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STATE OF NEW MEXICO NEW MEXICO SPACEPORT AUTHORITY
REQUEST FOR PROPOSALS RFP# 13-495-00-00457
FY2013 - 2014
Spaceport America Visitor Experience Facilities Development
Issue Date: April 8, 2013
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TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................................................................. 3
A. PURPOSE OF THIS REQUEST FOR PROPOSALS ................................................................................................................... 3 B. BACKGROUND AND VISION ............................................................................................................................................... 3 C. SCOPE OF WORK ................................................................................................................................................................. 3 D. SCOPE OF PROCUREMENT ................................................................................................................................................. 4 E. PROCUREMENT MANAGER ................................................................................................................................................ 5 F. DEFINITION OF TERMINOLOGY .......................................................................................................................................... 5 G. PROCUREMENT LIBRARY ................................................................................................................................................... 6
II. CONDITIONS GOVERNING THE PROCUREMENT .............................................................................................................. 7 A. SEQUENCE OF EVENTS ....................................................................................................................................................... 7 B. EXPLANATION OF EVENTS .................................................................................................................................................. 7 C. GENERAL REQUIREMENTS ................................................................................................................................................. 9
III. RESPONSE FORMAT AND ORGANIZATION ................................................................................................................... 14 A. NUMBER OF RESPONSES .................................................................................................................................................. 14 B. NUMBER OF COPIES ......................................................................................................................................................... 14 C. PROPOSAL FORMAT ......................................................................................................................................................... 14
IV. SPECIFICATIONS .......................................................................................................................................................... 16 A. INFORMATION ................................................................................................................................................................. 16 B. MANDATORY SPECIFICATIONS ........................................................................................................................................ 16
V.EVALUATION ................................................................................................................................................................ 17 A. EVALUATION SUMMARY ................................................................................................................................................. 17 B. EVALUATION FACTORS .................................................................................................................................................... 17 C. EVALUATION PROCESS ..................................................................................................................................................... 19
APPENDIX A -‐ REQUEST FOR PROPOSALS ACKNOWLEDGEMENT OF RECEIPT FORM ......................................................... 20 APPENDIX B-‐ PROPOSED LEASE WITH SELECTED DEVELOPER AND DEPICTION OF SITE FOR EACH OF THE FACILITIES ........ 21 APPENDIX C -‐ CAMPAIGN CONTRIBUTION DISCLOSURE FORM ......................................................................................... 65 APPENDIX D-‐ NEW MEXICO EMPLOYEES HEALTH COVERAGE FORM ................................................................................ 68 APPENDIX E-‐PAY EQUITY INITIATIVE FORM ...................................................................................................................... 69 APPENDIX F-‐STATEMENT OF CONFIDENTIALITY ............................................................................................................... 70 APPENDIX G -‐VISITOR EXPERIENCE COMPONENTS ........................................................................................................... 71 APPENDIX H -‐VISITOR CENTER PURCHASE AGREEMENT WITH ASHBAUGH CONSTRUCTION ............................................. 73
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I. INTRODUCTION A. PURPOSE OF THIS REQUEST FOR PROPOSALS The purpose of this Request for Proposals (“RFP”) is to competitively solicit and select a developer to purchase land, as assignee of the New Mexico Spaceport Authority (“NMSA”) under a land purchase contract for a “Visitor Center” to be located off-site in Truth or Consequences (“T or C”), New Mexico and to lease land from NMSA for a “Spaceport Central” facility to be located on-site at Spaceport America and to provide purpose-built buildings in accordance with plans and specifications furnished by NMSA that will house the Visitor Center and the Spaceport Central (together, “Facilities” and individually, a “Facility”). The developer or developers selected as a result of this RFP for one or both Facilities (“Selected Developer”) will be awarded the opportunity to enter into a lease agreement for each Facility that will provide for the construction of the Facility and the lease and occupancy of the Facility by NMSA. B. BACKGROUND AND VISION The New Mexico Spaceport Authority is the Agency responsible for the development, operation and sustainment of Spaceport America. Spaceport America is currently under construction and about to begin the operational phase. Spaceport America is designed to be the world’s premier commercial space launch facility providing first class service to its customers and delighting and inspiring its visitors (“Spaceport America”). Offerors are encouraged to review additional background material in the Procurement Library, described in Section I. G., below. The vision of the NMSA is to unlock the potential of space for everyone by offering the world an invitation to space. The NMSA’s mission is to:
• Enable affordable, efficient and effective access to space by developing and operating the world’s first purpose-built commercial spaceport aimed at inspiring and delighting the next generation.
• Catalyze our stakeholders’ economic prosperity through public and private cooperation,
stewardship of the environment, and celebration of New Mexico’s cultural-heritage.
• Immerse our visitors in the next generation of spaceflight in a hands-on, dynamic environment, full of authentic opportunity to participate, learn and discover.
The NMSA’s desired outcome is that every customer and guest becomes not only a friend but a genuine partner-in-space with their curiosity stimulated, a lifelong relationship with Spaceport America, and a strong desire to continue their personal space journey. The NMSA has separately designed a set of visitor activities to be conducted within the Facilities, and has included documentation (included within the Procurement Library as described in Section I. G. below) that outlines the planned experience to be separately operated by NMSA. C. SCOPE OF WORK The Scope of Work for the Visitor Center will consist of purchasing land located in T or C, under contract with NMSA as the designated location for the Visitor Center (see Appendix H for Visitor
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Center Purchase Agreement), providing the purpose-built Facility to serve as the off-site Visitor Center in accordance with plans and specifications furnished by NMSA (included within the Procurement Library as described in Section I. G. below) and the leasing of the Facility to NMSA for a term of 20 years, subject to an option to purchase the Facility at fair market value during the lease term. The Scope of Work for the Spaceport Central will consist of leasing land from NMSA, providing the purpose-built Facility to serve as the on-site Spaceport Central in accordance with plans and specifications furnished by NMSA (included within the Procurement Library as described in Section I. G. below) and the leasing of the Facility to NMSA for a term of 20 years, subject to an option to purchase the Facility at fair market value during the lease term. The Visitor Center and the Spaceport Central will have utilities stubbed to the boundary of the site for each Facility. The Selected Developer will engage at its expense SMPC Architects, Albuquerque, New Mexico, the architectural firm that prepared the plans and specifications for the Facilities on behalf of NMSA, as its architect of record (and NMSA has confirmed that SMPC Architects would serve as the architect of record to the Selected Developer). The Selected Developer’s architect of record also will perform construction administration duties. The Offeror shall include the fees of SMPC Architects in its RFP response (see Exhibit A-2 of the proposed form of lease in Appendix B to this RFP). The Selected Developer will be responsible for implementing a process of regular communication between the contractor for the Selected Developer and the NMSA owner representative to be engaged by NMSA for the purpose of observing construction of the Facilities on NMSA’s behalf (the “Owner’s Representative”). NMSA will be responsible for and oversee the interior design and construction of interior improvements at the Facilities as described in Exhibit A-3 of the proposed form of lease in Appendix B to this RFP. The Scope of Work for the Selected Developer will consist of providing the Premises Improvements including the Base Building Work, as defined in the proposed form of lease in Appendix B, and will not include interior design or any construction of interior improvements for the Facilities. Interior improvements will not be permanently affixed to the buildings and related improvements comprising the Facilities. NMSA will own all interior improvements and will periodically update these items to ensure attractive display for maximum public enjoyment. NMSA shall make “initial rent” payments to the Selected Developer with respect to the Facilities during the period from “final completion” of the Premises Improvements for each Facility through completion of Tenant’s finish work (the tenant construction period), and will make “term rent” payments to the Selected Developer with respect to each Facility upon completion of the tenant construction period but not later than a period of time (as specified in the lease with the Selected Developer) after final completion of the Premises Improvements. D. SCOPE OF PROCUREMENT This RFP is for the purpose of soliciting and selecting a developer (i) to exercise the existing land purchase option for the Visitor Center, as described in Appendix H; (ii) to finance the construction and installation of the Facilities; (iii) to enter into one or more lease agreements under which the Selected Developer will engage a contractor to construct and install the Facilities; and (iv) upon completion of each Facility, to lease the Facilities to NMSA for a term of 20 years, subject to the option of NMSA to purchase a Facility or the Facilities at fair market value during the lease term commencing from the date of final completion of the Premises Improvements. Offerors whose proposals meet the Mandatory Specifications and which are deemed to be the most advantageous to NMSA may be requested to give
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an oral presentation to the Evaluation Committee, however; NMSA reserves the right to make an award without discussions. Although it is the intention of NMSA to make a single award under this RFP, NMSA reserves the right to make multiple awards or no award if this is deemed in the best interest of NMSA with NMSA being the sole judge thereof. E. PROCUREMENT MANAGER The Agency has designated a Procurement Manager who is responsible for the conduct of this procurement whose name, address, and telephone number are listed below and all deliveries via express carrier should be addressed the same:
Belinda Lucero Procurement Manager 901 E. University Ave, Ste. 965L Las Cruces, NM 88001 Phone: 575-373-6113 Fax: 575-373-6120 E-mail: [email protected]
Any inquiries or requests regarding this procurement should be submitted to the Procurement Manager in writing. Offerors may contact ONLY the Procurement Manager regarding the procurement. Other state employees do not have the authority to respond on behalf of the Agency. F. DEFINITION OF TERMINOLOGY This section contains definitions, acronyms, and references that are used throughout this procurement document, including appropriate abbreviations.
“Agency”- the New Mexico Spaceport Authority or NMSA, an agency of the State. “Close of Business” - 5:00 PM Prevailing Mountain Time. “Desirable” – the terms “may,” “can,” “should,” “preferably,” or “prefers” identify a desirable or discretionary item or factor (as opposed to “Mandatory”). “Evaluation Committee” - a body appointed by the Agency management to perform the evaluation of RFP proposals. “Evaluation Committee Report” - a report prepared by the Procurement Manager and the Evaluation Committee that contains all written determinations resulting from the conduct of a procurement requiring the evaluation of competitive proposals. “Evaluation Factors” – means the items listed in Section V.B. of this RFP. “Finalist” - means an Offeror who meets all the Mandatory Specifications of the Request for Proposal and whose score on Evaluation Factors is sufficiently high to qualify that offeror for further consideration by the Evaluation Committee.
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“Mandatory” - terms “must,” “shall,” “will,” “is required,” identify a mandatory item or factor (as opposed to “Desirable”). Failure to meet a mandatory item or factor will result in the rejection of the offeror’s proposal. “Mandatory Specifications”- the items listed in Section IV. B. of this RFP. “Offeror” - any person, corporation, or partnership who chooses to submit a proposal pursuant to this RFP procurement. “Procurement Manager” - the person designated in I. E. above or other person authorized by the Agency to manage or administer a procurement requiring the evaluation of competitive proposals. “Request for Proposals” or “RFP” - all documents, including those attached or incorporated by reference, used for soliciting proposals. “Responsive Offeror” – an offeror submitting a proposal that conforms to all material specifications based on the requirements set forth in the Request for Proposals. Material specifications of a Request for Proposals include, but are not limited to, price, quality, quantity or delivery requirements. “Selected Developer” – has the meaning as set forth in Section I A. “Purpose of this RFP.” “Scope of Work”- as described in Section I. C. of this RFP. “State (the State)” - the State of New Mexico. “State Purchasing Agent” or “SPA” - the state purchasing agent for New Mexico or a designated representative.
G. PROCUREMENT LIBRARY
Offerors are encouraged to review the material available on the Spaceport America website, www.spaceportamerica.com, under the navigation tab series labeled “Do Business—RFPs/ ITBs, Visitor Experience Facilities Development”. Login information to access the Procurement Library may be obtained only by submitting the “Acknowledgement of Receipt of Request for Proposals Form” that accompanies this document (See Appendix A) to the Procurement Manager as referred to in Section II. B. 2. The materials referenced in this Section I.G. –Procurement Library are incorporated in this RFP by this reference.
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II. CONDITIONS GOVERNING THE PROCUREMENT
This section of the RFP contains the schedule for the procurement and describes the major procurement events as well as the conditions governing the procurement. A. SEQUENCE OF EVENTS The Procurement Manager will make every effort to adhere to the following schedule:
Action Responsibility Date 1. Issue of RFP Agency April 8, 2013 2. Acknowledgement of Receipt Due Offerors April 26, 2013 3. Deadline To Submit Questions Offerors April 26, 2013 4. Response to Written Questions/RFP
Amendments Agency May 1, 2013
5. Submission of Proposal Offerors May 17, 2013 6. Proposal Evaluation Agency Evaluation Committee May 31, 2013 7. Finalize Lease Agreement Agency &Selected Developer June 7, 2013 8. Contract Award Agency & Selected Developer June 14, 2013 9. Protest Deadline Sec II B.9 below
This schedule is intended for planning purposes only. Although the Agency will attempt to meet these milestones, progress towards these scheduled events is solely at the discretion of the Agency. B. EXPLANATION OF EVENTS
The following paragraphs describe the activities listed in the sequence of events shown in Section II, Paragraph A.
1. Issue of RFP
This RFP is being issued by the Agency. Additional copies of the RFP can be obtained from the Spaceport America website at spaceportamerica.com.
2. Acknowledgement of Receipt
Offerors should hand deliver or return by facsimile or by registered or certified mail the “Acknowledgement of Receipt of Request for Proposals Form” that accompanies this document (See Appendix A). This form should be signed by an authorized representative of the organization, dated, and returned by Close of Business to the Procurement Manager on the date referred to in Section II. A.
3. Deadline to Submit Questions
Offerors may submit written questions as to the intent or clarity of this RFP until Close of Business on the date referred to in Section II. A. All written questions must be addressed to the Procurement Manager (see Section I, Paragraph E).
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4. Response to Written Questions / RFP Amendments
Written responses to questions and any RFP amendments will be distributed on the date referred to in Section II, A. These will be posted on the Spaceport America website.
5. Submission of Proposals
ALL OFFEROR PROPOSALS MUST BE RECEIVED FOR REVIEW AND EVALUATION BY THE PROCUREMENT MANAGER NO LATER THAN 2:00 PM PREVAILING MOUNTAIN TIME on the date referred to in Section II, A. Proposals received after this deadline will not be accepted. The date and time will be recorded on each proposal. Proposals must be addressed and delivered to the Procurement Manager at the address listed in Section I, Paragraph E. Proposals must be sealed and labeled on the outside of the package to clearly indicate a response to the “Spaceport America’s Visitor Center and Spaceport Central Developer” Request for Proposals. Proposals submitted by facsimile will not be accepted. A public log will be kept of the names of all Offeror organizations that submitted proposals. Pursuant to §13-1-116 NMSA 1978, the contents of any proposal shall not be disclosed to competing Offerors prior to contract award.
6. Proposal Evaluation
The evaluation of proposals will be performed by an Evaluation Committee appointed by Agency management. The evaluation process will take place on the date referred to in Section II, A. During this time, the Procurement Manager may, at her option, initiate discussion with Offerors who submit responsive or potentially responsive proposals for the purpose of clarifying aspects of the proposals, but proposals may be accepted and evaluated without such discussion. Discussions SHALL NOT be initiated by the Offerors.
7. Finalize Lease Agreements
The leases for the Facilities are scheduled to be finalized with the Offeror whose proposal is most advantageous to NMSA on or about the date referred to in Section II, A. In the event that mutually agreeable terms cannot be reached within the time specified, the Agency reserves the right to finalize the lease agreement for a Facility or the Facilities with the next most advantageous Offeror without undertaking a new procurement process or to cancel the award.
8. Contract Award
After review of the Evaluation Committee Report and approval of the NMSA board and any applicable State approvals, the Agency will award the contract on the date referred to in Section II, A. This date is subject to change at the discretion of the Agency. The contract shall be awarded to the Offeror whose proposal is determined to be the most advantageous to the NMSA, taking into consideration the Mandatory Specifications and Evaluation Factors set forth in Section IV of this RFP.
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9. Protest Deadline Any protest by an Offeror must be submitted within 15 calendar days after knowledge of the facts or occurrences giving rise to the protest pursuant to §13-1-172 NMSA 1978 and applicable procurement regulations. Protests must be in writing and must include the name and address of the protestor and the proposal number on the cover of this RFP. All protests must also contain a statement of grounds for protest including appropriate supporting exhibits. Protests must be delivered to the attention of: Wade Jackson
EDD General Counsel New Mexico Spaceport Authority 901 E. University Ave., Suite 965L Las Cruces, NM 88001
C. GENERAL REQUIREMENTS This procurement will be conducted in accordance with the procurement code regulations, 1.4.1 NMAC.
1. Acceptance of Conditions Governing the Procurement
Offerors must indicate in the letter of transmittal their acceptance of Section II. B.-Explanation of Events and Section II. C. - General Requirements under Section II - “Conditions Governing the Procurement”. Submission of a proposal constitutes acceptance of the terms and conditions of the proposed lease with Selected Developer set forth in Appendix B, the Mandatory Specifications in Section IV, – the Evaluation Factor Points and description of the Evaluation Factors contained in Section V. Participation in this RFP process creates no rights for Offerors in connection with any further steps. Failure to meet the Mandatory Specifications will result in rejection of a proposal as non-responsive.
2. Incurring Cost
Any cost incurred by an Offeror in preparation, transmittal, presentation of any proposal or material submitted in response to this RFP shall be borne solely by such offeror.
3. Offerors’ Rights to Withdraw Proposal
Offerors will be allowed to withdraw their proposals at any time prior to the deadline for receipt of proposals. An Offeror must submit a written withdrawal request signed by such offeror’s duly authorized representative addressed to the Procurement Manager. The approval or denial of withdrawal requests received after the deadline for receipt of the proposals is governed by the applicable procurement regulations.
4. Proposal Offer Firm
Responses to this RFP, including proposal prices, will be considered firm for one hundred twenty (120) days after the due date for receipt of proposals provided that proposal rates and prices shall be used for the construction budget in the awarded lease.
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5. Disclosure of Proposal Contents
The proposals will be kept confidential until a contract is awarded. At that time, all proposals and documents pertaining to the proposals will be open to the public, except for the material that is proprietary or confidential. The Procurement Manager will not disclose or make public any pages of a proposal on which the Offeror has stamped or imprinted “proprietary” or “confidential” subject to the following requirements: (a) Proprietary or confidential data shall be readily separable from the proposal in order to facilitate eventual public inspections of the non-confidential portion of the proposal. Confidential data are normally restricted to confidential financial information concerning the Offeror’s organization and data that qualify as a trade secret in accordance with the Uniform Trade Secrets Act [§57-3A-1 to 57-3A-7 NMSA 1978]. The price of products offered or the cost of services proposed shall not be designated as proprietary or confidential information; and (b) If a request is received for disclosure of data for which an Offeror has made a request for confidentiality, the Agency shall examine such offeror’s request and make a written determination that specifies which portions of the proposal, if any, should be disclosed. Unless the Offeror takes legal action to prevent the disclosure, the proposal will be so disclosed. The proposal shall be open to public inspection subject to any continuing prohibition on the disclosure of confidential data.
6. No Obligation
This RFP procurement in no manner obligates the State of New Mexico, the Agency or any of its other agencies to enter into any land lease, building lease or purchase or joint venture transaction or other contractual arrangement with any party unless the parties have fully negotiated such agreements, such agreements are in writing and the agreements or contracts are awarded and approved by the appropriate authorities and executed by all parties.
7. Termination
This RFP may be canceled at any time and any and all proposals may be rejected in whole or in part when the Agency determines such action to be in the best interest of the State of New Mexico.
8. Sufficient Appropriation
Any contract awarded as a result of the RFP process may be terminated if sufficient appropriations or authorizations do not exist. Such termination will be effected by sending written notice to the Selected Developer. The Agency’s decision as to whether sufficient appropriations and authorizations are available will be accepted by the contractor as final.
9. Legal Review
The Agency requires that all Offerors agree to be bound by the Section II C. - “General Requirements” contained in this RFP. Any concerns of an Offeror must be promptly brought to the attention of the Procurement Manager.
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10. Governing Law
This procurement and any agreement with the Selected Developer that may result shall be governed by the laws of the State of New Mexico.
11. Basis for Proposal
Only information supplied by the Agency in writing through the Procurement Manager or in this RFP should be used as the basis for the preparation of Offeror proposals.
12. Contract Terms and Conditions
The lease or leases entered into between the Agency and the Selected Developer will follow the format specified by the Agency and contain the terms and conditions of the proposed lease with the Selected Developer as set forth in Appendix B. However, the Agency reserves the right to negotiate with the Selected Developer provisions in addition to those contained in this RFP. Should an Offeror object to any of the Agency’s terms and conditions, as contained in Appendix B, the Offeror must propose specific alternative language and the Agency may or may not accept the alternative language. General references to the Offeror’s terms and conditions or attempts at complete substitutions are not acceptable to the Agency and will result in disqualification of the Offeror’s proposal. The Offeror must provide a brief discussion of the purpose and impact, if any, of each proposed change followed by the specific proposed alternate wording.
13. Offeror’s Terms and Conditions
Offerors must submit with the proposal a complete set of any additional terms and conditions that they expect to have included in a contract negotiated with the Agency.
14. Contract Deviations
Any additional terms and conditions that may be the subject of negotiation will be discussed only between the Agency and the Selected Developer and shall not be deemed an opportunity to amend the Selected Developer’s original proposal.
15. Offeror Qualifications
The Evaluation Committee may make such investigations as necessary to determine the ability of the Offeror to adhere to the requirements specified within this RFP. The Evaluation Committee will reject the proposal of any Offeror who is not a responsible Offeror or fails to submit a responsive offer as defined in §13-1-83 and §13-1-85 NMSA 1978.
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16. Right to Waive Technical Irregularities
The Evaluation Committee reserves the right to waive technical irregularities in the form of the proposal which do not alter the price, quantity, or quality of the services offered. The Evaluation Committee also reserves the right to waive Mandatory Specifications provided that all of the otherwise responsive proposals fail to meet the same Mandatory Specifications and/or doing so does not otherwise materially affect the procurement. This right is at the sole discretion of the Evaluation Committee.
17. Notice
The Procurement Code, §13-1-28 through §13-1-199 NMSA, imposes civil and misdemeanor criminal penalties for its violation. In addition, the New Mexico criminal statutes impose felony penalties for bribes, gratuities, and kickbacks.
18. Agency Rights
The Agency reserves the right to accept all or a portion of an Offeror’s proposal. 19. Right to Publish
Throughout the duration of this RFP procurement process and term of any lease or leases, Offerors and the Selected Developer, and any contractors engaged by the Selected Developer must secure from the Agency written approval prior to the release of any information that pertains to the potential work or activities covered by this procurement or the subsequent leasing arrangements. Failure to adhere to this requirement may result in disqualification of an Offeror’s proposal or termination of the lease or leases entered into with the Selected Developer.
20. Ownership of Proposals
All documents submitted in response to the RFP shall become the property of the Agency and the State of New Mexico and will not be returned to Offerors, absent special written agreement. Two complete copies of all proposals including the revised proposal, if one is submitted, shall be placed into the procurement file.
21. Confidentiality
Any confidential information provided to, or developed by, the Offeror in the performance of the lease or leases resulting from this RFP shall be kept confidential and shall not be made available to any individual or organization by the Offeror or the Selected Developer without the prior written approval of the Agency. The Offeror(s) and the Selected Developer agree to protect the confidentiality of all confidential information and not to publish or disclose such information to any third party without the Agency's written permission.
22. Electronic Mail Address Required
A large part of the communication regarding this procurement will be conducted by electronic mail (e-mail). Each Offeror must have a valid e-mail address to receive this correspondence. (See: Section II.B.4, Response to Written Questions/RFP Amendments).
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23. Use of Electronic Versions of this RFP
This RFP is being made available by electronic means. If accepted by such means, the Offeror acknowledges and accepts full responsibility to ensure that no changes are made to the RFP. In the event of conflict between a version of the RFP in the Offeror’s possession and the version maintained by the NMSA, the version maintained by the NMSA shall govern.
24. Campaign Contribution Form
The Offeror must complete and sign Appendix C, Campaign Contribution Disclosure Form – whether any applicable contribution has been made or not. This form must be submitted with your proposal whether an applicable contribution has been made or not. (For purposes of this requirement, the applicable elected public officials within the executive branch are the current Governor and Lieutenant Governor.)
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III. RESPONSE FORMAT AND ORGANIZATION A. NUMBER OF RESPONSES Offerors shall submit only one proposal.
B. NUMBER OF COPIES Offerors shall provide 3 signed originals of their proposal and 1 CD to the location specified in Section I, Paragraph E on or before the date referred in Section II. A. and time deadline for receipt of proposals referred in Section II. B. 5.
C. PROPOSAL FORMAT
All proposals must be typewritten on standard 8 ½ x 11 paper (larger paper is permissible for charts, spreadsheets, etc.) and placed within binders with tabs delineating each section.
1. Proposal Organization
The proposal must be organized and indexed in the following format and must contain, at a minimum, all listed items in the sequence indicated. (not to exceed 20 pages)
a. Letter of Transmittal b. Mandatory Specifications (Section IV B. “Mandatory Specifications”) c. Evaluation Factors (Section V B. “Evaluation Factors”)
Within the proposal, Offerors should address the items in the order in which they appear in this RFP. All forms provided in the RFP Appendices must be thoroughly completed and included in the proposal. Any proposal that does not adhere to these requirements may be deemed non-responsive and rejected on that basis.
2. Letter of Transmittal Each proposal must be accompanied by a letter of transmittal. The letter of transmittal MUST:
a. identify the submitting organization; b. identify the name, title, telephone and fax numbers, and e-mail address of the Offeror, and if
an organization, the person authorized by the organization to contractually obligate the organization;
c. identify any affiliation or other relationship between any of the Offeror’s team members and any potential contractor or subcontractor parent or subsidiary;
d. describe status of Offeror (whether corporation, a partnership, a limited liability company, business association, or a joint venture) indicating jurisdiction under whose law the Offeror is organized and operating and a brief history of the Offeror’s organization and its principals;
e. provide the date and location of establishment and date of incorporation or formation under the present name;
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f. identify the name, title, telephone and fax numbers, and e-mail address of the person authorized to negotiate the contract on behalf of the organization;
g. identify the names, titles, telephone and fax numbers, and e-mail addresses of persons to be contacted for clarification;
h. explicitly indicate Acceptance of the Conditions Governing the Procurement stated in Section II. C.1;
i. state whether the Offeror (or any team member) have ever been terminated for default, non-compliance, or non-performance on a contract or lease, and provide a detailed description regarding whether the Offeror (or team member) have been within the past ten (10) years, in litigation, arbitration, or have had any judgments rendered against such Offeror (or team member), and if any such proceeding is pending, attach an opinion of counsel addressing whether such proceeding would impair the Offeror’s performance in connection with the performance of its duties and obligations under the Scope of Work in connection with the development of the Facilities. Additionally disclose whether the Offeror or any team member has been convicted of, pled guilty to or pled nolo contendere to any felony, and provide a detailed description in regard to any such civil litigation, arbitration proceedings or judgments and as to any criminal matters:
j. be signed by the person authorized to contractually obligate the organization; and k. acknowledge receipt of any and all amendments to this RFP.
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IV. SPECIFICATIONS A. INFORMATION
1. Agency Resources
In preparing proposals, Offerors may assume that the Agency will not provide any resources.
2. Agency Point of Contact (POC)
The Agency Procurement Manager is the primary POC.
B. MANDATORY SPECIFICATIONS These are Mandatory Pass/Fail items. Failure of any one of these criteria will result in the proposal to be deemed non-responsive and will not be considered for award.
1. Agreement to Terms and Conditions
Offerors must agree to the Conditions Governing the Procurement set forth in Section II.C.1 of this RFP.
2. Campaign Contribution Disclosure Form
Offerors must submit a completed Campaign Contribution Form as found in Appendix C of this RFP.
3. New Mexico Employee Health Coverage Form
Offerors must submit a completed Employee Health Coverage Form as found in Appendix D of this RFP.
4. Pay Equity Initiative Form
Offerors must submit a completed Pay Equity Initiative Form as found in Appendix E of this RFP.
5. Statement of Confidentiality Offerors must submit a completed Statement of Confidentiality as found in Appendix F of this RFP.
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V.EVALUATION A. EVALUATION SUMMARY
Factors Points
Factor 1 General Knowledge and Experience 200 Factor 2 Capability to Perform Scope of Work 200 Factor 3 Stability 200 Factor 4 Cost 400 Total 1000 Factor 5 New Mexico Resident Business and Resident
Veteran Business Preference _______ (see description of Factor 5 below)* Total plus preference, if applicable* _______
B. EVALUATION FACTORS Maximum points will be awarded on the basis of the extent to which the Offeror’s response satisfies the requirements and intent of the evaluation factors listed above.
1. General Knowledge and Experience-This factor considers the Offeror’s (i.e., firms and companies) general knowledge and experience in planning, developing, owning and managing development projects similar in size, scope and nature as the Facilities. Submittal requirements for this factor are as follows:
• Organization chart identifying all of the Offeror’s team members and their respective roles. • For each member, provide a statement (3-page maximum) of his/her development
experience, background, pertinent accomplishments, and working knowledge of the Spaceport America local areas;
• Provide information for a maximum of three (3) projects conducted in the past five (5) years indicating experience relevant to the Section I. C. “Scope of Work” of this RFP, identifying governmental agencies or local jurisdictions involved, the region of work, environmental issues and other pertinent information including: project name, project size (acreage, square foot) and total development costs, project location, project completion date, project owner name, project description, a brief narrative that describes the Offeror’s role on each project.
2. Capability to Perform Scope of Work - This factor considers the Key Personnel’s level of experience in his/her respective position on the Offeror’s team. Key Personnel are those individuals, employed or contracted by the Offeror, and who are to be engaged directly in the management, planning and execution of the duties and obligations under the Scope of Work for the Facilities. Submittal requirements for this factor are as follows:
• A resume (2-page maximum) for each individual considered Key Personnel and a paragraph description for each Key Personnel describing the individual’s role in each of the projects identified above under “General Knowledge and Experience”; and
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• Three (3) business references to document capability of the Offeror, its Key Personnel and other team members to perform the duties and obligations within the State required under the Scope of Work for the Facilities.
3. Stability-This factor considers whether the Offeror has the financial capability and financial institutional relationships necessary to commit equity and obtain financing for projects of the size, scope and nature of the Facilities, and the ability to manage variable cash flow requirements associated with the development and Landlord-related operations of the Facilities. Among the factors described in the RFP, NMSA is seeking a developer that demonstrates financial stability having a net worth of at least $20 million. The submittal requirements for this factor are as follows:
• A statement (4-page maximum) that addresses the following: The plan for financing each Facility; capability to obtain the necessary financing; sources and amounts of cash available to meet equity requirements for the planned financing structure; ability to manage the variable cash flow requirements associated with the development and Landlord-related operations of the Facilities;
• Independently audited financial statements of the Offeror organization’s most recent two (2) years. The submissions must include the audit opinion, the balance sheet, and statements of income, retained earnings, cash flows, and the notes to the financial statements. If independently audited financial statements do not exist, the Offeror shall state the reason or reasons that audited financial statements are not available and in lieu thereof, submit information providing the details reasonably required by the Evaluation Committee to enable it to determine the financial stability of such offeror;
• For individuals and entities where the principal members will be responsible for obtaining the financing (as obligors or guarantors), provide a current financial statement and the federal and state income tax returns of each such individual for the last two (2) years; and
• Two (2) credit references from established financing firms and/or underwriters identifying and acknowledging their confidence in the credit quality of the Offeror.
4. Cost-This factor considers the proposed ownership structure and related risks to NMSA; projected cash payments to NMSA for leased land and return to NMSA for infrastructure costs and opportunity value; the financial obligations of NMSA for each Facility, including annual payments to the Selected Developer under the Offeror’s financing structure for the use and occupancy of each Facility for each year during the 20 year term. Submittal requirements for this factor are:
• Narrative describing the proposed ownership structure and projected developer’s compensation and contingencies;
• Projected cash payments or credits to NMSA for the Spaceport Central leased land, and return to NMSA for infrastructure costs and opportunity value at each Facility (valued at $20,000 per year in total);
• The estimated annual rent (including any upper or lower range of estimated annual rent) and other costs of NMSA under each proposed lease agreement for the Facilities (Appendix B) and providing the basis for such costs;
• The projected cost for purchase of each Facility upon exercise of the option to purchase by NMSA within the first five (5) years after rent commencement date, and providing the basis for such costs;
• Financial data for the Facilities- estimated total development costs, including contingencies; proposed sources and uses; any associated phasing or take down assumptions; financing assumptions to include all-in cost of debt, anticipated lender’s required debt service coverage
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ratio; and the ability to replace construction lending with permanent financing; and the Selected Developer’s equity contributions and internal rate of return (IRR) for each Facility.
5. New Mexico Resident Business and Resident Veteran Business Preference- If the Offeror qualifies as a “resident business” it shall be awarded 50 points; or if the Offeror is a “resident veteran business” it shall be awarded 100 points if it has annual revenues of $1 million or less; and subject to Section 13-1-21 G NMSA 1978 a resident veteran business shall be awarded: (i) 80 points if it has annual revenues of more than $1 million but less than $5 million; and (ii) 70 points if it has annual revenues of $5 million or more. The Offeror claiming a resident business or resident veteran business preference shall submit with its proposal a copy of a valid resident business certificate or a valid resident veteran business certificate issued by the Taxation and Revenue Department in accordance with Section 13-1-22 NMSA 1978. Both a resident business preference and a resident veteran business preference will not be awarded.
C. EVALUATION PROCESS The evaluation process will follow the steps listed below:
1. All Offeror proposals will be reviewed for compliance with the Mandatory Specifications (Section IV. B.) stated within the RFP. Proposals deemed non-responsive will be eliminated from further consideration.
2. Offerors that pass the Mandatory Specifications (Section I. B.) will be assigned points based on
the evaluation factors (Section V. B.).
3. The Procurement Manager may contact an Offeror for clarification of the response as specified in Section II. B.6.
4. The Evaluation Committee may use other sources of information to perform the evaluation. 5. The responsive Offerors with the highest scores will be selected as Finalists. Finalists may be
asked to participate in oral presentations and may be asked to submit a revised proposal. While specific points will not be awarded based on oral presentations, proposal points will be recalculated based on how well the Offeror further explained their support of the evaluation factors listed in Section V. B. above. The Offeror whose proposal is most advantageous to the Agency, taking into consideration the Mandatory Specifications (Section IV. B.) and evaluation factors (Section V.), will be recommended for contract award. Please note, however, that a serious deficiency in the response to any one factor (i.e., any circumstance, experience, cost, etc. that results in a score of less than half of the weight for any individual category) may be grounds for rejection regardless of overall score. NMSA may also choose to make no award under this RFP.
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APPENDIX A - REQUEST FOR PROPOSALS ACKNOWLEDGEMENT OF RECEIPT FORM In acknowledgement of receipt of this Request for Proposal (#13-495-00-00457) the undersigned agrees that he/she/it has received a complete copy, beginning with the title page and table of contents, and ending with Appendix H. The acknowledgement of receipt should be signed and returned to the Procurement Manager no later than close of business on the date specified in Section II. A. of the RFP. All questions and answers, amendments or any other announcement concerning this procurement will be posted on the Spaceport Website. FIRM:__________________________________________________________________ REPRESENTED BY:_____________________________________________________ TITLE:__________________________________ PHONE NO.:__________________ E-MAIL:_________________________________ FAX NO.: _____________________ ADDRESS:_____________________________________________________________ CITY: _____________________________ STATE: _______ ZIPCODE:__________ SIGNATURE: _____________________________________ DATE:_______________ This name and address will be used for all correspondence related to the Request for Proposal.
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APPENDIX B- PROPOSED LEASE WITH SELECTED DEVELOPER AND DEPICTION OF SITE FOR EACH OF THE FACILITIES
LEASE
Between _________________, as Landlord
and
New Mexico Spaceport Authority, as Tenant
for the [Visitor Center] or [Spaceport Central] Facilities
at Spaceport America
Dated ________________, 2013
1461574.6 i
TABLE OF CONTENTS
Page 1. DEFINITIONS .......................................................................................................................................................... 1 2. CONSTRUCTION ..................................................................................................................................................... 1
A. PLANS AND SPECIFICATIONS; PLANS; ARCHITECTS AND REPRESENTATIVES ..................................................................................... 1 B. LANDLORD TO CONTRACT FOR CONSTRUCTION OF PREMISES IMPROVEMENTS ............................................................................... 2 C. FINAL PLANS; CONSTRUCTION OF PREMISES IMPROVEMENTS ..................................................................................................... 2 D. PERFORMANCE AND COMPLETION OF PREMISES IMPROVEMENTS ................................................................................................ 2 E. NOTICES OF NON-‐RESPONSIBILITY AND TENANT ENTRY ON PREMISES .......................................................................................... 3 F. [CLAUSE FOR VISITOR CENTER] LANDLORD’S PURCHASE OF THE TORC LAND FOR VISITOR CENTER; INVESTIGATION; AND
TERMINATION OF PURCHASE AGREEMENT AND THIS LEASE BY LANDLORD ..................................................................................... 3 F. [ALTERNATE CLAUSE FOR SPACEPORT CENTRAL] LANDLORD’S LEASE OF ON-‐SITE LAND FOR SPACEPORT CENTRAL;
INVESTIGATION; AND TERMINATION OF SITE LEASE AGREEMENT AND THIS LEASE BY LANDLORD ....................................................... 3 3. TERM ..................................................................................................................................................................... 4
A. TERM AND RENT COMMENCEMENT DATE ................................................................................................................................ 4 B. OPTION TO RENEW LEASE ..................................................................................................................................................... 4 C. ACKNOWLEDGMENT OF RENT COMMENCEMENT ...................................................................................................................... 4
4. RENT ..................................................................................................................................................................... 4 A. RENT; TERM RENT ............................................................................................................................................................... 4 B. ADDITIONAL RENT ............................................................................................................................................................... 5 C. PLACE OF PAYMENT ............................................................................................................................................................. 5 D. PAYMENT OF RENT WITHOUT DEDUCTION; LANDLORD AND TENANT DUTIES AND OBLIGATIONS ...................................................... 5 E. SECURITY DEPOSIT ............................................................................................................................................................... 5
5. TAXES .................................................................................................................................................................... 5 A. LANDLORD’S TAX PAYMENTS ................................................................................................................................................ 5 B. DEFINITION OF PROPERTY TAXES ........................................................................................................................................... 5 C. PERSONAL PROPERTY/GROSS RECEIPTS TAXES ......................................................................................................................... 6 D. FAILURE TO PAY TAXES ........................................................................................................................................................ 6
6. USE ........................................................................................................................................................................ 6 A. USE .................................................................................................................................................................................. 6 B. INDEMNITY ........................................................................................................................................................................ 7 C. CONDITION OF THE LAND ...................................................................................................................................................... 7 D. ENVIRONMENTAL TERMS AND CONDITIONS ............................................................................................................................. 8 E. COVENANT TO OPERATE ....................................................................................................................................................... 9
7. UTILITIES ............................................................................................................................................................... 9 8. MAINTENANCE AND REPAIRS, ALTERATIONS AND ADDITIONS .............................................................................. 9
A. MAINTENANCE AND REPAIR .................................................................................................................................................. 9 B. SURRENDER ...................................................................................................................................................................... 10 C. LANDLORD'SRIGHTS .......................................................................................................................................................... 10 D. ALTERATIONS AND ADDITIONS ............................................................................................................................................. 10
9. ENTRY BY LANDLORD .......................................................................................................................................... 11 10. INSURANCE ......................................................................................................................................................... 11
A. DUTY TO INSURE OF TENANT ............................................................................................................................................... 11 B. DUTY TO INSURE OF LANDLORD ........................................................................................................................................... 11
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C. WAIVER OF SUBROGATION ................................................................................................................................................. 12 D. RELEASE .......................................................................................................................................................................... 12 F. WORKERS' COMPENSATION COVERAGE ................................................................................................................................ 12 G. OTHER COVERAGE ............................................................................................................................................................. 12 H. OTHER PROVISIONS REGARDING INSURANCE ......................................................................................................................... 12
11. DAMAGE TO PREMISES ........................................................................................................................................ 13 A. PARTIAL OR TOTAL DAMAGE ............................................................................................................................................... 13 B. DAMAGE TO BUILDING AND OTHER FACILITIES CONSTITUTING PART OF THE PREMISES DURING LAST THREE MONTHS OF
TERM OR OPTIONAL TERM .................................................................................................................................................. 13 C. REPAIR NOT PERMITTED ..................................................................................................................................................... 13
12. CONDEMNATION ................................................................................................................................................. 13 A. TAKING OF PREMISES ......................................................................................................................................................... 13 B. PARTIALTAKING ................................................................................................................................................................ 14
13. ASSIGNMENT AND SUBLETTING .......................................................................................................................... 14 A. TENANT'S ASSIGNMENT AND SUBLEASE ................................................................................................................................ 14 B. LANDLORD’SASSIGNMENT .................................................................................................................................................. 14
14. SUPERIORITY ....................................................................................................................................................... 15 A. SUPERIORITY OF LEASE ....................................................................................................................................................... 15 B. QUIET ENJOYMENT ............................................................................................................................................................ 15 C. ATTORNMENT ................................................................................................................................................................... 15
15. DEFAULT, REMEDIES ............................................................................................................................................ 15 A. DEFAULT .......................................................................................................................................................................... 15 B. REMEDIES ........................................................................................................................................................................ 16 C. NO PERSONAL LIABILITY ..................................................................................................................................................... 16 D. DEFAULT BY LANDLORD ...................................................................................................................................................... 16
16. MISCELLANEOUS ................................................................................................................................................. 16 A. ESTOPPEL CERTIFICATE ....................................................................................................................................................... 16 B. LIMITATION OF INDEMNITIES ............................................................................................................................................... 17 C. CAPTIONS; ATTACHMENTS; DEFINED TERMS .......................................................................................................................... 17 D. ENTIRE AGREEMENT .......................................................................................................................................................... 17 E. SEVERABILITY ................................................................................................................................................................... 17 F. ATTORNEYS' FEES; COSTS OF SUIT ........................................................................................................................................ 18 G. TIME; JOINT AND SEVERAL LIABILITY ..................................................................................................................................... 18 H. BINDING EFFECT; CHOICE OF LAW ........................................................................................................................................ 18 I. WAIVER .......................................................................................................................................................................... 18 J. SURRENDER OF PREMISES ................................................................................................................................................... 18 K. HOLDING OVER ................................................................................................................................................................ 18 L. SIGNS .............................................................................................................................................................................. 18 M. INTEREST ON PAST-‐DUE OBLIGATIONS .................................................................................................................................. 19 N. RECORDING ...................................................................................................................................................................... 19 O. BROKERAGE COMMISSIONS ................................................................................................................................................ 19 P. COUNTERPARTS ................................................................................................................................................................ 19 Q. CONFLICT OF INTEREST ....................................................................................................................................................... 19 R. NOTICES .......................................................................................................................................................................... 19 S. FORCE MAJEURE ............................................................................................................................................................... 20 T. EQUAL OPPORTUNITY COMPLIANCE ..................................................................................................................................... 20 U. APPROPRIATIONS .............................................................................................................................................................. 20 V. APPROVALS ...................................................................................................................................................................... 21 W. ADDITIONAL ACTS ............................................................................................................................................................. 21
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X. OPTION TO PURCHASE PREMISES ......................................................................................................................................... 21 Y. RIGHT OF FIRST REFUSAL TO PURCHASE PREMISES .................................................................................................................. 21 Z. DAY FOR PAYMENT OR ACTION ........................................................................................................................................... 22
EXHIBIT A LEGAL DESCRIPTION OF THE LAND FOR THE VISITOR CENTER EXHIBIT A-‐1 THE BASE BUILDING WORK AS PART OF THE PREMISES IMPROVEMENTS EXHIBIT A-‐2 WORK LETTER EXHIBIT A-‐3 TENANT'S FINISH WORK EXHIBIT B SITE PLAN OF PREMISES FROM PLANS AND SPECIFICATIONS EXHIBIT C ACKNOWLEDGMENT OF RENT COMMENCEMENT DATE EXHIBIT D TERM RENT SCHEDULE EXHIBIT E SERVICE LEVEL AGREEMENT EXHIBIT F MEMORANDUM OF LEASE EXHIBIT G CERTIFICATION OF PREMISES IMPROVEMENTS COMPLETION
1 1461574.6
LEASE THIS LEASE (this "Lease") is made and entered into this ____day of ________, 2013 (“Effective Date”), by and between_____________________________________, a_________________ (“Landlord”) and New Mexico Spaceport Authority, an agency of the State of New Mexico and its successors and assigns ("Tenant or “NMSA"). For and in consideration of the rental and of the covenants and agreements hereinafter set forth to be kept and performed by Tenant, Landlord hereby leases to Tenant, the Premises, as defined below, for the Term and any Optional Term (as defined below), at the rental amounts, and subject to and upon all of the terms, covenants, and agreements hereinafter set forth. 1. DEFINITIONS. The term "Premises" as used in this Lease shall mean facilities consisting of the tract of land containing the number of acres set forth in and as more particularly described on Exhibit A attached hereto and incorporated herein (the "Land"), together with a shell one (or two)-story building for use as the Spaceport America (off-site Visitor Center or on-site Spaceport Central) of approximately (6,354 Gross Square feet; 5,969 Net Square feet for Visitor Center or 25,240 Gross Square feet; 23,411 Net Square feet for Spaceport Central) and all other improvements built and fixtures installed on the Land, and the term “Premises Improvements” shall mean the Base Building Work (as defined below) for construction of the buildings and any other improvements to be constructed and installed by the Landlord on the Land in accordance with the plans and specifications, as generally depicted on the Site Plan attached as Exhibit B hereto and incorporated herein. A portion of the Land for the Spaceport Central site as described in Exhibit A shall be subject to a grant of artwork easement for public access and use. The Premises Improvements shall be constructed by Landlord in accordance with the plans and specifications provided by NMSA, with all costs of construction, including soft costs and other expenses to be paid by Landlord. Based on the plans and specifications, the Premises Improvements shall include all the work items set forth in Exhibit A-1 attached hereto and incorporated herein (such work being hereinafter referred to as the "Base Building Work"). The Premises Improvements do not include interior improvements for the building comprising part of the Premises. Landlord will construct the Premises Improvements according to the work letter and budget attached as Exhibit A-2 hereto and incorporated herein (the "Work Letter"). The interior design and construction of interior improvements including removable fixtures and equipment, will be constructed and installed by Tenant at its expense as set forth in Exhibit A-3 attached hereto and incorporated herein (such work being hereafter referred to as “Tenant’s Finish Work”). Tenant’s Finish Work shall be owned by Tenant. 2. CONSTRUCTION. A. Plans and Specifications; Plans; Architects and Representatives. Tenant's architect ("SMPC Architects") has prepared the plans and specifications (the “Plans”) for construction of the Premises Improvements. Prior to the date of execution of this Lease, Landlord has reviewed the Plans and has agreed to engage SMPC Architects (and Landlord confirms that SMPC Architects have agreed to be engaged) as the architects of record (“Landlord’s Architect”) for the construction of the Premises Improvements. Landlord's Architect also will perform certain construction administration duties including review of submittals, pay applications, requests for information (RFIs), architect’s supplemental instructions (ASIs), change order proposals, change directives and other construction related documentation in connection with its services as Landlord's Architect, at Landlord's expense. Tenant will engage at its expense a representative to observe construction activities related to the Premises Improvements on Tenant's behalf (the "NMSA Construction Representative"). Tenant
2
disclaims any warranty or representation that the Plans are complete or adequate for the intended purpose or free from errors. Tenant and its professional consultants shall review the Plans and at its sole expense, make any modifications to the Plans as necessary for Tenant's purposes. Tenant shall submit its proposed revisions to the Plans to Landlord's Architect for approval (which shall not be unreasonably withheld), and as soon as possible, and not later than five (5) business days after receipt, Landlord shall send Tenant written notice of approval, in which case the Plans as modified by Tenant shall be deemed approved by Landlord or, if Landlord disapproves, sending Tenant written notice specifying the reasons for disapproval. Upon failure of Tenant to respond to Landlord’s disapproval notice within five (5) business days, Landlord’s Plans together with any Tenant modifications accepted by Landlord shall be deemed approved by Tenant. If Landlord’s reasons for disapproval are not acceptable, Tenant shall further revise the Plans and resubmit the same to Landlord’s Architect until Landlord grants its approval. The Plans as approved by Landlord and Tenant are herein referred to as the “Final Plans”. B. Landlord to Contract for Construction of Premises Improvements. Landlord, as developer, shall contract for construction of the Premises Improvements (as defined in Section 2 C. below) with a New Mexico licensed contractor chosen by Landlord. Landlord shall be responsible for implementing a process for regular communication among the contractor, Landlord’s Architect and NMSA Construction Representative. All construction work with respect to the Premises Improvements shall be performed by contractors or subcontractors holding appropriate licenses issued by the New Mexico Regulation and Licensing Division for the work being performed. The construction contract shall provide for the complete construction and installation of all Premises Improvements on [a fixed-price basis] with terms and schedule acceptable to Landlord. No modifications will be made to the construction contract, Final Plans or Permits or schedule without Tenant’s prior written approval. C. Final Plans; Construction of Premises Improvements. Prior to commencement of the Premises Improvements, Landlord and/or its contractors, at their own expense, shall obtain payment and performance bonds for the construction work in an amount equal to one-hundred percent (100%) of the price specified in the construction contract issued by a surety company authorized to do business in the State of New Mexico (“State”) and said surety must be approved in Fed. Circular 570 as published by the United States Department of the Treasury. Landlord agrees to obtain, at its expense, all permits and licenses (“Permits”) necessary for operation of its developer business to be conducted under this Lease with respect to the Premises and for the construction by its contractors of the Premises Improvements in conformity with the Final Plans as they may be modified upon approval of Tenant. Such construction shall be at Landlord's sole cost and expense and shall be performed by Landlord’s contractors in a good and workmanlike manner, free and clear of mechanics' and materialmen’s liens unless such liens are discharged or contested, in good faith, as soon as practicable, and in a manner reasonably satisfactory to Tenant. D. Performance and Completion of Premises Improvements. Landlord’s contractors shall undertake the Premises Improvements as soon as possible from and after the Effective Date, and shall diligently proceed to complete all of the same at Landlord's sole cost in a good and workmanlike manner and in accordance with the Final Plans and Permits. The Premises Improvements shall commence once the final written notice to proceed has been issued by the Tenant, with final completion to be not later than 365 calendar days from the date of the final written notice to proceed. The date of "Final Completion" shall be the date on which the last of the following has occurred: (i) the Premises Improvements shall have been constructed in accordance with the Final Plans, as modified in accordance with the Work Letter and Landlord’s architect shall have issued to Tenant its “Certification of Premises Improvements Completion” in the form set forth in Exhibit G hereto; and (ii) the final
3
"Certificate of Occupancy" for the Premises Improvements shall have been received. If Final Completion is not achieved within 365 calendar days from issuance of the final written notice to proceed (subject to delays caused by force majeure as provided in Section 16 S. hereof), Landlord shall pay liquidated damages to Tenant in the amount of $1,000 per calendar day not as a penalty but as a reasonable forecast at the time of contracting of Tenant’s anticipated delay damages and any such liquidated damages assessed by Tenant will be deducted from Rent payable by Tenant as provided in Section 4 hereof. If the period of delay lasts longer than 30 days, at Tenant’s option, Landlord shall be liable for all of Tenant’s actual damages caused by the delay, and Tenant may hold Landlord responsible for all of such damages, in lieu of the liquidated damages provided for above. Tenant’s actual damages resulting from delays in completion will include, without limitation, lost business profits, expenses for storage of equipment and inventory, expenses for obtaining alternate space, delay damages owed to Tenant’s contractors and other third parties, wasted promotional expenditures and other items of a similar or different nature. E. Notices of Non-Responsibility and Tenant Entry on Premises. On the Effective Date, Tenant shall have the right to post and maintain statutory notices of non-responsibility on the Premises and from time to time thereafter during the period of any construction work on the Premises. Landlord hereby authorizes Tenant and Tenant’s authorized representatives and agents to enter the Premises at any time upon reasonable notice, for the purpose of observing and documenting the construction work from and after the Effective Date and during the period of construction of the Premises Improvements.
F. [CLAUSE FOR VISITOR CENTER] Landlord’s Purchase of the TorC Land for Visitor Center; Investigation; and Termination of Purchase Agreement and this Lease by Landlord. Within thirty (30) days of the Effective Date, Landlord shall (i) assume Tenant’s rights and obligations under that Purchase Agreement dated October 25, 2012, between Tenant and Ashbaugh Construction for purchase of the Land for the Visitor Center site (“Purchase Agreement”); and (ii) send notice of the “closing date” to Ashbaugh Construction in accordance with Section 8.01 of the Purchase Agreement scheduling the “closing” as provided in Section 8.02 of the Purchase Agreement to be held not later than seventy-five (75) days from the Effective Date. Landlord shall conduct its investigation with respect to the Land in accordance with the Purchase Agreement. In the event the Purchase Agreement is terminated by Landlord prior to closing, Landlord shall terminate this Lease by written notice to Tenant at any time prior to the earlier of (a) the closing or (b) the date on which Landlord or its contractor first places any equipment or materials on the Land, except for equipment or materials used to investigate the Land. Termination of either of such agreements shall constitute termination of both agreements. In the event of any such termination, Tenant shall have the right to purchase all surveys, reports and other materials obtained by Landlord in connection with its investigation with respect to the Land together with all records relating to permits, licenses and related applications for a consideration equal to Landlord's reasonable out-of-pocket cost of obtaining such items, paid to third parties pursuant to invoices, copies of which shall be submitted by Landlord.
F. [ALTERNATE CLAUSE FOR SPACEPORT CENTRAL] Landlord’s Lease of On-
Site Land for Spaceport Central; Investigation; and Termination of Site Lease Agreement and this Lease by Landlord. Within thirty (30) days of the Effective Date, Landlord shall enter into a Lease Agreement with Tenant for lease of the Land for the Spaceport Central Site (“Site Lease Agreement”) upon terms and for rent payments to be negotiated between landlord and Tenant subject to approval of the New Mexico State Land Office (“SLO”). The SLO may condition its approval as permitted under Section 5.5 of that certain Business Lease (Lease No. BL-1729) entered into between Tenant and the SLO dated January 1, 2007 (the “SLO Lease”). The Site Lease Agreement shall require
4
among other things that Landlord complete its investigation of the Land in accordance with the Site Lease Agreement, but not later than the date Tenant submits the executed Site Lease Agreement to the SLO for approval. The term of Site Lease Agreement and the Term (as defined below) of this Lease (also subject to SLO approval) shall not commence until approval of the SLO is obtained. If Landlord finds during its investigation that any required construction or operational permits or licenses are not obtainable, or that the Land is not acceptable or feasible for any valid reason, Landlord may terminate the Site Lease Agreement and this Lease by written notice to Tenant at any time prior to the date Tenant submits the executed Site Lease Agreement to the SLO for approval. Termination of either of such leases shall constitute termination of both agreements. In the event of any such termination, Tenant shall have the right to purchase all surveys, reports and other applications for a consideration equal to Landlord’s reasonable out-of-pocket cost of obtaining such items paid to third parties, pursuant to invoices, copies of which shall be submitted by Landlord. If Landlord fails to terminate the Site Lease Agreement and this Lease prior to the date Tenant submits the executed Site Lease Agreement to the SLO for approval, Landlord shall not have any further right to terminate the Site Lease Agreement and this Lease under the terms of this paragraph. If the SLO fails to approve the Site Lease Agreement and/or this Lease, Tenant shall terminate the Site Lease Agreement and this Lease. 3. TERM. A. Term and Rent Commencement Date. The term of this Lease shall be a period of twenty (20) years, inclusive of a construction period of 365 calendar days, commencing on the Effective Date of this Lease [Spaceport Central—term commencing on the date of approval of this Lease by the SLO] (“Term”).
B. Option to Renew Lease. If permitted by applicable law or regulations, in the event Tenant is not in default on the date of giving notice, Tenant shall have the option, upon at least six (6) months written notice prior to the expiration of the Term or the first optional term, to renew this Lease for up to two (2) additional terms of five (5) years (each an “Optional Term”) on substantially the same terms and conditions as herein set forth. If Tenant does not properly renew the Lease for the first Optional Term its option to renew the Lease for the second Optional Term shall also expire. The Term of this Lease, as that term is used in this Lease, shall include the entire time between the Effective Date of this Lease [Spaceport Central- term commencing on the date of approval of this Lease by the SLO] and the final expiration or termination of this Lease excluding any Optional Term, unless otherwise noted. C. Acknowledgment of Rent Commencement. Landlord and Tenant shall execute a written acknowledgment of the commencement date of post-construction period Term Rent (as provided in Section 4 below) and shall attach such acknowledgment hereto as Exhibit C. 4. RENT. A. Rent; Term Rent. Tenant shall pay Landlord as rent ("Initial Rent") for the Premises, the sum of $________ per month (i) during the period from the date of Final Completion ("Initial Rent Commencement Date") through completion of Tenant's Finish Work as determined by Tenant ("Tenant Construction Period"), which monthly amount shall be prorated at $________ per day if the last month of the Tenant Construction Period is a partial month; and (ii) after the Tenant Construction Period, but in any event beginning not later than ________ days after the date of Final Completion, Tenant shall pay post-construction period rent (“Term Rent”) in accordance with the
5
schedule shown on Exhibit D. Initial Rent and Term Rent shall be herein referred to collectively as the “Rent”. Initial Rent shall be paid monthly in advance on the Initial Rent Commencement Date and on the first day of each month thereafter, without any deduction, offset, prior notice or demand whatsoever (except as expressly provided herein). In the event that the Lease terminates on any day other than the last day of a month when Term Rent is due, the rental amount for such payment shall be pro-rated based on the number of days during such month. Payments made by Tenant shall be applied against the earliest unpaid charge whether for Rent or other charges.
B. Additional Rent. In the event Landlord makes any payment for services or expenses set forth herein as Tenant's obligations, Tenant's obligation to pay or reimburse Landlord therefore shall, if so elected by Landlord, be deemed an obligation to pay “Additional Rent.”
C. Place of Payment. Tenant shall pay all such Rent in lawful money of the United States of America to Landlord at _________________________________________, or to such other address as Landlord may designate in writing.
D. Payment of Rent Without Deduction; Exception; Landlord and Tenant Duties and Obligations. Landlord shall receive all Rent without deduction or set-off, provided that any liquidated damages assessed by Tenant under Section 2.D. will be deducted from Rent (including Initial Rent and Additional Rent) due hereunder. Landlord shall be responsible for interior maintenance (excepting Tenant’s Finish Work), and exterior maintenance, repair or preservation of the Premises, together with the grounds and parking areas located on the Premises during the Term and for any Optional Term. Landlord shall pay all real and personal property taxes for the Premises and any income or franchise taxes resulting from Landlord’s receipt of Rent or other income arising from Landlord’s interest in the Premises as further described in Section 5 below. Landlord and Tenant shall enter into a Service Level Agreement to be attached as Exhibit E hereto providing for maintenance and repair of the Premises as provided in Section 8.A. below not later than ninety (90) days prior to the date of Final Completion (“Service Level Agreement”).
E. Security Deposit. No security deposit has been collected by Landlord in connection with
this Lease.
5. TAXES. A. Landlord’s Tax Payments. As one of its obligations hereunder, Landlord shall pay directly to the taxing authority the Taxes (as defined below) for the Premises for each tax year of the Term and for any Optional Term. Landlord shall have the Premises assessed in its name and shall receive all property tax bills and promptly pay all amounts due not later than ten (10) days prior to the date on which such Taxes become delinquent with the assessing authority. Not later than the delinquency date Landlord shall send Tenant a copy of the tax bill and a document evidencing Landlord's tax payment. B. Definition of Property Taxes. "Taxes" means the ad valorem taxes levied on the Premises (inclusive of real and personal property taxes and any form of assessment or levy), together with any license, fee, rent tax, sales, gross receipts or compensating tax or other excise tax on rent receipts imposed by any authority having the direct or indirect power to tax with respect to the Premises. Taxes shall also include special and general assessments or levies imposed against the Premises. Landlord shall cause the Premises to be separately assessed.
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C. Personal Property/Gross Receipts Taxes. Tenant shall pay, prior to delinquency, all gross receipts and other excise taxes, assessments, license or local fees to which it may be subject (including governmental gross receipts taxes, if applicable) that may be levied, assessed or imposed upon its operations and Tenant Finish Work (including Tenant’s fixtures, trade fixtures, merchandise and other taxable property) in, on or upon the Premises, all of which shall be the sole responsibility of Tenant. If any such items of property are assessed with property belonging to Landlord, then Tenant shall pay to Landlord the taxes attributable to Tenant within ten (10) days after receipt of a written statement from Landlord setting forth the taxes applicable to Tenant's property. Tenant shall have all the rights of a taxpayer whose property has been assessed, to contest under with applicable statutes and regulations the assessment or governmental charge(s) as contemplated by this paragraph 5 C. D. Failure to Pay Taxes. If Landlord should fail to pay any taxes, assessments or governmental charges required to be paid by it hereunder, in addition to any other remedies provided herein, Tenant may, in its sole discretion, pay such taxes, assessments and governmental charges. Any sums so paid by Tenant shall be due and payable within twenty (20) days after written notice to Landlord of such payment, with interest from the date of such payment by Tenant at the rate of twelve percent (12%) per annum but not to exceed the rate of interest permitted by law ("Interest Rate").
6. USE.
A. Use. Subject to the other provisions of this Lease, Tenant has exclusive use of the Premises twenty-four (24) hours/per day, seven (7) days/per week, twelve (12) months/per year for the operation of a [“Visitor Center”] [“Spaceport Central”] in connection with Tenant’s “Spaceport America” facility. Usage of the Premises will include all square foot space in the building and all other Premises Improvements including the grounds, parking areas and all other facilities comprising the Premises. Tenant’s usage includes, but shall not be limited to:
• Operating a Spaceport for all spaceflight-related customers that require runway operations;
• Operating a fixed launching site facility for all spaceflight-related customers requiring a launch pad;
• Operating a fixed base operation in support of transient and based customers; • Operating a general aviation airport; • Operating a food and beverage service, catering and restaurant outlet; • Operating a retail merchandise sales outlet; • Operating mail postal shipping and/or receiving services; • Providing an educational outlet for primary and secondary schools as well as universities,
trade schools, and research institutions; • As an equipment and materials storage site; • As a public tourist destination; • As a special events venue; • Conducting Tenant official business, including Tenant or spaceflight-related customer
administrative meeting and office space; • Any other uses that are compatible with the growth of commercial space activities.
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. Tenant shall, at Tenant's expense, comply promptly with all applicable federal, state, and local statutes, ordinances, rules, regulations, orders, and requirements in effect and applicable to Tenant’s use of the Premises during the Term or any Optional Term.
B. Indemnity. Landlord shall defend, protect indemnify and hold Tenant harmless from any action, proceedings, loss, damages, liability, costs and expenses, including but not limited to attorney’s fees, and cost of litigation, arising out of bodily injury to persons or damage to property to the extent that any action, proceeding loss damages, liability, costs and expenses actual or claimed are caused by the acts, omissions or negligence of Landlord, its contractor and/or their respective officers, employees and agents. C. Condition of the Land. (a) Landlord acknowledges that it has received and reviewed a Phase 1 Environmental Site Assessment (“ESA”) for the Land prepared by third parties at Tenant’s expense. Landlord also acknowledges that the Land is not a site that is eligible for, or located on, either the National Register of Historic Places or the State Register of Cultural Properties as determined by the Cultural Properties Review Committee of the New Mexico Historic Preservation Division. Landlord has received and reviewed letters, certificates or other documentation indicating that the Land has water, storm water drainage, sewer/wastewater, electric, telephone and broadband internet utilities with capacities adequate for the full use of the Premises contemplated hereunder stubbed to the boundary of the Land or where any such utilities are not currently available, Landlord shall ensure that they are available prior to Final Completion, and Landlord has obtained documentation identifying proposed utility vendors and detailed budget with a secured funding source and a plan and schedule estimates to remedy the utility deficiencies. Tenant shall have no responsibility for Landlord's use or reliance on any letter, certificate other documentation or information prepared by third parties, or for the accuracy or completeness of any such information. Landlord has investigated, or had an opportunity to investigate, and has approved (or will have approved prior to closing the purchase of the Land pursuant to the Purchase Agreement) or (will have approved prior to the effective date of the Site Lease Agreement), the condition of the Land, including without limitation the following: soils, feasibility, availability of all necessary licenses and permits, availability of utilities, and expenses to be incurred in connection with the construction of the Premises Improvements. Except as expressly stated in this Lease, Tenant makes no representation or warranty of any kind, express or implied in connection with the Final Plans and/or Permits with respect to the construction of the Premises Improvements. Further, other than as set forth in the Purchase Agreement or the Site Lease Agreement, as applicable, there are no representations or warranties as to the condition of the Land, compliance with laws with respect to the Land, the status or effectiveness of approvals, the existence or absence of Hazardous Materials (as defined below) on or adjacent to the Land or soil characteristics of the Land. Tenant disclaims all warranties not expressly stated herein, including any warranties of merchantability or fitness for any particular purpose. Landlord shall purchase the Land pursuant to the Purchase Agreement or lease the Land pursuant to the Site Lease Agreement, as provided in Section 2 F hereof, subject to all applicable zoning, municipal, county, and state laws, ordinances, and regulations and all matters disclosed in an ALTA Survey and Title Binder (as referenced in the Purchase Agreement or the Site Lease Agreement, as applicable), and hereby accepts this Lease subject to all such disclosed matters, the terms this Lease and the exhibits attached hereto.
(b) Upon Final Completion, Landlord shall assign to Tenant any warranty received by
Landlord from its contractors or material or equipment suppliers with respect to the Premises Improvements ("Warranty"). During the Term or any Optional Term, Tenant is hereby granted the
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right to enforce any Warranty on its own behalf and in its own name, or in the name of Landlord, and Landlord shall have no responsibility for the performance or enforcement of any Warranty. Neither the existence nor absence of a warranty, nor Tenant’s dealings under any Warranty, shall relieve Landlord of any of its repair and maintenance responsibilities hereunder.
D. Environmental Terms and Conditions. (a) The following terms shall have the meanings defined below:
(i) "Environmental Laws" means all federal, state and local laws,
ordinances, regulations and rules, as amended from time to time, regulating or pertaining to human health and the environment, including without limitation, (a) the Solid Waste Disposal Act, 42 U.S.C. §6901 et seq., ("SWDA" also known as the Resource Conservation and Recovery Act, or "RCRA", for a subsequent amendment), (b) the Comprehensive Environmental Response, Compensation, Liability and Cleanup Act, 42 U.S.C. §9601 et seq. ("CERCLA"), (c) the Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq. (also known as the "Clean Water Act") (d) the Clean Air Act, 42 U.S.C. §7401 et seq. (e) the Toxic Substance Control Act, 15 U.S.C. §2601 et seq. ("TSCA"), (f) the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. §11001 et seq. ("EPCRA"), (g) the Oil Pollution Act, 33 U.S.C. §2701 et seq. ("OPA"), (h) radioactive materials under the Atomic Energy Act, 42 U.S.C. §2014, et seq. and all state and local laws and ordinances similar or analogous to these laws.
(ii) "Hazardous Materials" means any "hazardous wastes" as defined under
RCRA, (b) any "hazardous substances" as defined under CERCLA, (c) any toxic pollutants as defined under the Clean Water Act, (d) any hazardous air pollutants as defined under the Clean Air Act, (e) any hazardous chemicals as defined under TSCA, (f) any hazardous substances as defined under EPCRA, (g) radioactive materials covered by the Atomic Energy Act, (h) similar wastes, substances, pollutants, chemicals or substances regulated under analogous state and local laws, (i) asbestos, (j) polychlorinated biphenyls, (k) petroleum and petroleum products or synthetic fuels, (l) any substance the presence of which on the property in question is prohibited under any Environmental Law, (m) any other substance which under any Environmental Law requires remediation or special handling or notification of or reporting to any federal, state or local governmental entity in its generation, use, handling, collection, treatment, storage, recycling, treatment, transportation, recovery, removal, discharge or disposal. (b) Tenant's Environmental Covenants.
(i) Tenant agrees that it will comply fully and promptly with all Environmental Law requirements as and when they become applicable to the Premises or Tenant's use of, or activities at, the Premises.
(ii) Tenant agrees that it will not release, cause the release, or permit the
release of any Hazardous Materials at or into the Premises, and will take reasonable precautions to prevent such release by others.
(iii) Tenant agrees that it will not permit the treatment, storage or disposal of Hazardous Materials at or into the Premises other than flammable vehicle fuel (e.g. diesel, gasoline) and pressurized gases for use in connection with space flight related activities.
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(iv) Tenant shall immediately notify Landlord of any release of, or contamination by Hazardous Materials which Tenant becomes aware of.
(c) Environmental Condition of Land; Remediation. In entering into this Lease, Landlord represents that it has reviewed a Phase I ESA with respect to the Land and is aware of the current environmental condition of the Land as set forth in such Phase I ESA. Landlord agrees that Landlord and contractors, its officers, employees and agents will not store, use or dispose of any Hazardous Materials on or about the Premises and, in the event that any Hazardous Materials not brought on the Premises by Tenant is found in or about the Premises, and if such Hazardous Materials or the remediation thereof materially adversely affects the conduct of Tenant’s business in the Premises or materially adversely affects the health of Tenant’s employees in the Premises, then except as provided below, Landlord shall, at Landlord’s expense promptly cause such Hazardous Materials to be remediated and removed from the Premises in accordance with all applicable legal requirements and repair and restore any portion of the Premises damaged by such remediation or removal, in which event Tenant shall be entitled to a pro rata abatement of Rent as to the affected portion of the Premises. However, if the condition or its remediation will materially adversely affect the conduct of Tenant’s business in the Premises for a period longer than sixty (60) days, Tenant may elect to terminate this Lease by written notice to Landlord. Landlord shall indemnify, protect, defend and save Tenant harmless from and against any and all claims, demands, liabilities, and costs arising from damage or injury, actual or claimed, of whatsoever kind and character, to property and persons, occurring or allegedly occurring in, on or about the Premises as a result of Landlord’s breach of the covenants and agreements contained in this Section 6 D.
E. Covenant to Operate. Beginning not later than sixty (60) days following commencement of Term Rent and continuing throughout the Term, Tenant shall continuously conduct and carry on Tenant's [Visitor Center] [Spaceport Central] operations at the Premises, and shall keep the Premises open for business and cause Tenant's operations to be conducted therein during the business days/hours established from time to time by Tenant. At Landlord’s request, Tenant shall advise Landlord of its business days/hours in effect from time to time. 7. UTILITIES. Landlord has no responsibility to provide, maintain or pay for any utilities or utility services for the Premises, except that Landlord shall provide as part of the Premises Improvements, water, storm water drainage, sewer/wastewater, electric, telephone and broadband internet and other utility services to the Premises, with capacities adequate for the full use of the Premises contemplated hereunder. Tenant agrees to pay all usage charges or other expenses for water, storm water drainage, sewer/wastewater, electric, telephone, broadband internet and trash pickup and any other utilities used on the Premises. Landlord will be responsible for assuring that all billing statements it receives for Tenant’s usage charges will be mailed promptly to Tenant for payment.
8. MAINTENANCE AND REPAIRS, ALTERATIONS AND ADDITIONS. A. Maintenance and Repair. Landlord, at its own expense shall keep and maintain the
Premises inclusive of all interior maintenance (excepting Tenant’s Finish Work) and exterior maintenance, in good safe and attractive order and condition and repair, and shall suffer no waste with respect thereto, and Landlord shall be solely responsible for maintaining, repairing and/or replacing the entire building and all other Premises Improvements, including without limitation the roof, foundation, structural walls, storefront, signage, doors, doorways, locks, windows, window casements, glazing, plumbing, pipes, electrical wiring and conduit, restrooms, and heating, ventilating and air conditioning
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systems ("HVAC Systems"), electrical (inclusive of security systems) and plumbing systems, parking area striping, paving and lighting, snow removal, dust/sand/windblown debris removal. Landlord, at its own expense, throughout the Term and any Optional Term, shall provide for the repair and maintenance of the HVAC Systems in a manner and on a schedule which conforms to the warranty requirements and manufacturer's recommendations for such systems, and Landlord shall provide Tenant documentation showing the work done on request of Tenant on an annual basis. Landlord and Tenant shall enter into a Service Level Agreement to address the maintenance and repair requirements of this Section 8A. Any damage to the Premises however caused, except as otherwise provided in this Lease, shall be immediately repaired, to Tenant's reasonable satisfaction, at the sole cost and expense of Landlord. Tenant is responsible for the costs of its [Visitor Center] [Spaceport Central] business operations of whatever nature, to be conducted on the Premises during the Term and any Optional Term and maintenance and repair of Tenant’s Finish Work.
B. Surrender. Subject to Tenant’s option to purchase the Premises as provided in Section
16 X. hereof, on the last day of the Term or any Optional Term, or on any earlier termination, Tenant shall surrender the Premises (excluding Tenant’s Finish Work) to Landlord in good condition, ordinary wear and tear excepted. Tenant shall repair any damage to the Premises caused by the removal of Tenant's Finish Work.
C. Landlord's Rights. If Tenant fails to surrender the Premises to Landlord upon
expiration or earlier termination of this Lease (excluding Tenant’s Finish Work) in good condition, ordinary wear and tear excepted, Landlord shall give Tenant written notice to do such acts as are reasonably required to place the Premises in good order and condition. If Tenant fails to commence the work within twenty (20) days of such notice and diligently prosecute it to completion, then Landlord shall have the right (but not the obligation) to do such acts and expend such funds as are reasonably required to perform such work satisfactorily. Any amount so expended by Landlord shall be paid by Tenant within twenty (20) days after demand, with interest at the Interest Rate from the date of demand, as Additional Rent.
D. Alterations and Additions. (a) With the exception of the installation and maintenance of any part of Tenant’s Finish
Work, Tenant shall not (i) make any alterations, additions or improvements to the Premises costing over $100,000 in the aggregate during any twelve-month period or (ii) create any openings in the roof of the building and other facilities constituting the Premises, without, in each case, obtaining the prior written consent of the Landlord, which consent shall not be unreasonably withheld. (b) All work done at the Premises by Tenant shall be performed in accordance with applicable statutes, ordinances, rules and regulations of any governmental body or agency having jurisdiction over the Premises. Landlord shall cooperate with Tenant in obtaining approvals and permits for such work, without cost or liability to Landlord. Any alterations or additions will be made in a good workmanlike manner without cost to Landlord, and shall be free and clear of mechanics' and materialmen’s liens provided that if any such lien is filed, Tenant shall discharge the lien as soon as practicable and it may contest the claim in good faith. (c) Subject to Tenant’s option to purchase the Premises as provided in Section 16 Y. hereof, all fixtures other than Tenant’s Finish Work and Tenant's business and trade fixtures located in or upon the Premises, shall at the expiration or earlier termination of this Lease, become the property of
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the Landlord and remain upon and be surrendered with the Premises. Personal property and business and trade fixtures, other than those affixed to the Premises so that they cannot be removed without material damage to the Premises (as determined in Tenant’s sole discretion), shall remain the property of the Tenant, and may be removed by the Tenant subject to the provisions of this Lease, at any time during the Term or any Optional Term when Tenant is not in default as provided in Section 15 A. of this Lease. Fixtures belonging to Tenant (“Tenant Fixtures”) may include, without limitation, walk-in vault(s), reach-in refrigerators and freezers, merchandise shelving and displays, point of sale equipment, public pay telephones, broadband internet equipment, satellite dish and/or similar communications equipment, solar equipment and Tenant's exterior imaging, signs, banners, and other displays, including Tenant's fascia, monument and pole signs, if any. Tenant's fixtures will not be deemed to include the following ("Components"): the building structure inclusive of all light fixtures, floor coverings, walls, wall coverings, doors, windows, HVAC equipment, ducts, air handling equipment, thermostats, electrical wiring, circuit breakers or panels, or plumbing fixtures or pipes, utility meters, plants, landscaping materials, or irrigation equipment. In the event any of the Tenant's Fixtures are subject to a lien or title retention instrument, then during the Term or any Optional Term but not thereafter, the holder of any such lien or title retention instrument shall have the right and be able to enforce the same as stated therein and Landlord waives any rights to the contrary, except Landlord reserves the right to require Tenant to restore the Premises to the condition required by this Lease, after removal. 9. ENTRY BY LANDLORD. Landlord and its agents shall have the right, subject to and in accordance with Tenant’s access policy and security requirements, to enter the Premises to inspect the same and undertake maintenance and repair as necessary in accordance with the Service Level Agreement. Landlord and its agents shall not make any alterations or additions to the Premises without Tenant’s prior written approval, and such activity shall be conducted only during normal business hours and upon reasonable notice. In undertaking maintenance and repair work or making alterations or additions to the Premises, Landlord shall use reasonable efforts to avoid and minimize interference with Tenant's business operations. Landlord shall not have a key to the building and other facilities constituting part of the Premises, but Landlord shall have the right to use any and all means which Landlord may deem proper to enter the building and other facilities constituting part of the Premises in an emergency that involves fire or police activity. 10. INSURANCE.
A. Duty to Insure of Tenant. During the Term, Tenant shall, at Tenant's expense, provide
coverage for liability of Tenant and its “public employees” as defined in the Tort Claims Act (Section 41-4-1 NMSA 1978), and for its personal property, including Tenant’s Finish Work including Tenant’s Fixtures and other Tenant improvements on or at the Premises, as required by New Mexico law.
B. Duty to Insure of Landlord. During the Term, Landlord shall maintain in force a policy
or policies of insurance providing: (a) comprehensive general liability coverage of not less than $2,000,000 limit per occurrence and not less than $5,000,000 in the aggregate, including coverage for property damage, bodily injury and wrongful death. Landlord shall also carry umbrella coverage in the amount of at least $10,000,000. Such insurance policy or policies shall name the “State of New Mexico, the New Mexico Spaceport Authority and the public employees of the agencies of the State and the Spaceport Authority”, and any other parties having an insurable interest as designated by the Tenant as additional insureds as set forth in an endorsement to the policy or policies of insurance, and (b) fire,
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lightning, flood and extended coverage, or “all risk” property insurance coverage, for at least the greater of (i) the replacement value of the Premises, or (ii) 80% of the fair market value of the Premises. The total deductible required under such property insurance policies shall be no more than $25,000 per/loss.
C. Waiver of Subrogation. To the extent permitted under their respective insurance policies, Landlord and Tenant waive all rights, against each other, for recovery of damages arising out of any damage to or destruction of the Premises caused by fire or other perils insured against. Neither this waiver nor any policy limits required under this Lease shall be deemed to limit the obligation of Landlord to repair and/or replace the Premises as provided herein.
D. Release. In addition to the waiver of subrogation above, and the waiver of personal
liability set forth in Section 15C. below, Landlord also releases and discharges Tenant and its “public employees” as defined in the Tort Claims Act from any and all claims, damages and causes of actions arising out of any damage to or destruction of the Premises where such damage or destruction was not caused by the negligence or willful act of Tenant or any of its public employees acting in the course of their employment.
E. Proof of Insurance. Commencing with the Effective Date, Landlord shall deliver to
Tenant certificates with endorsements evidencing such insurance in form acceptable to Tenant. Landlord shall within ten (10) days prior to the expiration of such policies, furnish Tenant with written evidence of the renewal or new coverage complying with this Lease. Landlord shall notify Tenant within twenty-four (24) hours of any cancellation or expiration of the required coverage.
F. Workers' Compensation Coverage. Whenever Landlord has any employees with duties to be performed on the Premises, Landlord shall carry workers' compensation and employer's liability insurance as required under the Workers’ Compensation Act (Section 52-1-1 NMSA 1978). The total limits of the employer's liability coverage shall be not less than the amounts required under such Act, and in any event not less than $1,000,000 each accident, $1,000,000 each employee, and $1,000,000 policy limit. Tenant shall comply with the Workers’ Compensation Act and carry coverage placed through the Workers’ Compensation Bureau of the State’s Risk Management Division.
G. Other Coverage. Landlord shall also carry such other policy or policies as are deemed reasonably necessary by Tenant, all naming the “State of New Mexico and the New Mexico Spaceport Authority and the public employees of the agencies of the State and the Spaceport Authority” and any other parties designated by Tenant, as additional insureds as set forth in endorsements to such policies.
H. Other Provisions Regarding Insurance. All insurance required to be obtained by
Landlord under this Lease shall be with companies rated A or better in Best's Insurance Guide and licensed to do business in the State. Such insurance shall at all times be in forms and with endorsements and coverages as reasonably requested by Tenant, and shall name Tenant and any other parties designated by Tenant, additional insured’s in endorsements to the policy or policies of insurance, as Tenant directs. Any change in such insurance coverage may only be made with the prior written consent of Tenant. Coverage limits specified in this Lease may be increased by Tenant not more often than once every five (5) years if deemed necessary due to the effects of inflation. Landlord shall have the right to provide such insurance coverage pursuant to blanket policies which the Landlord may have in force, provided such blanket policies expressly afford coverage to the Premises and to Tenant and the other parties designated by Tenant as required by this Lease. All such policies shall be written as primary policies, not contributing with and not in excess of coverages which the Landlord may carry. No such
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policy shall be cancelable or subject to other modification except after thirty (30) days prior written notice to Landlord and Tenant by the insurer. Commencing with the Effective Date, Landlord shall deliver to Tenant certificates and endorsements evidencing such insurance in form acceptable to Tenant. Landlord shall, within ten (10) days prior to the expiration of such policies, furnish Tenant with written evidence of the renewal or new coverage complying with this Lease. In the event Landlord fails to provide and maintain such insurance, Tenant may (but shall not be required to) order such insurance and charge the cost to the Landlord, which amounts shall be payable by Landlord on demand with interest at the Interest Rate until paid. Failure by Landlord to comply herewith shall constitute a default hereunder, and such default shall not be cured by Tenant's election to procure insurance on Landlord's behalf.
All insurance required to be obtained by Tenant under this Lease shall be obtained through the
Risk Management Division of the General Services Department in accordance with applicable rules and regulations of the State. 11. DAMAGE TO PREMISES. A. Partial or Total Damage. In the event of damage causing a partial or total destruction of the building and other facilities constituting part of the Premises during the Term or any Optional Term, Landlord shall cause the building and other facilities constituting part of the Premises to be promptly repaired to a condition existing immediately prior to such damage, or as close thereto as applicable law will allow, with this Lease to continue in full force and effect, and Rent shall not abate hereunder. In its sole discretion, Tenant may utilize any insurance proceeds available to Tenant to repair damages to the Tenant Finish Work and other property of Tenant; and Landlord's obligation of timely repair shall not be subject to or reduced or limited by receipt of any proceeds from Tenant. Insurance proceeds from Landlord’s policies shall be held and disbursed by Landlord’s lender or another financial institution approved by both Landlord and Tenant, as insurance trustee for the benefit of such lender (if any), Landlord and Tenant.
B. Damage to Building and Other Facilities Constituting Part of the Premises During Last Three Months of Term or Optional Term. In the event of any total or partial destruction to the building and other facilities constituting part of the Premises during the last three (3) months of the Term or any Optional Term, if Tenant has not exercised any right to renew this Lease, then notwithstanding the provisions of Section A. above, Landlord shall have the right, exercisable by written notice to Tenant within 30 days following the event giving rise to the casualty or damage, to elect to retain all the proceeds of its own insurance for damage to the building and other facilities constituting part of the Premises and to terminate this Lease.
C. Repair Not Permitted. In the event that the Building cannot be repaired as required herein under applicable laws, regulations, codes and restrictions, notwithstanding the availability of insurance proceeds, this Lease shall terminate effective with the date of the damage occurrence, and Landlord and Tenant shall be entitled to retain all insurance proceeds available under their respective policies. 12. CONDEMNATION. A. Taking of Premises. If all or a substantial portion of the Premises is taken or appropriated for public or quasi-public use by the right of eminent domain (with or without litigation), or transferred by agreement under threat of condemnation in connection with such public or quasi-public
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use (i) Landlord shall have the right at its option (exercisable within thirty (30) days of the receipt of notice of such taking), to terminate this Lease as to Landlord effective the date possession is taken by the condemning authority; and (ii) if Tenant’s interest in this Lease is subject to condemnation as a result of action of the State Board of Finance then, Tenant shall have the option (exercisable within thirty (30) days of the receipt of notice of such taking), to terminate this Lease as to Tenant effective the date possession is taken by the condemning authority. For purposes hereof, a substantial portion means taking of any portion of the floor area of the building and other facilities constituting part of the Premises, or total loss of access, or loss of parking resulting in insufficient parking spaces to comply with applicable law and zoning, that prevents continuation of Tenant’s business operations at the Premises. With respect to any condemnation award for a partial or entire taking, there shall be allocated to Tenant, including, among other things, the value of Tenant’s leasehold estate under the Site Lease Agreement, if applicable, the value of all personal property and fixtures belonging to Tenant, including all of Tenant’s Finish Work, Tenant’s improvements and Tenant’s trade fixtures, and damages for the interruption of Tenant's business operations at the Premises and Tenant’s moving expenses. B. Partial Taking. In the event of a partial taking which does not result in a termination of this Lease, Landlord shall immediately restore the Premises (other than the Tenant Finish Work and Tenant’s fixtures) to as near the condition it was in prior to the taking as possible. Tenant's share of any award as provided in Section 12 A. above shall belong to Tenant and shall be held and disbursed by Tenant for its own purposes. In the event of a partial taking which does not result in termination of this Lease by Tenant, the Term Rent shall be adjusted to reflect any reduction in the size and use of the Premises upon restoration by Landlord. No temporary taking of the Premises and/or of Tenant's rights therein, shall terminate this Lease, or result in an abatement of Term Rent hereunder. Any award made to Tenant for loss of rent, if applicable, business interruption or for its personal property and fixtures by reason of any such temporary taking shall belong entirely to Tenant and Landlord shall not be entitled to share therein. 13. ASSIGNMENT AND SUBLETTING. A. Tenant's Assignment and Sublease. Tenant shall have the right to assign or sublease the Premises or any part of the Premises at any time to other State agencies or to qualified tenants, including but not limited to an operator of Tenant’s business or otherwise in and at the Premises (as determined in the sole discretion of Tenant) for any part of the Term or Optional Term of this Lease. Tenant shall notify Landlord immediately upon the effective date of any sublease or assignment, or at such other time as may be provided in this Lease. All rent payable under a sublease, up to the full amount of the Rent due hereunder for the sublease term, shall be payable directly to Landlord, and Tenant’s obligation to pay all or the portion of the Rent payable under the sublease shall cease during the term of such sublease. Upon assignment of this Lease, the assignee shall succeed to all the rights, interests and obligations of NMSA, as tenant under this Lease and all references hereunder to Tenant from and after the effective date of such assignment shall be a reference to NMSA’s assignee as successor tenant. From and after such assignment, NMSA shall be released from all obligations as Tenant arising from and after the effective date of such assignment, including but not limited to the obligation to pay Rent.
B. Landlord’s Assignment. This Lease may be assigned by Landlord or its successors and assigns upon the written consent of Tenant (which Tenant may withhold or grant in its sole discretion) upon thirty (30) days written notice from Landlord to Tenant. After any assignment and assumption of this Lease by the successor landlord, Landlord, as predecessor landlord, shall have no further liability
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under this Lease, except for defaults existing at the time of such transfer. In the event Landlord has in its possession, at the time of any assignment by Landlord of this Lease, funds in which Tenant has an interest, such funds shall be delivered to the successor landlord. This Lease shall not be affected by any such assignment by Landlord, and Tenant agrees to attorn to the successor landlord through a commercially reasonably nondisturbance and attornment agreement acceptable to the successor landlord and Tenant. 14. SUPERIORITY. A. Superiority of Lease. This Lease shall be prior and superior to the lien of any mortgages, deeds of trust or any other encumbrance in any amount(s) whatsoever now or hereafter placed by Landlord or any of its agents on or against the Premises or Landlord’s leasehold interest in the Premises. B. Quiet Enjoyment. Landlord covenants and agrees with Tenant that upon Tenant paying all Rent and other sums due under this Lease, performing its covenants and conditions of the Lease and recognizing an assignee consented to by Tenant as Landlord as provided in Section 13 B., Tenant shall and may peaceably and quietly have, hold, and enjoy the Premises for the Term and any Optional Term as against any adverse claim of Landlord or any party claiming under Landlord subject, however, to the terms of the Lease. C. Attornment. Subject to Section 14 A. above, in the event of foreclosure or the exercise of a power of sale under any mortgage or deed of trust made by Landlord covering the Premises, the Tenant shall attorn to the purchaser upon any such foreclosure, or sale, and recognize such purchaser as the Landlord under this Lease, provided said purchaser expressly agrees in writing to be bound by the terms of this Lease and the Site Lease Agreement, if applicable. 15. DEFAULT, REMEDIES. A. Default. The occurrence of any of the following shall constitute a material default and breach of this Lease by Tenant: (a) Any failure by Tenant to pay the Rent or any other sums required to be paid hereunder, or any failure by Tenant to provide any required insurance, where any such failure continues for ten (10) days after the Rent payment due date or the date on which the insurance is required to be provided; (b) The abandonment or vacation of the Premises by the Tenant or Tenant's cessation of business operations for a period in excess of seven (7) days (unless caused by a casualty loss affecting the Premises, or unless Tenant and Landlord agree in writing, prior to suspension of operations, on a temporary cessation period for major maintenance or repairs); or (c) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant, where such failure continues for ten (10) days after written notice thereof by the Landlord to the Tenant. However, if the nature of the default is such that the default cannot be reasonably cured within the ten (10) day period, Tenant shall not be deemed to be in default if Tenant shall within such period of time commence such cure and thereafter diligently prosecute the same to completion.
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B. Remedies. In the event of any such default or breach by Tenant, Landlord may at any time thereafter, to the extent permitted by law or regulation: (a) Obtain any insurance which Tenant has failed to obtain within the required time at the expense of Tenant and without waiving the default until Tenant reimburses such cost; (b) Maintain this Lease in full force and effect, and recover the Rent and charges as they become due and/or sue for damages due to Tenant’s default hereunder, without terminating this Lease and Tenant's right to possession and without attempting to relet the Premises, irrespective of whether Tenant shall have abandoned the Premises. C. No Personal Liability. As an agency of the State, NMSA, its board members, executives, employees, agents and other persons acting for and on behalf of Tenant, without exception, shall not be personally liable for any obligation or liability arising under this Lease. D. Default by Landlord. (a) Without notice by Tenant, Landlord shall be in default under this Lease if Landlord fails to perform any obligations required of Landlord in a prompt manner, but in no event later than ten (10) days after the date on which the obligation is required to be performed. However, if the nature of Landlord's obligation is such that more than ten (10) days are required for performance, (other than maintaining the effectiveness of all insurance coverage required by Landlord under Section 10 hereof), then Landlord shall not be in default if Landlord commences performance within such ten (10) day period and thereafter diligently prosecutes same to completion. Tenant agrees that any such mortgagee or deed of trust holder shall have the right to cure such default on behalf of Landlord within a period of not more than thirty (30) days from the date on which the obligation was required to be performed.
(b) If Landlord shall default or breach in the performance of any of its obligations
under this Lease, Tenant shall be entitled to institute any suit, action or proceeding in the exercise of any right or remedy at law or in equity which Tenant may have by reason of such default or breach, including, but not limited to pursuing damages or other remedies as may be appropriate, including the appointment of a receiver. 16. MISCELLANEOUS.
A. Estoppel Certificate. Tenant shall at any time requested by Landlord (but not more than
once per calendar year) upon not less than ten (10) days prior written notice from Landlord (providing a copy of the proposed estoppel certificate), execute and deliver to Landlord an estoppel certificate in a commercial form reasonably acceptable to Tenant including (i) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect), and the date to which the Rent and other charges are paid in advance, if any, (ii) certifying only as to certain specified terms of this Lease, and (iii) acknowledging that there are not, to Tenant's knowledge, any uncured defaults on the part of Landlord under this Lease, or specifying such defaults if any are claimed. Any such statement may be conclusively relied upon by any prospective purchaser or encumbrancer of the Premises.
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B. Limitation of Indemnities. To the extent, if at all, that any provision contained herein or in any related documents requiring one party to indemnify, hold harmless, insure, or defend another party (including such other party’s employees or agents) is found to be within the scope of NMSA (1978), § 56-7-1 (2005), as amended from time to time, or in any way subject to, or conditioned upon consistency with, the provisions of NMSA (1978), § 56-7-1 (2005), as amended from time to time, for its enforceability, then such provision, regardless of whether it makes reference to this or any other limitation provision, shall: (a) not extend to liability, claims, damages, losses or expenses, including attorney fees, arising out of bodily injury to persons or damage to property caused by or resulting from, in whole or in part, the negligence, act or omission of the indemnitee or additional insured, as the case may be, its officers, employees or agents; and shall be further modified, if required, by the provisions of NMSA (1978), § 56-7-1 (B)(2005), as amended from time to time; (b) be enforced only to the extent that the liability, damages, losses or costs are caused by, or arise out of, the acts or omissions of the indemnitor or its officers, employees or agents; and (c) be further modified, if required, by the provisions of NMSA (1978), § 56-7-1 (B)(2005), as amended from time to time. Further, notwithstanding any other term or condition of this Lease, to the extent, if at all, that any agreement, covenant, or promise to indemnify another party (including such party’s employees or agents) contained herein or in any related documents, is found to be within the scope of NMSA (1978) §56-7-2 (2003), as amended from time to time, or in any way subject to, or conditioned upon consistency with, the provisions of NMSA (1978), § 56-7-2 (2003), as amended from time to time, for its enforceability, then, regardless of whether it makes reference to this or any other limitation provision, such agreement is not intended to, and it does not, indemnify such indemnitee against loss or liability for damages arising from: (i) the sole or concurrent negligence of such indemnitee or the agents or employees of such indemnitee; (ii) the sole or concurrent negligence of an independent contractor who is directly responsible to such indemnitee; or (iii) an accident that occurs in operations carried on at the direction or under the supervision of such indemnitee, an employee or representative of such indemnitee or in accordance with methods and means specified by such indemnitee or the employees or representatives of such indemnitee. C. Captions; Attachments; Defined Terms. (a) Captions of the paragraphs of this Lease are for convenience only and shall not be deemed to be relevant in resolving any question of interpretation or construction of any section of this Lease. (b) The exhibits and any addenda and schedules attached hereto constitute part of this Lease and are incorporated herein by this reference. D. Entire Agreement. This Lease along with exhibits and other attachments hereto and the Site Lease Agreement, if applicable, constitute the entire understanding between Landlord and Tenant relative to the Premises, and this Lease and the exhibits and attachments and the Site Lease Agreement, if applicable, may be altered, amended, or revoked only by an instrument in writing signed by the parties hereto. Landlord and Tenant hereby agree that all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged into this Lease and no prior agreement or understanding, oral or otherwise of the parties or their agents shall be valid or enforceable unless embodied in this Lease or the Site Lease Agreement, if applicable. E. Severability. If any provision of this Lease shall, for any reason, be held violative of any applicable law, and so much of this Agreement is held to be unenforceable, then the invalidity of such
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specific provision herein shall not be held to invalidate any other provision herein which shall remain in full force and effect. F. Attorneys' Fees; Costs of Suit. If Tenant or Landlord shall bring any action for any relief against the other, declaratory or otherwise, arising out of this Lease, the prevailing party shall be entitled to an award of its reasonable attorneys' fees and costs. G. Time; Joint and Several Liability. Time is of the essence of this Lease in each and every provision hereof. All the terms, covenants, and conditions contained in this Lease to be performed by Landlord, if Landlord shall consist of more than one person or organization, shall be deemed to be joint and several, and all rights and remedies of Landlord and Tenant shall be cumulative and non-exclusive of any other remedy at law or in equity. H. Binding Effect; Choice of Law. The terms and provisions of this Lease shall be binding upon, inure to, extend to and be for the benefit of the heirs, successors, assigns, and legal representatives of the respective parties hereto. This Lease shall be governed by and construed under and in accordance with the laws of the State. I. Waiver. The failure of Landlord or Tenant to require strict performance of any provision of this Lease shall not waive or diminish that party’s right thereafter to demand strict compliance with that or any other provision. No waiver by Landlord or Tenant of any of its rights under this Lease shall be effective unless express and in writing, and no effective waiver by a party of any of its rights shall be effective to waive any other rights. J. Surrender of Premises. The voluntary or other surrender of this Lease by the Tenant, or mutual cancellation thereof, shall not work a merger, and shall terminate all or any existing subleases, unless otherwise agreed in writing by Landlord, Tenant and the subtenant(s). K. Holding Over. If Tenant remains in possession of all or any part of the Premises after the expiration or termination of the Term or Optional Term, with or without the express or implied consent of the Landlord, such tenancy shall be from month to month only, and not a renewal of this Lease or an extension for any further term, at a rental rate equal to the Rent payable immediately prior to the expiration of the Term or Optional Term, and other monetary sums due under this Lease shall be payable in the amount and at the time specified herein and such month-to-month tenancy shall be subject to every other term, covenant, and agreement contained herein. L. Signs. (a) Tenant, at its own expense, shall be responsible for the erection and maintenance of any monument or pole sign(s) and façade signage on the Land at location(s) indicated on the Final Plans and Permits. Tenant shall pay for any directional and identification signage, guest and employee parking signs, and the like at locations determined by Tenant. All signs are subject to Tenant procuring all applicable governmental consents. (b) Any signs specific to Tenant (or the identification of Tenant thereon) shall be removed at the expiration or earlier termination of this Lease at Tenant's expense and Tenant shall repair any damage resulting from such removal. If Tenant fails to do so, Landlord may cause such removal
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and repair on Tenant's behalf at Tenant's expense. Tenant shall bear all lighting, maintenance, insurance, repairs and replacement costs for said signage. M. Interest on Past-Due Obligations. Except as expressly herein provided, any amount due to Landlord or Tenant not paid when due shall bear interest at the Interest Rate per annum from the due date. Payment of such interest shall not excuse or cure any default by Tenant or Landlord under this Lease. N. Recording. Upon the Initial Rent Commencement Date during the Tenant Construction Period, Landlord and Tenant shall execute, acknowledge and record a memorandum of this Lease in the form attached hereto as Exhibit F. O. Brokerage Commissions. Landlord represents to Tenant that it was not represented by a broker in connection with negotiations for this Lease and the Site Lease Agreement, if applicable, and hereby indemnifies Tenant against the claims of any brokers or other agents claiming through the indemnifying party. P. Counterparts. The Lease may be executed in one or more counterparts, including confirmed facsimile counterparts, each of which shall be a fully binding and enforceable contract and agreement against the party signing such counterpart, but all such counterparts shall together constitute but one agreement.
Q. Conflict of Interest. Landlord warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of this Lease. Landlord certifies that the requirements of the Governmental Conduct Act, Sections 10-16-1 through 10-16-18 NMSA 1978, regarding contracting with a public officer and a state employee or former state employee have been followed in connection with Landlord’s obligations under this Lease.
R. Notices. Any notice provided or permitted to be given under this Lease must be in
writing and may be served by depositing same in the United States mail, addressed to the party to be notified, postage prepaid and certified, with return receipt requested, by delivering the same to such party by Federal Express or similar overnight delivery service, or by delivering the same by confirmed facsimile. Notice given in accordance herewith shall be effective upon the earlier of receipt at the address of the addressee or on the third (3rd) day following deposit of same in the United States mail as provided for herein, regardless of whether same is actually received. If any notice is sent by facsimile a copy shall also be sent simultaneously by mail or overnight delivery service as provided above. For purposes of notice, the addresses of the parties shall be as follows:
If to Tenant to: New Mexico Spaceport Authority Attention: Belinda Lucero 901 E. University Ave., Suite 365L Las Cruces, New Mexico 88001 Telephone No.: (575) 373-6110 Facsimile No.: (575) 373-6120
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With a copy to: Wade Jackson, General Counsel New Mexico Economic Development Department 1100 St. Francis Drive, Suite 1060 Santa Fe NM 87505 Telephone No.: (505) 827-0241 Facsimile No.: (505) 827-0328
If to Landlord to: _______________________ _______________________ Telephone No.:________________ Facsimile No.: ________________ With a copy to: ________________________ ________________________ Telephone No.:________________ Facsimile No.: ________________ Either party may change its address for notice by giving ten (10) days prior written notice thereof to the other party. S. Force Majeure. Neither party shall be required to perform any term, covenant or condition of this Lease so long as such performance is delayed or prevented by force majeure, which shall mean any acts of God, strike, lockout, material or labor restriction by any governmental authority, civil riot, and any other cause not reasonably within the control of such party and which by the exercise of due diligence such party is unable, wholly or in part, to prevent or overcome. If either party to the Lease desires to invoke the provisions of this Section 16 S., it shall provide written notice to the other party of the reasons for the delay and the invoking party shall use reasonable efforts to mitigate the effects of such occurrence.
T. Equal Opportunity Compliance. Landlord agrees to abide by all federal and state laws and rules and regulations, and executive orders of the Governor of the State, pertaining to equal employment opportunity. In accordance with all such laws of the State, Landlord assures that no person shall, on the grounds of race, religion, color, national origin, ancestry, sex, age, physical or mental handicap, or serious medical condition, spousal affiliation, sexual orientation or gender identity, be excluded from employment with or participation in, be denied benefits of, or be otherwise subjected to discrimination under any activity performed under this Lease. If Landlord is found not to be in compliance with these requirements, during the Term of this Lease or any Optional Term, Landlord agrees to correct these deficiencies.
U. Appropriations. Performance of the terms of this Lease are contingent upon sufficient
appropriations and authorization being made by the Legislature of the State. If sufficient appropriations and authorization are not made by the Legislature, this Lease shall terminate immediately upon written
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notice being given by Tenant to Landlord. Tenant’s decision as to whether sufficient appropriations are available shall be accepted by Landlord and shall be final.
V. Approvals. This Lease is conditioned on Tenant receiving the approval of the Board of
NMSA and, if required, the State Board of Finance (“BOF”). In the event this condition is not satisfied, Tenant shall have the right to terminate this Lease, in which case this Lease shall have no further force and effect. In the event Tenant is not able to obtain the approval of the Board of NMSA and, if necessary, the BOF, Tenant will notify Landlord within five (5) days of the date Tenant receives definitive disapproval from its Board or the BOF.
W. Additional Acts. In addition to the obligations and requirements of Landlord and Tenant
recited in this Lease and contemplated to be performed under this Lease, Landlord and Tenant hereby agree to perform, execute and/or deliver or cause to be performed, executed and/or delivered, any and all such further acts, undertakings, and assurances as Landlord or Tenant, may reasonably require to consummate the transactions contemplated hereunder.
X. Option to Purchase Premises. NMSA, as part of the consideration first stated above, is
granted the exclusive option and privilege of purchasing the all or any part of the Premises at any time during the Term or during any Optional Term commencing from the date of Final Completion, at the fair market value ("FMV") of the Premises (or part thereof being purchased) to be negotiated between NMSA and Landlord. To assist the parties in reaching agreement on FMV, NMSA at its expense, shall obtain a certified appraisal prepared in accordance with the Real Estate Appraisers Act (Section 61-30-1 NMSA) and Landlord, at its expense may also obtain a certified appraisal prepared in accordance with such Act. If exercise of the option requires approval of BOF, NMSA shall submit its certified appraisal to the BOF and NMSA shall submit Landlord’s certified appraisal, if available, to the BOF along with the proposed agreement for purchase of the Premises negotiated between the parties along any other documentation as required by the BOF. NMSA shall exercise its option to purchase the Premises for the price approved by the BOF, and Landlord agrees: (i) that the FMV of the Premises (or part thereof being purchased) shall be equal to the price approved by the BOF, provided such price is not less than 98% of NMSA’s certified appraisal or the average of the certified appraisals (if two appraisals are submitted); and (ii) to sell the Premises for such FMV price. If BOF approval is not required, the parties will consider one or both appraisals in determining FMV, provided that if agreement cannot reached on FMV in a timely manner, the parties agree that FMV of the Premises (or part thereof being purchased) shall be equal to the appraisal amount (if one appraisal), or the average of the appraisals (if two appraisals are available). To exercise the purchase option, NMSA shall notify Landlord in writing of the exercise of the option not less than sixty (60) days prior to the date set forth in the notice for closing of the purchase transaction and advise Landlord if approval of the BOF will be required Landlord agrees, at no expense to Landlord, that it will cooperate with NMSA in the orderly consummation of such purchase transaction.
Y. Right of First Refusal to Purchase Premises. At any time during the Term or any
Optional Term, if Landlord receives a bona fide offer from an independent third party for purchase of the Premises which Landlord deems acceptable, Landlord shall first offer the Premises for sale to Tenant in accordance with this Section 16 Y. "Independent third party" for this purpose means any person or entity other than a party controlling, controlled by, or under common control with Landlord, or a party owning Landlord, owned by Landlord, or under common ownership with Landlord (in each case whether such ownership is in whole or in part). This Lease shall survive any transfer to, and shall be binding upon, any such affiliate of Landlord described in the previous sentence that acquires the
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Premises. Prior to accepting any offer from an independent third party, Landlord shall first send Tenant written notice and a complete copy of the acceptable offer to purchase, and Tenant may then purchase the Premises at the same price and on the same terms and conditions as are included in the acceptable offer to purchase. Tenant shall have sixty (60) days after Landlord sends such written notice in which to exercise this right to purchase by sending Landlord written notice of purchase at the price and on the terms and conditions specified in the acceptable third-party offer to purchase. All notices of offer and exercise shall be in writing and sent in accordance with this Lease. If Tenant fails to exercise this right within such sixty (60) days, Landlord may proceed to sell the Premises to the independent third party, but only strictly in accordance with the terms of the acceptable third-party offer transmitted to Tenant, and if any such terms are to be modified Landlord shall again offer the Premises to Tenant on the modified terms in accordance with this Section 16 Y. In the event of sale, any such independent third party shall acquire the Premises subject to this Lease which shall be binding in accordance with the terms hereof. This right of first refusal shall not be terminated by any sale of the Premises, but shall continue in effect in accordance with its terms.
Z. Day for Payment or Action. If the date for any payment or action to be taken under this Lease is a day that is a Saturday, a Sunday or a day on which banking institutions in the State of New Mexico are authorized or required to close, then such payment shall be required to be made or such action shall be required to be taken on the next day that is not a Saturday, a Sunday or a day on which banking institutions in the State of New Mexico are authorized or required to close.
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IN WITNESS WHEREOF, the signatories below have signed and delivered this Lease on the dates set forth next to the respective signatures, provided that this Lease shall be effective from and after the date first stated above. LANDLORD: __________________________ __________________________
By:________________________ Date:_______ Title:________________________ TENANT: New Mexico Spaceport Authority, An Agency of the State of New Mexico By:________________________ Date:_______ Richard Holdridge Chair New Mexico Spaceport Authority By:________________________ Date:________ Wade Jackson, EDD General Counsel Certifying Legal Sufficiency (Spaceport Central) This Lease has been approved by the New Mexico State Land Office: By:___________________________ Date:_______
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Acknowledgements STATE OF ___________________ ) ) COUNTY OF ________________ ) The foregoing instrument was acknowledged before me this ____ day of ______, 2013, by ________________________, ____________________ of ______________, on behalf of _________________________.
Notary Public
My Commission Expires: STATE OF NEW MEXICO ) ) COUNTY OF ________________ ) The foregoing instrument was acknowledged before me this ____ day of ______, 2013, by Richard Holdridge, Chair of New Mexico Spaceport Authority, an agency of the State of New Mexico, on behalf of said agency.
Notary Public
My Commission Expires:
A 1461574.6
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND FOR SPACEPORT CENTRAL
PARCEL 01 A PARCEL OF LAND LOCATED IN SECTION 19, TOWNSHIP 15 SOUTH, RANGE 2 WEST, N.M.P.M., COUNTY OF SIERRA, STATE OF NEW MEXICO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: HORIZONTAL NORTHING AND EASTING LOCATIONS ARE BASED ON A LINE BETWEEN CONTROL POINT I.D. NUMBERS OF BH 08-041-006 AND BH 08-041-014 WITH A PROJECT COMBINED SCALE FACTOR OF 0.999741454. BEGINNING AT A POINT WITH A NORTHING OF 724,166.27 FEET AND A EASTING OF 1,415,091.18 FEET LOCATED IN SAID SECTION 19; THENCE NORTHERLY ALONG A CURVE TO THE RIGHT WITH A DELTA ANGLE OF 29°55’52”, A RADIUS OF 19.50 FEET, A CHORD BEARING OF N3°54’53”E, A CHORD DISTANCE OF 10.07 FEET, FOR A LENGTH ALONG THE CURVE OF 10.19 FEET; THENCE EASTERLY ALONG A CURVE TO THE RIGHT WITH A DELTA ANGLE OF 67°04’42”, A RADIUS OF 44.55 FEET, A CHORD BEARING OF N52°25’10”E, A CHORD DISTANCE OF 49.23 FEET, FOR A LENGTH ALONG THE CURVE OF 52.15 FEET; THENCE EASTERLY ALONG A CURVE TO THE LEFT WITH A DELTA ANGLE OF 7°37’41”, A
A
RADIUS OF 2079.16’, A CHORD BEARING OF N82°08’41”E, A CHORD DISTANCE OF 276.60 FEET, FOR A LENGTH ALONG THE CURVE OF 276.60 FEET; THENCE SOUTHERLY ALONG A CURVE TO THE RIGHT WITH A DELTA ANGLE OF 107°48’59”, A RADIUS OF 20.00 FEET, A CHORD BEARING OF S47°45’40”E, A CHORD DISTANCE OF 32.32 FEET, FOR A LENGTH ALONG THE CURVE OF 37.64 FEET; THENCE SOUTHERLY ALONG A CURVE TO THE RIGHT WITH A DELTA ANGLE OF 28°43’36”, A RADIUS OF 311.75 FEET, A CHORD BEARING OF S20°30’38”W, A CHORD DISTANCE OF 154.67 FEET, FOR A LENGTH ALONG THE CURVE OF 156.30 FEET; THENCE WESTERLY ALONG A CURVE TO THE RIGHT WITH A DELTA ANGLE OF 77°55’39”, A RADIUS OF 15.00 FEET, A CHORD BEARING OF S73°50’15”W, A CHORD DISTANCE OF 18.86 FEET, FOR A LENGTH ALONG THE CURVE OF 20.40 FEET; THENCE WESTERLY ALONG A CURVE TO THE LEFT WITH A DELTA ANGLE OF 3°32’39”, A RADIUS OF 632.92 FEET, A CHORD BEARING OF N68°58’15”W, A CHORD DISTANCE OF 39.14 FEET, FOR A LENGTH ALONG THE CURVE OF 39.15 FEET; THENCE N70°44’34”W A DISTANCE OF 834.98 FEET TO THE POINT OF BEGINNING, CONTAINING 0.786 ACRES MORE OR LESS, SUBJECT TO ANY AND ALL EASEMENTS, RESERVATIONS, RESTRICTIONS AND CONVEYANCES OF RECORD. PARCEL 02 A PARCEL OF LAND LOCATED IN SECTION 19, TOWNSHIP 15 SOUTH, RANGE 2 WEST, N.M.P.M., COUNTY OF SIERRA, STATE OF NEW MEXICO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: HORIZONTAL NORTHING AND EASTING LOCATIONS ARE BASED ON A LINE BETWEEN CONTROL POINT I.D. NUMBERS OF BH 08-041-006 AND BH 08-041-014 WITH A PROJECT COMBINED SCALE FACTOR OF 0.999741454. BEGINNING AT A POINT WITH A NORTHING OF 724,041.64 FEET AND AN EASTING OF 1,415,419.44 FEET LOCATED IN SAID SECTION 19; THENCE NORTHERLY ALONG A CURVE TO THE RIGHT WITH A DELTA ANGLE OF 30°27’24”, A RADIUS OF 373.25 FEET, A CHORD BEARING OF N20°03’40”E, A CHORD DISTANCE OF 196.08 FEET, FOR A LENGTH ALONG THE CURVE OF 198.41 FEET; THENCE EASTERLY ALONG A CURVE TO THE RIGHT WITH A DELTA ANGLE OF 49°39’07”, A RADIUS OF 111.37 FEET, A CHORD BEARING OF N54°21’31”E, A CHORD DISTANCE OF 93.52 FEET, FOR A LENGTH ALONG THE CURVE OF 96.51 FEET; THENCE N79°11’04”E A DISTANCE OF 506.34 FEET; THENCE S11°05’24”E A DISTANCE OF 552.74 FEET; THENCE S79°36’04”W A DISTANCE OF 484.54 FEET; THENCE NORTHWESTERLY ALONG A CURVE TO THE LEFT WITH A DELTA ANGLE OF 36°56’20”, A RADIUS OF 632.91 FEET, A CHORD BEARING OF N42°23’18”W, A CHORD DISTANCE OF 401.01 FEET, FOR A LENGTH ALONG THE CURVE OF 408.04 FEET TO THE POINT OF BEGINNING, CONTAINING 7.386 ACRES MORE OR LESS, SUBJECT TO ANY AND ALL EASEMENTS, RESERVATIONS, RESTRICTIONS AND CONVEYANCES OF RECORD.
A
LEGAL DESCRIPTION OF THE LAND FOR T OR C VISITOR CENTER A TRACT OF LAND SITUATE IN THE NE% OF SECTION 28, TOWNSHIP 13 SOUTH, RANGE 4 WEST, N.M.P.M., BOUNDED ON THE WEST BY US INTERSTATE 25 (NIVIP 1-025-2(12)74), LOCATED IN THE CITY OF TRUTH OR CONSEQUENCES, SIERRA COUNTY, NEW MEXICO, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS, TO WIT: BEGINNING AT THE SE CORNER OF THIS TRACT, A ½" REBAR W/SURVCAP #12129, A POINT OF THE EAST BOUNDARY OF SECTION 28, TOWNSHIP 13 SOUTH, RANGE 4 WEST, WHENCE THE NE CORNER OF SAID SECTION 28 BEARS N 00°26'26" E, A DISTANCE OF 2,073.37 FEET; THENCE, N 88°00'00" W, A DISTANCE OF 1,853.06 FEET TO THE SW CORNER OF THIS TRACT, A ½" REBAR W/SURVCAP #12129, A POINT OF THE EAST RIGHT-OF-WAY OF US INTERSTATE 25; THENCE, ALONG SAID RIGHT-OF-WAY, ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 2,946.41 FEET THROUGH A CENTRAL ANGLE OF 18°22'18" (CH. = N 10°57'43" E, 940.71 FEET), A DISTANCE OF 944.75 FEET TO A NMSHTD "IRON RAIL" MONUMENT (STA. 792+92.78), A POINT OF COMPOUND CURVATURE; THENCE, ALONG SAID RIGHT-OF-WAY, ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 5,646.30 FEET, THROUGH A CENTRAL ANGLE OF 01°23'34", (CH. = N 01°04'47" E, 137.25 FEET), A DISTANCE OF 137.25 FEET TO A POINT OF TANGENCY; THENCE, ALONG SAID RIGHT-OF-WAY, N 00°23'00" E, A DISTANCE OF 67.33 FEET TO A NMSHTD "IRON RAIL", MONUMENT, (STA. 794+92.78), A POINT OF CURVATURE; THENCE, ALONG SAID RIGHT-OF-WAY, ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 411.45 FEET, THROUGH A CENTRAL ANGLE OF 135°24'00", (CH. = N 68°05'00" E, 761.36 FEET, A DISTANCE OF 972.33 FEET TO A ½" REBAR W/SURVCAP #12129, A POINT OF TANGENCY; THENCE, ALONG SAID RIGHT-OF-WAY S 44°13'00" E, A DISTANCE OF 167.42 FEET TO ½" REBAR W/SURVCAP #12129, AN ANGLE POINT IN THIS TRACT; THENCE, ALONG SAID RIGHT-OF-WAY, N 45°47'00" E, A DISTANCE OF 25.00 FEET TO ½ REBAR W/SURVCAP #12129, AN ANGLE POINT IN THIS TRACT; THENCE, ALONG SAID RIGHT-OF-WAY, S 44°13'00" E. A DISTANCE OF 161.72 FEET TO ½" REBAR W/SURVCAP #12129, A POINT ON THE NORTH RIGHT-OF-WAY OF A PUBLIC STREET, AN ANGLE POINT IN THIS TRACT; THENCE, ALONG SAID RIGHT-OF-WAY, S 45°47'00" W, A DISTANCE OF 66.82 FEET TO AN ANGLE POINT IN THIS TRACT; THENCE, N 44°13'00" W, A DISTANCE OF 323.96 FEET TO AN ANGLE POINT IN THIS TRACT; THENCE, S 45°47'00" W, A DISTANCE OF 401.18 FEET TO AN ANGLE POINT IN THIS TRACT; THENCE, S 44°13'00" E. A DISTANCE OF 323.96 FEET TO AN ANGLE POINT IN THIS TRACT; THENCE, N 45°47'00" E, A DISTANCE OF 219.44 FEET TO AN ANGLE POINT IN THIS TRACT, A POINT ON THE SOUTH RIGHT-OF-WAY OF A PUBLIC STREET; THENCE, ALONG SAID RIGHT-OF-WAY, S 44O 13'00" E, A DISTANCE OF 397.13 FEET TO AN ANGLE POINT IN THIS TRACT; THENCE, ALONG SAID RIGHT-OF-WAY, N 45°47'00" E, A DISTANCE OF 64.75 FEET TO A 1" PIPE, (BENT), AN ANGLE POINT IN THIS TRACT; THENCE, S 44°29'43" E, A DISTANCE OF 113.65 FEET TO A 1" PIPE, AN ANGLE POINT IN THIS TRACT; THENCE, S 82°57'15" E, A DISTANCE OF 101.68 FEET TO A ½' REBAR W/SURVCAP #12129, AN ANGLE POINT IN THIS TRACT; THENCE, S 02°29'22" W, A DISTANCE OF 660.59 FEET TO A "BRASS CAP" MONUMENT IN CONCRETE, AN ANGLE POINT IN THIS TRACT; THENCE, S 88°00'00" E, A DISTANCE OF 420.00 FEET TO A "BRASS CAP" MONUMENT IN CONCRETE, AN ANGLE POINT IN THIS TRACT, A POINT ON THE EAST BOUNDARY OF SECTION 28, TOWNSHIP 13 SOUTH, RANGE 4 WEST; THENCE,
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ALONG SAID BOUNDARY, S 00°26'26" W, A DISTANCE OF 77.51 FEET TO THE PLACE OF BEGINNING. CONTAINING 35.821 ACRES, MORE OR LESS. SAVE AND EXCEPT LOT ONE (1), BLOCK ONE (1), NEW HOT SPRING RETAIL CENTER FINAL PLAT PHASE 1 & PHASE 2, IN THE CITY OF TRUTH OR CONSEQUENCES, IN THE COUNTY OF SIERRA, STATE OF NEW MEXICO, AS SHOWN AND DESIGNATED ON THE PLAT THEREOF FILED IN THE OFFICE OF THE COUNTY CLERK OF SIERRA COUNTY, NEW MEXICO ON APRI113, 2006, IN BOOK 1 AT PAGES 4672-4673 OF PLAT RECORDS. LOT ONE (1), BLOCK TWO (2), NEW HOT SPRING RETAIL CENTER FINAL PLAT PHASE 1 & PHASE 2, IN THE CITY OF TRUTH OR CONSEQUENCES, IN THE COUNTY OF SIERRA, STATE OF NEW MEXICO, AS SHOWN AND DESIGNATED ON THE PLAT THEREOF FILED IN THE OFFICE OF THE COUNTY CLERK OF SIERRA COUNTY, NEW MEXICO ON APRIL 13, 2006, IN BOOK 1 AT PAGES 4672-4673 OF PLAT RECORDS. LOT SIX (6), BLOCK FOUR (4) OF THE NEW HOT SPRINGS RETAIL CENTER PHASE 3, A SUBDIVISION WITHIN TRUTH OR CONSEQUENCES, SIERRA COUNTY, NEW MEXICO, AS SHOWN BY THE PLAT THEREOF FILED FOR RECORD ON DECEMBER 5, 2008, IN BOOK 112 AT PAGES 4935-4936, AS SLIDE #371 IN THE OFFICE OF THE COUNTY CLERK OF SIERRA COUNTY NEW MEXICO.
A-1 1461574.6
EXHIBIT A-1
THE BASE BUILDING WORK AS PART OF THE PREMISES IMPROVEMENTS
Architectural and Engineering – including modifications to Plans and Specifications, utility requirements and as-builts, flood and drainage, soils reports, traffic studies, sign and graphics design, etc.
Permit and Impact Fees – including building and grading permit(s), utility startup and tap fees, sign
permit, association fees, etc. Undergrounds – including primary and secondary electrical, water, sewer/wastewater, phone, broadband
internet, etc. Visitor Center/Spaceport Central Building – including foundation, floor, walls, roof, ceiling, parapets
and fascias, framing, electrical systems, communication systems, mechanical systems, plumbing supply and waste systems, HVAC equipment, lighting, stucco, interior and exterior paint and finishes, doors, windows, restroom and kitchen fixtures, security systems etc.
Site and Off-site – including curb and gutter, sidewalks, utility pads, paving, landscaping, drainage
channels, culverts, engineered fill, any traffic controls, road right-of-way requirements, berms, retaining wall, etc.
Lighting, Signage, Miscellaneous – including exterior site lighting, main ID sign(s), building sign(s),
canopy sign(s), ancillary sign(s), etc.
A-2 1461574.6
EXHIBIT A-2
WORK LETTER
______________________ (“Landlord”)
NEW MEXICO SPACEPORT AUTHORITY (“Tenant”)
1. Definitions. In this Work Letter, some defined terms are used, including: Lease: The Lease between Landlord and Tenant dated ________. Tenant’s Point-of-Contact:_______________________________. Tenant’s Construction Representative: ______________________. Landlord’s Architect: ________________________.
Land: ________________ (the “Plat”). Project: New Mexico Spaceport Authority—[Visitor Center] [Spaceport Central] Any capitalized term which is used in this Work Letter but not defined in this Work Letter has the meaning set forth for such term in the Lease. This Work Letter supplements the Lease and shall be construed together with the Lease.
2. Representatives. Landlord appoints Landlord’s Architect to act for Landlord in all matters covered by this Work Letter or otherwise relating to the Premises Improvements (i.e., construction of the building and other facilities on the Land constituting the Premises). Tenant appoints the NMSA Construction Representative to observe construction activities related to the Premises Improvements on Tenant’s behalf. All inquiries, requests, instructions, authorizations and other communications with respect to such matters will be made to Landlord’s Architect on behalf of Landlord, or to a representative designated as the point-of-contact for NMSA, as the case may be. No inquiries, requests, instructions or authorizations will be given to or by any architect, engineer, contractor, their agents or employees, or any other employee or agent of either Party, with regard to matters covered by this Work Letter. Either party may change its representative or point-of-contact under this Work Letter at any time by written notice to the other party.
A-2
3. The Premises. The Premises Improvements to be constructed hereunder are a (6,354 Gross Square feet; 5,969 Net Square feet for Visitor Center or 25,240 Gross Square feet; 23,411 Net Square feet for Spaceport Central) (approximately) free-standing shell one (or two)-story building with other improvements to be constructed and installed based on the Final Plans and Permits, including but not limited to parking, site lighting and landscaping improvements generally as shown on Exhibits A-1, A-2 and B to the Lease. Such exhibits are for informational purposes only and shall be superseded by all inconsistent aspects of the Final Plans and Permits. The Premises shall conform with all applicable laws.
4. Schedule of Improvement Activities. The schedule of activities for construction of the Premises Improvements shall be as set forth in the Lease.
5. Landlord to Construct Premises Improvements. Landlord will, at its own expense, construct the Premises Improvements and will undertake all work in connection with the Premises Improvements, including all fixtures and equipment related thereto, together with all permits, taxes, planning, contractor’s fees and other items required to construct, equip and prepare the Premises to enable Tenant to conduct its business on the Premises as described in the Lease.
6. Tenant’s Approval. The Premises Improvements will be constructed by Landlord’s
contractor in accordance with the Final Plans and Permits provided by the Landlord’s Architect after Tenant has reviewed and approved the same in accordance with Section 2.A. of the Lease. Landlord represents that the Final Plans and Permits, as the same may be revised with Tenant’s approval, are complete, adequate for the intended purpose and free from errors; and Tenant shall have no responsibility or liability for compliance with applicable laws, rules, and regulations of governmental agencies or authorities with respect to the Final Plans and Permits and the Premises Improvements constructed in conformity therewith.
7. Change Orders. No modifications shall be made to the construction contract, Final Plans or Permits without Tenant’s prior written approval. Tenant may request one or more contract modifications, negotiate the costs of such modifications with Landlord to be undertaken at Tenant’s expense, and upon such request, Landlord agrees to negotiate a change order or orders with its contractor with respect to such modification and to proceed with such modification upon Landlord’s approval in accordance with this Work Letter, which approval by Landlord shall not be unreasonably withheld or delayed. Any net increase in the total cost to be incurred by Landlord, as shown on the approved Construction Budget attached hereto, resulting from a contract modification proposed by Tenant to remediate or correct mistakes or errors in the Final Plans or non-conforming construction work shall be the responsibility of Landlord. Tenant shall have the right of review and approval over, but have no responsibility for, costs associated with change orders necessitated by cost increases or overruns, contractors’ faults, changes in law, insured occurrences or insufficiencies or errors in the Final Plans. 8. Bonds and Insurance. Landlord shall cause its general contractor(s) to provide payment and completion bonds for the work in the form and coverage required by Landlord and Landlord’s lender. At all times from the date of Landlord’s or its contractors’ first entry on the Land through the date of final payment by Landlord for the work, Landlord shall carry (and/or shall cause its contractor or contractors, suppliers, and professionals involved in the work to carry) such insurance as may be required by Landlord’s lender or by Landlord including without limitation extended coverage, builder’s
A-2
risk and completed operations coverages, statutory worker’s compensation and employer’s liability insurance, and umbrella liability coverage in an amount not less than $5,000,000. TENANT: _____________________ BY:_____________________________________________________________ NAME:__________________________________________________________ TITLE:__________________________________________________________ DATE:__________________________________________________________ LANDLORD: ____________________ BY:_____________________________________________________________ NAME:__________________________________________________________ TITLE:__________________________________________________________ DATE:__________________________________________________________
A-2
CONSTRUCTION BUDGET FOR PREMISES IMPROVEMENTS BASE BUILDING WORK: A&E $______ Permit & Impact Fees $______ Undergrounds $______ Visitor Center (T or C) $______ Spaceport Central $______ Site & Off-site $______ Lighting, Signage, Misc. $______ SMPC Expense $______ OTHER IMPROVEMENTS: $______ Permits and Regulatory Fees $______
Spaceport Entrance $______
Utility Extension $______
A-3 1461574.6
EXHIBIT A-3
TENANT'S FINISH WORK
Furniture, Fixtures, and Equipment – including walk-in cooler, refrigerated merchandising
equipment, cabinetry, cold beverage and ice dispenser(s), hot beverage equipment, display shelving, storage shelving, cooking equipment, office furniture, general merchandise racking and display(s), point of sale equipment, telephone(s), facsimile, personal computer, art and interior graphics, sets, props, murals, equipment, signs, exhibits, kiosks, show control systems, monitors, magnetometers,etc.
B1461574.6
EXHIBIT B
SITE PLAN OF PREMISES
FROM PLANS AND SPECIFICATIONS
C 1461574.6
EXHIBIT C
ACKNOWLEDGMENT OF RENT COMMENCEMENT DATE
D1461574.6
EXHIBIT D
TERM RENT SCHEDULE
E1461574.6
EXHIBIT E
SERVICE LEVEL AGREEMENT
EXHIBIT F
MEMORANDUM OF LEASE
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EXHIBIT G
CERTIFICATION OF PREMISES IMPROVEMENTS COMPLETION SMPC ARCHITECTS, the architects of record on behalf of Landlord hereby certify: (a) that the
Premises Improvements have been constructed in accordance with the Final Plans (as modified in
accordance with the Work Letter); (b) that the Premises Improvements, including the Base Building
Work for the [Visitor Central] [Spaceport Center] facility, are sufficiently complete, in accordance with
the Final Plans (as modified in accordance with the Work Letter), so that NMSA, as Tenant, can safely
occupy and utilize the Premises for the use for which it is intended, without material inconvenience; and
(c) that a Punch List for the [Visitor Center] [Spaceport Central] facility has been prepared and approved
by NMSA, as Tenant, in consultation with Landlord, and Landlord has stipulated to perform and
substantially complete the Punch List items within ______calendar days from the date hereof.
Capitalized terms set forth in this certification shall have the meanings given to such terms in the Lease
dated ____________, 2013, between Landlord and Tenant.
SMPC ARCHITECTS
____________________________
By: ________________________
Its:________________________
Dated: _______________
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APPENDIX C - CAMPAIGN CONTRIBUTION DISCLOSURE FORM
Pursuant to NMSA 1978, § 13-1-191.1 (2006), any person seeking to enter into a contract with any state agency or local public body for professional services, a design and build project delivery system, or the design and installation of measures the primary purpose of which is to conserve natural resources must file this form with that state agency or local public body. This form must be filed even if the contract qualifies as a small purchase or a sole source contract. The Offeror must disclose whether they, a family member or a representative of the Offeror has made a campaign contribution to an applicable public official of the state or a local public body during the two years prior to the date on which the Offeror submits a proposal or, in the case of a sole source or small purchase contract, the two years prior to the date the Offeror signs the contract, if the aggregate total of contributions given by the Offeror, a family member or a representative of the Offeror to the public official exceeds two hundred and fifty dollars ($250) over the two year period. Furthermore, the state agency or local public body shall void an executed contract or cancel a solicitation or proposed award for a proposed contract if: 1) a Offeror, a family member of the prospective contractor, or a representative of the Offeror gives a campaign contribution or other thing of value to an applicable public official or the applicable public official’s employees during the pendency of the procurement process or 2) a Offeror fails to submit a fully completed disclosure statement pursuant to the law. THIS FORM MUST BE FILED BY ANY OFFEROR WHETHER OR NOT THEY, THEIR FAMILY MEMBER, OR THEIR REPRESENTATIVE HAS MADE ANY CONTRIBUTIONS SUBJECT TO DISCLOSURE. The following definitions apply: “Applicable public official” means a person elected to an office or a person appointed to complete a
term of an elected office, who has the authority to award or influence the award of the contract for which the prospective contractor is submitting a competitive sealed proposal or who has the authority to negotiate a sole source or small purchase contract that may be awarded without submission of a sealed competitive proposal.
“Campaign Contribution” means a gift, subscription, loan, advance or deposit of money or other thing of value, including the estimated value of an in-kind contribution, that is made to or received by an applicable public official or any person authorized to raise, collect or expend contributions on that official’s behalf for the purpose of electing the official to federal, statewide or local office. “Campaign Contribution” includes the payment of a debt incurred in an election campaign, but does not include the value of services provided without compensation or unreimbursed travel or other personal expenses of individuals who volunteer a portion or all of their time on behalf of a candidate or political committee, nor does it include the administrative or solicitation expenses of a political committee that are paid by an organization that sponsors the committee.
“Family member” means spouse, father, mother, child, father-in-law, mother-in-law, daughter-in-law or son-in-law.
66
“Pendency of the procurement process” means the time period commencing with the public notice of the request for proposals and ending with the award of the contract or the cancellation of the request for proposals.
“Person” means any corporation, partnership, individual, joint venture, association or any other private
legal entity. “Offeror” means a person who is subject to the competitive sealed proposal process set forth in the
Procurement Code or is not required to submit a competitive sealed proposal because that person qualifies for a sole source or a small purchase contract.
“Representative of an Offeror” means an officer or director of a corporation, a member or manager of
a limited liability corporation, a partner of a partnership or a trustee of a trust of the Potential Developer.
DISCLOSURE OF CONTRIBUTIONS: Contribution Made By: __________________________________________ Relation to Offeror: __________________________________________ Name of Applicable Public Official: __________________________________________ Date Contribution(s) Made: __________________________________________ __________________________________________ Amount(s) of Contribution(s) __________________________________________ __________________________________________ Nature of Contribution(s) __________________________________________ __________________________________________ Purpose of Contribution(s) __________________________________________ __________________________________________ (Attach extra pages if necessary) ___________________________ _______________________ Signature Date ___________________________ Title (position)
--OR—
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NO CONTRIBUTIONS IN THE AGGREGATE TOTAL OVER TWO HUNDRED FIFTY DOLLARS ($250) WERE MADE to an applicable public official by the, a family member or representative. ______________________________ _______________________ Signature Date ______________________________ Title (Position)
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APPENDIX D- NEW MEXICO EMPLOYEES HEALTH COVERAGE FORM
1. For all contracts solicited and awarded on or after January 1, 2008: If the Offeror has, or grows to, six (6) or more employees who work, or who are expected to work, an average of at least 20 hours per week over a six (6) month period during the term of the contract, offeror must agree to: (a) have in place, and agree to maintain for the term of the contract, health insurance for those employees and offer that health insurance to those employees no later than July 1, 2008 if the expected annual value in the aggregate of any and all contracts between offeror and the State exceed one million dollars or;
(b) have in place, and agree to maintain for the term of the contract, health insurance for those employees and offer that health insurance to those employees no later than July 1, 2009 if the expected annual value in the aggregate of any and all contracts between offeror and the State exceed $500,000 dollars or
(c) have in place, and agree to maintain for the term of the contract, health insurance for those employees and offer that health insurance to those employees no later than July 1, 2010 if the expected annual value in the aggregate of any and all contracts between offeror and the State exceed $250,000 dollars.
2. Developer must agree to maintain a record of the number of employees who have (a) accepted
health insurance; (b) decline health insurance due to other health insurance coverage already in place; or (c) decline health insurance for other reasons. These records are subject to review and audit by a representative of the state.
3. Developer must agree to advise all employees of the availability of State publicly financed health care coverage programs by providing each employee with, as a minimum, the following web site link to additional information http://insurenewmexico.state.nm.us/.
4. For Indefinite Quantity, Indefinite Delivery contracts (price agreements without specific limitations on quantity and providing for an indeterminate number of orders to be placed against it); these requirements shall apply the first day of the second month after the offeror reports combined sales (from state and, if applicable, from local public bodies if from a state price agreement) of $250,000, $500,000 or $1,000,000 as applicable.
Signature of Offeror:________________________________ Date________
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APPENDIX E-PAY EQUITY INITIATIVE FORM Offeror agrees if it has ten (10) or more New Mexico employees OR eight (8) or more employees in the same job classification, at any time during the term of its contract or lease, to complete and submit the PE10-249 form on the annual anniversary of the initial report submittal for contracts or leases up to one (1) year in duration. If Offeror has (250) or more employees’ it must complete and submit the PE250 form on the annual anniversary of the initial report submittal for contracts or leases up to one (1) year in duration. For contracts or leases that extend beyond one (1) calendar year, or are extended beyond one (1) calendar year, Offeror also agrees to complete and submit the PE10-249 or PE250 form, whichever is applicable, within thirty (30) days of the annual contract or lease anniversary date of the initial submittal date or, if more than 180 days has elapsed since submittal of the last report, at the completion of the contract or lease, whichever comes first. Should Offeror not meet the size requirement for reporting at contract award but subsequently grows such that they meet or exceed the size requirement for reporting, Offeror agrees to provide the required report within ninety (90 days) of meeting or exceeding the size requirement. That submittal date shall serve as the basis for submittals required thereafter. Offeror also agrees to levy this requirement on any contractor or subcontractor(s) performing more than 10% of the dollar value of the contract or lease if said contractor or subcontractor(s) meets, or grows to meet, the stated employee size thresholds during the term of the contract or lease. Offeror further agrees that, should the contractor or one or more subcontractors not meet the size requirement for reporting at contract award but subsequently grows such that they meet or exceed the size requirement for reporting, Offeror will submit the required report, for each such contractor or subcontractor, within ninety (90 days) of that contractor or subcontractor meeting or exceeding the size requirement. Subsequent report submittals, on behalf of each such contractor or subcontractor, shall be due on the annual anniversary of the initial report submittal. Offeror shall submit the required form(s) to the State Purchasing Division of the General Services Department, and other departments as may be determined, on behalf of the applicable contractor or subcontractor(s) in accordance with the schedule contained in this paragraph. Offeror acknowledges that this contractor or subcontractor requirement applies even though Offeror may not meet the size requirement for reporting and be required to report itself. Signature of Offeror:________________________________ Date________
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APPENDIX F-STATEMENT OF CONFIDENTIALITY
SPACEPORT AMERICA THIRD PARTY VISITOR EXPERIENCE FACILITIES DEVELOPMENT
STATEMENT OF CONFIDENTIALITY
The undersigned employee or agent of _________________________________, hereinafter referred to as "Offeror", agrees, during the term of the contract or lease between Offeror, as developer and the New Mexico Spaceport Authority (NMSA) and forever thereafter, to keep confidential all information and material provided by NMSA or otherwise acquired by the Offeror, its employees/contractors/subcontractors, excepting only such information as is already known to the public, and including any such information and material relating to any client, vendor, or other party transacting business with NMSA, and not to release, use or disclose the same except with the prior written permission of NMSA. This obligation shall survive the termination or cancellation of the contract or lease between Offeror and NMSA or of the undersigned's employment or affiliation with Offeror, even if occasioned by Offeror's breach or wrongful termination. The undersigned recognizes that the disclosure of information may give rise to irreparable injury to NMSA, a client or customer of NMSA, or to the owner of such information, inadequately compensable in damages and that, accordingly, NMSA or such other party may seek and obtain injunctive relief against the breach or threatened breach of the within undertakings, in addition to any other legal remedies which may be available. The undersigned acknowledges that he or she may be personally subject to civil and/or criminal proceedings for such breach or threatened breach.
_________________________________ (Signature)
________________________________ (Title)
________________________________ (Date)
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APPENDIX G -VISITOR EXPERIENCE COMPONENTS Spaceport America Visitor Experience The Visitor Experience at Spaceport America consists of multiple activities located in Sierra County, New Mexico. The Developer will be responsible for the financing and construction of the Visitor Center in Truth or Consequences and Spaceport Central on site at Spaceport America. The developer’s responsibility is confined to the two facilities including grading, roadways, parking, utilities, landscaping and hardscaping in accordance with developer’s Final Plans. Documentation and depictions of the Visitor Experience are provided in the Procurement Library (as described in Section I. H. above) with the purpose of describing the guest journey from Truth or Consequences to Spaceport America and back again. It is written in the second person with the intention of placing the reader as a participant. 1. Spaceport America Visitor Center The Visitor Center, located overlooking I-25 on the east side, just south of Exit 79. Access is from Date Street.
Development Parcel: 6 Acres Parking Spaces 300 (Auto and RV) Visitor Center 6,354 Gross Square Feet; 5,969 Net Square Feet including
mechanical mezzanine at 606 Square Feet
2. Spaceport Central
Spaceport America Visitor Center Walmart
Holiday Inn Express
I-25 Exit 79
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Spaceport Central is located at the main entrance to Spaceport America. Guest access is available only by boarding one of the shuttles at the Visitor Center in Truth or Consequences. Walk-in visitation is not available.
Development Parcel: Not applicable Parking Spaces 60 (Auto and Service Vehicle) Spaceport Central 25,240 Gross Square Feet including area below 5 foot elevation on
second floor at the north and south ends; 23,411 Net Square Feet.
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APPENDIX H -VISITOR CENTER PURCHASE AGREEMENT WITH ASHBAUGH CONSTRUCTION
STATE OF NEW MEXICO NEW MEXICO SPACEPORT AUTHORITY
Truth or Consequences Welcome Center Land Purchase
PURCHASE AGREEMENT #13-495-P770-13003
This Purchase Agreement (“Agreement”) is made this 25th day of October, 2012 (the “Effective Date”), by and between Ashbaugh Construction Company, Inc. (“Seller”), and New Mexico Spaceport Authority, an agency of the State of New Mexico and its assignees (“Buyer” or “NMSA”).
ARTICLE I DEFINITIONS
1.01 Definitions. As used in this Agreement, each of the following terms shall have the following meanings:
(a) “Agreement” refers to this Purchase Agreement between Seller and Buyer with respect to the Property.
(b) “Buyer’s Representatives” means Buyer’s officers, employees, agents, advisors, representatives, attorneys, accountants, consultants, lenders, investors, contractors, architects, and engineers.
(c) “Seller’s Representatives” means Seller’s officers, employees, agents, advisors, representatives, attorneys, accountants, consultants, lenders, investors, contractors, architects, and engineers.
(d) “Closing” means the consummation of the purchase and sale of the Property as contemplated under this Agreement to be scheduled by NMSA and held on a day that is not later than 12 months following the Effective Date.
(e) “Closing Date” means the date hereinafter specified in a notice given by NMSA in compliance
with Section 12.06 not less than 30 days prior to the Closing.
(f) “Effective Date” means that date set forth in the first paragraph of this Agreement, which is the date on which all of the following will have occurred: (i) this Agreement has been executed by or on behalf of both the Buyer and Seller; (ii) all governmental and/or third-party approvals necessary for this Agreement to become effective have been obtained; and (iii) if required, the New Mexico Department of Finance and Administration (DFA) Contracts Review Bureau has approved this Agreement.
(g) “ESA” means the Phase I Environmental Site Audit to be procured by Seller in accordance with
the provisions of Article III.
(h) “Exceptions” means items excluded from coverage by the Title Binder and Title Policy.
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(i) “Governmental Authority” means the United States of America, State of New Mexico, County of
Sierra, City of Truth or Consequences, and any agency, department, commission, board, bureau or instrumentality of any of the foregoing, or any other governmental entity with jurisdiction over the Property, or any part thereof.
(j) “Governmental Requirements” means the applicable laws, statutes, ordinances, codes, rules and
regulations (including zoning and environmental laws, statutes, ordinances, codes, rules and regulations) of all Governmental Authority.
(k) “Lien” means any mortgage, deed of trust, security deed, lien, judgment for money due and
owing, pledge, conditional sales contract, security interest, past-due taxes, past-due assessments, mechanic’s lien, material man’s lien, judgment or similar encumbrance against the Property of a monetary nature.
(l) “Permitted Exceptions” mean those Exceptions or conditions to title to the Property set forth in
the Survey or in the Title Binder to which Buyer does not object.
(m) “Property” means that certain parcel of land located in Truth or Consequences, Sierra County, New Mexico, more particularly described as: NE1/4 of Section 28, Township 13 South, Range 04 West, NMPM bounded on the west by I-25.
(n) “Record Exceptions” means all instruments recorded in the real estate records of the County in
which the Property is located which affect the status of the title to the Property.
(o) “Survey” means a current ALTA survey of the Property to be procured by Seller in accordance with the provisions of Article III.
(p) “Title Binder” means the title insurance commitment for owner’s Title Policy issued by the title
insurance company or its agent, which describes the title to be insured, any Exceptions that will be excluded from coverage, and any requirements that must be met prior to issuance of the Title Policy.
(q) “Title Company” means Sierra County Title Company, which is authorized to issue title
insurance in Sierra County, New Mexico.
(r) “Title Policy” means the owner’s title insurance policy issued to Buyer as of the Closing Date by the Title Company.
ARTICLE II
PURCHASE PRICE
2.01 Agreement to Purchase and Sell. Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase and acquire from Seller the Property, subject to the right of Buyer to schedule the Closing at any time during the 12 month period following the Effective Date, for the consideration and subject to the terms, conditions and provisions set forth in this Agreement. 2.02 Purchase Price. The purchase price for the Property is One Million, Forty Five Thousand, Four Hundred Forty and no cents. ($1,045,440.00) (the “Purchase Price”).
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2.03 Payment of Purchase Price. The Purchase Price shall be paid by Buyer or its assignee to Seller, as follows: (a) Not later than the Effective Date, Buyer shall pay the sum of $1,000.00 (“Initial Deposit”), which shall be held by the Seller without interest and returned to Buyer if Buyer terminates this Agreement pursuant to Buyer’s right to terminate under Section 4.03, 4.04, 5.04, 7.01 or 11.01, or due to Seller’s default pursuant to Sections 6.02 and/or 9.02; and (b) at Closing, Buyer will deliver to Seller the entire amount of the Purchase Price, with credit for the Initial Deposit, plus or minus proration’s as provided herein, in cash or immediately available funds. See Article XII as to Buyer’s right to assign this Agreement at any time prior to closing.
ARTICLE III ARCHAEOLOGICAL SURVEY AND ESA
3.01 Prior to the Effective Date, Buyer, at its sole expense, has obtained and reviewed (i) a Professional Archaeological Survey of the Property providing evaluation and interpretation of any cultural attributes at the Property site in compliance with applicable law and regulations (the “A-Survey”); and (ii) a Phase I Environmental Site Audit (ESA). 3.02 Objections to A-Survey and ESA. If the A-Survey or the ESA disclose any information that, in the opinion of Buyer, renders purchase of the Property impracticable, or subjects Buyer to unacceptable time delays or expense in Buyer’s evaluation of the Property for its intended use, Buyer may determine, in the exercise of its sole and absolute discretion, that it should not proceed with the purchase of the Land, in which case Buyer will not enter into this Agreement or proceed with the Purchase of the Property.
ARTICLE IV
TITLE BINDER AND SURVEY
Seller shall, at its sole expense, cause to be delivered to Buyer not later than 30 days after written request from Buyer, a current ALTA Survey of the Land (the “ALTA Survey”) and a Title Binder covering the Property and furnish to Buyer legible and true copies of all instruments which are the basis of any Exceptions (including but not limited to reciprocal easements for parking, utilities, access, and roadways) (the “Exception Documents”).
OBJECTIONS TO SURVEY OR TITLE DOCUMENTS
4.01 Title Review Period. Buyer shall have 30 days after the receipt of the ALTA Survey, Title Binder, and Exception Documents (collectively the “Title Documents”) to review the same (the “Title Review Period”). 4.02 Title and Survey Objections. If Buyer disapproves any item set forth in the Title Documents or objects to any defects in title (including any Record Exceptions which are not acceptable to Buyer), Buyer may notify Seller in writing within the Title Review Period (the “Buyer’s Objection Notice”). If Buyer fails to notify Seller of objections on or before the last day of the Title Review Period, then, notwithstanding any other provisions set forth herein, such failure to notify Seller shall constitute a waiver of such right to object to such matters existing as of the respective dates of the ALTA Survey and the Title Binder. Seller shall nevertheless have the obligation to remove and cure any and all Liens which do not constitute Permitted Exceptions.
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4.03 Cure of Title and Survey Matters. Subject to section 4.04 hereof, if Buyer has notified Seller in writing of any defects in title or the ALTA Survey or any disapproval of title, ALTA Survey, or Exceptions as set forth above, Seller shall have 5 days after receipt of Buyer’s Objection Notice to notify Buyer of steps that will be taken, if any, to cure or commit to cure the objections prior to Closing, and when such steps will be taken (the “Seller’s Response”). If not satisfied with Seller’s Response, Buyer may at its option either terminate this Agreement by written notice to Seller within 10 days of receiving Seller’s Response (the “Buyer’s Rescission Notice”), or waive the objections and proceed to Closing. If Buyer’s Rescission Notice is not given within 10 days, and no corrective action is contemplated by Seller’s Response, the Agreement shall continue in full force and effect. If, however, Seller’s Response gives notice that it proposes to correct or cure any disapproved item or items and such disapproved item or items have not been corrected or cured not later than two days prior to the Closing Date, Buyer shall be entitled to pursue the remedies provided herein for Seller’s Default under Article IX hereof. 4.04 Buyer’s Additional Right to Terminate. If Buyer disapproves any items set forth in the Title Documents and Buyer determines that such items are not reasonably capable of being cured or corrected to its satisfaction, then Buyer may terminate this Agreement by giving Buyer’s Rescission Notice to Seller and the Initial Deposit shall be refunded to Buyer.
ARTICLE V
BUYER’S DUE DILIGENCE AND INSPECTION RIGHTS
5.01 Delivery and Review of Property Documents. Seller shall cause to be delivered to Buyer not later than 10 days after receipt of written request from Buyer, copies of all current documents, including contracts, tax bills, existing surveys and environmental studies, relating to the Property (“Property Documents”), which Seller has in its possession or to which it has reasonable access.
5.02 Inspection Rights. Until Closing, Seller shall provide Buyer and Buyer’s Representatives with full access to the Property. Seller shall provide Buyer with the right and license to investigate the feasibility and desirability of purchasing the Property, inspect the Property Documents, and inspect the Property and make such inspections, tests, surveys, and verifications as Buyer considers necessary with respect to the Property and transaction, including, but not limited to, investigations of the legal and physical status of the Property by such consultants, engineers and/or architects as Buyer requires, including tests and assessments with respect to environmental matters, examination of title, and verification of all information made or to be made available to Buyer with respect to the Property.Except as otherwise required by law, Buyer may disclose all information and data received or discovered in connection with the due diligence inspections of the Property only to Seller and to Buyer’s consultants, lenders and end-users of the Property and to Buyer’s assignees and its consultants, lenders and end-users of the Property, and to the extent permitted by law shall otherwise hold all such information and data strictly confidential unless and until Buyer and/or its assignees close on the purchase of the Property, in which event this provision shall no longer be operative. Buyer and its assignees agree that it will restore the Property to the condition it was in immediately prior to conducting any tests or inspections. Buyer or its assignees, as applicable, agree that it will hold Seller harmless from any and all liability for claims for payment for inspections or tests or other analysis performed at the request of Buyer or its assignees or their agents (exclusive of any tests conducted as provided in Article III hereof), and from property damage and/or personal injuries arising out of or related in any way to the activities of Buyer or its assignees, as applicable, or their contractors, agents, or employees in their conduct of any such investigations and tests (exclusive of any tests conducted as provided Article III hereof). Buyer or its assignees, as applicable, and their agents shall be permitted, despite the foregoing terms, to conduct any reasonably invasive tests on the Property.
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5.03 Limitation on Indemnification. To the extent, if at all, that any provision contained herein or in any related documents requiring one party to indemnify, hold harmless, insure, or defend another party (including such other party’s employees or agents) is found to be within the scope of NMSA (1978), § 56-7-1 (2005), as amended from time to time, or in any way subject to, or conditioned upon consistency with, the provisions of NMSA (1978), § 56-7-1 (2005), as amended from time to time, for its enforceability, then such provision, regardless of whether it makes reference to this or any other limitation provision, shall: (a) not extend to liability, claims, damages, losses or expenses, including attorney fees, arising out of bodily injury to persons or damage to property caused by or resulting from, in whole or in part, the negligence, act or omission of the indemnitee or additional insured, as the case may be, its officers, employees or agents; and shall be further modified, if required, by the provisions of NMSA (1978), § 56-7-1 (B)(2005), as amended from time to time; (b) be enforced only to the extent that the liability, damages, losses or costs are caused by, or arise out of, the acts or omissions of the indemnitor or its officers, employees or agents; and (c) be further modified, if required, by the provisions of NMSA (1978), § 56-7-1 (B)(2005), as amended from time to time. Further, notwithstanding any other term or condition of this agreement, to the extent, if at all, that any agreement, covenant, or promise to indemnify another party (including such party’s employees or agents) contained herein or in any related documents, is found to be within the scope of NMSA (1978) §56-7-2 (2003), as amended from time to time, or in any way subject to, or conditioned upon consistency with, the provisions of NMSA (1978), § 56-7-2 (2003), as amended from time to time, for its enforceability, then, regardless of whether it makes reference to this or any other limitation provision, such agreement is not intended to, and it does not, indemnify such indemnitee against loss or liability for damages arising from: (i) the sole or concurrent negligence of such indemnitee or the agents or employees of such indemnitee; (ii) the sole or concurrent negligence of an independent contractor who is directly responsible to such indemnitee; or (iii) an accident that occurs in operations carried on at the direction or under the supervision of such indemnitee, an employee or representative of such indemnitee or in accordance with methods and means specified by such indemnitee or the employees or representatives of such indemnitee. 5.04 Due Diligence Termination Right. Buyer may in its sole and absolute discretion, terminate this Agreement by written notice to the Seller at any time up to the day before the Closing Date, unless such right has been previously waived in writing by Buyer, and upon such termination, the Initial Deposit shall be returned to Buyer.
ARTICLE VI REPRESENTATIONS AND WARRANTIES
6.01 Seller’s Representations and Warranties. For the purpose of inducing Buyer to enter into this Agreement and to consummate the transactions contemplated hereby pursuant to the terms and conditions hereof, Seller represents and warrants to Buyer as of the Effective Date and as of the Closing Date, except as otherwise set forth herein, as follows:
(a) Legal Right. Seller has the full legal right and authority to convey the Property to Buyer or its assignees, as applicable. (b) Title. Seller has good and indefeasible title to the Property. There are no, and at closing there will be no liens, mortgages, contract rights or encumbrances of any kind affecting the Property.
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(c) Condemnation/Legal Action. To the best of Seller’s knowledge, there is no condemnation or similar proceeding or any legal action of any kind or character whatsoever, affecting the Property that is pending, threatened, or contemplated by any Governmental Authority which will in any manner affect the rights of Buyer upon or after the consummation of the transaction contemplated hereunder. (d) Violations. Seller has received no notice of any violations of Governmental Requirements affecting the Property, including, but not limited to, hazardous or toxic waste or other materials prohibited by Governmental Authority. (e) Taxes and Assessments. All taxes and other assessments on the Property are paid (or will be paid at the Closing) through the most recent real estate tax year. (f) Due Authorization. All the documents executed by the Seller which are to be delivered to the Buyer on the Effective date and at Closing will be duly authorized, executed, and delivered by Seller, will be on the Effective Date and at Closing, the legal, valid, and binding obligations of Seller, and such documents on the Effective Date and at Closing will not violate any provision of any agreement to which Seller is a party or to which the Property is subject.
6.02 Buyer’s Remedies Prior to Closing. If it is determined at any time prior to Closing that any of the foregoing representations and warranties of Seller are not accurate in any material respect, and Seller fails to cure such inaccuracy or material adverse impact to Buyer’s reasonable satisfaction on or before 15 days after written notice from Buyer to Seller, Buyer shall have the right to terminate this Agreement by delivery of written notice to Seller. 6.03 Buyer’s Representations and Warranties. For the purpose of inducing Seller to enter into this Agreement and to consummate the transactions contemplated hereby pursuant to the terms and conditions hereof, Buyer represents and warrants to Seller as of the Effective Date and as of the Closing, except as otherwise set forth herein, as follows:
(a) Legal Right. Buyer has full legal right and authority to purchase the Property from Seller. (b) Due Authorization. All the documents executed by the Buyer which are to be delivered to Seller on the Effective Date and at Closing will be duly authorized, executed, and delivered by Buyer, will be on the Effective Date and at Closing the legal, valid and binding obligations of Buyer, and such documents on the Effective Date and at Closing will not violate any provisions of any agreement to which Buyer is a party or to which the Property is subject.
6.04 Seller’s Remedies Prior to Closing. If it is determined at any time prior to Closing that any of the foregoing representations and warranties of Buyer are not accurate in any material respect, and Buyer fails to cure such inaccuracy or material adverse impact to Seller’s reasonable satisfaction on or before 15 days after written notice from Seller to Buyer, Seller shall have the right to terminate this Agreement by delivery of written notice to Buyer or its assignees, as applicable.
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ARTICLE VII ADDITIONAL PRE-CLOSING CONDITION
This Agreement is conditioned upon the following:
7.01 Approvals Needed. Buyer shall have received the approval of the Board of NMSA and, if necessary, the State Board of Finance for the acquisition of the Property. In the event that this condition is not satisfied, Buyer or its assignees shall have the right to terminate, in which case this Agreement shall have no further force and effect. In the event Buyer is not able to obtain the approval of the Board of NMSA and, if necessary, the State Board of Finance, Buyer shall notify Seller within 5 days of the date on which Buyer receives a definitive disapproval from the Board or the State Board of Finance, that Buyer or its assignees will not be able to consummate the Closing of the transaction, in which case Seller shall return the Initial Deposit to Buyer.
ARTICLE VIII CLOSING
8.01 Closing. Provided that all of the terms and conditions of this Agreement have been either fulfilled or waived, Closing shall occur on or before the expiration of 12 months following the Effective Date, which date shall be identified in the notice of the Closing Date delivered by Buyer or its assignees to Seller, or at a time and date as Seller and Buyer or its assignees, as applicable, may otherwise agree in writing.
8.02 Seller’s Obligations at Closing. At Closing, Seller shall deliver to Buyer or its assignees, as applicable, the following:
(a) A Special Warranty Deed (the “Deed”) conveying fee simple absolute title to the Property to Buyer or its assignees, as applicable, subject only to the Permitted Exceptions; (b) An owner’s policy of title insurance (“Title Policy”) issued in accordance with the Title Binder in the amount of the Purchase Price insuring marketable title in fee simple absolute to the Property in Buyer or in Buyer’s assignees, as applicable, containing only the Permitted Exceptions; (c) Any and all other instruments reasonably required to evidence, convey to and vest in Buyer ownership of the Property and to consummate the transaction contemplated hereunder; and (d) Possession of the Property to Buyer or Buyer’s assignees, as applicable, in substantially the same condition as of the Effective Date.
8.03 Buyer’s Obligations at Closing. Buyer or its assignees, as applicable, shall deliver to Seller the following:
(a) The Purchase Price subject to Section 2.03; and (b) Any and all other instruments reasonably required to evidence, convey to and vest in Buyer or in Buyer’s assignees, as applicable, ownership of the Property and to consummate the transaction contemplated hereunder.
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8.04 Closing Costs. Costs of closing the transaction contemplated hereby shall be allocated between Seller and Buyer its assignees, as applicable, as follows:
(a) Seller shall pay:
(i) the premium for a standard coverage Title Policy;
(ii) the costs (including recording costs) of any cure of title defects required of Seller hereunder; and
(iii) the cost of the American Land Title Association (ALTA) Survey.
(b) Buyer or its assignees, as applicable, shall pay: (i) the costs of recording the Deed;
(ii) the costs of any investigation and studies ordered by Buyer or its assignees under
Article V, as applicable;
(iii) the premium for deletion of pre-printed exceptions in the title commitment and for any endorsements requested by Buyer or its assignees, as applicable;
(iv) the cost of the Environmental Site Assessment (ESA); and
(v) the cost of the Archaeological Survey (A-Survey).
(c) All other expenses incurred by Seller or Buyer or by Buyer’s assignees, as applicable, with respect to the Closing, including, but not limited to, attorney’s fees of Seller, Buyer or Buyer’s assignees, as applicable, shall be borne and paid exclusively by the party incurring the same, without reimbursement, except to the extent otherwise specifically provided herein.
ARTICLE IX
DEFAULT
9.01 Buyer’s/Assignees’ Default; Seller’s Remedies. If Buyer or its assignees, as applicable, is obligated to purchase the Property in accordance with the terms and conditions of this Agreement and fails to do so within 15 days after the giving of written notice of the default by Seller to Buyer or its assignees, as applicable, Buyer or its assignees, as applicable, shall be deemed to be in default hereunder, and Seller may do one of the following as Seller’s sole remedy:
(a) Seek specific performance of this Agreement; or (b) Terminate this Agreement by written notice delivered to Buyer or its assignees, as applicable, upon which Seller shall be entitled to retain the Initial Deposit as its sole remedy.
9.02 Seller’s Default; Buyer’s Remedies. If, prior to Closing, Seller shall fail to meet, comply with or perform any covenant, agreement, or obligation required of Seller as provided herein within 15 days after the giving of written notice to Seller of the default by Buyer or Buyer’s assignees, as applicable, or
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on or before the Closing if such notice is given to Seller within 15 days prior to Closing, Seller shall be deemed to be in default hereunder, and Buyer or its assignees, as applicable, may do one of the following as Buyer’s sole remedy:
(a) Seek specific performance of this Agreement; or
(b) Terminate this Agreement by written notice delivered to Seller, upon which Buyer or its assignees, as applicable, shall be entitled to the return of the Initial Deposit as Buyer’s sole remedy.
ARTICLE X REAL ESTATE COMMISSION
10.01 Broker; Real Estate Commission. Seller and Buyer each hereby represent and warrant to the other that it has not employed, retained or consulted any broker, agent or finder in carrying on a negotiation in connection with this Agreement, and has not taken any action which would result in any real estate broker’s, finder’s, or other fees or commissions being due or payable to any other party in connection with this transaction.
10.02 Hold Harmless. Each party agrees to hold the other party and the Property harmless from any and all claims, liabilities, liens, losses, expenses (including reasonable attorney’s fees and costs), and damages arising out of or related to a breach of the representation and warranty contained in Section 10.01 above.
ARTICLE XI RISK OF LOSS
11.01 Taking Before Closing; Risk of Loss. If, before Closing, all or part of the Property becomes subject to condemnation or eminent domain proceedings, Seller shall promptly notify Buyer or Buyer’s assignees, as applicable, of such proceedings and thereupon, Buyer or its assignees, as applicable, shall have the right in their sole and absolute discretion to determine whether or not to terminate this Agreement. If Buyer or its assignees determine that this Agreement should be terminated then, in such event, the Initial Deposit shall be returned to Buyer and the parties shall be released from all further obligations under this Agreement. Seller agrees that it shall bear the risk of loss before Closing with the understanding that Buyer or Buyer’s assignees, as applicable, shall bear the risk of loss after Closing.
ARTICLE XII
GENERAL
12.01 Additional Acts. In addition to the acts and deeds recited herein and contemplated hereunder to be performed, executed and/or delivered by Seller and Buyer, Seller and Buyer hereby agree to perform, execute and/or deliver or cause to be performed, executed and/or delivered at Closing or thereafter, any and all such further acts, deeds, and assurances as Buyer or Seller, may reasonably require to evidence and vest in Buyer and Buyer’s assignees, as applicable, the ownership of title to the Property and consummate the transactions contemplated hereunder.
12.02 Applicable Law. This Agreement shall be governed by and construed under and in accordance with the laws of the State of New Mexico.
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12.03 Entire Agreement; Parties; Amendment. This Agreement embodies and constitutes the entire understanding between the parties with respect to the Property, provided that for avoidance of doubt, upon the assignment of this Agreement by Buyer pursuant to Section 12.07 hereof, Buyer’s assignee or assignees shall be become party to this Agreement and for all purposes hereunder, Buyer’s assignee or assignees shall succeed to all of the rights and interests of Buyer under this Agreement and shall assume and perform all of the obligations, liabilities and duties of Buyer hereunder, and upon such assignment and assumption, the NMSA (as Buyer) shall be released from all obligations accrued and unaccrued under this Agreement. All prior contemporaneous agreements, understandings representations and statements, oral or written, are merged into this Agreement. No prior agreement or understanding, oral or otherwise, of the parties or their agents shall be valid or enforceable unless embodied in this Agreement. Neither this Agreement nor any provisions hereof may be waived, modified, amended, discharged or terminated except by an instrument in writing signed by the party against which the enforcement of such waiver, modification, amendment, discharge or termination is sought and then only to the extent set forth in such instrument.
12.04 Headings. The headings contained in this Agreement are for reference and convenience purposes only and shall not in any way affect the meaning or interpretation hereof. 12.05 Counterparts. This Agreement may be executed in one or more counterparts, including facsimile counterparts, each of which shall be a fully binding and enforceable contract and agreement against the party signing such counterpart, but all such counterparts shall together constitute but one agreement.
12.06 Notice. All notices and other communications under this Agreement shall be in writing and shall be deemed duly given (i) when delivered personally or by prepaid overnight courier, with a record of receipt, (ii) the third day after mailing if mailed by certified mail, return receipt requested, (iii) the day of transmission, if sent by facsimile or telecopy during regular business hours or the day after transmission, if sent after regular business hours, provided that, in either event, the completed transmission is electronically verified, or (iv) the day of transmission, if sent electronically, if there is proof of receipt on the day of transmission or the first day thereafter on which receipt can be verified, to the parties at the following addresses, telecopy numbers, or e-mail addresses (or to such other address, telecopy number, or e-mail address as a party may have specified by notice given to the other Party pursuant to this provision):
To Seller: Ashbaugh Construction Company, Inc.
Attention: Randall K. Ashbaugh 424 E. Third Street, P.O. Drawer 591 Truth or Consequences, NM 87901 [email protected]
To Buyer: New Mexico Spaceport Authority
Attention: Belinda Lucero 901 E. University Ave., Suite 356L Las Cruces, NM 88001 [email protected]
To Assignee(s) upon notice as provided in Section 12.08 hereof,
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12.07 Assignment by Buyer. NMSA shall have the right in its sole and absolute discretion to assign this Agreement to a third party and Seller hereby consents to such assignment to a third party as determined by NMSA. In the event of an assignment, NMSA agrees to advise the other interested parties of such assignment in accordance with the notice requirements of Section 12.06. The assignee or assignees shall succeed to all the rights and interests of NMSA under this Agreement. From and after the effective date of such assignment, NMSA shall be released from any and all obligations, liabilities and duties of Buyer under this Agreement.
12.08 Parties Bound. The terms and provisions of this Agreement shall be binding upon, inure to, extend to and be for the benefit of the heirs, successors, assigns, and legal representatives of the respective parties hereto.
12.09 Severability. If any provision of this Agreement shall, for any reason, be held violative of any applicable law, and so much of this Agreement is held to be unenforceable, then the invalidity of such specific provision herein shall not be held to invalidate any other provision herein which shall remain in full force and effect.
12.10 Assignment. The Seller shall not assign or transfer any interest in this Agreement without the prior written approval of Buyer. 12.11 Conflict of Interest; Governmental Conduct Act. The Seller warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of this Agreement. The Seller certifies that the requirements of the Governmental Conduct Act, Sections 10-16-1 through 10-16-18, NMSA 1978, regarding contracting with a public officer or state employee or former state employee have been followed. 12.12 Equal Opportunity Compliance. The Seller agrees to abide by all federal and state laws and rules and regulations, and executive orders of the Governor of the State of New Mexico, pertaining to equal employment opportunity. In accordance with all such laws of the State of New Mexico, the Seller assures that no person in the United States shall, on the grounds of race, religion, color, national origin, ancestry, sex, age, physical or mental handicap, or serious medical condition, spousal affiliation, sexual orientation or gender identity, be excluded from employment with or participation in, be denied the benefits of, or be otherwise subjected to discrimination under any activity performed under this Agreement. If Seller is found not to be in compliance with these requirements during the life of this Agreement, Seller agrees to take appropriate steps to correct these deficiencies. 12.13 Appropriations. The terms of this Agreement are contingent upon sufficient appropriations and authorization being made by the Legislature of the State of New Mexico for the performance of this Agreement. If sufficient appropriations and authorization are not made by the Legislature, this Agreement shall terminate immediately upon written notice being given by the Buyer to the Seller. The Buyer's decision as to whether sufficient appropriations are available shall be accepted by the Seller and shall be final. If the Buyer proposes an amendment to the Agreement to unilaterally reduce the Purchase Price, the Contractor shall have the option to terminate the Agreement or to agree to the reduced funding, within 30 days of receipt of the proposed amendment. 12.14 Enforcement of Agreement. A party’s failure to require strict performance of any provision of this Agreement shall not waive or diminish that party’s right thereafter to demand strict compliance with that or any other provision. No waiver by a party of any of its rights under this Agreement shall be
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effective unless express and in writing, and no effective waiver by a party of any of its rights shall be effective to waive any other rights. 12.15 Time of the Essence. Time is of the essence in this Agreement.
(Signature Page to Follow) IN WITNESS WHEREOF, the signatories below have signed and delivered this Agreement on the date set forth next to the respective signatures, provided that this Agreement shall be effective from and after the Effective Date, as first stated above. SELLER: Ashbaugh Construction Company, Inc. By: Date:__________________
Randall K. Ashbaugh Owner - President
CRS #:01-147061-005 By: Date:_______________
Taxation and Revenue Department BUYER: NEW MEXICO SPACEPORT AUTHORITY, An Agency of the State of New Mexico. By:____________________________ Date:__________________
Wade Jackson EDD General Counsel - Certifying Legal Sufficiency
By:____________________________ Date:__________________
Rick Holdridge Chairman New Mexico Spaceport Authority
