066-07BOARD OF SUPERVISORS
RESOLUTION APPROVING AMENDED DEED OF LEASE
BETWEEN
THE COUNTY OF FREDERICK, VIRGINIA,
AND THE
COMMONWEALTH OF VIRGINIA, DEPARTMENT OF MILITARY AFFAIRS
Whereas, the Board of Supervisors of the County of Frederick, Virginia, conducted a Regular
Meeting on May 23, 2007; and
Whereas, the Board of Supervisors considered a Deed of Lease between the County of
Frederick, Vu-ginia, and the Commonwealth of Virginia Department of Military Affairs for a site for a
new National Guard Armory.
Now, Therefore, Be It Resolved., that the Board of Supervisors of the County of Frederick,
Virginia, unanimously approved the Deed of Lease between the County of Frederick, Virginia, and the
Commonwealth of Virginia Department of Military Affan-s for a site for a new National Guard Armory
to be located in Frederick County, Virginia.
Be It Further Resolved, that the Board authorizes the County Administrator to execute said
Deed of Lease on behalf of the County.
Approved this 23rd day of May, 2007.
VOTE:
Richard C. Shickle
Bill M. Ewing
Charles S. DeHaven, Jr
Gary W. Dove
Aye Gene E. Fisher Awe
Aye Philip A. Lemieux A_S e
Aye Barbara E. Van Osten Aye
Ave
~,
i
~~ ~
John Rini , Jr., ~ ~
Frederic County Board of Supervisors
Resolution No.: 066-07
COUNTY of FREDERICK
John R. Riley, Jr.
County Administrator
540/665-5666
Fax 540/667-0370
E-mail:
jri ley @ co,frederick. va.us
1
TO: Board of Supervisors
FROM: John R. Riley, Jr., County Administrator
SUBJECT: Revised Deed of Lease for the Armory Site
DATE: May 17, 2007
Attached please find a black lined version as well as a clean version of the revised Deed
of Lease between the County of Frederick, Virginia, and the Commonwealth of Virginia,
Department of Military Affairs for the new armory site. The proposed changes were
requested by the Governor's Office.
Changes from the previous version approved by the Board and the proposed include the
following:
Early Termination
The County may terminate this lease if the Department of Military Affairs' non-military
use of the armory is incompatible with nearby residential, office, or other permitted uses
within the zoning district. If the County chooses to terminate the lease for incompatible
non-military use by the DMA, the County must purchase the Armory at the appraised
value or, if greater, the amount owed to the Federal Government as construction costs. In
the event the County is unable or unwilling to pay the purchase price for the armory, then
the lease continues for the remainder of its teen.
At the end of the lease, the County will become the owner of the Armory.
Utility Easements
The County will bring utilities to within 300' of connection for the DMA. The DMA will
pay the customary tap fees for the Armory. (Per the proffer agreement, the County is
107 North Kent Street Winchester, Virbinia 22601-5000
named as the party to extend utilities to the site; however, the actual extension of utilities
to the site remains the responsibility of Miller and Smith [the developer].)
Condemnation
In the event of condemnation, the DMA will receive that portion of the award for the
armory building, the present value of the lease, and its furnishings. The County will
receive the balance of the award.
If there are no issues or concerns, staff is requesting the Board to approve the revised
lease and authorize the County Administrator to execute same on behalf of the County.
Once this has been completed the document will be returned to the Attorney General's
Office for the remaining signatures.
Should you have any questions or concerns, please do not hesitate to contact me.
JRR/j et
Attachment
,~.,
LEASE NO. 123-L0080
DEED OF LEASE
FREDERICK COUNTY ARMORY SITE
This Deed of Lease is made this _ day of \~,~, 2007, by and between the COUNTY '. Deleted: reb~,ary ',
OF FREDERICK, VIRGINIA, a political subdivision of the Commonwealth of Virginia,
referred to hereinafter as the "County", Lessor, and the COMMONWEALTH OF
VIRGINIA, DEPARTMENT OF MILITARY AFFAIRS, referred to hereinafter as "DMA",
Lessee.
WITNESSETH:
WHEREAS, the County has acquired, by Deed of Gift dated the 24`h of January, 2007
and recorded the ton of February, 2007 in the Clerk's Office of the Circuit Court of the County of
Frederick, Virginia as Instrument No. 070001977, fee simple title to that certain parcel of ]and
lying and being situate in Shawnee Magisterial District, Frederick County, Virginia, located
southwest of Millwood Pike (U. S. Route 50/17), containing 10.1321 acres, more or less (the
"County Property"), being more particularly described as "New Parcel 82" upon that certain
plat titled "Boundary Line Adjustment Governors Hill Between Parcel 82 & Parcel 83",
Shawnee Magisterial District, Frederick County, Virginia dated May 3, 2006, revised January
17, 2007, by Patton Harris Rust & Associates, pc, which plat is attached to and made a part of
that certain Deed of Boundary Line Adjustment dated January 24, 2007 and duly recorded in the
aforesaid Clerk's Office as Instrument No. 070001976, together with that certain temporary
ingress/egress, access, and utilities easement (the "Easement"), designated as "Variable Width
Temporary 1/E, Access & Utilities Esmt." more particularly described on the aforementioned
plat by Patton Harris Rust & Associates, pc, for purposes of temporary ingress/egress, access,
and the installation, construction, reconstruction, maintenance and removal of utilities to serve
the County,Property, which easement shall become null and void at such time as the construction
of a road for public street purposes is complete and accepted for maintenance by the Virginia
Department of Transportation, but which shall otherwise be deemed perpetual and appurtenant
and shall run with the title to the adjacent lands (New Parcel 83) for the benefit of the County
Property; and
WHEREAS, DMA desires to build a new Armory on the County Property (the "Armory
Building"); and,
WHEREAS, the County has agreed to lease the County Property to DMA in a long term
Lease (the "Lease") for consideration to be more particularly identified herein; and
WHEREAS, the appropriate federal and state budgetary appropriations have been made
to allow the construction of the Armory Building on the site herein identified.
,i Deleted: -
NOW, THEREFORE, in consideration of the covenants and mutual obligations entered ,' Deieced:-
~~
into herein,'the County hereby leases unto DMA, and DMA leases from the County, the County
Property, together with the right of ingress and egress thereto, upon the following terms and
conditions:
1. TERM. The term of this Lease shall be for ninety-nine (99) years and shall begin
on ~i:r. 1, 2007, and end on the ninety-ninth annual anniversary of the commencement date, ' Ue~eted: Mann-_
unless sooner terminated by agreement of the parties.
2. CONSIDERATION. DMA has paid to the County the sum of One Dollar
($1.00) at the time of execution of this Lease by DMA as rent for the entire term of the Lease.
3. USE. The Armory Building may be used and occupied by DMA, an agency of
the Commonwealth of Virginia, or its successor agency for housing and training the Virginia
militia, primarily units of the National Guard; for use by federal military forces under the terms
of the Commonwealth's contract with the United States of America; for the storage of military
property belonging to the Commonwealth and the United States; and for other such purposes and
uses as the Commonwealth may hereafter have. DMA may construct the Armory Building and
such other facilities and improvements on the County Property as it may deem appropriate. All
such buildings and facilities shall be and remain the property of DMA during the term of the
Lease and shall, conditioned upon payment of any funds as set forth below, become the property
of the County at the termination of the Lease. -DMA agrees that, subject to receiving the
necessary appropriations, it will use the Armory Building in accordance with this Lease and
maintain the Armory Building in a clean and reasonably safe manner in order to prevent the
building from becoming an eyesore or nuisance.__In the eceni chat the_cc>ntinucd use of the
\rnun '_uil_line for niihi,i_r~~~~~ca is no lun~~rt a~~pm~-n~i ite nr Cca,ible,_the Couuw agrees
h;A the li~lle~~.cim, non ntJitarP u5cs of Ih~ nnJx~rl.~ shrtll he hermitteii during tlic term of thin
4. EARLY TERMINATION.
(a) The parties recognize that the property adjacent to and within close proximity
to the Armory Building will have residential, office and other permitted uses. Certain
non-military uses authorized under Section 3, above, may, in the County's opinion, be
incompatible with the character of development adjacent to and within close proximity to
the Armory Building. Consequently, DMA agrees that, should it or its successors seek to
use the Armory Building for anon-military purpose authorized under this Lease for
longer than one (1) year, it will notify the County at least six (6) months prior to the date
that it intends to cease using the Armory Building for military purposes. If the County
determines that the proposed use is incompatible with the development adjacent to and in
close proximity to the Armory Building, it shall have the righf to terminate this Lease and
purchase the Armory Building and any ancillary structures from the Commonwealth as
follows: hie i_nwuc?~gr~e> k>_,nu-cltane the .-4nnory Building, ~~~tthnl one hundred ei~=hiti~
(ingl de vs ul the termination of the L.case, for the f iir n~arkct value of the Annory
Buildin ~ ,i~, ~stabli;hed b~ the a~cxage of rao bc~nti(id~ ,~~~irai5als, one to be obtained by
I)MA .vui one he the C~ount~~. I fthe difference bet~~~ecn il~c two tnnriisal i ~>reaiter than i petered.
- - --- - -
In°;:. t,~~n the i~~u aPTtrai,cr, >h,;Il cho~i~:e a third anh~~n~,cr, and the an~ra~~t~ of tne_ ihi~d ~ Deleted:. _ I
-~-
taprai~ r :.hall 7~ Inc +~air ruailtel ~Iluc of thc_ pt ul?eny.~~ro~`ided. Larrccer. that tfle I.~ir
nr.irl.a ~ tlue shah not be less than the lower cf the fast t~~'o ahDraiserc nor hi<_rher than
~hc_ hill ci of th tir~i trio ~t~ra~~~ils. Each ~~ar",' chap )~t~tol th~_~gsC of its pun
uh;~;~rt ll ainci_ it neress,n`,~. half the ci>l of the Child ahw<tisal. Nottalthstandin~~ the.
i ,i~,~nirr~. eixxild anv fund.; be o~~ned to Ih~ Icderal co.~ernment tinder the terms oi'
~ti'li'ittu~ C_on;trucuon Cu>~>crative `\_~recment t`AR\Cr'") ^~o Arr93LQ U~_33O(7O (the
~ i ~r;noi~- Buildin<=, n eoL of_wlnch ras been hru~-iaod to the Counte.
`~,AICL A"i for 1 ie ~ ~ ~'
ilu~n utc ~~nula~- ree; to '~ Iy f3\q;a no! ~l Ji tErm the. amount vt~ nwcd t.o the I,'ileral
=:~t~ernment a ~ ~~~ date 11f the. tennimltion of tl-is [,.easa.
I he C~o~n~r. ~i~rccs that if (hi, Lease is termnuttcd br the COt.e~t~' becaue of a
- --
nqt~-r,lh~~tr~' as an heruu,fbo~c n~~~~'ided. Ihen the Count' shall n+~t u,e the C;ouniv
~'i~meii, ic~r ~uul nna-militsr; tcc until alici ^,artl Ali ?1O(i. In ,u7v event ofa ~-iulaGon
.>f thi- ~~~r~~ ision b4~ the_Couittv. the Cet,nu~ hill rw to DR-1A Un addition to the amount
i~.iid_i u ' .ant tel the hre~~dut'_ h: i ~ ~-inhl the fair lnail;et rent i -ia~gunted to hitties~it
~~il~ic~i ~ti~ihe Crxuity i'rr~p~ntc fPOn~ Iha dales c~[ tennin~uon of the Lease until April 3O_
I.'h
t ;i _ 1~ Ll I Lear ~'t'lu ~(1 ^ 11141' '71IOI' (O t~l" Lnd 01 ilC iirlll ~~~ b' bCr~LlSC:
(1 I Ot lh I}llilli~ U !I1@ ~ 11 L'I illcl f16 nC~_II :15 .~lllhlV` tU apPrOhl-I Pltl. ~ifl lL'It~ I innd8 ~!)r- i_)I~
trih_nci,c autholi ~.-the runtinued o~_aitiun ~rfthc Armnr~ 13uikiin«, or t?i o'f the laiiure~
ref lh~ I Jcral ernernnuul 1u apl?rciniatc sull~icicl~t liuxl~ liir, ui orhu'l~t-i_~ authorize. the
;t,ntin.ied tn?e iiitu~ rf the Arnx~n tinil~;hn or (3) [)~~1-~ a l':,tit eeasc ht c~isa, anal its
1n ~s'lf and ;_ul~~~~I'IiV Jls nCll_Ititi14n C(I trl anOl'Tll l' l'C-IhV' O~ 1he t_.OnllnOnbl'ea~L~l OI
\'uui ii t lhcn,_in_,io1 such evi,nL the hmtisiuns of suhsecfion (aj aboi~e ~silh re:p~ect [o
the ~;m uuit to be n;tid to U~~U1 for ;he Cimvnom~~~elitlt.of Vu=inia if I7MA shall not
c,,t1 h~ Coe Ccuuyv. tnxl the manner i??_~~'hiclt such imu~.mt shall tie determioctf. ;hall
aii~ i~. in ;inv , i_li ~~~;ni tif~7;'t Mill uu~lcator to vice a, niuait rn_~iic~ 1, t.rctisun,lbiv
.,ulLicipaled
~u~sibic~ _of the event t l~erin~ Chu tarminatir~,n of Ihis Loa,ee and. Ih_'
!.-m;il,Il~U~I slat C. buI ~altll t' 117 PIF'C St1C~1 nOllCl shAli T1 Ot JIiC;CT tYle tertmTlatlOn-
(c) DMA agrees to pursue the necessary appropriations for the continued
operation and maintenance of the Armory Building, without guaranteeing in any way the
success of those efforts.
(d) If the County is unwilling or unable to pay any sums specified above, then
this Lease shall continue in full force and effect.
(e) As referenced in Section 3 above, at the expiration of this Lease the
County shall become the owner of the Armory Building and any ancillary structures.
5. UTILITIES. County agrees to coordinate with DMA's construction personnel to
bring to the County Property water, sewer, electrical and other available public utilities,
sufficient for all currently proposed and reasonably anticipated uses, when required by
construction or other activities. County owned utilities adequate to serve the Armory Building
shall be brought to the property line of the County Property at DMA's expense, provided the
',, Deleted: (i) Should any funds be
~~~. owned [o the fedeml government under ii
li the terms of Military Construction
I, Cooperative Agreement ("ARNG") No. I
i W 92LQ-OS-2-2000 (the "MCCA") for the
', Armory Building, a copy of which has '~..
~~~ been provided to the Crunty, then the I
II County agrees to pay DMA; within one i
hundred eighty (180) days of termination I
~I of the Lease, any sums owed as i,
,compensation for the Artnnty Building or I,
' ancillary stmcNres [ransferted to the '
~'~ County. The County agrees to reimburse
DMA, in the same proportion as specified ~,
under the MCCA, for smte Eunds used in
the constmction of the Armory Building.9
Deleted: (ii) Should no funds be 'i
'. owed under the MCCA, [hen the County
'. agrees to purchase [he Armory Building ~
within one hundred eighty Q80) days of
the termination of the Lease, for the fair
market value of the Armory Building as ~
established by the average of two
~'i bonafide appraisals, one to be obtained by
'~. DMA and one 6y [he Cnunty. If the
~I difference between the two appraisals is
I greater than ID%, then the two appraisers
~~~ shall choose a third appraiser, and the ~
li average of the lhnx appraisals shall be
~'. the fair market value of the property.
~ Hach party shall pay for the cost of its i
' own appraisal and, ifnecessary, half the
; cost of the third appraisal. ¶ ~
¶ ~
(b) if this Lease should terminate prior i
'~ to the end of the term solely because of
i the failure of [he Virginia General
I Assembly to appropriate sufficient funds '~I
it for, or otherwise authorize, the continued ~,
operation of the Armory Building, and '..
', should any funds for the Armory Building ,
'I be owed to the federal government under
I. the terms of the MCCA, a copy of which '
~, has been provided tin the County, [hen the
~. County agrees [o pay DMA, within one ~
'~ hundred eighty (180) days of termination
: of the Lease, any sums owed as
compensation for the building or i
' buildings tmnsEerred to the County. ¶ I
Deleted: - '
Deleted. ,
~3~
length of service necessary to connect each utility to the existing utility is not greater than 300
linear feel. DMA's responsibilities and obligations under this Lease are contingent upon all ', Deleted: .
necessary utilities being available to the site in a timely fashion so that occupancy may be
achieved without delay following construction of the Armory Building. DMA agrees to pay the
usual and customary tap or connection fees for connection to County owned public utilities in
order to serve the Armory Building.
6. APPLICABLE LAWS AND ORDINANCES. To the extent that County
ordinances do not conflict with state or federal law, DMA agrees, in constructing the Armory
Building and landscaping the grounds, to be guided by the ordinances of the County which
would otherwise be applicable to this project, and to comply with applicable state and federal
laws, as well as to consult with the County on the site plan to be developed for this project. Both
the County and DMA acknowledge that DMA is not subject to County ordinances, but that
DMA voluntarily agrees to work cooperatively with the County to develop an armory project
that is consistent with the County's Comprehensive Plan and ordinances for the area.
7. CONDEMNATION.
(a) The County shall give immediate notice to DMA of any discussions,
offers, negotiations or proceedings, with any party, regarding condemnation or taking of
any portion of the County Property.
(b) In the event that any portion of the County Property is taken by eminent
domain, or sold to the holder of such power pursuant to a threatened taking such that, in
the sole opinion of DMA, the County Property is no longer suitable for the purposes for
which it is leased, then this Lease shall terminate effective as of the date of the taking.
The date of taking will be the earlier of:
(i) the date on which title vests in the condemning entity (the date of
deed recordation or the date of filing a Certificate of Take or Certificate of
Deposit by the condemning entity) or
(ii) the date on which the condemning entity takes possession.
(c) In the event of a taking, ,DMA shall receive- 1.1 I any portion of such award
attributable to the Armory Building, any such other structures as may have been erected
by DMA on the site, DMA's furniture, equipment and fixtures, and moving expenses and
allowances an~l_(~i anv norrion pi ~~uch ^~~~~:~r~1, u~~l to exceed the ~~alut i~i'tLc larul at:~
dClual~'InCd Ill !hl. .l n'Sl1d i~I (>C.~Sn._~o t~.lh~n}I ~)~C 10 t~i {-: (lldyl, 111 ~_Bl1IC Oj~ the reJllt11111n 11 (eI~!l'1
~i rhi- 1 ease m DP/L4 fiir the Corm°tnrtwe<<lut i~~f V'irl*inia in LLe event DM.4 no (onaer
.~ iSc ._lhe Cinmtc ~lmll rccci~e the remainu~r' rx:rticut ~~f the ,award amlb,ndhl~ to 'the
.aloe o. the land.
STATUS OF THE PARTIES.
(a) County and DMA understand and acknowledge that the Department of
i, Deleted: the County shall receive any '.
'~. and all portions ofthe award related to ',
~, the land leased herein, but I
Deleted: .
j Deleted: - 1
'~, Deleted: - -~
._~
Military Affairs is an agency and Department of the Commonwealth of Virginia and that
,,,-' the County is a political subdivision of the Commonwealth. The parties also agree that,
~-- with respect to tort liability for acts or occurrences on or about the County Property,
including product liability, the Commonwealth, DMA and the County are either:
(i) constitutionally immune (or partially immune) from suit, judgment
or liability;
(ii) insured; or
Deleted: Notwithstanding any other
'~. provision of this Leau,ifDMAshall
(iii) covered by a financial plan of risk management that is in the nature cease to exist, ^na is n^t replaces by a
of self-insurance, all as determined by applicable laws, government policies and successor entity with similar powers and
', pnrpoaes,or;apnwersanaaatn^rityare
praCtICCS. '~, limited so as to not permit the continued
use of the County Property for the
~
'. purpose and use for which same is leased,
'I
(b) County and DMA each acknowledge that the other has not agreed to I tnen this Lease ana an responaibihry nr
provide any indemnification or hold harmless agreements running to the other party. obligations of DMA undtt this Lease
anau terminate. m soeh event, DMA wal I
Each party agrees to maintain sufficient liability insurance, including self-insurance, In endeavor to give as much notice as is I
such amounts and with such coverage as to protect its interests and insure reasonable reasonably possible ofthe event ~.
'trigge,;ngthete,,,tinahonafthisLea:e ',
financial responsibility in the event of liability for injury, loss or damage at the County aaa(he an,icipatea termination aate,bw
~
~
Property. No provision, covenant or agreement contained in this Lease shall be deemed, ,
'~~ failure to give such nonce shall nut affect
! the term;natinn.~
in any manner, to be a waiver of the sovereign immunity of any party from tort or other ' ~
I
,
I (e) Notwithstanding any other provision
hablhty. of this Lease, if the powers, authority, or
~~ funding of DMA shall be limited or ii
in its :ole
ana as a reanh DMA
' `°rtaded
c This Lease shall be overned b and construed accordin to, the laws of
( ) g y, g '
,
t; discretion, determines that the continued
the Commonwealth of Virginia, and any legal action hereunder shall be instituted only in ~ use of the County Property for the I
the Circuit Court of Frederick Coun Vir inia unless otherwise rovided b law.
ty, g ~ P Y i ParPose nr nae ror wnien [ney wtte leases
is no longer permitted, nuthotized,
~, advisable, warranted orjustiied, [hen this
(d) $ecause neither DMA nor the County can expend funds unless Lease and all responsibility ur obligations
of DMA under this Lease rosy be
!-~, appropriated through proper legislative channels, both parties agree that the failure of ' tenninatea ny DMn at any time
`~ either party to comply with any term of this Lease because fundin is not authorized shall
g thereafter, at its sole option, by giving
I three (3) months written notice thereof to
not be considered a default under this Leaser ~ the cnanty.¶
(~ Because DMA cannot expend stale
9. NOTICES. funds unless appropriated by [he Virginia
General Assembly, or federal funds
'. unless appropriated by Congress, if eny
(a) All notices to DMA required or permitted under this Lease shall be given ', session of [he Virginia General Assembty
elthel: I or the United States Congress fails to i
~
appropriate funds for the contimrance of I
I
I
~. this Lease, this Lease and all obligations i
(i) by mailing the notice by certified U.S. mail, postage prepaid, nereanaeranauaatnnratieauyterminate I
',. upon depletion of the then currently I
return receipbrequested, addressed to: i appropr;mea ^r an^eateas,^aa.~
~,~
Construction and Facilities Management Officer I (g)
----_---
'
~
~
Attn: VAFM, Bullding 316 .
Deleted: provided, however, that the
:
otherwise defaulting party is seeking such
FOrt P1Ckett appropriations in good faith and that the
~
"
Blackstone, Virginia23R24-6316 party is not irtepambly
~ "non-defaulting
hannedthereby
'~. Deleted: j
~
OR ~ Deleted: -
~
~5~
Military Affairs is an agency and Department of the Commonwealth of Virginia and that
the County is a political subdivision of the Commonwealth. The parties also agree that,
with respect to tort liability for acts or occurrences on or about the County Property,
including product liability, the Commonwealth, DMA and the County are either:
(i) constitutionally immune (or partially immune) from suit, judgment
or liability;
(II) InSllred; OI Deleted: Notwithstanding any other '
provision of this Lease, if DMA shall
(iii) covered by a financial plan of risk management that is in the nature cease m exiat, and is tt« rcplaeea by a 'i
d
of self-insurance, all as determined by applicable laws, government policies and successor entity with similar powers an
I
p°rpoae5,oriupowesanaaatnoriryare
~
praCtlCCS. i limited so as to not permit the continued
',
~'. use of the County Property for the
'' purpose and use for which same is leased, ~
(b) County and DMA each acknowledge that the other has not agreed to then [his Lease and ell responsbility or
'
provide any indemnification or hold harmless agreements running to the other party. obligations of DMA under this Lease
~~, anan terminate. In snch evrnt, DMA wiu '
Each party agrees to maintain sufficient liability insurance, including self-insurance, in endeavor to give as much notice as is
''
such amounts and with such coverage as to protect its interests and insure reasonable reasonably possible of the event
ttiggering the termination of this Leaae
'
financial responsibility in the event of liability for injury, loss or damage at the County ,
' anatneanti~iparedtem,inert°naate,bnt
~
Property. No provision, covenant or agreement contained in this Lease shall be deemed, ' failure to give such notice shall nol affect ii
;the tennination.¶ i
in any manner, to be a waiver of the sovereign immunity of any party from tort or other ! tl
'
hablhty. ~ (e) Nmwithstanding any other provision
.
of this Lease, i(Ihe powers, authority, nr
'~, funding of DMA shalt be limited or ~,
(c) This Lease shall be governed by and construed according to the laws of
r ~ I ~nrfaaea, ¢na as a resort DMA, in its aole
'~ discretion, determines that the wntinued
the Commonwealth of Virginia, and any legal action hereunder shall be instituted only in ase °nne chanty Property snr the
the Circuit Court of Frederick County Virginia, unless otherwise provided by law.
e parpose m ase f°r wni¢n in~y were leasea I
rs no longer permitted, authoriud,
advisable, warranted orjustified, then this
d rr~~ecause neither DMA nor the Count' can ex end funds llnleSS
( ) Y `' P Lease and all responsibility or obligations
', ofDMA under this Lease may be
appropriated through proper legislative channels, both parties agree that the failure of ' terminates by DMA at any time
-- either art to corn 1 with an term of this Lease because fundin is not authorized shall
p y p Y y g ' thCeBtt"~ °t i`a s°le °p'i°°' by gi"i"g
three (3) months written notice thereof to
not be considered a defAult under this Leas. I the c°nnty.¶
'
¶
f) Because DMA cannot expend state
'.
9. ly~TICFi.S, ', funds unless ¢ppropriated by the Virginia
'~, General Assembly, or federal funds
'~. unless ¢ppropriated by Congress, if any
(a) All notices to DMA required or permitted under this Lease shall be given I session of [he V;rginia crneml Aaaemmy
Clther: j or the United States Congress fails tm
~
' appropriate funds for the continuance of
(i) by mailing the notice by certified U.S. mail, postage prepaid, This Lease, this Lease and all obligations
~ nerennaer anau antomaticauy ferm;nate
'~
d
l
i
f
h
h
tl
return receipt requested, addressed to: ,. upon
ep
et
on o
[
e t
rn curren
y
I appropriated or a0oc¢ted funds.¶
i¶
Construction and Facilities Management Officer
Attn: VAFM, Building 316
Fort Pickett
Blackstone, Virginia 23824-6316
OR
', Deleted: provided, however, that [he '~,
otherwise defaulting party is seeking such '~
appropriations in good faith and that the
"non-de(auI[ing" party is not irreparably
harmed thereby i
Deleted: ____._._. __-__~.
~ Deleted: - ~I
r5.-
(ii) by service upon DMA in any manner authorized under the laws of
the Commonwealth of Virginia for the service of legal process
either:
(b) All notices to County required or permitted under this Lease shall be given
(i) by mailing such notice by certified U.S. mail, postage prepaid,
return receipt requested, to County at the following address:
County Administrator
County of Frederick
107 North Kent Street
Winchester, Virginia 22601
OR
(ii) by service upon the County in any manner authorized under the laws
of the Commonwealth of Virginia for the service of legal process.
(c) If, under the terms of this Lease, a notice is sent or given by certified U.5.
mail, postage prepaid, return receipt requested, such notice shall be deemed to have been
given as of the date of mailing such notice. Each party to this Lease may notify the other
party of a new address at which to mail notices, which notice shall be given in the
manner provided above, and unless and until such notice of new address is given, notices
to a party hereto shall be sufficient if mailed to such party's address as specified in
Section 9(a)(i) or Section 9(b)(i), as appropriate.
10. BINDING EFFECT; AMENDMENTS. The covenants, agreements, and rights
contained in this Lease shall bind and inure to the respective successors and assigns of the
County and DMA. This Lease constitutes the entire agreement between the County and DMA
regarding the County Property and the Armory Building. Neither party, nor any agent of either
party, has any authority to alter, amend or modify any of the terms of this Lease, unless the
amendment is in writing and executed by ali parties to this Lease. It is understood and agreed
that this Lease shall not be binding upon DMA unless and until DMA obtains the
recommendation of the Virginia Department of General Services and the approval of the
Governor of Virginia or his designee, as required by §2.2-1149 of the Code of Virginia (1950),
as amended.
11. PRESUMPTIONS. No presumption shall be created in favor of or against any
of the parties to this Lease with respect to the interpretation of any term or provision of this
Lease due to the fact that this Lease, or any part hereof, was prepared by or on behalf of one of
the parties hereto; and, no provision in this Lease, including any attachments or amendments j oe~etea: , _
hereto, shall be construed against DMA because the Lease, or any part hereof, was prepared neieted
directly by the DMA or by the Office of the Attorney General on behalf of DMA, ,Deleted: -
~~
12. ASSIGNMENT. DMA may assign this Lease, or sublet the County Property, for
purposes otherwise permitted herein or by statute, subject to the County's rights as set forth in
Section 4 hereof.
13. NO WAIVER OF RIGHTS IMPLIED. The parties acknowledge that each
retains all rights, privileges and remedies to which it might otherwise be entitled unless
specifically waived or modified herein.
WITNESS the signatures of (i) the County Administrator, attested to by the Deputy
County Clerk and the seal of the County of Frederick, Virginia, pursuant to resolution of the
Board of Supervisors of the County of Frederick, adopted on the 31~` day of January, 2007,
authorizing the execution of this agreement, a copy of which resolution is attached hereto and
incorporated herein, and (ii) the Adjutant General of Virginia on behalf of the Commonwealth of
Virginia, Department of Military Affairs.
COUNTY OF FREDERICK, VIRGINIA
By:
Name: John R. Riley, Jr.,
Title: County Administrator
ATTEST:
Jay E. Tibbs, Deputy Clerk
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF MILITARY AFFAIRS
By:
Name
Title:
Robert B. Newman, Jr., Maj Gen (VA), Va ANG
The Adjutant General of Virginia
!~ Deleted: ¶ ',
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i
COMMONWEALTH OF VIRGINIA,
CITY/COUNTY OF
I, the undersigned, a Notary Public in and for the Commonwealth of Virginia, County of
Frederick, do hereby certify that John R. Riley, Jr., County Administrator of the County of
Frederick, Virginia, whose name is signed to the foregoing Deed of Lease, has acknowledged the
same before me as his free act and deed, on behalf of the County.
Given under my hand this day of , 2007.
My commission expires
Notary Public
COMMONWEALTH OF VIRGINIA,
CITY/COUNTY OF ,
I, the undersigned, a Notary Public in and for the Commonwealth of Virginia,
City/County of do hereby certify that Robert B. Newman, Jr., The
Adjutant Genera] of the Commonwealth of Virginia, Department of Military Affairs, whose
name is signed to the foregoing Deed of Lease, has acknowledged the same before me as his free
act and deed, on behalf of the Department..
Given under my hand this T day of , 2007.
_ My commission expires
Notary Public
'. Deleted: -
~ Deleted: • ~
~~
APPROVED AS TO FORM
OFFICE OF THE ATTORNEY GENERAL
By:
Assistant Attorney General
RECOMMENDED FOR APPROVAL:
DEPARTMENT OF GENERAL SERVICES
and is Division of Engineering and Buildings
By:
Richard F. Sliwoski, Director Date
Pursuant to §2.2-1149 of the Code of Virginia (1950), as amended, and by the authority
delegated to me under Executive Order Number (88) O1, dated December 21, 2001, I hereby
approve the foregoing Lease Agreement between the Department of Military Affairs and the
County of Frederick, Virginia, on behalf of the Governor of Virginia.
Secretary of Administration Date
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LEASE NO. 123-L0080
DEED OF LEASE
FREDERICK COUNTY ARMORY SITE
This Deed of Lease is made this day of May, 2007, by and between the
COUNTY OF FREDERICK, VIRGINIA, a political subdivision of the
Commonwealth of Virginia, referred to hereinafter as the "County", Lessor, and the
COMMONWEALTH OF VIRGINIA, DEPARTMENT OF MILITARY AFFAIRS,
referred to hereinafter as "DMA", Lessee.
WITNESSETH:
WHEREAS,. the County has acquired, by Deed of Gift dated the 24~h of January,
2007 and recorded the 2"d of February, 2007 in the Clerk's Office of the Circuit Court of
the County of Frederick, Virginia as Instrument No. 070001977, fee simple-title to that
certain parcel of land lying and being situate in Shawnee Magisterial District, Frederick
County, Virginia, located southwest of Millwood Pike (U. S. Route 50/17), containing
10.1321 acres, more or less (the. "County Property"), being more particularly described
as "New Parce182" upon that certain plat titled "Boundary Line Adjustment Governors
Hill Between Parcel 82 & Parcel 83", Shawnee Magisterial District, Frederick County,
Virginia dated May 3, 2006, revised January 17, 2007, by Patton Hams Rust &
Associates, pc, which plat is attached to and made a part of that certain Deed of Boundary
Line Adjustment dated January 24, 2007 and duly recorded in the aforesaid Clerk's
Office as Instrument No. 070001976, together with that certain temporary ingress/egress,
access, and utilities easement (the "Easement"), designated as "Variable Width
Temporary I/E, Access & Utilities Esmt." more particularly described on the
aforementioned plat by Patton Harris Rust & Associates, pc, for purposes of temporary
ingress/egress, access, and the installation, construction, reconstruction, maintenance and
removal of utilities to serve the County Property, which easement shall become null and
void at such time as the construction of a road for public street purposes is complete and
accepted for maintenance by the Virginia Department of Transportation, but which shall
otherwise be deemed perpetual and appurtenant and shall run with the title to the adjacent
lands (New Parcel 83) for the benefit of the County Property; and
WHEREAS, DMA desires to build a new Armory on the County Property (the
new Armory and all related improvements constructed on the County Property hereinafter
referred to as the "Armory Building"); and,
WHEREAS, the County has agreed to lease the County Property to DMA in a
long term Lease (the "Lease") for consideration to be more particularly identified herein;
and
WHEREAS, the appropriate federal and state budgetary appropriations have been
made to allow the construction of the Armory Building on the site herein identified.
NOW, THEREFORE, in consideration of the covenants and mutual obligations
entered into herein, the County hereby leases unto DMA, and DMA leases from the
County, the County Property, together with the right of ingress and egress thereto, upon
the following terms and conditions:
I . TERM. The term of this Lease shall be for ninety-nine (99) years and
shall begin on May 1, 2007, and end on the ninety-ninth annual anniversary of the
commencement date, unless sooner terminated by agreement of the parties.
2. CONSIDERATION. DMA has paid to the County the sum of One
Dollar ($1.00) at the time of execution of this Lease by DMA as rent for the entire term of
the Lease.
3. USE. The Armory Building may be used and occupied by DMA, an
agency of the Commonwealth of Virginia, or its successor agency for housing and
training the Virginia militia, primarily units of the National Guard; for use by federal
military forces under the terms of the Commonwealth's contract with the United States of
America; for the storage of military property belonging to the Commonwealth and the
United States; and for other such purposes and uses as the Commonwealth may hereafter
have. DMA may construct the Armory Building and such other facilities and
improvements on the County Property as it may deem appropriate. All such buildings
and facilities shall be and remain the property of DMA during the term of the Lease and
shall, conditioned upon payment of any funds as set forth below, become the property of
the County at the termination of the Lease. DMA agrees that, subject to receiving the
necessary appropriations, it will use the Armory Building in accordance with this Lease
and maintain the Armory Building in a clean and reasonably safe manner in order to
prevent the building from becoming an eyesore or nuisance. In the event that the
continued use of the Armory Building for military purposes is no longer appropriate or
feasible, the County agrees that the following non-military uses of the property shall be
permitted during the term of this Lease: (i} government/business office use and (ii)
community recreation center.
4. EARLY TERMINATION.
(a) The parties recognize that the property adjacent to and within close
proximity to the Armory Building will have residential, office and other permitted
uses. Certain non-military uses authorized under Section 3, above, may, in the
County's opinion, be incompatible with the character of development adjacent to
and within close proximity to the Armory Building. Consequently, DMA agrees
that, should it or its successors seek to use the Armory Building for anon-military
purpose authorized under this Lease for longer than one (1) year, it will notify the
County at least six (6) months prior to the date that it intends to cease using the
Armory Building for military purposes. If the County determines that the
proposed use is incompatible with the development adjacent to and in close
proximity to the Armory Building, it shall have the right to terminate this Lease
and purchase the Armory Building and any ancillary structures from the
Commonwealth as follows: the County agrees to purchase the Armory Building
within one hundred eighty (180) days of the termination of the Lease, for the fair
market value of the Armory Building as established by the average of two
bonafide appraisals, one to be obtained by DMA and one by the County. If the
difference between the two appraisals is greater than 10%, then the two appraisers
shall choose a third appraiser, and the appraisal of the third appraiser shall be the
fair market value of the property, provided, however, that the fair market value
shall not be less than the lower of the first two appraisals nor higher than the
higher of the first two appraisals. Each party shall pay for the cost of its own
appraisal and, if necessary, half the cost of the third appraisal. Notwithstanding
the foregoing, should any funds be owed to the federal government under the
terms of Military Construction Cooperative Agreement ("ARNG") No. W92LQ-
OS-2-2000 (the "MCCA") for the Armory Building, a copy of which has been
provided to the County, then the County agrees to pay DMA not less than the
amount so owed to the federal government as of the date of the termination of this
Lease or the appraised value, whichever is greater.
The County agrees that if this Lease is terminated by the County because
of anon-military use as hereinabove provided, then the County shall not use the
County Property for such non-military use until after April 30, 2106. In any event
of a violation of this provision by the County, the County shall pay to DMA (in
addition to the amount paid pursuant to the preceding paragraph) the fair market
rent (discounted to present value) of the County Property from the date of
termination of the Lease until Apri130, 2106.
(b) If this Lease should terminate prior to the end of the term solely
because: (1) of the failure of the Virginia General Assembly to appropriate
sufficient funds for, or otherwise authorize, the continued operation of the Armory
Building, or (2) of the failure of the federal government to appropriate sufficient
funds for, or otherwise authorize, the continued operation of the Armory Building,
or (3) DMA shall cease to exist, and its powers and authority are not assigned to
another agency of the Commonwealth of Virginia, then, in any such event, the
provisions of the first paragraph of subsection (a) above with respect to the
amount to be paid to DMA (or the Commonwealth of Virginia if DMA shall not
exist) by the County, and the manner in which such amount shall be determined,
shall apply. In any such event, DMA will endeavor to give as much notice as is
reasonably possible of the event triggering the termination of this Lease and the
anticipated termination date, but failure to give such notice shall not affect the
termination.
(c) DMA agrees to pursue the necessary appropriations for the
continued operation and maintenance of the Armory Building, without
guaranteeing in any way the success of those efforts.
(d) If the County is unwilling or unable to pay any sums specified
above, then this Lease shall continue in full force and effect.
(e) As referenced in Section 3 above, at the expiration of this Lease
the County shall become the owner of the Armory Building and any ancillary
structures.
5. UTILITIES. County agrees to coordinate with DMA's construction
personnel to bring to the County Property water, sewer, electrical and other available
public utilities, sufficient for all currently proposed and reasonably anticipated uses, when
required by construction or other activities. County owned utilities adequate to serve the
Armory Building shall be brought to the property line of the County Property at DMA's
expense, provided the length. of service necessary to connect each utility to the existing
utility is not greater than 3001ineaz feet. DMA's responsibilities and obligations under
this Lease are contingent upon all necessary utilities being available to the site in a timely
fashion so that occupancy may be achieved without delay following construction of the
Armory Building. DMA agrees to pay the usual and customary tap or connection fees for
connection to County owned public utilities in order to serve the Armory Building.
6. APPLICABLE LAWS AND ORDINANCES. To the extent that County
ordinances do not conflict with state or federal law, DMA agrees, in constructing the
Armory Building and landscaping the grounds, to be guided by the ordinances of the
County which would otherwise be applicable to this project, and to comply with
applicable state and federal laws, as well as to consult with the County on the site plan to
be developed for this project. Both the County and DMA acknowledge that DMA is not
subject to County ordinances, but that DMA voluntarily agrees to work cooperatively
with the County to develop an armory project that is consistent with the County's
Comprehensive Plan and ordinances for the area.
7. CONDEMNATION.
(a) The County shall give immediate notice to DMA of any
discussions, offers, negotiations or proceedings, with any party, regazding
condemnation or taking of any portion of the County Property.
(b) In the event that any portion of the County Property is taken by
eminent domain, or sold to the holder of such power pursuant to a threatened
taking such that, in the sole opinion of DMA, the County Property is no longer
suitable for the purposes for which it is leased, then this Lease shall terminate
effective as of the date of the taking. The date of taking will be the earlier of:
(i) the date on which title vests in the condemning entity (the
date of deed recordation or the date of filing a Certificate of Take or
Certificate of Deposit by the condemning entity) or
(ii) the date on which the condemning entity takes possession.
(c) In the event of a taking, DMA shall receive: (1) any portion of such
award attributable to the Armory Building, any such other structures as may have
been erected by DMA on the site, DMA's furniture, equipment and fixtures, and
moving expenses and allowances; and (2) any portion of such award, not to
"" exceed the value of the land as determined in the award process, attributable to the
present value of the remaining term of this Lease to DMA (or the Commonwealth
of Virginia in the event DMA no longer exists). The County shall receive the
remaining portion of the award attributable to the value of the land.
8. STATUS OF THE PARTIES.
(a) County and DMA understand and acknowledge that the Department of
Military Affairs is an agency and Department of the Commonwealth of Virginia
and that the County is a political subdivision of the Commonwealth. The parties
also agree that, with respect to tort liability for acts or occurrences on or about the
County Property, including product liability, the Commonwealth, DMA and the
County are either:
(i) constitutionally immune (or partially immune) from suit,
judgment or liability;
(ii) insured; or
(iii) covered by a financial plan of risk management that is in
the nature of self-insurance, all as determined by applicable laws,
government policies and practices.
(b) County and DMA each acknowledge that the other has not agreed
to provide any indemnification or hold harmless agreements running to the other
party. Each party agrees to maintain sufficient liability insurance, including self-
insurance, in such amounts and with such coverage as to protect its interests and
insure reasonable financial responsibility in the event of liability for injury, loss or
damage at the County Property. No provision, covenant or agreement contained
in this Lease shall be deemed, in any manner, to be a waiver of the sovereign
immunity of any party from tort or other liability.
(c) This Lease shall be governed by, and construed according to, the
laws of the Commonwealth of Virginia, and any legal action hereunder shall be
instituted only in the Circuit Court of Frederick County, Virginia, unless
otherwise provided by law.
(d) Because neither DMA nor the County can expend funds unless
appropriated through proper legislative channels, both parties agree that the failure
of either party to comply with any term of this Lease because funding is not
authorized shall not be considered a default under this Lease.
9. NOTICES.
_ (a) All notices to DMA required or permitted under this Lease shall be
given either:
(i) by mailing the notice by certified U.S. mail, postage
prepaid, return receipt requested, addressed to:
Construction and Facilities Management Officer
Attn: VAFM, Building 316
Fort Pickett
Blackstone, Virginia 23824-6316
OR
(ii) by service upon DMA in any manner authorized under the
laws of the Commonwealth of Virginia for the service of legal process
(b) All notices to County required or permitted under this Lease shall
be given either:
(i) by mailing such notice by certified U.S. mail, postage
prepaid, return receipt requested, to County at the following address:
County Administrator
County of Frederick
107 North Kent Street
Winchester, Virginia 22601
OR
(ii) by service upon the County in any manner authorized under the
laws of the Commonwealth of Virginia for the service of legal process.
(c) If, under the terms of this Lease, a notice is sent or given by
certified U.S. mail, postage prepaid, return receipt requested, such notice shall be
deemed to have been given as of the date of mailing such notice. Each party to
this Lease may notify the other party of a new address at which to mail notices,
which notice shall be given in the manner provided above, and unless and until
such notice of new address is given, notices to a party hereto shall be sufficient if
mailed to such party's address as specified in Section 9(a)(i) or Section 9(b)(i), as
appropriate.
10. BINDING EFFECT; AMENDMENTS. The covenants, agreements, and
rights contained in this Lease shall bind and inure to the respective successors and assigns
of the County and DMA. This Lease constitutes the entire agreement between the County
and DMA regarding the County Property and the Armory Building. Neither party, nor
any agent of either party, has any authority to alter, amend or modify any of the terms of
this Lease, unless the amendment is in writing and executed by all parties to this Lease. It
is understood and agreed that this Lease shall not be binding upon DMA unless and until
DMA obtains the recommendation of the Virginia Department of General Services and
the approval of the Governor of Virginia or his designee, as required by §2.2-1149 of the
Code of Virginia (1950), as amended.
11. PRESUMPTIONS. No presumption shall be created in favor of or
against any of the parties to this Lease with respect to the interpretation of any term or
provision of this Lease due to the fact that this Lease, or any part hereof, was prepared by
or on behalf of one of the parties hereto; and, no provision in this Lease, including any
attachments or amendments hereto, shall be construed against DMA because the Lease, or
any part hereof, was prepared directly by the DMA or by the Office of the Attorney
General on behalf of DMA.
12. ASSIGNMENT. DMA may assign this Lease, or sublet the County
Properly, for purposes otherwise permitted herein or by statute, subject to the County's
rights as set. forth in Section 4 hereof.
13. NO WAIVER OF RIGHTS IMPLIED. The parties acknowledge that
each retains all rights, privileges and remedies to which it might otherwise be entitled
unless specifically waived or modified herein.
WITNESS the signatures of (i) the County Administrator, attested to by the
Deputy County Clerk and the seal of the County of Frederick, Virginia, pursuant to
resolution of the Board of Supervisors of the County of Frederick, adopted on the _ day
of , 2007, authorizing the execution of this agreement, a copy of which
resolution is attached hereto and incorporated herein, and (ii) the Adjutant General of
Virginia on behalf of the Commonwealth of Virginia, Department of Military Affairs.
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF MILITARY AFFAIRS
By:
Name: Robert B. Newman, Jr., Maj Gen (VA), Va ANG
Title: The Adjutant General of Virginia
COMMONWEALTH OF VIRGINIA,
CITY/COUNTY OF
I, the undersigned, a Notary Public in and for the Commonwealth of Virginia,
City/County of , do hereby certify that Robert B. Newman, Jr.,
The Adjutant General of the Commonwealth of Virginia, Department of Military Affairs,
whose name is signed to the foregoing Deed of Lease, has acknowledged the same before
me as his free act and deed, on behalf of the Department.
Given under my hand this day of _ , 2007.
My commission expires
Notary Public
COUNTY OF FREDERICK, VIRGINIA
By:
Name: John R. Riley, Jr.,
Title: County Administrator
ATTEST:
Jay E. Tibbs, Deputy Clerk
COMMONWEALTH OF VIRGINIA,
CITY/COUNTY OF
I, the undersigned, a Notary Public in and for the Commonwealth of Virginia,
County of Frederick, do hereby certify that John R. Riley, Jr., County Administrator of
the County of Frederick, Virginia, whose name is signed to the foregoing Deed of Lease,
has acknowledged the same before me as his free act and deed, on behalf of the County.
Given under my hand this day of , 2007.
My commission expires
Notary Public
APPROVED AS TO FORM
OFFICE OF THE ATTORNEY GENERAL
By:
Assistant Attorney General
RECOMMENDED FOR APPROVAL:
DEPARTMENT OF GENERAL SERVICES
and is Division of Engineering and Buildings
By:
Richard F. Sliwoski, Director Date
Pursuant to §2.2-1149 of the Code of Virginia (1950), as amended, and by the
authority delegated to me under Executive Order Number (88) O1, dated December 21,
200], I hereby approve the foregoing Lease Agreement between the Department of
Military Affairs and the County of Frederick, Virginia, on behalf of the Governor of
Virginia.
Secretary of Administration Date