HomeMy WebLinkAboutbocc.ord.030.2023AN EMERGENCY ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO, APPROVING AN AMENDMENT TO THE
CURRENT LEASE AND USE AGREEMENT WITH TRAJEN FLIGHT SUPPORT, LP
(D/B/A ATLANTIC AVIATION)
ORDINANCE NO. 030-2023
RECITALS
Pursuant to Section 2.8.2 of the Home Rule Charter ("HRC"), the Board of County
Commissioners is authorized to take official action by Emergency Ordinance for certain matters
as determined by the Board of County Commissioners, and;
Trajen Flight Support, LP, d/b/a Atlantic Aviation, is the Lessee under a certain Fixed Base
Operator Lease and Use Agreement ("Lease Agreement") dated October 1, 1993, and that certain
Redevelopment Agreement ("Redevelopment Agreement") dated October 1, 1993, as amended,
with a current expiration date of September 30, 2023, and;
In response to a Request for Proposals (RFP) General Aviation/Fixed Base Operator (FBO)
Services and Facilities dated August 8, 2022 to award a new FBO Lease and Use Agreement, the
County has determined that Atlantic Aviation's proposal had the highest score according to the
County's scoring criteria for the RFP process, and;
Due to multiple decision points remaining unresolved within the proposed new Airport Layout
Plan (ALP), the execution of a new lease is delayed until such time the new lease can be
executed with confidence that essential terms in the new lease will not have to be modified, and;
County and Atlantic Aviation desire to amend the Lease Agreement under the following terms:
1. The term of the Lease Agreement shall be extended for a period of one (1) year,
to expire on September 30, 2024 (the "extension term").
2. Compensation paid to the County will be $13,750,000 in the form of $1,750,000
in base rent and $12,000,000 as a minimum annual guarantee for fuel flowage fees for the
extension term.
3. If the County and the Atlantic come to agreement to a new long term contract
during the one-year lease extension, the County will receive an additional payment of
$6,000,000, and;
The terms of the agreement are set forth, and the Chair (or Chair's designee) shall be authorized
to sign, an Amendment to Lease and Use Agreement in substantially the form attached and
approved by the County Attorney.
The BOCC finds that adoption of this ordinance is necessary for the immediate preservation of
the public health, safety and welfare of the citizens of Pitkin County and this Ordinance shall be
effective immediately pursuant to HRC Section 2.8.2.
NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin
County, Colorado that it hereby adopts an Emergency Ordinance Approving an Amendment to
Lease and Use Agreement for Trajen Flight Support (d/b/a Atlantic Aviation) and authorizes the
Chair or the Chair's designee to sign the Ordinance upon the satisfaction of the County Attorney
as to form, and execute any other associated documents necessary to complete this matter.
INTRODUCED, READ AND ADOPTED AS AN EMERGENCY ORDINANCE ON THE
13TH DAY OF SEPTEMBER 2023.
NOTICE OF CONFIRMATORY PUBLIC HEARING AND TITLE AND SHORT SUMMARY
OF THE EMERGENCY ORDINANCE PUBLISHED IN THE ASPEN DAILY NEWS ON
THE 21ST DAY OF SEPTEMBER 2023.
NOTICE OF CONFIRMATORY PUBLIC HEARING AND THE FULL TEXT OF THE
EMERGENCY ORDINANCE POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE
www.pitkincounty.com ON THE 14TH DAY OF SEPTEMBER 2023.
CONFIRMED AT A PUBLIC HEARING ON THE 11TH DAY OF OCTOBER 2023.
POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY
WEBSITE www.pitkincounty.com ON THE 14TH DAY OF SEPTEMBER 2023.
PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER CONFIRMATORY PUBLIC
HEARING, IN THE ASPEN DAILY NEWS ON THE 21ST DAY OF SEPTEMBER, 2023.
THIS ORDINANCE IS EFFECTIVE ON SEPTEMBER 13, 2023.
ATTEST: BOARD OF COUNTY COMMISSIONERS
By Saw1 ;lnit-t& By: FV'atAtit, ia.Cblot,V'
Sam Engen Francie Jacober, Chair
Deputy County Clerk
Date: Sep-29-2023
APPROVED AS TO FORM: MANAGER APPROVAL
5�titi gY
John Ely, County Attorney Jon Peacock, County Manager
Contract No. bocc.con.228.23
THIRD AMENDMENT TO LEASE AND USE AGREEMENT
THIS THIRD AMENDMENT (the "Third Amendment") is made and entered into as of
the date last signed below (the "Effective Date"), by and between the BOARD OF COUNTY
COMMISSIONERS OF PITKIN COUNTY, COLORADO ("County"), a Colorado home -rule
County, as Lessor/Permitter, and TRAJEN FLIGHT SUPPORT, LP d/b/a ATLANTIC
AVIATION, a Delaware limited partnership, as ("Lessee").
RECITALS:
1. The County is the owner, operator and FAA sponsor of the Aspen/Pitkin County
Airport (Sardy Field), located in Pitkin County in the vicinity of Aspen, Colorado (hereinafter
the "Airport"), at which it has made available certain land areas and facilities for and in support
of commercial aeronautical activity including public airfield facilities, an airline terminal and
related airline facilities, and a general aviation terminal and related general aviation and fixed -
base operator facilities; and
2. These certain land areas and facilities are further designated as areas and facilities
for public use (subject to rules and regulations for each classification of user), areas and facilities
for exclusive, preferential or non-exclusive commercial use (subject to written agreements with
the County), and certain areas "reserved" by the County for future designation; and
3. The County has the authority to operate and manage the Airport, to permit and
regulate commercial and certain aeronautical uses and activities at the Airport and to lease, license
or permit the occupancy and use of land areas, buildings, improvements and facilities thereon,
pursuant to, inter alia, C.R.S. sections 30-11-107, 30-15-401, 30-35-201/202, 41-4-101 et seq.,
as amended, Title IV of the Pitkin county Code, as amended, and Section 8.7 of the Pitkin County
Home Rule Charter, as amended; and
4. The County and Lessee are Parties to that certain Fixed Base Operator Lease and
Use Agreement ("Lease Agreement") dated October 1, 1993, and that certain Redevelopment
Agreement ("Redevelopment Agreement") dated October 1, 1993, as amended, with an current
expiration date of September 30, 2023; and
5. Pursuant to the Lease Agreement, Lessee is a fixed base operator ("FBO") and
permittee at the Airport and provides services to airline and general aviation aircraft that use the
Airport; and
6. In response to Request for Proposal (RFP) General Aviation/Fixed Base Operator
(FBO) Services and Facilities (RFP 001.23) dated August 8, 2022 to award a new FBO Lease
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and Use Agreement, Lessee submitted a proposal to the County for a new 30-year FBO Lease
that included, inter alia, a proposed substantial capital improvement investment at the Airport
(the "RFP Response"), and the County has subsequently determined that Lessee's proposal had
the highest score according to the County's scoring criteria for the RFP process; and
7. Due to delays in obtaining the necessary FAA approval of a new Airport Layout
Plan ("ALP"), which includes relocation of the taxiway and runway adjacent to the Premises,
finalization and execution of the New Lease (defined below) is correspondingly delayed until
such time as the new ALP is finalized and approved to such a degree that the New Lease can be
executed with confidence such that essential terms will not have to be modified; and
8. County and Lessee desire to extend the Lease Agreement for the period of time
necessary to obtain FAA approval of the Airport Layout Plan and to continue negotiating in good
faith to finalize the New Lease so that it might be executed at the earliest possible time; and
9. The Parties approve this extension and find that such extension will be mutually
beneficial to the Parties and aeronautical users of the Airport and the community at large.
NOW THEREFORE, in consideration of the mutual covenants, terms and conditions
herein, the parties hereto agree as follows:
1. Term. The Term of the Lease Agreement shall be extended for a period of one (1)
year, to expire on September 30, 2024 (the "Extension Term").
2. Continued Negotiations. Pursuant to the Airport's published request for proposals
(RFP), and the Pitkin County Procurement Code, Lessee's proposal was selected as the best
submission received by the County. The County and Lessee have commenced negotiating a new
long term FBO Lease and Use Agreement consistent with the terms of Lessee's RFP Response
(the "New Lease"). Pursuant to County procurement provisions and protocols, the County and
Lessee each agree to continue to negotiate in good faith, on an exclusive basis, the final terms of
the New Lease until completion or until determined that a final agreement cannot be reached.
3. Rent. In recognition of the continued exclusive negotiations between the Airport,
the County and Lessee and the Extension Term, the Parties agree to amend the consideration to be
paid by the Lessee to the County pursuant to the Lease Agreement as follows during the Extension
Term:
A. Sub -Section C.2 of the Lease Agreement shall be deleted in its entirety and
replaced with the following:
"The base rent for the Premises for the one-year term of this Third Amendment shall
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be One Million Seven Hundred Fifty Thousand Dollars ($1,750,000) per year,
payable in advance in twelve equal monthly installments at the beginning of each
month of the extension of One Hundred Forty -Five Thousand Eight Hundred Thirty -
Three Dollars and Thirty -Three Cents ($145,833.33) each."
B. Sub -Sections C.3.b and C.3.c of the Lease Agreement shall be amended to
to increase the Minimum Annual Guarantee (MAG-F) of the fuel flowage fee to Twelve Million
Dollars ($12,000,000), payable in twelve equal monthly installments of One Million Dollars
($1,000,000) each (the "Base MAG"). Contingent upon (i) mutual execution of the New Lease
and (ii) such New Lease taking effect on or prior to the conclusion of the Extension Term, Lessee
shall also pay an additional MAG-F of Six Million Dollars ($6,000,000) (the "Additional MAG")
which shall be paid as follows: (a) 1/12 of the Additional MAG shall be paid for each calendar
month from the effective date of this Agreement through the execution date of the New Lease in a
lump sum to be paid by Lessee to the County when the New Lease becomes effective; and (ii) the
remainder of the Additional MAG would be paid monthly in addition to the Base MAG for the
duration of the Extension Term. For the avoidance of doubt, if all conditions set forth in this
Section 2.B are satisfied, and the New Lease is executed to become effective at the conclusion of
the one-year Extension Term, the total MAG-F for the one-year Extension Term shall be Eighteen
Million Dollars ($18,000,000).
C. Sub -Sections C.4, C.5, C.6, and C.7 of the Lease Agreement shall be deleted
in their entirety as no longer applicable.
4. Time is of the Essence. County and Lessee understand that time is of the essence
with respect to entering into the New Lease. During this Extension Term, County and Lessee agree
to continue negotiating the New Lease so that it can be finalized and entered into promptly upon
receipt of FAA approval of the Airport Layout Plan or approved to such a degree that the New
Lease can be executed with confidence such that essential terms will not have to be modified.
5. Notices. Notices to the County or Lessee provided for in this Third Amendment
shall be hand delivered or sent by certified mail, postage prepaid, addressed to:
County
Airport Director
Aspen/Pitkin County Airport
0233 E. Airport Road
Suite A
Aspen, Co. 81611
With email to:
Dan Bartholomew
(dan.bartholomew@aspenairport.com)
Lessee
Trajen Flight Support, LP d/b/a Atlantic Aviation
c/o Mr. Jonathan Jones
69 East Airport Road
Aspen, CO 81611
With email to:
Jonathan Jones
(Jonathan.Jones@atlanticaviation.com)
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With a copy to:
Pitkin County Attorney's Office
530 E. Main St., Suite 301
Aspen, Co 81611
With email to:
Attorney <atorney@pitkincounty.com>
With a copy to:
General Counsel
Atlantic Aviation
5201 Tennyson Pkwy, Suite 150
Plano, TX 750240
With email to:
Dawud.Crooms@atlanticaviation.com
6. Electronic Signature. The County and Lessee agree that a signature page
transmitted to the other party by facsimile, email of a .pdf document, or electronic signature
software, such as DocuSignTM or similar electronic signature technology, shall be treated, for
purpose of validity, enforceability and admissibility, the same as a hand-written signature.
7. Provisions of Underlying Agreement Otherwise Unmodified. Except as
expressed in this Third Amendment, all of the terms and conditions of the Lease Agreement and
Redevelopment Agreement remain in full force and effect. All capitalized terms used in this Third
Amendment have the same meaning given such terms in the Lease unless specifically defined in
this Third Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment as
follows:
[Signatures on page following]
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THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
By:
FroA.�tt, ,ja.i f p Sep-29-2023
Francie Jacober, Chair Date
ATTEST:
By: S.a Sep-29-2023
Sam Engen, Pitkin County Deputy Clerk Date
County's Address:
c/o County Manager
506 East Main Street, Suite 302
Aspen, Colorado 81611
RECOMMENDED FOR APPROVAL:
Sep-28-2023
Jon Peacock, County Manager
O.A. 0 04t0t04A w
Date
Sep-28-2023
Dan Bartholomew, Airport Director Date
APPROVED AS TO FORM:
5o1nti El7.
Sep-28-2023
John M. Ely, County Attorney Date
Signature page to Third Amendment
LESSEE:
TRAJEN FLIGHT SUPPORT, LP d/b/a ATLANTIC AVIATION
By: Trajen FBO, LLC, its General Partner
By: amt, LbWC-
Sep-28-2023
Clive Lowe, Executive Vice President Date
30595161_v1
Signature page to Third Amendment