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054-0741G~ CpG~ ~ .BOARD OF SUPERVISORS .~,~, ~,3 RESOLUTION APPROVING DEED OF LEASE BETWEEN THE COUNTY OF FREDERICK AND THE COMMONWEALTH OF VIRGINIA DEPARTMENT OF MILITARY AFFAIRS FOR NEW NATIONAL GUARD ARMORY SITE Whereas, the Board of Supervisors of the County of Frederick, Virginia, met on March 14, 2007; and Whereas, the Board of Supervisors considered a Deed of Lease between the County of Frederick, Virginia, and the Commonwealth of Virginia Department of Military Affairs regarding property for a new National Guard Armory. Now, Therefore Be It Resolved, that the Board of Supervisors of the County of Frederick, Virginia, unanimously approve the Deed of Lease between the County and the Commonwealth of Virginia Department of Military Affairs fora 10.13 acre parcel for the new National Guard Armory to be located in Frederick County, Virginia. Be It Further Resolved, that the County Administrator is authorized to execute same on behalf of the County. Approved this 14`h day of March, 2007. VOTE: Richard C. Shickle Gene E. Fisher Charles S. DeHaven, Jr. Gary W. Dove Aye Bill M. Ewing Aye Ave Philip A. Lemieux Ave Aye Barbara E. Van Osten Aye Aye Joh iley, Jr., Clerk BOS Resolution ii054-07 LEASE NO. 123-L0080 DEED OF LEASE FREDERICK COUNTY ARMORY SITE This Deed of Lease is made this day of February, 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 Parcel 82" upon that certain plat titled "Boundary Line Adjustment Governors Hill Between Parcel 82 & Parce183", 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 UE, 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. 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: 1. TERM. The term of this Lease shall be for ninety-nine (99) years and shall begin on March 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 foi 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. 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: (i) Should any funds be owned 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, within one hundred eighty (180) days of termination of the Lease, any sums owed as compensation for the Armory Building or ancillary structures transferred to the County. The County agrees to reimburse DMA, in the same proportion as specified under the MCCA, for state funds used in the construction of the Armory Building. (ii) Should no funds be owed under the MCCA, then 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 average of the three appraisals shall be the fair market value of the property. Each party shall pay for the cost of its own appraisal and, if necessary, half the cost of the third appraisal. (b) If this Lease should terminate prior to the end of the term solely because of the failure of the Virginia General Assembly to appropriate sufficient funds for, or otherwise authorize, the continued operation of the Armory Building, and should any funds for the Armory Building be owed to the federal government under the terms of the MCCA, a copy of which has been provided to the County, then the County agrees to pay DMA, within one hundred eighty (180) days of termination of the Lease, any sums owed as compensation for the building or buildings transferred to the County. (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 3001inear 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. 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, the County shall receive any and all portions of the award related to the land leased herein, but DMA shall receive 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. 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 ofself-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) Notwithstanding any other provision of this Lease, if DMA shall cease to exist, and is not replaced by a successor entity with similar powers and purposes, or its powers and authority are limited so as to not permit the continued -- use of the County Property for the purpose and use for which same is leased, then this Lease and all responsibility or obligations of DMA under this Lease shall terminate. In 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. (e) Notwithstanding any other provision of this Lease, if the powers, authority, or funding of DMA shall be limited or curtailed, and as a result DMA, in its sole discretion, determines that the continued use of the County Property for the purpose or use for which they were leased is no longer permitted, authorized, advisable, warranted or justified, then this Lease and all responsibility or obligations of DMA under this Lease may be terminated by DMA at any time thereafter, at its sole option, by giving three (3) months written notice thereof to the County. (f) Because DMA cannot expend state funds unless appropriated by the Virginia General Assembly, or federal funds unless appropriated by Congress, if any session of the Virginia General Assembly or the United States Congress fails to appropriate funds for the continuance of this Lease, this Lease and all obligations hereunder shall automatically terminate upon depletion of the then currently appropriated or allocated funds. (g) 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 provided, however, that the otherwise defaulting party is seeking such appropriations in good faith and that the "non-defaulting" party is not irreparably harmed thereby. 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; AMENDMFNTS. The covenants, agreements, and rights contained m 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 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. (SIGNATURES ON FOLLOWING PAGE) 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 3151 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. ATTEST: Jay E. Tibbs, Deputy Clerk COUNTY OF FREDERICK, VIRGINIA By: _ Name Title: John R. Riley, Jr., County Administrator 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, 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 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 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