Sublessee's rights hereunder. 7.5 Sublessee hereby acknowledges and agrees that Lessor shall not be bound by any of the terms, covenants, conditions, provisions or agreements of the Sublease. 7.6 Sublessor agrees to provide Sublessee with all notices Sublessor receives from Lessor promptly upon Sublessor's receipt thereof. Sublessee agrees, if Lessor shall request, to provide Lessor with all notices given by Sublessee to Sublessor under this Sublease. 8. Variations from Master Lease. The following covenants, agreements, terms, provisions and conditions of the Master Lease are hereby modified with respect to Sublessee: 8.1 The parties hereto represent and warrant to each other that neither party dealt with any broker or finder in connection with the consummation of this Sublease Each party agrees to indemnify, hold and save the other party harmless from and against any and all claims for brokerage commissions or finder's fees arising out of either of their acts in connection with this Sublease. The provisions of this Section 8.1 shall survive the expiration or earlier termination of this Sublease. 8.2 Notwithstanding anything contained in the Master Lease to the contrary, as between Sublessor and Sublessee only, all insurance proceeds or condemnation awards received by Sublessor under the Master Lease, if any, shall be deemed to be the property of Sublessor. 4 BUS RE~264~9842 8.3 Sublessee is granted rights under this Sublease only to Phase 1-A of the hangar project contemplated by the Master Lease, and only as same relate to the Subleased Premises. Sublessor retains all rights to develop the Properiy in the additional phases provided in the Master Lease, and Sublessee hereby waives any and all claim it may have to any rights granted in the Master Lease as they relate to other portions of the Property outside of Phase 1-A. 8.4 Sublessor reserves the right to exercise the option to lease the Lapin Property set forth in Section 1(C) of the Master Lease, and Sublessee shall have no rights with respect to same. 8.5 Any notice which may or shall be given by either party hereunder shall be either delivered personally or by recognized overnight courier service, or sent by certified mail, return receipt requested, addressed to the party for whom it is intended at: if to the Sublessee, to Vail HangAir, LLC PO Box 1832, 1610 Winslow Road, Edwards, Colorado 81632, and if to the Sublessor to Northside Hangar, LLC, PO Box 1832, 1610 Winslow Road, Edwards, Colorado 81632, or to such other address as may have been designated in a notice given in accordance with the provisions of this Section 7.5. The effective date of service of any such notice shall be the date such notice is delivered or postmarked. 8.6 Upon receipt of written notice to do so from Sublessor, all amounts payable hereunder by Sublessee shall be payable directly to Lessor in accordance with the terms of the Master Lease. 9. Indemnitv. Except to the extent that any of the following is caused by the negligence, willful and wrongful act or omission of Sublessor, Sublessee hereby agrees to indemnify and hold Sublessor harmless from and against any and all claims, losses and damages, including, without limitation, reasonable attorneys' fees and disbursements, which may at any time be asserted against Sublessor by (a) the Lessor for failure of Sublessee to perform any of the covenants, agreements, terms, provisions or conditions contained in the Master Lease which by reason of the provisions of this Sublease Subiessee is obligated to perform, or (b) any person by reason of Sublessee's use and/or occupancy of the Subleased Premises. Except to the extent any of the following is caused by the negligence, willful and wrongful act or omission of Sublessee, Sublessor hereby agrees to indemnify and hold Sublessee harmless from and against any and all claims, losses and damages, including, without limitation, reasonable attorneys' fees and disbursements, which may at any time be asserted against Sublessee by the Lessor for failure of Sublessor to perform any of the covenants, agreements, terms, provisions or conditions contained in the Master Lease which Sublessor is obligated to perform. The provisions of this Section 8 shall survive the expiration or earlier termination of the Master Lease and/or this Sublease. 10. Cancellation of Master Lease. In the event of the cancellation or termination of the Master Lease for any reason whatsoever or of the involuntary surrender of the Master Lease by operation of law prior to the expiration date of this Sublease, unless Lessor has BUS_RE~26479842 otherwise agreed in writing to accept the tenancy created hereby, this Sublease shall immediateiy terminate upon any termination notice given under the Master Lease. 11. Certificates. Each party hereto shall at any time and from time to time as requested by the other party upon not less than ten (10) days prior written notice, execute, acknowledge and deliver to the other party, a statement in writing certifying that this Sublease is unmodified and in full force and effect (or if there have been modifications that the same is in full force and effect as modified and stating the modifications, if any) certifying the dates to which rent and any other charges have been paid and stating whether or not, to the knowledge of the person signing the certificate, that the other party is not in default beyond any applicable grace period provided herein in performance of any of its obligations under this Sublease, and if so, specifying each such default of which the signer may have knowledge, it being intended that any such statement delivered pursuant hereto may be relied upon by others with whom the party requesting such certificate may be dealing. 12. Assi~;nment or Sublettin~. Subject to Sublessor's consent, which consent shall not be unreasonably withheld, Sublessee shall not be entitled to assign or sublease all or any portion of the Subleased Premises except as provided under the Master Lease and the Declaration. 13. Severabilitv. If any term or provision of this Sublease or the application thereof to any person or circumstances shall, to any extent, be invalid and unenforceable, the remainder of this Sublease or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term or provision of this Sublease shall be valid and be enforced to the fullest extent permitted by law. 14. Entire A~reement: Waiver. This Sublease contains the entire agreement between the parties hereto and shall be binding upon and inure to the benefit of their respective heirs, representatives, successors and permitted assigns. Any agreement hereinafter made shall be ineffective to change, modify, waive, release, discharge, terminate or effect an abandonment hereof, in whole or in part, unless such agreement is in writing and signed by the parties hereto. 15. Cantions and Definitions. Captions to the Sections in this Sublease are included for convenience only and are not intended and shall not be deemed to modify or explain any of the terms of this Sublease. 16. Further Assurances. The parties hereto agree that each of them, upon the request of the other party, shall execute and deliver, in recordable form if necessary, such further documents, instruments or agreements and shall take such further action that may be necessary or appropriate to effectuate the purposes of this Sublease. 17. Governin~ This Sublease shall be governed by and in all respects construed in accordance with the internal laws of the State of Colorado. 18. Consent of Lessor. The validity of this Sublease shall be subject to the Lessor's prior written consent hereto pursuant to the terms of the Master Lease; and any conditions imposed by such Lessor's consent shall be subject to both Sublessor's and 6 BUS RE~26479842 Sublessee's approval. If either the Sublessor or the Sublessee does not approve the conditions imposed by the Lessor's consent, Sublessor and Sublessee shall have the option to cancel this Sublease by written notice to the other party within five (5) days after the date thereof. If either party exercises its option to cancel the Sublease, Sublessor shall immediately refund to Sublessee any payments held by Sublessor pursuant to the terms of this Sublease, and the parties shall have no further obligations to each other. Lessor's consent shall not be deemed to create any privity of contract between Sublessee and Lessor. 19. Insurance. Sublessee shall comply with the insurance requirements as set forth in Section 12 of the Master Lease and Sublessee shall provide evidence of insurance to Sublessor and Lessor prior to the commencement of the Sublease. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] [SIGNATURE PAGE FOLLOWS] 7 BUS_RE~26479842 IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be executed as of the day and year first above written. SUBLESSOR: Northside Hangar, LLC a Colorado limited liability company By: Its: Date: SUBLESSEE: Vail HangAir, LLC a Colorado limited liability company By: Its: Date: LESSOR CONSENT The undersigned, Eagle County, Colorado, acting through its Board of County Commissioners, as Lessor under the Master Lease, hereby consents to the above Sublease, and acknowledges that the real property described on E~ibit A hereto is a portion ofthe Leased Premises, as that term is defined in the Master Lease. LESSOR: COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS BY~ Q/LQ- Ut.ti.. ~ f ~,w.F ~o Sara Fisher, Chai man G~~ i •' 1~ , Clerk to the Bdard of County C~ Ch ~-l : ~ ~(,-~~ i ~ BUS RE~26479842 [ a - / ~ ~_ ~ TERM SHEET ~ 1) Reauested hearing date: (First choice) July 7, 2009 (Second choice) July 14, 2009 2) For Countv Manager si~nature: No \/(0 1~C ~~ 3) Requesting deuartment: Attorney 4) Title: Ratification of Ground Sublease Northside Hangars Phase I-A 5) Check one: Consent: _XX_ On the Record: 6) Staff submittin~: County Attorney Representative 7) Purqose: To ratify agreement signed on June 25, 2009 8) Schedule: NA 9) Financial considerations: Contract amount? N/A Has agreement amount been fully budgeted? N/A How much of the budgeted funds will remain after execution of this contract? Does agreement comply with Eagle County's Purchasing/Bidding/Request For Proposal guidelines set forth in Resolution 2006-071? N/A If no, list in detail the reason for non-compliance including any exceptions set forth in Resolution 2006-072. List dollar amount of all bids and provide detail for your choice of vendor, including but not limited to, such items as price, quality, experience, local preference, etc. . 10) Other• ~ NPP[3.0'~'E~ AS TO FORM Qy.~ - E le ounty Attorn ~ Office ~~' a~i~ eaanty ee~mn~ ~~ ~~~r~' Office LEGAL DESCRIP7i0N A pwcel of land locpted in Tropt 55 nnd 7ract 58, 7o+mship 5 South, Rcnge 85 West of tha Slxth Principal Meridfan and atso ' with~ tha ptot of fagla County Airpor} rxorded ot Recaptlon No. 338682 in the offlce of ihs Eagte County, Colarado, CEerk and Recorder being more partleulorly deacrlbed as follows: Baginning ot a point on the northerly line of aoki Eag1e ~ounty Airport whence fha northeast come~ of a parcal os deacrbed in Book 181 at Poge 39 In the offlce of iha EogEe County, Colorado, Clerk and racorder, o found t i/2" olumfium ccp stnmped L.S. #112D4 bears N88'09'43'W 288.92 feet; thence alonq soid north property Ilns S88'09'43'E 196.02 feet to o paint on sa[d nortF~eHy line, whance tho northeaet corner of a parcel us described in Book 214 at Pa~e 542 a tound 2" aluminum cap stamped L.S. ~37302 beors 588'U9'43 E 866.40 feet; ihence departing said north line S02'44'04"~+J p~~,7+ fee1; thance N67'35'58"W 60.k0 faet; thence S92'44'04"W 92.82 feet; thance S67`I5'S6"E 35.00 feet; thence 592'44'04"W 63.50 feeh theace N87'15'S5"W 2&5.88 feat; thenca N02'44'04'E t75.~t feet~ thenoe S87"!5'S6"E 135.28 fest; fhence N02'44'04`E i90.t0 feet to the Point of 8eglnning, contafning 1.693 acres, mare or lese; -•'- N ~ I w a I ~ ~~ 100' $ 200' 300'• _.~;j, FND. f5 REBAR ATp 1]/2' ~~~n, CAP L& ift40~i LlNE B~ARENG'~~" DISTAMCE l,1 S 87'15'S6" E 135.28' !2 S UZ44'04" W 63.59' t~ s sr~s ss E 35.00 ~a s ozaa o~^ w s2.az' L.5 N 87'1556 W 60.40' ttm. ~S RWAii ANO 2" ALl7M. CAP LS ~s7902 --~ ~ss.a2• _ w ~ o cNe $ Ew~srpxs ~ $ o FU7URE DE4ELOaMEtJT AREA z umr ea _ L~T1~4. F'PA1AE BUIUNNp NURi~SIDE FIABiGARS ' PW1SE 1A 1,693 MXtES ~ ~Z fUNRE DLNFI.OpMENF NtEA bNIF Bt 1 STOiiY HANCAR 20 y TSS. R&S~W,i87H P.M. T55. R,r 85Wr5~P.N. JOB N0. ~151