HomeMy WebLinkAboutC20-178 Pool Airport Facilities LeaseAMENDED AND RESTATED AIRPORT FACILITIES LEASE lHlS AMENDED AND RESTATED AIRPORT FACILITIES LEASE ("Agreement") is made and entered into this 2-/4 day of teh t::kCt.tiJ; , 2020, by and between Eagle County, Colorado, a body corporate and politic, by and ugh the Board of County Commissioners (''Lessor") and Fred W. Pool and Thomas A. Pool (collectively refe rred to herein as "Lessee") Lessor and Lessee may be collectively referred to herein a s the ''Parties." WITNESSETH: WHEREAS , Lessor owns, controls and operates the Eagle County R egional Airport (the "Airport") located at 217 Eldon Wilson Road, in the Town of Gypsum, State of Colorado; and WHEREAS, Lessor is duly authori zed by law to administer and govern the Airport and has the right to lease portions of the Airport property and to grant operating privileges thereon subject to the tenns and conditions hereinafter set forth; and WHEREAS, Lessor entered into an Airport Facilities Lease (the "Original Agreement") on October 12, 1988, which was amend ed on April 30, 2013, and further amended b y the Second Amendment and Restatement of Airport Facilities Lease dated March 31, 2015; WHEREAS, on or about February 2.G._2020 , Lessor consented to an assignment of the Original Agreement to Lessee; and WHEREAS, the Parties desire to consolidate the Original Agreement and all amendments thereto and to restate certain tenns of the Original Agreement and therefore agree that this Agreement shall s upersede and replace the Original Agreement and the First and Second Amendments. NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, the Parties hereto do hereby agree as follows : SECTION ONE EXCLUSIVE USE OF LEASED HANGAR SITE A. Lessor grants Lessee the ex clusive u se of th e 4 ,488 square foot hangar site located at 052 5A Airport Road, Gypsum, Colorado and described in Exhibit "A" attached here to and incorporated herein by this reference, hereinafter referred to as the "Leased Hangar Site" subject to the terms and conditions of this Agreement. Lessee agrees that ownership of the hangar and all other improvements on or about the Leased Hangar Site which are constructed or affixed to the realty shall become the property of Lessor upon the expiration or termination of this Agreement. B . Lessee shall use the Leased Hangar Site for the purpose o f storing and maintaining aircraft and purposes reasonably incidental thereto, excluding uses for DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 C20-178 commercial purposes. Any change in purpose shall be only with the prior written consent of the Lessor and upon the terms described b y the Lesso r. C. Lessee may, at its e xpense, make such exterior aJterations in the improvem ents located on the Leased Hangar Site as it shall d esire and that compl y w ith Airport d esign and development standards, but shall first obtain the written consent of the Lessor, which shall not b e unreasonably withheld. SECTION TWO USE OF AIRPORT AND AIRFIELD ACCESS CONTROL A . Lessee i s granted the non-exclusive use, in common with others similarly aut horized, of the Airport, including, but n ot limited to, the landing fi e ld and any extensions thereof or additions thereto , roadways, aprons, taxiways , floodlights, landing lights, beacons, con trol tower, signaJs, radio aids, and aJl other conveniences for fl ying, landings, and takeoffs. B. Lessee shall not install or m aintain fences, gates and such other equipment on the Leased Hangar Site to control access to the Airport on and across the Leased Hangar Site unl ess in accordance with the Airport's airfield access control plan as it now exists or may h er eafter be adopted or amended (the "Access Plan"), and w ith prior written approval from the Airport. Gate controllers instaJle d and maintained b y Lessee shall rem ain compatible with those speci fied for use on the Airport b y the Access Plan. Lessee agrees that it shall inform all e mployees and contractors of th e requirements of the Access Plan, and shall at all times comply with the Access Plan in its operations on the Leased H angar Site and the Airport. Access shall be permitted for Lessee's guests, in accordance with the Airport Security P rogram and F ederal Aviation Administration (''FAA") and TSA regulations. Each individuaJ d esiring access to the airfield s h all obtain an access card from Airport Administration in compliance w ith Airport R ules and Regulations and Department of H omeland Security and TSA regulations, p olicies and directives. SECTION THREE RIGHT OF INGRESS AND EGRESS Lessee shall have at all times the full and free right of ingress to and egress from the L eased Hang ar Site and facilities refe rre d to herein for L essee , its e mployees, c ustomers, passengers, guest, and other invitees SECTION FOUR TERM A . Subject to earlier tennination as hereinafter provided, the term ofthis Agreement shall b e fo r a period o f fifteen (15) years, commencing effective January I , 2020, and continuing thro ug h D ecember 3 1, 2034 (the "T erm"). The firs t year o f the T enn s hall commence effective at 12:00 a.m. 011 January 1, 2020, and end at midnight on D ecemb e r 3 1, 2020 (the "First Lease Year"). Each s ubsequent year of the Tenn shall commence on January 1 and end at midnight on December 3 1 (each a "Lease Y ear"). B . If Lessee remains in possessio n of the Leased Hangar Site after the expi ration of this Agreement w ith the pennission of the L essor and without any written renewal thereof, 2 DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 such holding over shall not be deem ed as a renewal or extension of this A g reement, but shall create only a tenancy from month to month that may be terminated at any time by Lessee or Lessor upon thirty (30) days w ritten n otice to the othe r p arty. Such holding over s hall otherwise be upon the same terms and conditions as set forth in this Agreement. SECTION FIVE RENTALS AND CHARGES A. Comme ncing January 1, 2020, annual rent for the Leased Hangar Site shall be one thousand five hundred seventy dollars ($1,570.00) ("R e nt"), pay able as provided herein . The Rent was calc ulated b y multiplying the four-thousand four-hundred e ighty -eight (4,488) s quare foot Leased Hangar Site b y thirty-five cents ($0.35)-per square foot. The R ent shall be adjusted effecti ve January 1, 2021, and annually the reafter on January l of each Lease Y car , as set forth herein. B. Annual Increase. On January I, 202 1 and o n January 1 of e ach Lease Y ear thereafter during the Term, the Rent shall increase by three percent (3%) over the R e nt for the prev i ous Lease Year. C. The Re nt (as set forth above) shall be prorated for the number of days between the effective date of thi s A g reement and D ecember 31, 2019 and shall be due upo n execution of this Agree ment b y both parties. Thereafte r, annual rent paym e n ts shall be due and payable on January l of each year, comme ncing on January 1, 2021 and continuing through the expiration or e arlier termination of this Agreement. D. Any Rent overdue for m ore than thirty (30) days will have an additional fee added to cover extra administrative costs. The additional fee w ill e qual 10% of the then current annual Rent. In the event Lessor is re quired to initiate any collection procedures or costs to collect any unpaid Rent from Lessee, the Lessee shall pay all of Lessor 's expenses in connection therewith, including r easonable attorney's fees. E . Lessee will b e responsible for all costs to extend utility services to the Leased Hangar Site, including all cost s associated w ith connection fees, tap fees, m eter fees, and any othe r fees that may be charged b y the utility companies associated w ith the Leased Hangar Site. F . Lessee agrees that all improve ments on or about the Leased Hangar Sit e w hich are constructed or affixed to the realty are the property of Lessee and shall become property of the Lessor upon the termination of this l ease. SECTION SIX RIGHTS AND PRIVILEGES In its use of the Airport and related facilities, Lessee is granted the rights and pri vileges accorded all othe r tenants or lessees of Airport space and u sers of the A i rport facilities similarly s ituated as from time-to-time d etermined by the Lessor. 3 Hr DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 SECTION SEVEN TAXES AND ASSESSMENTS Lessee agrees to pay all property assessments, general and special and all other legally imposed oblig ations, ordinary and extraordinary of every kind and nature whatsoeve r, levied or assessed upon the Leased Hangar Site or any part thereof or upon any of the buildings or improvements at any time situated thereon. SECTION EIGHT MAINTENANCE AND UTILITIES A. Lessee shall provide for and supply, at its sole expense, all janitor services with res pect to the Leased Hangar Site and shall provide for and pay for all heat, light, gas, e lectric ity, water used by it on or in connection with the same. B. Lessor hereb y grants to Lessee such reasonably nonexclusi ve easements as are n ecessary to provide utilities to the Leased Hangar Site and the hangar located thereon. C . Lessee agrees that Lessor shall not be liable for failure to su pply any utility services. Lessor reserves the right to temporarily discontinue utility services at such time as may be necessary by reason of accident , unavailability of employees, repairs, alterations or improvements or whenever by reason of strikes, lockouts, riots, acts of God or any other happenings beyond the control of Lessor. Lessor shall not be liable for damages to persons or property for any such discontinuance, nor shall such discontinuance in any way be construed as cause for abatement of Rent or operate to release Lessee from any of its o bligations h ereunder, except as o theiwise provided in the section entitled "Damage, or Destruction of Hangar." D . Lessee, at its sole expense, shall keep the Leased Hangar Site, and all improvements thereon , in good repair and maintenance, and in a safe, sanitary, orderly condition, in accordance with standards established by Lessor for similar buildings and premises under Lessor's control at the Airport, all at its ovm ri sk and e"-'Pense; including by way of example and not limitation; with respect to stmetures, periodic painting in a color approved by the Lessor, electrical, plumbing , roof and structural repair and window replacement; and with respect to surface areas, paving and sealing, landscaping, mowing and weed control, parking lot and ramp lights, graveling and/or dust control, snow and ice p l owing and removal, access control fences and gates, blast fences and the like. E. Lessee shall be respon sible for snow removal from all paved areas of Leased Hangar Site in accordance w ith the Airport Snow Removal Plan and the Airport Rules and Regulations, except that Lessor shall be re sponsible for snow removal from taxiways. F. Lessor may, in its discretion, as a courtesy and not an obligation, provide snow removal on paved p o rtions of Leased Hangar Site, not closer than six feet (6') from buildings, based on order of Airport o perational priority, and personne l and equipment availability. Lessor may cease to provide snow removal and mowing to Lessee or snow removal may not be provided on a particular occasion, at Lessor's sole discretion. Lessor may opt to provide the services only for a fee . Lessee acknowledges that unless Lessee demands in writing that Lessor cease any such snow removal or mowing , Lessor shall have no liability whatsoever for any damage to the Lease d Hangar Site caused by such snow remov al or mowing. Lessor 4 DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 shall conduct s now removal in accordance with the approved Airport Snow and Ice Control Plan and Airport Rules and Regulations_ G _ Snow removed from Lea sed Hangar Site shall not be windrowed or piled in a manner in which propellers, engines, wings or any other part of an aircraft may contact and be damaged w hen being ta,'<.ied or towed on pavement surfaces . SECTION NINE OPTION TO LEASE ADDITIONAL SPACE No option is granted to lease additional space. SECTION TEN RULES AND REGULATIONS Lessee agrees to observe and obey reasonable mies and regulations with respect to u se of the Leased Hangar Site, including the Eagle County Regional Airport Rules and Regulations; provided, however, that such rules and regulations shall be consistent with safety and with rul es, regulations, and orders of the FAA with respect to aircraft operations at the Airport and provided further, that such rules and regulations shall not be inconsistent with the provisions of this Agreement or the procedures prescribed or approved from time to time b y the FAA with respect to the ope ration of Less ee's aircraft at the Airport. SECTION ELEVEN DAMAGE OR DESTRUCTION OF HANGAR A. If the hangar located on the Lease d Hangar Site is partially damaged by fire , the elements, t he public enemy, or other casual ty, such hangar shall be repaired with due diligence by Lessee at its sole cost and expense . If the damage is so exte n s ive as to rende r such hangar untenantable, but capable of being repaired in forty-five (45) days, the hangar shall be repaired with due diligence b y Lessee at its sole cost and expense, and the Rent payable hereunder shall be prop ortionally reduced for the time the hangar w as untenantablc until the time as the hangar shall be fully restored. lfsuch hangar is completely destroyed or is so damaged that it remains untenantablc for more than forty-five (45) days, Lessee shall repair or reconstruct the hangar with due diligence at its own cost and expense, and Rent for the hangar to be adjusted as set forth above ; provided, however, that Lessee or Lessor may, at its option, te rminate this Ag reement, such termination to be effecti ve as of the date the hangar was destroyed or damaged . B. In the event the Airport is rendered untenantable or unusable, there s hall be reasonable and proportionate abatement of the Rent, fees, and charges provided for herein during the period that the same are so untenantable or unusable . C . The Parties hereto agree that Lessor shal l not be liable to Lessee for any injury to o r death of Lessee or any of Lessee's agents, representatives or employees o r of any oth er person o r for any damage to any of Lessee 's property or loss of revenue caused b y any third p erson in the maintenance, construction, o r operation of facilities at the Airport, or caused b y any third person using the Ai rport, or cause d by any third person navigating any aircraft on or over the Airport, whether such injury, death or damage is due to negligence or otherwise. 5 DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 SECTION TWELVE INSURANCE A. Lessee agrees to secure at its own expense, and to keep in force at all times during the T e rm hereof, Comprehensive General Public Liability fusurance and Property Insurance in the minimum limits set forth below. The required insurance coverage also shall include Personal Injury and Blanket Contractual Coverage for this Agreement. 1. Comprehe nsi v e General Public Liability Insurance Minimum limits: Ge neral Aggregate $2,000,000 Each Occurrence Limit $1,000,000 Premises Medical Expense (each person) $ 5,000 u. Property Insurance: Building fusured Value Business/Personal Property other than Aircraft: $350,000 per occurrence As needed to cove r value of items All aircraft stored in tlie hangar shall be insured at the fair market value of the aircraft, with minimum Liability Limits of$1,000,000 to include the premises where the aircraft is stored. Owners of aircraft stored in the hangar will name the Lessee and Lessor (if applicable) as additional insureds. Property insurance shall be written on a Covered Cause of Loss-Special Form, replacement cost coverage, including coverage for flood and earth movement. The Lessor shall be named as a loss payee on property coverage for tenant improvements and betterments. A Waiver of Subrogation applies for Lessor for any Lessor property. Coverage for the Lessor's Fill..1:ures I 00% replacement cost. Coverage for Loss of Rents amount equal to all Minimum annual rent other sums payable under the Lease. m. Auto coverage with limits ofliability not l ess than $200,000 each accident combined bodily injury and prpperty damage liability insurance, including coverage for owned, hired, and non-ovvned ·vehicles. B. The polices of insurance set forth above shall be endorsed to include the following additional insured language: "Eagle County and their respective associated and/or affiliated entities, successors or assigns, elected officials, employees, agents and volunteers shall be named as additional insureds with respect to liability arising out of the Lessee's use or occupancy of the Leased Hangar Site." 6 DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 C . A Waiver of Subrogation shall apply in favor of Eagle County, its respective associated and/or affiliated entities, successors or assigns, elected officials, employees, agents and volunteers. D . A certificate or certificates evidencing such insurance coverage shal l be fil ed with Lessor within ten (10) days after execution of this Agreement, and said ccrtificate(s) shall p rovide that s uch insurance coverage will not be canceled or reduced w ithout at least thirty (30) days prior written notice to Lessor. At least ten ( 10) days prior to the expiration of said insurance policy or policies, a certifi cate showing that such insurance coverage has been renewed or extended shall be filed with Lessor . If such coverage is canceled or reduced , the Lessee shall w ithin seven (7) days of notice of cancellation or reduction, but in any event more than fifteen ( 15) day s before the effective date of said cancellation o r redu ction, file with Lessor a certificate showing that the required insurance has been reinstated in foll, or provided through another insurance company or companies. E. In the event that the Lessee shall at any time fail to provide Lessor with the insurance required under this section, Lessor may tenninate thi s Agreement w ith ten (10) d ays' notice to Lessee. F. The insurance carried b y the Lessee, as required by this A greem ent, shall be primary over any insurance carried by the Lessor for the Lessor's own protection. Facsimile stamped signature on the Certificate w ill not be accepted. The Certificate mu st be signed b y the ins urance company's authorized representative. SECTION THIRTEEN INDEMNIFICATION OF LESSOR A . Lessee agrees to ind emnify and hold harmless Lessor, the Board of County Commissioners, the individual members thereof, commissions and/or agencies of the County, its officials, agents servants, and/or employees, from any and all claims, demands, charges, action s, costs and expenses of any nature in any manner arising from: i. Lessee's airport operations hereunder; or 11. The o pe rations of any person or corporatio n acting b y, through or under Lessee or any o r its renters, Lessees, or customers hereunder. B. Lessor shall g ive to Lessee prompt and timel y notice o f any claim made or suit instituted which in any way d irectly or indirectly, contingently or otherwi se, affects or , might affect Lessee, and Lessee shall have the right to compromise and defend the same to the extent of its OW11 interests. SECTION FOURTEEN TERMINATION BY LESSEE If Lessor fails t o perform an act or acts or render any service required to be performed or rendered by Lessor unde r the terms of thi s Agreement, and if Lessor fails to remed y an y such default in a manner reasonab ly satisfactory to Lessee within thirty days follow ing 7 DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 receipt from Lessee of written notice to remedy the same, Lessee may elect to terminate this Agreement by giving thirty days written notice to the Lessor. SECTION FIFfEEN TERMINATION BY LESSOR A. Lessee agrees that if default be made b y it in payment of Rent when due and if said default continues for more than sixty days, the Lessor may elect to declare this Agreement forfeited, in which event Lessee shal I surrender possession of the Leased Hangar Site peacefull y to the Lessor. B . If Lessee defaults in any of the cove nants, terms and conditions of this Agreement, Lessor may exercise any one or more of the following reme dies: i. Lessor may elect to allO\v this Agreement to continue in full force and effect and to enforce all of Lessor's rights and remedies hereunder, including without limitation the right to collect rent as it becomes due toge ther with past due interest; or ii. Lessor may cancel and terminate this Agreement and repossess the Leased Hangar Site upon giving 30 days written notice to Lessee of its intention to terminate, at the end of w hich time all the rights hereunder of the Lessee shall terminate, unless the default, which shall have been stated in such n otice, shall have been cured within such 30 days. Notwithstanding the foregoing, Lessee shall be allowed only two notices of d efault hereunder w hich it may cure within the 30-day time specified in this section. The third and any additional notice thereafter shall be cured by Lessee within 15 days and if Lessee fails to cure within such time frame, then Lessor at its sole option may (1) cancel and terminate all of the rights h ereunder of the Lessee, and Lessor may, upon the date specified in such notice, reenter the Leased Hangar Site and remove therefrom all property of Lessee and store the same at the expense of Lessee, or (2) elect to proceed under subparagraph B.iii below. If Lessor e lects to terminate, Lessee s hall be liable to Lesor for all amounts owing at the time of termination, including but not limited to rent due p lus inte rest thereon at the past due interes t rate together with any other amount to fully compensate Lessor for all loss of rent, damages, and costs, including attorney's fees, caused b y Lessee's failure to perform its obli gations hereunder, or which in the ordinary course would likely result therefrom; or 111. Lessor may e lect to reenter and take p ossession of the Leased Hangar Site and expel Lessee or any person claiming under Lessee subject to the time period set forth in s ubsection B .ii. above, and remove all effects as may be necessary, without prejudice to any remedies for damages or breach. Such reentry s hall not be construed as termination of this Agreemen t unless a written notice specifically so stat es; however , Lessor reserves the right to tcnninatc the Agreement at any time after reentry. Following reentry, Lessor may relet the Leased Hangar Site, or any portion thereof, for the account of Lessee, on such tenns and conditions as Lessor may choose, and may make such repairs or improvements as it deems appropriate to accomplish the reletting. Lessor shall not be responsible for any failure to relet or any failure to collect rent due for such relctting. Lessee shall be liable to L essor for all costs of reletting, including reasonable attorney's fees and repairs or improvements. Notwithstanding re-entry by Lessor, Lessee shall continue to be liable for all amounts due as rent under this Agreement, on the dates specified and in such amounts as would be payable if default had not occurred. Upon expiration of the Term, or any earlier termination of the Agreement by Lessor, Lessor, having c redited to the account of Lessee any amounts 8 ~ DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 recovered through reletting, shall refund, without interest, any amount which exceeds the rent, damages, and costs payable b y Lessee under this Agreement. B. Lessee hereby agrees that written notice of default hereinbefore provided for may be mailed via certified mail by said Lessor to said Lessee or its legal representative or assigns, to such address in the United State as shall have been last furnished in writing by the Lessee to the Lessor, and the receipt thereof acknowledged by said Lessor; and that, if the Lessee shall not have so furnished an address as above specified, than such notice may be conspicuously posted for thirty consecutive days in the m ain entrance of in front of the Leased Hangar Site; and the giving of such notice in either of th e ways above specified shal I constitute a good and sufficient notice for the purpose of declaring a default of this Agreement under the term s and provisions thereof in all cases w here by the te rms of this Agreement a notice of default is required to be given by said Lessor. In any case where under any of the provisions of this Agreement, or in the opinion of the Lessor, or otherwise, it shall be or may become necessary or desirable to make, give, or serve an y kind o r character of notice or for any p urpose whatsoever, it shall be sufficient either: 1. To deliver or cause to be delivered a c-0py of such declaration, demand, document, paper or notice to the Le ssee, or ii. To send or cause to be se nt a copy o f any such declaration, demand, document, paper or notice b y registered or certified mai l, postage prepaid, properly addressed to the Lessee at such address as the Lessee may have he retofo re furnished to the Lessor in w riting for the declared and expressed purpose of receivi ng notices, receipt of which was acknowledged in writing by the Lessor. SECTION SIXTEEN SURRENDER OF POSSE SSION A. On the expiration or other termi nation of this Agreement, ownership of the hangar an d any o th er improvements installed or constructed on the Leased Hangar Site the shall become the property of Lessor, and Lessee's rights to use of the Leased Hangar Site, facilities, and services described herein shall cease, and Lessee shall vacate the Leased Hangar Site without unreasonable de lay. B Except as otherwise provided in this Agreement, the equipment , and other non -affixed personal property bought, installed, erected, or placed by Lessee in, on, or about the Airport and Leased Hangar Site, shall be deemed to be p ersonalty and shall remain the property of Lessee. Lessee shall have the right at any time during the tenn of this Agreement and for an additional period of thirty (30) day period after the expiration or other termination of this Agreeme nt, to remove any and all such property from the Airport, subject, howeve r, to Lessee's obligation to repai r all damage, if any, resulting from such removal. Any and all property not rem oved by Lessee prior to the expiration of the aforesaid thirty day period shall thereupon become a part of the Jand on w hich it is located and title thereto shall thereupon vest in Lessor. 9 DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 SECTION SEVENTEEN INSPECTION BY LESSOR During the Term hereof, the Lessor shall have the right to inspect said Leased Hangar Site, including the improvements thereon, either by its Commissioners or designated employees, at any or all reasonable times upon 24 hours prior notification of Lessee, or with no notice in the case of emergency. SECTION EIGHTEEN ASSIGNMENT AND SUBLETTING A. Lessee shall have the right to assign this Agreement provided, however, that said assignee shall be acceptable to Lessor in its reasonable discretion . Lessee may not convey any interest in the improvements located on the Leased Hangar Site independently from an assignment of this Agreement. Furthem1ore, Lessee's ri ghts under this Agreement shall be transferable upon death for the duration of the Tenn. B . Lessee may sub lease all or any portion of the Leased Hangar Site upon a written agreement, in a fonn pre-approved by Lessor (it being understood and agreed that Lessor need not thereafter consent to each individual sublease), b etween Lessee and sub- lessce, a copy o f which agreement is delivered to, kept on file, and subject to approval by Aviation Director. C . All subleases shall be subordinate to this Agreement and shall contain the same substantive provisions as set forth herein. Addjtionally, any sub-lease shall contain language requiring immediate termination upon any termination notice given under this Agreement. All subl eases shall be terminated prior the effective date of termination given herein. D. Prior to subleasing any improvements located on the Leased Hangar Site, Lessee shall provide, for approval by Lessor, lease documents, and the leasing provisions that will accom pany such transactions. A copy of final subleases will be kept on file at the Office of the Eagle County Aviation Di rector. SECTION NINETEEN COSTS OF LITIGATION Lessee covenants and agrees to and with the Lessor that in case the Lessor shall, without any default on its part, be made a party to any liti gation commenced by or against th e Lessee with respect to the Leased Hangar Site and/or improvements thereon, then the Lessee shall and will pay all costs and reasonable attorneys' fees which may be incurred b y Lessor in enforcing this Agreement. SECTION TWENTY NATIONAL EMERGENCY In the event possession of the Leased Hangar Site and the improvements thereon is assumed by the United States of America, or other authorized ageqcy, under any emergency powers, the Rent due under this A greement shall abate fo r the period of such possession. In 10 DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 such event, Lessee shall not be responsible for any of the othe r covenants in this Agreement until possession by the United States of America shall term inate. In the further event that Lessee shall be reimbursed by the United States of America or other authori zed age ncy, for its assumption of possession, then the Rent provisions of this Agreement s hall remain in effect; b ut provided further, however, that if said reimbursem ent is less than the amount of the Rent h erein provided, the Lessee shall be required to pay to the Lessor only such amount of reimbursement as it shall recei ve from the United States of America or other authorized agency. SECTION TWENTY-ONE F.A.A. AND AIRPORT INSTRUMENTS The Federal Aviation Administration and Lessor are hereby granted the right and privilege by Lessee to place on and around the Leased Hangar Site, without cost to the Lessee, whatever instruments and equipment Lessor or the F.A.A. deems necessary for operation of the Airport. SEC TION TWENTY-TWO AERIAL APPROACH The Lessor reserves the ri ght to take any action it considers necessary to protect the aerial approaches of the Airport against obstruction, together with the rig ht to prevent the Lessee fro m e recting o r perm itting to be erected, any building or other structure on the A irport, w hich in the opinion of the Lessor, would limit the usefulness of the Airport or constitute a hazard to aircraft. SECTION TWENTY-THREE SUBORDINATION This Agreement shall be subordinate to the provisions of any existing o r future agreement between the Lessor and the United States, relative to the operation or maintenance of the Airport, the execution of which bas been or may be requi red as condition precedent to the expenditure of federal funds for the development of the Airport. Furthermore, in the event that by reason o f any s uch agreement with the United States Government as aforesaid, it becomes necessary to modify, relocate or remove any improveme nts or other structures situated on the Leased Hangar Site, or to move the Leased Hangar Site itself, Lessee agrees to modify, relocate or rem ove any s uch improvements or structures, o r to move to a new location for the Leased H angar Site, as directed by Lessor. If the Leased Hangar Site cannot be relocated at th e Airport, the Lessor has the right t o te rminate thi s Agreement upon sixty (60) days' notice to the Lessee. SECTION TWE NTY-FOUR RESERVATIONS OF COUNTY A. It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right, except the exclusive right to use the Leased Hangar Site subject to the rights of the Lessor specified herein. 11 DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 B. The Lessor reserves the right to further develop or improve the Airport as it sees fit, regardless of the desires or views of Lessee, and w itho ut interference or hindrance. C . Lessor reserves the right, but shall not be obligated to Lessee, to maintain and keep in repair the landing area of the Airport and all publicly owned facilities of the Airport, together w ith the right to direct and control all activities of Lessee in this regard. D . There is hereby reserved to the Lessor, its successors and assigns, for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the Leased Hangar Site, together with the right to cause said noise as m ay be inherent in the operation of aircraft, now known or hereafter u sed for navigation at, taking off from or operation on the Airport. E . Non-compliance with this Section shall constitute a material breach or default of this agreement, and in the event of s uch non-compliance, the County shall have the right to tcnninatc this agreement without liability therefore, o r at the e lection of the County or the United State or both of said governments, shall have the right to enforce judicially this section. F . Lessor reserves the right and Lessee agrees that Lessor acting by and through its Aviation Director, at its sole option and without any liability to the Lessor w h atsoever, may cancel and terminate this Agreement for the purpose of implementing any present or future master plan for the development of or expansion of the Airport, including, but not by way of limitation, runway or taxiway relocation, clear zone changes, roadways, or more suitable land use needs; prov ided, that Lessor s hall give Lessee not less than 180 days prior written notice of termination for this purpose. In the event of such termination, Lessor may provide Lessee with suitable alternate land at the Airport for the conduct of its business. Such substitute facilities shall be to the extent possible similar to the Leased H angar Site as to size and general location. Lessee reserves the right to tenninate this Agreement if the Lessor's determination of suitable substitute facilities is not adequate for Lessee upon 60 days written notice after Lessor notifies Lessee of the substitute facilities. Lessee agrees that no liability shall attach to Lessor, its officers, agents and e mployees by reason of any efforts or action toward implementation of any present or future master layout plan for the Airport and Lessee waives any right to claim dan1ages or other consideration arising therefrom. G. Lessee recognizes that from time to time during the Term of this Agreement, it may be necessary for Lessor to commence or complete p rograms of construction, expansion, relocation, maintenance and repair in order that the Airport and its facilities may be completed and operated as Lessor determines, and that such con struction, expansion, relocation, maintenance and repair may inconvenience Lessee in its operation at the Airport. Lessee agrees that no liability shall attach to Lessor, its officers, agents, employees, contractors, subcontractors and representatives by way of such inconveniences, and Lessee waives any right to claim damages or other con siderati on therefrom. SECTION TWENTY-FIVE ADDITIONAL CONDITIONS A. Lessee shall use the Leased P remised solely for airport purposes as hereinabove set forth, and in so doing shall enforce and comply with all applicable laws of the State of Colorado and the United States of America; rules and regulations of the County 12 DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 of Eagle; as well as any and all bureaus, department and agencies of said County, State of Colorado or United State o f America, as they may be amende d from time to time . In addition, all structures located upon the Lease d Hangar Site shall comply with the requirements of the Town of Gypsum, CO Building Code, Eagle County R egional Airport Rules and Regulations and any Eagle County Regional Airport Development Standards or other Guiding Do cuments of the Airport that may be in effect, including any revisions or amendme nts thereto. Further, Lessee shall comply with all applicable reg ulations and rules concerning water and sanitation. B. The lease is for use as a private hangar only and not for commercial use. A lease ame ndment would be required to conduct any commercial activ ity in the hangar as w ell as compliance with the Minimum Standards fo r Comme rcial A e ronautical Activities. C . In the event that a hundred p ercent of the entire inte rest of the Lessee becomes available for sale, those persons w ho have p reviously applied for permissio ns to construct a hangar or hangars shall have the right of first refusal in the order in which they had applied. If no one of these person s accepts within thirty (30) days of receipt of n oti ce of sale at their last know n address, then Lessee m a y sell the improveme nts and sublet o r assign the entire g round le ase upo n the written approv al b y the Lessor, which approval shall not b e unreaso nably withheld. D . N othing contained he re in shall be construed to prohibit or hinder Lessee from renting the Leased Hangar Site or a portion thereof, to an y person or entity approved in w rit ing by Lessor, which approval shall not be unreaso nably withheld, for the purpose of s toring aircraft. E. It is agreed that, w ith respect to any airc raft using the hangar within the Leased Hangar Site, adequate access t o, and maneuvering room in front of hangar w ill foreve r and at all times be prote cted during the Term o f this Agr eement. F. Lessee has express pe rmission to utilize e xisting e le ctrical lines in the ground w hich are located adjacent to the Leased Hangar Site, provided that Lessee obtains w ritten approval from the rural electrical association of such utiliz ation and procures a separate m eter for t he purpose of ascertaining Lessee 's s ole expe n s es. Upon request, Lessee shall provide Lessor with written proof of approval by the utility company and/or of the arrange ment for s eparate m etering. G. Said Lessee furth e r covenants and agrees that the Lessee w ill save harmless said Lessor at all times during the co ntinuation of this lease from all damag es, claims, fine s, penalti es, costs and expen ses w hatsoever w hich may result from any Workn1an 's Compensation claim . H. Any notices or consent provided for h e re in shall b e in writing and s hal l be deliver ed in person or mailed by ce rtified or registered mail, return receipt requested , postage prepaid, to the party for who m intended at the address s et forth be low: Lessor: Board of County Commissioners County of E agle , Colo rado PO Box 850 E agle, Colorado 8163 1 13 DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 Attn: Eagle County Attorney Lessee: ·r-; ~\ lJ . Poo\ Either party may change its address by written notice to the other party. Notices or consents are deemed to have been given effective of the date of delivery, if personally delivered, and as of the third day after mailing, if mailed. I. This Agreement shall be construed under the laws of the State of Colorado. Any covenant, condition, or provision herein contained that is held to be inv alid by any court of competent jurisdiction shall be considered deleted from this agreement, but such deletion shall in no way affect any other covenant, condition, or provision herein contained so long as such deletion does not materially prejudice Lessor or Lessee in their respective rights and obligations contained in the valid covenants, conditions, or provisions of this agreement. J . All amendments to this Agreement shall be made in writing by mutual agreement by the parties and no oral amendments shall be of any force or effect whatsoever. K. The Lessor shall have no responsibility or liability to furnish any services to Lessee other than those specified in this Agreement. The Lessee may negotiate with Lessor for additional services and may request and shall pay for such additional services, the considerations to be so negotiated. However, Lessee shall receive any services that are now or may hereafter be provided by the Lessor to other like Lessees under identical terms. L. Lessor shall have no responsibility or liability to remove the snow on and/or near the Leased Hangar Site of the Lessee for the Lessee's sole use and benefit. M. Lessee shall cause its officers, contractors, agents and employees to comply with any and all existing and future security regulations or security plan adopted by Lessor or the Eagle County Air Terminal Corporation pursuant to requirements of the Transportation Security Administration or Part 107, Federal Air Regulations of the FAA, as it may be amended from time to time. N. Lessee shall be solely responsible for the prevention, control and cleanup of all fuel , gas and oil leaks and spills, hazardous waste, lavatory waste and other environmental pollution caused by Lessee's operations on the Leased Hangar Site , in accordance with applicable local, state and federal laws and regulations, and it shall hold the Lessor harmless from said prevention, control and cleanup costs and obligations. The Parties each reserve their various claims and defenses against one another for the cleanup of any environmental pollution that occurred on the Leased Premises prior to the commencement date of Lessee's leasehold tenn hereunder. It is noted that in the ordinary course of storing and parking aircraft that some minor fuel and oil spillage shall occur and that Lessee shall have no extraordinary obligation for clean-up of such spills. 14 DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 0 . Lessee agrees that this Agree ment i s subject t o the requir ed Federal prov ision s attached h e reto as Exhibit B . P . The Parties acknow le d ge and agree that the provisio n s here in constitute the entire agree ment and that all representations made b y any officer, agent or employee o f the respective parties unless included here in are null and void and ofno effect. No alteration s, amendments , changes or m odificatio ns, unless e xpressly reserved t o the A v iation D i rector here in, shall be valid unless executed b y an instrument in writing by all the parties with the same foIIDality as this Agreem ent. Q. All the co venants, conditions, and pro vision s in this agreem ent shall e"-1:end to and bind the legal repres e ntatives, successo rs, and assigns of the respective parties h e reto. R. E ach Party a c know l edg es that this Agreem ent was fully n egotiated b y the Parties and, therefore, no provision ofthis Agreeme n t will be interpreted fo r o r against e ither Party because such Party or its legal representative drafted such provi sion . IN WITNE SS WHEREOF, the Parties hereto have executed thi s Ag reem e nt on the year and date first above writte n. Atte st : COUNlY OF EAGLE , STATE OF COLORADO , By and Through Its BOA RD OF CO UNlY COMMIS SIONERS By : Kathy Chandler-Henry, Chair By:-------------- Clerk t o the Board 15 DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 ) ) LESSEE: ' I County of \:~y e ) _ The foregoing i11::,trument was acknowledged before me this _j__ day of Mo... r GV\. 201JJ by Fred W. Pool. ~~ NOTARY PUBLIC \ ( JAIRO CHAVEZ Print Name: _ja,·.cc V\.o. ~ NOTARY PUBLIC My commissio11 expires: STATE OF COLORADO NOTARY ID 20194010123 MY COMMISSION EXPIRES 03/1512023 THOMAS A POOL ,/4'v~J<:<~Z r, · J " • S UZANNAANORIANAKOS . State of lo fo {i (.{ D ) : .·. sr~T:V~~ • n ) •· NOTMYI0 1992'000688 C f :,.t'\V DV-My C-OtTilnbsl<>,E.i<p;res Sept.28.2023 ounty o .-"-'-_<_•_ ,~_,_ ) 1. J ;, f .2.(,,.., . i ') 111:,foregoing instrument was acknowledged before me this -;I. 711J ay of ~o_t:<- by lhomas A. P ool. A (-. ~ NOTARY PUBLIC ~ ~~ ~'u/.VfkJr./1.._/ Print Name: s U Z.ti l)n(v /J 1"!t{ r: r,dltt}z,5 My commission expires: y-Ji:1·~0 ).3 16 / DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 Exhibit "A" s., R-tll•t & At"'-. e.op 1..S No. l?SG.6 lTr,tlfGI) 0..1030 OP•• ! ' TRACT 55 !.!!.GAL DESCRtJ>Tlll!I P.0.8. w 0 0 0 0 . 0 0 - ,\ pc-eel or le:r.d located Id.thin. Md al._ the 110rtherly bounduy of the J!<l&le CClloQ" Airport a.a ducr.lbed in l!ook "2 at Paf& 435 ot the ~l• Coua.tT !lacords, located 1n Tnct. 33, Section ll, Toomshlp 5 SC>Gth, ~ ~ llut af tl\e ~ P!"iacl p,,l !o:u-1dian aceol°~ to tM lndtpendent hsllney ot 1&14 . !Gllllff:l:; e,d !!e-,e ~ appro11ed by the i;.s . surveyor c ,n.ral '• Oltico !1> Ocmve:-. Color3do O!'t JUDA 20, l922. All bea.r~ a::-e N,}e.t.h~ to a. ~e:r:tne: of :t .oo•.t.?'00"£~ !~oa e brat:1 cu vet a1 a wlt.nea-a co.r.ner-for An&-le Potat ~ at Tra.ct 57 to e bra.as c.ap ••t to~ Ancl• .Polnl 2 ot Tract ~..,. s .. sd parc&l bei'DS' llON< p.u-tlculai.-li, ~1crl1>1d u foUon: Beg.1"'1f.Di: u a point on Ul6 11or1:he,-1-, boulldary Hoa of nic! rail• Coanty Alt'l'O~t !roa lfh!c!1 an oxtot1ne bra.a c-., ..... k.l.llJI t.nsl• Pot,,,: 4 or Tract $~ bea.rs. s.•i-21 1 1.;."lt .. ~.o.s feet d.11tant:: thuce de~art~ said boua.dacy 11:i:e s.Ol)•oo•oo·a. 45.ao feet: th""ce :or.99•57•11·w. ~7 .18 teot; thenc, · s.00·110•011•e. z .oo fut: thence !.89'67 1.1rw. 47 ,18 t"t: tltel!Ce )(.oo•oo•oo•E. 4S.23 fee,: to e Poin't Oil the northerly bom,duy l1ne or said Bql • CoUJ1ty Un,o:-t; tullCe alone U.l.d bmrm!uJ' line S.89"09'00"£. 9'.3'1 !Ht "to the J)OUrt c! bqimunf. Said l)llrcel C<lntau. 0 .1030 of an ten, IIOl'fJ or ltn. DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 EXBlBITB REQUIRED FEDERAL PROVISIONS A. Compliance with Nondiscrimination Provisions . During the performance of this Agreement, Lessee, for itself, its assignees, and successors in interest (hereinafter collectively referred to as "LESSEE") agrees as follows: Compliance with Regulations: LESSEE will comply with the Title VI List of Pertinent Nondiscrimination Acts And Authorities, as they may be amended from time to time, which are herein incorporated by reference and made a part ofthis Agreement. Non-discrimination: LESSEE, with regard to the work performed by it during the term of this Agreement, will not discriminate on the grounds of race, color, or national origin in the selection and retention of contractors, including procurements of materials and leases of equipment. LESSEE will not participate directly or indirectly in the discrimination prohibited by the Nondiscrimination Acts and Authorities, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21. Solicitations for Agreements, Including Procurements of Materials and Equipment: hi all solicitations, either by competitive bidding, or negotiation made by LESSEE for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential contractor or supplier will be notified by LESSEE of LESSEE's obligations under this Agreement and the Nondiscrimination Acts And Authorities on the grounds of race, color, or national origin. Information and Reports: LESSEE will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the sponsor or the Federal Aviation Administration to be pertinent to ascertain compliance with such Nondiscrimination Acts And Authorities and instructions. Where any information required of LESSEE is in the exclusive possession of another who fails or refuses to furnish the information, LESSEE will so certify to Lessor or the Federal Aviation Administration, as appropriate, and will set forth what efforts it has made to obtain the information. Sanctions for Noncompliance: In the event of LESSEE's noncompliance with the Non- discrimination provisions of this contract, Lessor will impose such sanctions as it or the Federal Aviation Administration may determine to be appropriate, including, but not limited to cancelling, terminating, or suspending the Agreement, in whole or in part. Incorporation of Provisions: LESSEE will include the provisions of paragraphs one through six of this Exhibit B. Section (A) in every contract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto . LESSEE will take action with respect to any contract or procurement as Lessor or the Federal Aviation Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if LESSEE becomes involved in, or is threatened with litigation by a contractor, or supplier because of such direction, LESSEE may request Lessor to enter into any litigation to protect the interests of Lessor. In addition, LESSEE may request the United States to enter into the litigation to protect the interests of the United States. 18 Ii,-? DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 B. Real Propertv Acquired or Improved Under the Aimort Improvement Program. LESSEE for itself, its heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that in the event facilities are constructed, maintained, or otherwise operated on the property described in this Agreement for a purpose for which a Federal Aviation Administration activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, LESSEE will maintain and operate such facilities and services in compliance with all requirements imposed by the Nondiscrimination Acts and Regulations listed in the Pertinent List of Nondiscrimination Authorities (as may be amended) such that no person on the grounds of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities . C. Constmction/Use/ Access to Real Propertv Acquired Under the Activitv, Facilitv or Program. LESSEE for itself, its heirs, personal representatives, successors in inte rest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that ( 1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land, and the furnishing of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, and (3) that LESSEE will furnish its services in compliance with all other requirements imposed by or pursuant to the List of Nondiscrimination Acts And Authorities. D. Title VI List of Pertinent Nondiscrimination Acts and Authorities . During the performance of this Agreement, LESSEE, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees to comply with the following non- discrimination statutes and authorities; including but not limited to: 1. Title VI of the Civil Rights Act of 1964 (42 U.S.C . § 2000d el seq ., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); n. 49 CFR Part 21 (Non-discrimination In Federally-Assisted Programs of The Department of Transportation-Effectuation of Tide VI of The Civil Rights Act of 1964); iii . The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); 1v. Section 504 of the Rehabilitation Act of 1973, (29 U.S .C . § 794 et seq .), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27; v . The Age Discrimination Act of 1975 , as amended, (42 U.S.C. § 6101 et se q.), (prohibits discrimination on the basis of age); v1. Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); 19 DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 vn. The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the tenns "programs or activities" to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not); v111. Titles II and III of the Americans with Disabilities Act of 1990, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 -12189) as implemented by Department of Transportation regulations at 49 CFR Parts 37 and 38; 1x. The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); x. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures non- discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; x1. Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); and xu. Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). E. General Civil Ri!l;hts Provision. LESSEE agrees to comply with pertinent statutes, Executive Orders and such mies as are promulgated to ensure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or disability be excluded from participating in any activity conducted with or benefiting from Federal assistance If LESSEE transfers its obligation to another, the transferee is obligated in the san1e manner as LESSEE. This provision obligates LESSEE for the period during which the property is owned, used or possessed by LESSEE and the airport remains obligated to the Federal Aviation Administration. This provision is in addition to that required by Title VI of the Civil Rights Act of 1964. F. Right of Re-entry. In the event of breach of any of the abov e Nondiscrimination covenants, the County will have the right to tenninate this Agreement and to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the Agreement had never been made or issued. 20 DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5 G. Subcontracts. LESSEE agrees that it shall insert the above six provisions (Section (A) through Section (F)) in any agreement by which LESSEE grants a right o r privilege to any person, firm , or corporation to render accommodations and/or services to the public under this Agreement. 21 DocuSign Envelope ID: 92E827FB-D7AF-4F5E-A045-8D847DDD35C5