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HomeMy WebLinkAboutC18-248 Vail Valley Jet CenterRESTATED THIRD AMENDMENT TO AMENDED AND RESTATED FIXED BASE OPERATOR CONCESSION AND LEASE AGREEMENT BETWEEN THE COUNTY OF EAGLE, STATE OF COLORADO AND VAIL VALLEY JET CENTER, LLC This RESTATED THIRD AMENDMENT TO AMENDED AND RESTATED FIXED BASE OPERATOR CONCESSION AND LEASE AGREEMENT (“Restated Third Amendment”) is made and enter into this _______________, by and between the County of Eagle, State of Colorado, a body corporate and politic, acting by and through its Board of County Commissioners (“County”) and Vail Valley Jet Center, LLC, a Colorado limited liability company (“VVJC”). RECITALS A. The County owns the Eagle County Regional Airport (“Airport”). B. The County is duly authorized by law to administer and operate the Airport. C. The County and VVJC entered into an Amended and Restated Fixed Base Operator Concession and Lease Agreement dated September 29, 2009 (“VVJC Agreement”), pursuant to which VVJC operates as the fixed base operator (the “FBO”), serving the needs of general aviation users and further operates hangar, ramp, ramp space and parking as part of its operations as FBO at the Airport. D. By virtue of the VVJC Agreement, VVJC leased from the County certain premises known as the Premiere Hangar Premises. The County elected to terminate the VVJC Agreement, as to the Premiere Hangar Premises only, effective January 1, 2015, because certain improvements had not been constructed on the Premiere Hangar Premises within the time limits set forth in the VVJC Agreement. The County retook possession of the Premiere Hangar Premises effective January 1, 2015. E. Section 29.2 of the VVJC Agreement gives VVJC the option to lease, in the event the National Guard relinquishes its leasehold at the Airport, certain Airport parcels collectively referred to as the National Guard Premises. On October 25, 2016, by First Amendment to the VVJC Agreement, VVJC exercised its option to lease from the County a portion of the National Guard Premises known as the COARNG Parcel, for the balance of the Term of the VVJC Agreement. F. On September 6, 2017, by Second Amendment to the VVJC Agreement, VVJC exercised its option to lease from the County a portion of the National Guard Premises known as the Consolidated Lease Sub-Parcel, for the balance of the Term of the VVJC Agreement. DocuSign Envelope ID: C321D768-4F24-4A5E-A302-4E203A4E6E86 8/30/2018 2 G. The County and VVJC entered into a Third Amendment on June 5, 2018 to further expand the Leased Premises described in Article III of the VVJC Agreement to include a parcel of land consisting of approximately 9.338 acres located directly west of the SRE facility, and to extend the Term of the VVJC Agreement and to set forth certain other amendments. H. The County and VVJ now desire to replace the Third Amendment in its entirety with this Restated Third Amendment. The purpose of this Restated Third Amendment is to expedite the construction of additional ramp space on the West Hangar Premises under the County’s master 1041 approval by acknowledging the construction of ramp space is for and on behalf of the County as all such ramp space improvements will revert to the County upon the expiration of the Term. Additionally, the County and VVJ desire this expedited construction to acknowledge and mitigate against the loss of VVJC ramp space during the County’s terminal expansion project occurring in 2018 and 2019. AGREEMENT THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the VVJC and County agree as follows: 1. Article II of the VVJC Agreement is hereby superseded and replaced in its entirety by the following language: 2.1 Term. The term of this Agreement shall be for a period of approximately 40 years, not including the first partial lease year (the “Term”), commencing on September 29, 2009 (the “Commencement Date”) and terminating on December 31, 2049, unless earlier terminated to the provisions of this Agreement. The term “lease year” as used herein shall mean from and after January 1st through December 31st, a full calendar year. The first partial lease year will be prorated from the date of mutual execution through December 31, 2009. 2.2 Extension. VVJC shall have the option to extend (“Extension Option”) this Agreement for another term of ten (10) years commencing on the day following the expiration of the initial Term, on the terms and conditions set forth in this Agreement (the “Extension Term”), so long as VVJC has achieved substantial completion of the construction of Hangar 8 and Hangar 9 (depicted on Exhibit I) and all required improvements as described in and within the time limits set forth in Section 21.11 below and so long as VVJC is in not in uncured default under this Agreement at the time it exercises the Extension Option. VVJC will exercise the Extension Option by delivering written notice thereof to the County at least three months but not more than 12 months prior to the expiration of the Term. Notwithstanding the foregoing, in the event VVJC fails to give the County notice as set forth above within the required timeframe, the Extension Option shall nevertheless not expire or terminate unless and until the County gives VVJC written notice that VVJC failed to properly exercise the Extension Option and VVJC fails to exercise such Extension Option within 30 days of its DocuSign Envelope ID: C321D768-4F24-4A5E-A302-4E203A4E6E86 3 receipt of such notice from the County. During the Extension Term, all of the terms, covenants and conditions of this Agreement shall be and shall remain in full force and effect, except (i) Rent will be as set forth in Article IV below and (ii) the Term will be deemed amended for the Extension Term only. 2. Article III of the VVJC Agreement is hereby amended to include a new Section 3.8 as follows: 3.8 West Hangar Premises. The County leases to VVJC the premises referred to as the West Hangar Premises more particularly described on Exhibit H and depicted on the West Hangar Development Site Layout on Exhibit I (the “West Hangar Premises”). The West Hangar Premises contains approximately 406,698 square feet. 3. Article III of the VVJC Agreement is hereby further amended as follows: The numerical designation for subsection “3.8 County Reserved Rights” shall be amended to read “3.9 County Reserved Rights”. The numerical designation for subsection “3.9 Partial Termination” shall be amended to read “3.10 Partial Termination”. 4. Section 4.2 of the VVJC Agreement is hereby replaced in its entirety by the following language: 4.2 Base Rent. The Base Rent for the Premises shall be as set forth in Exhibit D. 5. Exhibit D to the VVJC Agreement is hereby replaced in its entirety by the version of Exhibit D attached to this Third Amendment. 6. Section 4.11 of the VVJC Agreement is hereby replaced in its entirety by the following language: 4.11 Place and Timing of Payments. All payments due the County from VVJC shall be delivered to a place in Eagle County designated in writing by the County. Base Rent shall be paid to the County monthly and shall be due and owing on the 20th day of the next month. If such day falls on a Saturday, Sunday, or County holiday, the payment shall be made on the next business day. Such payments shall be accompanied by a report on forms acceptable to the County showing the basis on which the payment is made. The parties agree that, unless expressly set forth herein, all Ramp Fees and other payments to be made by VVJC to the County shall be paid on a monthly basis, on or before the 20th day of each month. Monthly reports on forms acceptable to the County shall be provided by VVJC on or before the 20th day of each month. Such reports shall include fuel flowage, DocuSign Envelope ID: C321D768-4F24-4A5E-A302-4E203A4E6E86 4 rental car revenues, cargo inbound and outbound, and operation by aircraft for the previous month. 7. Article V of the VVJC Agreement is hereby replaced in its entirety by the following language: ARTICLE V COMPLIANCE WITH LAW, REGULATIONS, AND REQUIREMENTS VVJC shall comply with all current and applicable federal, state and local laws, ordinances and regulations. VVJC specifically shall observe and comply with the “Eagle County Airport Rules and Regulations”, the “Minimum Standards and Requirements for the Conduct of Commercial Aeronautical Services and Activities at the Eagle County Airport”, and the “Eagle County Regional Airport Design Guidelines” (collectively the “Minimum Requirements”), as established by the Board of County Commissioners, County of Eagle, State of Colorado, or its successor, and as may be amended from time to time. In addition to any other remedies it may have, the County may declare a default under this Agreement for VVJC’s failure to follow such laws, ordinances, regulations and Minimum Requirements. 8. Section 21.11 of the VVJC Agreement is hereby replaced in its entirety by the following language: 21.11 Expanded Lease Development. Hangar 7. VVJC shall construct and install a hangar on the West Hangar Premises, in the location of Hangar 7 on Exhibit I (hereinafter “Hangar 7”), together with associated improvements, including, without limitation, garages, office space, maintenance bays, a parking lot, fencing, a perimeter road, retaining wall(s), a taxiway connector, an apron to the west of Hangar 7, and 3.4 acres of ramp, in the area highlighted in light grey on Exhibit I. Hangar 7 shall be of sufficient size to house a Bombardier Global 7000 Aircraft (or larger, subject to mutual agreement by VVJC and the County). VVJC shall commence construction of Hangar 7 as soon as reasonably possible and such construction shall be substantially complete on or before June 15, 2019, subject to customary events of force majeure that are beyond the reasonable control of VVJC. Hangar 8 and Hangar 9. VVJC shall construct and install two additional hangars on the West Hangar Premises, in the location of Hangar 8 and Hangar 9 on Exhibit I (hereinafter “Hangar 8” and “Hangar 9”), together with respective and associated improvements, including, without limitation, garages, office spaces, maintenance bays, parking lots, and an apron between Hangar 8 and Hangar 9, in the area highlighted in dark grey on Exhibit I. Hangar 8 and Hangar 9 shall each be of sufficient DocuSign Envelope ID: C321D768-4F24-4A5E-A302-4E203A4E6E86 5 size to house a Bombardier Global 7000 Aircraft (or larger, subject to mutual agreement by VVJC and the County). VVJC shall achieve substantial completion of construction of Hangar 8 and Hangar 9 on or before December 31, 2049. If VVJC achieves substantial completion of Hangar 8 and Hangar 9 on or before December 31, 2049, then VVJC shall have the option to extend the Term for an additional ten (10) years, through December 31, 2059, pursuant to Section 2.2 of the VVJC Agreement. If VVJC does not achieve substantial completion of Hangar 8 and Hangar 9 within said timeframe, then the Term will not be extended. For purposes of this Agreement, substantial completion shall be defined as the time where the work has progressed to the point where VVJC has sought and obtained a temporary certificate of occupancy (“TCO”) or other requisite governmental approvals for completion and occupancy or where, when a TCO or other final approval is not required, the work is sufficiently complete, in the County’s reasonable opinion, so that the work can be utilized for the purposes for which it was intended. If the County is satisfied that VVJC is using its best reasonable efforts to construct in an expedited fashion, the County may extend any substantial completion dates set forth in this Section 21.11. However, any such extension shall be at the sole discretion of the County. Development of Hangar 7, Hangar 8 and Hangar 9 shall be in accordance with the terms and conditions set forth in the VVJC Agreement, including, without limitation, Article XXI and Sections 21.11.1 – 21.11.5. All improvements constructed as part of the Expanded Lease Development shall revert to and become the property of the County upon the expiration of the Term in accordance with §21.4 of the VVJC Agreement. 9. Section 21.12 of the VVJC Agreement is hereby deleted. 10. Capitalized terms in this Third Amendment will have the same meaning as in the VVJC Agreement and in the First and Second Amendments thereto. To the extent that the terms and provisions of this Third Amendment conflict with, modify or supplement portions of the VVJC Agreement, the terms and provisions contained in this Third Amendment shall govern and control the rights and obligations of the parties. 11. Except as expressly altered, modified and changed in this Third Amendment, all terms and provisions of the VVJC Agreement shall remain in full force and effect, and are hereby ratified and confirmed in all respects as of the date hereof. 12. This Third Amendment shall be binding on the parties hereto, their heirs, executors, successors, and assigns. IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT effective as of the date first written above. DocuSign Envelope ID: C321D768-4F24-4A5E-A302-4E203A4E6E86 DocuSign Envelope ID: C321D768-4F24-4A5E-A302-4E203A4E6E86 7 EXHIBIT D DocuSign Envelope ID: C321D768-4F24-4A5E-A302-4E203A4E6E86 EXHIBIT D RENTAL RATES Premises Period Rate Per Square Foot Square Footage Annual Rate Monthly Installment FBO Premises Term*$0.2424 1,032,021 $250,161.89 $20,846.82 Hangar Maintenance Premises Term*$0.2424 18,920 $4,586.21 $382.18 Fuel Farm Premises Term*$0.2424 2,400 $581.76 $48.48 Ramp Space Term**n/a n/a n/a See Section 4.7 of this agreement COARNG Premises Term*$0.2424 110,202 $26,712.96 $2,226.08 Consolidated Lease Sub-Parcel Term*$0.2424 82,056 $19,890.37 $1,657.53 West Hangar Premises Term*$0.3500 406,698 $142,344.30 $11,862.03 *Subject to annual CPI increases pursuant to Section 4.3 of this agreement. **No CPI Adjustments during this period DocuSign Envelope ID: C321D768-4F24-4A5E-A302-4E203A4E6E86 8 EXHIBIT H DocuSign Envelope ID: C321D768-4F24-4A5E-A302-4E203A4E6E86 9 EXHIBIT I DocuSign Envelope ID: C321D768-4F24-4A5E-A302-4E203A4E6E86