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Exhibit 10.45
*** TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTION 200.80(b)(4),
200.83 AND 240.24b-2
City Contract No.91518
UNSUBORDINATED
GROUND LEASE
[LOGO - CITY OF PHOENIX]
PHOENIX SKY HARBOR CENTER
PHOENIX, ARIZONA
CITY OF PHOENIX
LANDLORD
AND
AMERICA WEST AIRLINES
TENANT
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TABLE OF CONTENTS
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ARTICLE 1 - LEASE OF THE SITE .......................................... 1
Section 1.1. Premises .............................................. 1
Section 1.2. Term .................................................. 1
Section 1.3. Renewal Options ....................................... 1
Section 1.4. Exercise of Renewal Options ........................... 2
ARTICLE 2 - DEFINITIONS ................................................ 3
Section 2.1. Definitions ........................................... 3
ARTICLE 3 - RENT ....................................................... 6
Section 3.1. Net Rent .............................................. 6
A. Net Rent ........................................... 6
B. Monthly Installments ............................... 6
C. Additional to Other Payments ....................... 6
Section 3.2. Rent Absolutely Net ................................... 6
Section 3.3. Non-Subordination ..................................... 7
Section 3.4. No Release of Obligations ............................. 7
ARTICLE 4 - ADDITIONAL PAYMENTS ........................................ 8
Section 4.1. "Additional Payments" Defined ......................... 8
Section 4.2. Payments .............................................. 9
Section 4.3. Contest ............................................... 9
Section 4.4. Assessment Reduction .................................. 9
Section 4.5. Hold Harmless ......................................... 9
Section 4.6. Government Property Lease Excise Tax .................. 10
ARTICLE 5 - INSURANCE .................................................. 11
Section 5.1. Tenant Obligation to Insure ........................... 11
A. MINIMUM SCOPE AND LIMITS OF INSURANCE .............. 11
B. SELF-INSURED RETENTIONS ............................ 12
C. OTHER INSURANCE REQUIREMENTS ....................... 13
D. NOTICE OF CANCELLATION ............................. 14
E. ACCEPTABILITY OF INSURERS .......................... 15
F. Verification of coverage ........................... 15
G. Approval...........................: ............... 15
Section 5.2. Blanket Insurance ..................................... 15
Section 5.3. Expiration of Term .................................... 16
Section 5.4. Risk of Loss .......................................... 16
Section 5.5. Failure to Maintain Insurance ......................... 16
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TABLE OF CONTENTS
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ARTICLE 6 - SURRENDER .................................................. 18
Section 6.1. Surrender-Removable Property .......................... 18
Section 6.2. Waste ................................................. 18
Section 6.3. Title ................................................. 18
Section 6.4. Soil and Buildings Tests .............................. 18
Section 6.5. Failure to Correct Hazardous Conditions or Obtain Tests 19
Section 6.6. Survival of Provisions ................................ 19
ARTICLE 7 - LANDLORD'S PERFORMANCE FOR TENANT .......................... 20
Section 7.1. Cures-Rights, Costs, and Damages ...................... 20
ARTICLE 8 - MAINTENANCE ................................................ 21
Section 8.1. Absence of Warranties ................................. 21
Section 8.2. Permitted Uses ........................................ 21
Section 8.3. Maintenance, Repairs, Indemnity ....................... 21
Section 8.4. Performance by Landlord ............................... 22
Section 8.5. Alterations ........................................... 22
ARTICLE 9 - COMPLIANCE ................................................. 23
Section 9.1. Tenant Obligations .................................... 23
Section 9.2. Avigation Requirements and Limitations ................ 23
Section 9.3. Certificate of Occupancy ..........- .................. 24
ARTICLE 10 - CONSTRUCTION OF NEW BUILDING AND LANDSCAPING .............. 25
Section 10.1. Concept Plans ........................................ 25
Section 10.2. General Description .................................. 25
Section 10.3. Approval of Plans .................................... 25
Section 10.4. Government Approval .................................. 26
Section 10.5. Completion Requirements .............................. 26
Section 10.6. Ownership of Buildings and Improvements .............. 26
Section 10.7. Grant of Easements ................................... 27
Section 10.8. Driveway Parcel ...................................... 27
ARTICLE 11 - IMPAIRMENT OF LANDLORD'S TITLE ............................ 28
Section 11.1. No Liens ............................................. 28
Section 11.2. Discharge ............................................ 28
Section 11.3. No Implied Consent ................................... 28
Section 11.4. No Agency Intended ................................... 29
ARTICLE 12 - INSPECTION ................................................ 30
Section 12.1. Inspection and Entry ................................. 30
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ARTICLE 13 - INDEMNIFICATION ........................................... 31
Section 13.1.Indemnification of Landlord ........................... 31
ARTICLE 14 - DAMAGE OR DESTRUCTION ..................................... 33
Section 14.1. Tenant Repair and Restoration ........................ 33
Section 14.2. Payment of Insurance Proceeds ........................ 33
A. Certificates of Costs ........................... 34
B. Sums Paid to Tenant ............................. 34
C. Deficiency ...................................... 34
Section 14.3. Failure to Commence Repairs .......................... 34
Section 14.4. Cure by Mortgagee .................................... 35
Section 14.5. Lease Obligations Continue ........................... 35
Section 14.6. Damage at End of Term ................................ 35
A. Tenant Election to Terminate .................... 35
B. Adjustment of Additional Payments ............... 36
Section 14.7. Mutual Termination ......: ........................... 36
ARTICLE 15 - CONDEMNATION .............................................. 37
Section 15.1. Total, Substantial, or Unusable Remainder ............ 37
A. If at any time during the term of this Lease .... 37
B. Demolition--Award ............................... 37
Section 15.2. Partial Taking--Lease Continues ....................... 38
A. Landlord Entitlement ............................ 38
B. Award Payment ................................... 38
C. Restoration of Remainder ........................ 38
D. Payouts by Depositary ........................... 39
E. Reduction of Net Rent ........................... 39
F. Interim Rent Payment ............................ 39
Section 15.3. Division of Award ..................................... 39
Section 15.4. Rights of Participation ............................... 40
Section 15.5. Notice of Proceeding .................................. 41
ARTICLE 16 - SUBTENANT NON-DISTURBANCE ................................. 42
Section 16.1. Agreement for Non-Disturbance of Subtenants ........... 42
ARTICLE 17 - ASSIGNMENT, SUBLETTING, MORTGAGE .......................... 44
Section 17.1. Prior Consent-Permitted Subleases ..................... 44
Section 17.2. Rent From Assignee .................................... 44
Section 17.3. Continuing Liability .................................. 45
Section 17.4. Assignee Bound ........................................ 45
Section 17.5. Consent Limited ....................................... 45
Section 17.6. Permitted Mortgages--Conditions of .................... 46
Section 17.7. Mortgages--Provisions ................................. 46
Section 17.8. Notice of Mortgagees .................................. 47
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Section 17.10. Conditions of Cure.................................... 48
Section 17.11. New Lease with Mortgagee.............................. 48
Section 17.12. Priority of New Lease................................. 49
Section 17.13. Assignment of Subleases............................... 49
Section 17.14. Landlord's Lien Waiver................................ 50
ARTICLE 18 -- DEFAULT BY TENANT........................................... 51
Section 18.1. Events of Default..................................... 51
A. Monetary Default................................... 51
B. Non-Monetary Default............................... 51
C. Bankruptcy, Voluntary.............................. 51
D. Bankruptcy, Involuntary............................ 51
E. Insurance, Lapse or Termination.................... 51
Section 18.2. Notice and Termination................................ 52
Section 18.3. Reletting............................................. 52
Section 18.4. Tenant Liability Continues............................ 52
Section 18.5. No Implied Waivers.................................... 53
Section 18.6. Remedies Cumulative................................... 53
Section 18.7. Late Charge........................................... 53
ARTICLE 19 -- DEFAULT BY LANDLORD......................................... 53
Section 19.1. Limitations of Landlord's Liability................... 53
Section 19.2. Remedies.............................................. 54
ARTICLE 20 -- UNENFORCEABLE TERMS......................................... 55
Section 20.1. Provisions Severable.................................. 55
ARTICLE 21 -- NOTICES..................................................... 56
Section 21.1. Notices............................................... 56
Section 21.2. Notice to First Permitted Mortgagee of Record Only.... 56
ARTICLE 22 -- CONDITION................................................... 58
Section 22.1. Condition of Premises................................. 58
ARTICLE 23 -- QUIET ENJOYMENT............................................. 58
Section 23.1. Quiet Enjoyment....................................... 58
ARTICLE 24 -- ESTOPPEL.................................................... 59
Section 24.1 Estoppel Certificates.................................. 59
ARTICLE 25 -- CONSENTS.................................................... 59
Section 25.1. ....................................................... 59
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ARTICLE 26 - ADJOINING EXCAVATION ...................................... 60
Section 26.1. Entry and Repairs ................................ 60
ARTICLE 27 - LANDLORD NOT LIABLE ....................................... 60
Section 27.1. Limitation of Liability .......................... 60
ARTICLE 28 - MISCELLANEOUS ............................................. 61
Section 28.1. Tax Incentives; Payment in Lieu of Taxes (PILOT) . 61
Section 28.2. Travel Reduction Programs ........................ 61
Section 28.3. Choice of Law .................................... 62
Section 28.4. Memorandum ....................................... 62
Section 28.5. Entire Agreement ................................. 62
Section 28.6. Captions ......................................... 62
Section 28.7. Execution and Delivery ........................... 62
Section 28.8. Singular and Plural, Gender ...................... 62
Section 28.9. Multiple Parties ................................. 62
Section 28.10. Exhibits and Incorporation ...................... 63
Section 28.11. Immigration Reform and Control Act of 1986 (IRCA) 63
Section 28.12. City's Right of Cancellation .................... 63
ARTICLE 29 - EQUAL EMPLOYMENT OPPORTUNITY .............................. 64
ARTICLE 30 - FEDERAL, GRANT ASSURANCE
CONTRACTUAL PROVISIONS ......................................... 65
Section 30.1. Non-Discrimination Provisions .................... 65
Section 30.2. Other Federal Requirements ....................... 66
ARTICLE 31 - CONDITIONS OF DEVELOPMENT ................................. 68
Section 31.1. Additional Definitions ........................... 68
Section 31.2. Reservation of Easements ......................... 68
A. Easement Over Common Areas .......................... 68
B. Delegation of Use ................................... 69
C. Entry for Construction and Maintenance .............. 69
D. Utility Easements to be Granted Only by Landlord .... 69
E. Airport Avigation Easement .......................... 70
F. Reference to Easements Not Required ................. 70
Section 31.3. Regulation of New Buildings ...................... 70
A. Approval Required ................................... 70
B. Filing Fee .......................................... 71
C. Basis for Approval .................................. 71
D. Result of Inaction .................................. 71
E. Proceeding with Work ................................ 71
F. Responsibility ...................................... 72
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TABLE OF CONTENTS
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G. Variances .................................................... 72
H. Exemption of Landlord ........................................ 72
Section 31.4 Uses and Maintenance ............................................. 72
A. General Restrictions ......................................... 72
B. Specific Prohibitions ........................................ 73
C. Drainage ..................................................... 76
D. Erosion and Lateral Support .................................. 76
E. Variances .................................................... 76
F. Exemption of Landlord ........................................ 76
Section 31.5 Common Areas and Assessments ..................................... 76
A. Maintenance and Insurance for Common Areas ................... 76
B. Creation of Lien ............................................. 77
C. Insurance on Common Areas .................................... 77
D. Regular Assessments .......................................... 77
E. Special Assessments .......................................... 78
F. Reimbursement Assessment ..................................... 78
G. Capital Improvement Assessment ............................... 78
H. Collection of Assessments; Liens ............................. 78
ARTICLE 32 - INUREMENT ............................................................ 80
Section 32.1 Covenants Bind and Inure ......................................... 80
ARTICLE 33 - COMPLIANCE WITH ENVIRONMENTAL LAWS ................................... 81
Section 33.1 Definitions ...................................................... 81
A. "Environmental Laws" ......................................... 81
B. "Regulated Substances" ....................................... 81
C. "Release" .................................................... 82
Section 33.2 Compliance ....................................................... 82
Section 33.3 Indemnification .................................................. 82
Section 33.4 Noncompliance .................................................... 84
ARTICLE 34 - UNAVOIDABLE DELAY .................................................... 86
Section 34.1 Unavoidable Delay; Extension of Time of Performance .............. 86
ARTICLE 35 - OPTION TO LEASE ADDITIONAL PROPERTY .................................. 87
Section 35.1 Option to Lease .................................................. 87
Section 35.2 Exercise of Option ............................................... 87
Section 35.3 Tenant's Maintenance Obligations and Restrictions on Entry ....... 87
Section 35.4 Option Parcel Lease .............................................. 88
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Section 35.5 Conveyance of Option Parcel Leasehold ................................ 88
A. Title Insurance ....................................................... 88
B. Conveyance of Leasehold Interest and Delivery of Possession ........... 89
C. Execution of Documents by Landlord .................................... 89
D. Recordation of Documents .............................................. 89
E. Taxes and Assessments ................................................. 89
EXHIBITS
Exhibit "A" Legal Description
Exhibit "B" Parcel Map
Exhibit "C" Net Rent Schedule
Exhibit "D" Tenant's Concept Plans
Exhibit "E" Access Agreement
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ARTICLE 1 -- LEASE OF THE SITE
SECTION 1.1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord, upon and in consideration of the terms and conditions
contained herein, that certain parcel of land consisting of approximately
734,636 square feet, including any and all improvements presently existing
thereon, in the City of Phoenix, County of Maricopa, State of Arizona, more
particularly described in Exhibits "A" (legal description) and "B" (parcel map)
attached hereto, which land is hereinafter called the "Land" and which Land,
together with the improvements presently situated thereon or to be constructed
thereon is hereinafter referred to as the "Premises," subject, however, to:
A. Other covenants, restrictions, easements, agreements, and reservations
of record, if any.
B. Present and future building restrictions and regulations, zoning laws,
ordinances, resolutions and regulations of the municipality in which the land
lies and all present and future ordinances, laws, regulations and orders of all
boards, bureaus, commissions, and bodies of any municipal, county, state, or
federal authority, now or hereafter having jurisdiction. In this regard Tenant
is reminded of the applicability of the Regulations of the Federal Aviation
Administration (F.A.A.) and the federal Environmental Protection Agency (E.P.A).
C. The provisions of the Redevelopment Plan and the Sky Harbor Center
Hazardous Materials Handling Guidelines, copies of which are in the possession
of the parties hereto and which are incorporated herein by this reference.
D. The condition and state of repair of the Premises as the same may be
on the Commencement Late.
SECTION 1.2. TERM. The term of this Lease shall commence on the date of
execution ("Commencement Date"), and shall expire at 12:00 midnight on the last
day of the Rental Period, unless this Lease is sooner terminated as hereinafter
provided.
Section 1.3. RENEWAL OPTIONS. If this Lease has not been previously
terminated, Tenant shall have the option ("Renewal Option"), exercisable at any
time not later than nine (9) months prior to Lease expiration, to extend the
Lease term for an additional five (5) year period ("Extension Period"). If this
Lease has not been previously terminated, Tenant
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shall have an additional 5-year Renewal Option, exercisable during the fourth
year of the first Extension Period.
SECTION 1.4. EXERCISE OF RENEWAL OPTIONS. The Renewal Options granted
herein may be exercised by Tenant as set forth in Section 1.3 by Tenant giving
written notice of exercise to Landlord, provided that Tenant's right to exercise
the Renewal Options shall be conditioned upon Tenant's not being in default
under this Lease.
(This is the end of Article 1)
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ARTICLE 2 - DEFINITIONS
SECTION 2.1. DEFINITIONS. For the purposes of this Lease, the following
words shall have the definition and meaning hereafter set forth:
"Architectural Committee": Those individuals designated by Landlord for
the purpose of administering the provisions of the Design Standards Manual and
the Conditions of Development set forth in Article 31 of this Lease.
"Center": Phoenix Sky Harbor Center.
"Concept Plans": The preliminary plans approved by the Landlord which
shall consist of a site plan, exterior elevation plan, landscaping plan, and
parking and driveway plan.
"Depositary": The institutional lender holding a first Permitted Mortgage
or, if there be none, a bank or trust company having its principal office in
Maricopa County selected by Tenant with a net worth of not less than $50
million.
"Design Standards Manual": The guidelines which shall be promulgated from
time to time by the Architectural Committee for the purpose of assisting users
in preparing building, landscaping, site development and other plans or
materials which are subject to review by the Architectural Committee. The
Design Standards Manual may sometimes be referred to herein as the "Phoenix Sky
Harbor Center Design Guidelines Manual" or as the "Phoenix Sky Harbor Center
Design Standards Manual."
"Event of Default": As defined in Section 18.1.
"Extension Period": As defined in Section 1.3.
"Impositions": As defined in Section 4.1.
"Institutional Lender": Any savings bank, bank or trust company, savings
and loan association, insurance company, college or university, governmental
pension or retirement funds or systems, any pension retirement funds or systems
of which any of the foregoing shall be trustee or any other commercial lending
institution with a net worth of
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not less than $50,000,000, provided the same be organized under the laws of the
United States or of any State thereof, or a Real Estate Investment Trust as
defined in Section 856 of the Internal Revenue Code of 1986 as amended.
"Land": As defined in Section 1.1.
"Landlord": The City of Phoenix.
"Landscaping": All landscaping and landscape watering systems and related
improvements to be installed on or in the Land pursuant to Article 10.
"Mortgagee": The holder, trustee, or beneficiary of any Permitted
Mortgage.
"New Building": Any and all structures or improvements to be constructed
on the Land which shall be constructed pursuant to Article 10.
"Option(s)": As defined in Section 35.1.
"Option Parcel(s)": As defined in Section 35.1.
"Option Period": As defined in Section 35.2.
"Permitted Mortgage": Any Mortgage or security interest that constitutes
a lien upon this Lease, the leasehold estate hereby created, and/or Tenant's
interest in the New Building. Such Mortgage shall comply with the requirements
of Article 17.
"Premises": As defined in Section 1.1 and described in Exhibits "A" and
"B".
"Related Subtenants": Any subtenant under a sublease where:
(1) said subtenant is a parent, subsidiary, or division of the
Tenant; or,
(2) the Tenant owns a proprietary partnership, stock, or other
interest in the subtenant equal to a minimum of twenty-five percent (25%)
bona fide equity ownership for six (6) consecutive months immediately
prior to the execution of any sublease or assignment; or,
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(3) at least one-third (1/3) of the subtenant's gross annual
income is derived or obtained from business conducted with or through
Tenant, or its parent, subsidiaries, or divisions.
"Renewal Option": As defined in Section 1.3.
"Rental Period": The 20-Year period beginning with the execution of this
Unsubordinated Ground Lease.
"Second Notice": As defined in Section 18.2.
"Sublease": Any agreement, written or oral, by which Tenant gives any
individual or entity any rights of use or occupancy of or any benefit flowing
from the Premises or a portion thereof, including a permit, license or
concession.
"Tenant": The Tenant named herein and its successors and assigns.
"Unavoidable Delays": As defined in Section 34.1.
"Work": As defined in Section 14.1.
"Year": Unless otherwise specified, a 12-month period beginning on
successive anniversaries of the Commencement Date, but if the Commencement Date
shall be other than the first day of the month, then the first day of the month
following the Commencement Date.
(This is the end of Article 2)
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ARTICLE 3 -- RENT
SECTION 3.1. NET RENT.
A. NET RENT. Tenant shall pay to Landlord, in such United States of
America coin or currency as at the time of payment shall be legal tender for the
payment of public and private debts at the addresses specified or furnished
pursuant to Section 21.1 during the term of this Lease a net annual rental ("Net
Rent") per square foot of Land as set forth in the Net Rent Schedule attached
hereto as Exhibit "C".
B. MONTHLY INSTALLMENTS. All payments of annual Net Rent shall be made in
twelve (12) equal monthly installments, without notice, on the first day of each
and every month, except that if the Rental Period hereof shall begin on a day
other than the first day of the month, the first payment of Net Rent
attributable to the newly commencing rental period shall be prorated to the end
of that month.
C. ADDITIONAL TO OTHER PAYMENTS. Net Rent shall be in addition to and
over and above all of the other payments to be made by Tenant as hereinafter
provided.
SECTION 3.2. RENT ABSOLUTELY NET. It is the purpose and intent of the
Landlord and Tenant that Net Rent payable hereunder shall be absolutely net to
Landlord so that this Lease shall yield to Landlord the Net Rent herein
specified each Year during the term of this Lease, free of any charges,
assessments, Impositions, or deductions of any kind charged, assessed, or
imposed on or against the Premises and without abatement, deduction or set-off
by the Tenant, except as hereinafter otherwise specifically provided in Article
15, and Landlord shall not be expected or required to pay any such charge,
assessment or Imposition or be under any obligation or liability hereunder
except as herein expressly set forth, and that all costs expenses, and
obligations of any kind relating to the maintenance and operation of the
Premises, including all construction, alterations, repairs, reconstruction, and
replacements as hereinafter provided, which may arise or become due during the
term hereof shall be paid by Tenant, and Landlord shall be indemnified and saved
harmless by Tenant from and against such costs, expenses, and obligations.
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SECTION 3.3. NON-SUBORDINATION. Landlord's interest in this Lease, as the
same may be modified, amended or renewed, shall not be subject or subordinate to
(a) any mortgage now or hereafter placed upon Tenant's interest in this Lease,
or (b) any other liens or encumbrances hereafter affecting Tenant's interest in
this Lease.
SECTION 3.4 NO RELEASE OF OBLIGATIONS. Except for either a mutual release
and waiver of rights and liabilities arising under this Lease or to the extent
provided in Articles 14 and 15 no happening, event, occurrence, or situation
during the Rental Period, whether foreseen or unforeseen, and however
extraordinary (including, without limitation, Tenant's failure, refusal, or
inability for any reason to construct the New Building) shall permit the Tenant
to quit or surrender the Premises or this Lease nor shall it relieve the Tenant
of its liability to pay the Net Rent and Additional Payments and other charges
under this Lease, nor shall it relieve the Tenant of any of its other
obligations under this Lease.
(This is the end of Article 3)
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ARTICLE 4 -- ADDITIONAL PAYMENTS
SECTION 4.1. "ADDITIONAL PAYMENTS" DEFINED. Tenant shall pay as
Additional Payments during the Term hereof, without notice (except as
specifically provided) and without abatement, deduction or setoff (except as
provided in Section 4.3), before any fine, penalty, interest, or cost may be
added thereto, or become due or be imposed by operation of law for the
nonpayment thereof, all sums, impositions, costs, expenses and other payments
and all taxes (including personal property taxes and taxes on rents, leases or
occupancy, if any), assessments, special assessments, water and sewer rents,
rates and charges, charges for public utilities, excises, levies, licenses, and
permit fees, any expenses incurred by Landlord on behalf, of Tenant pursuant to
Sections 5.8 and 8.4 hereof, including the Administrative Fee provided for
therein, and other governmental or quasi-governmental charges, general and
special, ordinary and extraordinary, foreseen and unforeseen, of any kind and
nature whatsoever which, at any time during the Term hereof may be assessed,
levied, confirmed, imposed upon, or grow or become due and payable out of or
with respect to, or become a lien on, the Premises or any part thereof, or any
appurtenances thereto, any use or occupation of the Premises, or such franchises
as may be appurtenant to the use of the Premises (all of which are sometimes
herein referred to collectively as "Impositions" and individually as
"Imposition") provided, however, that:
A. if, by law, any Imposition may at the option of the Tenant be paid in
installments (whether or not interest shall accrue on the unpaid balance of such
Imposition), Tenant may exercise the option to pay the same (and any accrued
interest on the unpaid balance of such Imposition) in installments and in such
event, shall pay such installments as they become due during the Term hereof
before any fine, penalty, further interest or cost may be added thereto; and
B. any Imposition (including Impositions which have been converted into
installment payments by Tenant, as referred to in paragraph (A) of this Section
4.1) relating to a fiscal period of the taxing authority, a part of which period
is included within the Term hereof and a part of which is included in the period
of time after the expiration of the Term hereof shall (whether or not such
Imposition shall be assessed, levied, confirmed, imposed upon or become a lien
upon the Premises, or shall become payable, during the Term hereof) be adjusted
between Landlord and Tenant as of the expiration of the Term hereof, so that
Tenant shall pay that portion of such Imposition attributable to the tenancy
period and Landlord shall pay the remainder thereof.
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SECTION 4.2. PAYMENTS. Tenant shall pay to Landlord, with and in addition
to the monthly rental payments, all taxes imposed by any governmental unit on
the rentals received by Landlord pursuant to the terms of this Lease. Tenant
shall pay all other impositions directly to the taxing authority or authorities.
SECTION 4.3. CONTEST. Tenant, if it shall so desire, may contest the
validity or amount of any Imposition, in which event, Tenant may defer the
payment thereof during the pendency of such contest; provided, that upon request
by Landlord at any time after the same shall have become due, Tenant shall
deposit with the Landlord any amount sufficient to pay such contested item
together with the interest and penalties thereon (as reasonably estimated by
Landlord), which amount shall be applied to the payment of such item when the
amount thereof shall be finally fixed and determined. Nothing herein contained,
however, shall be so construed as to allow such item to remain unpaid for a
length of time that permits the Premises or any part thereof, or the lien
thereon created by such Imposition to be sold for the nonpayment of the same.
If the amount so deposited shall exceed the amount of such payment, the excess
shall be paid to Tenant or, in case there shall be any deficiency, the amount of
such deficiency shall be promptly paid by Tenant to Landlord together with all
interest, penalties or other charges accruing thereon. At any time that the
Tenant hereunder is an Institutional Lender, the requirements for deposits set
forth in this Section shall be waived by Landlord.
SECTION 4.4. ASSESSMENT REDUCTION. Tenant may, if it shall so desire,
without expense to Landlord, endeavor at any time to obtain a lowering of the
assessed valuation upon the Premises for the purpose of reducing taxes thereon.
However, in such event, Landlord will not be required to cooperate with Tenant
and may in fact oppose such endeavor. Tenant shall be authorized to collect any
tax refund payable as a result of any proceeding Tenant may institute for that
purpose and any such tax refund shall be the property of Tenant to the extent to
which it may be based on a payment made by Tenant.
SECTION 4.5. HOLD HARMLESS. Landlord shall not be required to join in any
action or proceeding referred to in Sections 4.3 or 4.4 (unless required by law
or any rule or regulation in order to make such action or proceeding effective,
in which event any such action or proceeding may be taken by Tenant in the name
of the Landlord only with Landlord's prior written consent). Tenant hereby
agrees to save Landlord harmless from all costs, expenses, claims, loss or
damage by reason of, in connection with, on account of, growing out of, or
resulting from, any such action or proceeding.
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SECTION 4.6. GOVERNMENT PROPERTY LEASE EXCISE TAX. As required under
Arizona Revised Statutes Section 42-6206, Tenant is hereby notified of its
potential tax liability under the Government Property Lease Excise Tax
provisions of Arizona Revised Statutes, Section 42-6201, et seq. Failure of
Tenant to pay the tax after notice and an opportunity to cure is an Event of
Default that could result in the termination of Tenant's interest in this Lease
and of its right to occupy the Premises.
(This is the end of Article 4)
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ARTICLE 5 -- INSURANCE
SECTION 5.1. TENANT OBLIGATION TO INSURE. Tenant shall procure and
maintain for the duration of this Lease, at Tenant's own cost and expense,
insurance against claims for injuries to persons or damages to property which
may arise from or in connection with this Lease by the Tenant, its agents,
representatives, employees or contractors.
The insurance requirements herein are minimum requirements for this Lease
and in no way limit the indemnity covenants contained in this Lease. The City in
no way warrants that the minimum limits contained herein are sufficient to
protect the Tenant from liabilities that might arise out of this Lease for the
Tenant, its agents, representatives, employees or contractors and Tenant is free
to purchase such additional insurance as may be determined necessary.
A. MINIMUM SCOPE AND LIMITS OF INSURANCE
Tenant shall provide coverage at least as broad and with limits of
liability not less than those stated below.
1. Commercial General Liability - Occurrence Form (Form CG 0001, ed.
10/93 or any replacements thereof)
General Aggregate/for the Premises $5,000,000
Products-Completed Operations Aggregate $1,000,000
Personal & Advertising Injury $1,000,000
Each Occurrence $2,000,000
Fire Damage (Any one fire) $ 50,000
Medical Expense (Any one person) Optional
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2. Excess Liability
Follow Form excess of Commercial General liability, and Employers
Liability. Necessary only if primary limits are not sufficient to meet minimum
requirements.
Each Occurrence $ ______________
Aggregate Limit $ ______________
3. Workers' Compensation and Employers' Liability
Workers' Compensation Statutory
Employers' Liability
Each Accident $1,000,000
Disease-Policy Limit $1,000,000
Disease-Each Employee $1,000,000
4. Builders' Risk Insurance (Course of Construction)
In an amount equal to the initial construction contract amount plus
additional coverage equal to the contract amount for all subsequent
modifications thereto for all work at or on the Premises.
5. All Risk Property Insurance
Upon completion of construction, all risk property insurance in an amount
equal to the replacement cost of the building.
B. SELF-INSURED RETENTIONS
Any self insured retentions must be declared to the City.
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C. OTHER INSURANCE REQUIREMENTS
The policies are to contain, or be endorsed to contain, the following
provisions:
1. Commercial General Liability
a. Landlord, its officers, officials, agents and employees are
to be named as additional insureds with respect to
liability arising out of: the use and/or occupancy of the
Premises and activities performed by or on behalf of the
Tenant; products and completed operations of the Tenant.
b. The Commercial General Liability Insurance shall include
broad form contractual liability coverage.
c. Landlord, its officers, officials, agents and employees
shall be additional insureds to the full limits of
liability purchased by the Tenant, even if those limits of
liability are in excess of those required by this Lease.
d. The Tenant's insurance coverage shall be primary insurance
with respect to Landlord, its officers, officials, agents
and employees. Any insurance or self-insurance maintained
by Landlord, its officers, officials or employees or
volunteers shall be in excess of the Tenant's insurance and
shall not contribute to it.
e. The Tenant's insurance shall apply separately to each
insured against whom claim is made or suit is brought,
except with respect to the limits of the insurer's
liability.
f. Coverage provided by the Tenant shall not be limited to the
liability assumed under the indemnification provisions of
this Lease.
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g. The policies shall contain a waiver of subrogation against
Landlord, its officers, officials, agents, employees and
volunteers for losses arising from Tenant's operations, occupancy
and use of the Premises and/or other actions covered by Tenant's
insurance.
2. Workers' Compensation and Employers' Liability Coverage
3. Builders Risk Insurance (Course of Construction) and All Risk
Property Insurance
a. This insurance shall be written on an all risk form and
shall include, if specifically requested by Landlord,
coverage for flood and earthquake.
b. All rights of subrogation are hereby waived against
Landlord, its officers, officials, agents, employees and
volunteers.
c. The policies shall contain a standard loss payee clause
naming Landlord as loss payee.
d. Builders' Risk Insurance must provide coverage from the
time any covered property becomes the Contractor's
responsibility, and continuing without interruption during
construction, renovation, or installation, including any
time during which the covered property is being transported
to the construction installation site, and while on the
construction or installation site awaiting installation.
D. NOTICE OF CANCELLATION
Each insurance policy required by the insurance provisions of this
Agreement shall provide the required coverage and shall not be suspended,
voided, canceled by either party, reduced in coverage or in limits except after
thirty (30) days' prior written notice has been sent to Landlord at the address
provided herein for the giving of notice. Such notice shall be by certified
mail, return receipt requested.
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E. ACCEPTABILITY OF INSURERS
Insurance is to be placed with insurers duly licensed or approved
unlicensed companies in the State of Arizona and with a "Best's" rating of not
less than A-:VII or equivalent rating acceptable to the City. Landlord in no way
warrants that the above required minimum insurer rating is sufficient to protect
the Tenant from potential insurer insolvency.
F. VERIFICATION OF COVERAGE
Tenant shall furnish Landlord with Certificates of Insurance (▇▇▇▇▇ form
or equivalent approved by Landlord) and with original endorsements effecting
coverage as required by this Agreement. The certificates and endorsements for
each insurance policy are to be signed by a person authorized by that insurer to
bind coverage on its behalf. Any policy endorsements that restrict or limit
coverage shall be clearly noted on the Certificate of Insurance.
All certificates and endorsements are to be received and approved by
Landlord before work commences. Each insurance policy required by this Lease
must be in effect at or prior to commencement of work under this Lease and
remain in effect for the duration of the work.
All certificates of insurance required by this Lease shall be sent
directly to Landlord at the address and in the manner provided in this Lease for
the giving of notice. Landlord's lease/contract number, Tenant's name and
description of the Premises shall be provided on the Certificates of Insurance.
G. APPROVAL
Any modification or variation from the insurance requirements in this
Lease shall be approved by Landlord's Law Department, whose decision shall be
final. Such action will not require a formal Lease amendment, but may be made by
administrative action.
SECTION 5.2. BLANKET INSURANCE. Nothing in this Article 5 shall prevent
Tenant from obtaining insurance of a kind and in the amount provided for under
this Article 5 under a
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blanket insurance policy or policies which cover other properties owned or
operated by Tenant as well as the Premises; provided, however, that any such
policy of blanket insurance of the kind provided for by Section 5.1 shall
specify therein, or Tenant shall furnish Landlord a written statement from the
insurers under such policies specifying, the amount of the total insurance
allocated to the Premises, which amount shall be not less than the amount
required herein. No blanket policy shall contain any clause that would result in
the insured thereunder being required or permitted to carry insurance with
respect to the property covered thereby in an amount less than the full
insurable value of such property in order to prevent the insured therein named
from becoming a co-insurer of any loss with the insurer under such policy.
SECTION 5.3. EXPIRATION OF TERM. Subject to the approval of the
insurer(s), if Landlord desires to assume existing insurance coverage at the
expiration of the Lease Term hereof, all policies (except blanket policies)
shall be transferred to Landlord free of all right, title and interest of Tenant
and those claiming under Tenant, and Landlord shall pay to Tenant an amount
equal to the unearned premiums apportioned as of such expiration date. If
Landlord does not desire to assume existing policies of insurance at the
expiration of the term hereof, all existing policies shall be canceled and any
refund of premium returned to Tenant.
SECTION 5.4. RISK OF LOSS. At no time during the Term hereof, will
Landlord be required to carry any insurance covering or affecting the Premises,
and Tenant assumes the risk of any loss, damage, or claims throughout the Term
hereof, except to the extent caused by the negligence or willful misconduct of
Landlord, its agents, employees and contractors.
SECTION 5.5 FAILURE TO MAINTAIN INSURANCE. If Tenant fails or refuses to
provide a copy of the renewal insurance certificates, together with evidence of
payment of premiums therefor as required by Section 5.1(F) herein, or otherwise
fails or refuses to procure or maintain insurance as required by this Lease,
Landlord shall have the right, at Landlord's election, and upon three (3)
business days prior written notice, to procure and maintain such insurance. The
premiums paid by Landlord shall be due and payable from Tenant to Landlord on
the first day of the month following the date on which the premiums were paid.
Landlord shall give prompt notice of the payment of such premiums, stating the
amounts paid and the names of the insurer(s) and insured(s).
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Notwithstanding the provisions of the foregoing paragraph, the lapse or
cancellation of any policy of insurance required herein, in whole or in part for
the benefit of Landlord, shall be an event of default. No cure of such default
can be accomplished unless a new or renewed policy is issued which specifically
provides the required coverage to the Landlord for any liability arising during
the lapsed or previously uncovered period.
(This is the end of Article 5)
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ARTICLE 6 - SURRENDER
SECTION 6.1. SURRENDER--REMOVABLE PROPERTY. Upon the expiration of the
term of this Lease or on the sooner termination thereof, Tenant shall peaceably
and quietly leave, surrender, and yield up to the Landlord all of the Premises,
including all improvements thereon, broom-clean and free of occupants, and shall
repair all material damage to the Premises (as reasonably determined by
Landlord) caused by or resulting from the removal of any removable property of
Tenant or of subtenants, normal wear and tear excepted. Any property of Tenant
or any subtenant which shall remain in the Building after the expiration of the
Term hereof or sooner termination thereof shall be deemed to have been
abandoned, and may either be retained by Landlord as its property or disposed of
in such manner as Landlord may see fit. If such property or any part thereof
shall be sold, Landlord shall receive and retain the proceeds of such sale.
Tenant shall be liable to Landlord for any and all costs of removal and the
repair of any and all damages caused thereby in excess of any proceeds received
by Landlord from any sale of Tenant's property pursuant to this provision.
SECTION 6.2. WASTE. Tenant shall not commit or suffer to be committed any
waste or impairment of the Premises.
SECTION 6.3. TITLE. Except as provided in Section 10.6 below, upon
issuance of a Certificate of Occupancy title to the New Building shall
automatically vest in Landlord without the requirement of any deed, conveyance,
or ▇▇▇▇ of sale thereon. However, if Landlord should require any such document
in confirmation thereof, Tenant shall execute, acknowledge, and deliver the
same.
SECTION 6. SOIL AND BUILDINGS TESTS. Within the three (3) months
immediately preceding the expiration of this Lease or within (2) two months of
any earlier termination of the Lease, Tenant shall deliver to Landlord a soil
and building conditions report prepared by a qualified engineer, licensed by the
State of Arizona, stating that the Premises are free of any hazardous materials
as they are defined in the Sky Harbor Center Hazardous Materials Handling
Guidelines or identified by either the United States Environmental Protection
Agency or similar State agency as such. Except as provided in Section 6.5,
below, if any hazardous materials are identified, Tenant is fully personally
liable for removing the hazard and leaving the Premises in a hazard free
condition, except to the extent present on Premises prior to the Commencement
Date (as identified or referred to
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as potential hazards in the Phase I and Phase II environmental reports prepared
for Tenant by Speedie and Associates on October 13, 1999, and January 11, 2000,
respectively, copies of which were provided by Tenant to Landlord) or as a
result of any act or omission of Landlord, its employees, agents, businesses or
contractors.
SECTION 6.5. FAILURE TO CORRECT HAZARDOUS CONDITIONS OR OBTAIN TESTS.
Should Tenant fail to deliver to Landlord the report required by Section 6.4,
Landlord may cause a report to be prepared to like effect and Tenant shall be
liable to Landlord for one hundred thirty percent (130%) of the cost of said
report. Should the report provided by either Landlord or Tenant state that the
Premises cannot be used or leased in a hazard free condition, Tenant shall
forthwith cause the hazardous condition to be fully corrected at Tenant's
expense; further, Tenant shall be required to pay to Landlord an amount equal to
one hundred fifty percent (150%) of the Net Rent and Additional Payments
theretofore owing until the Premises are restored to a hazard free condition.
This shall not be construed as an extension of an expired or terminated lease
but solely as damages to Landlord due to Tenant's activities which prevent
Landlord from re-leasing the Premises. Tenant, following such lease expiration
or termination shall be allowed access to the Premises only to the extent
necessary to remove or otherwise correct any hazard, and shall conduct no
gainful business activity whatsoever at said Premises.
SECTION 6.6. SURVIVAL OF PROVISIONS. The provisions of this Article 6
shall survive the expiration or any termination of this Lease.
(This is the end of Article 6)
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ARTICLE 7 -- LANDLORD'S PERFORMANCE FOR TENANT
SECTION 7.1. CURES--RIGHTS, COSTS, AND DAMAGES. If Tenant shall fail to
pay any Imposition or make any other payment required to be made under this
Lease or shall default in the performance of any other covenant, agreement,
term, provision, limitation, or condition herein contained within thirty (30)
days after written notice from Landlord, Landlord, without being under any
obligation to do so and without thereby waiving such default, may make such
payment and/or remedy such other default for the account and at the expense of
Tenant, immediately and without notice. Bills for any expense required by
Landlord in connection therewith, and bills for all such expenses and
disbursements of every kind and nature whatsoever, including reasonable
attorney's or administrative fees, involved in collection or endeavoring to
collect the rent or Additional Payments or any part thereof, or enforcing or
endeavoring to enforce any right against Tenant, under or in connection with
this Lease, or pursuant to law, including (without being limited to) any such
cost, expense, and disbursements involved in instituting and prosecuting summary
proceedings, as well as bills for any property, material, labor, or services
provided furnished, or rendered, or caused to be furnished or rendered, by
Landlord to Tenant, with respect to the Premises and other equipment and
construction work done for the account of the Tenant together with interest at
the rate of eighteen percent (18%) per annum compounded monthly from the
respective dates of the Landlord's making of each such payment or incurring of
each such cost or expense, may be sent by Landlord to Tenant monthly, or
immediately, at Landlord's option, and shall be due and payable in accordance
with the terms of said bills and if not paid when due the amount thereof shall
immediately become due and payable as Additional Payments.
(This is the end of Article 7)
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ARTICLE 8 -- MAINTENANCE
SECTION 8.1. ABSENCE OF WARRANTIES. Tenant has leased the Premises after a
full and complete examination thereof, as well as the title thereto and
knowledge of its present uses and nonuses. Tenant accepts the same in the
condition or state in which they now are without any representation or warranty,
express or implied in fact or by law, by Landlord and without recourse to
Landlord, as to the title thereto, the nature, condition, or usability thereof
or the use or uses to which the Premises or any part thereof may be put.
Landlord shall not be required to furnish any services or facilities or to make
any repairs or alterations in or to the Premises or to provide any off-site
improvements, such as utilities or paving, or other forms of access to the
Premises, other than what may already exist on the Commencement Date, throughout
the Term hereof. Tenant hereby assumes the full and sole responsibility for the
condition, construction, operation, repair, demolition, replacement,
maintenance, and management of the Premises, including but not limited to the
performance of all burdens running with the Land.
SECTION 8.2. PERMITTED USES. In no event shall the Premises or any part
thereof be used for any purpose prohibited by Article 31 (Conditions of
Development). Additionally, use of the Premises by Tenant is hereby restricted
to airline training, flight simulation or ancillary office facilities or other
airline purposes, and the Premises may not be used for any other purpose without
the prior written consent of Landlord, which may be given or withheld at
Landlord's reasonable discretion. The foregoing notwithstanding, the Driveway
Parcel may only be used for vehicular access to the Premises and for no other
purpose whatsoever. Moreover, any permitted use which involves the handling,
production and/or storage of Hazardous Materials on the Premises shall be
subject to the Sky Harbor Center Hazardous Materials Handling Guidelines and to
all federal, state and local laws rules and regulations pertaining to same.
SECTION 8.3. MAINTENANCE, REPAIRS, INDEMNITY. Tenant shall take good care
of the Premises, make all repairs thereto, interior and exterior, structural and
nonstructural, ordinary and extraordinary, foreseen and unforeseen, and shall
maintain and keep the Premises and the sidewalks, curbs, and landscaping in good
order, repair, and condition in accordance with City of Phoenix standards and
this Lease, whichever is more stringent. Tenant shall also keep the sidewalks
and gutters in front of the Premises free and clear from rubbish and shall not
obstruct the same or allow the same to be obstructed in any manner. Tenant shall
indemnify Landlord and save it harmless from any and all claims or
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demands, upon or arising out of any accident, injury, or damage to any person or
property occurring in or upon the Premises or any part thereof, or upon the
sidewalks about the Premises, however caused, and shall keep the Premises free
and clear of any and all mechanics' liens or other similar liens or charges
incidental to work done or material supplied in or about the Premises.
SECTION 8.4. PERFORMANCE BY LANDLORD. In the event Tenant fails to
maintain and repair the Premises in the condition required by Section 8.3
hereof, Landlord, without being under any obligation to do so and without
thereby waiving any default, may after thirty (30) days written notice to Tenant
and Tenant's failure to perform the work (or, in the event of an emergency or a
threat to safety, immediately and without notice to Tenant) perform or have
performed any and all such work as it, in its sole and absolute discretion,
deems reasonably necessary to maintain or restore the Premises to its required
condition. Any and all work performed by or for Landlord pursuant to this
Section 8.4, shall be deemed to have been undertaken for and at the expense of
Tenant. All cost incurred by Landlord in undertaking such work shall, along with
an administrative fee equaling twenty percent (20%) of such costs and expenses
("Administrative Fee"), be subject to the provisions of Section 7.1 hereof.
SECTION 8.5. ALTERATIONS. Except as provided in Article 10 hereof or with
the prior written consent of Landlord, Tenant shall not erect any structures,
make any improvements, or do any other construction work on the Premises or
alter, modify, or make additions, improvements, or repairs to or replacements
of any structure, now existing or built at any time during the Term hereof, or
install any fixtures (other than trade fixtures removable without injury to the
Premises) which would (i) affect the structural integrity of the New Building or
existing buildings on which the work is to be performed or (ii) affect or modify
the exterior or design of the New Building or existing buildings or (iii)
interfere with or affect utility systems on the Premises (other than heating,
ventilating, and air conditioning systems installed by Tenant) or (iv) require
filing of plans with, or other approval by, the Architectural Committee. In the
event any such construction, improvement, alteration, modification, addition,
repair, or replacement is made without such approval, then, upon reasonable
notice so to do, the Tenant will remove the same, or, at the option of the
Landlord, cause the same to be changed to the satisfaction of the Landlord. In
case of any failure on the part of Tenant to comply with such notice, the
Landlord may effect the removal or change, and the Tenant shall pay the costs
thereof to the Landlord on demand and such costs and expenses shall be subject
to the provisions of Section 7.1 hereof.
(This is the end of Article 8)
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ARTICLE 9 -- COMPLIANCE
SECTION 9.1. TENANT OBLIGATIONS. Tenant shall assume and perform any and
all obligations of Landlord under any existing recorded covenants, easements,
and agreements affecting the title to the Premises and shall diligently comply
with, at its own expense during the Term hereof, all present and future laws,
acts, rules, requirements, orders, directions, ordinances, and/or regulations,
ordinary or extraordinary, foreseen or unforeseen, concerning the Premises or
any part thereof, or the use thereof, or the streets adjacent thereto, of any
federal, state, municipal, or other public department, bureau, officer, or
authority, or other body having similar functions, or of any liability, fire, or
other insurance company having policies outstanding with respect to the
Premises, whether or not such laws, acts, rules, requirements, orders,
directions, ordinances and/or regulations require the making of structural
alterations or the use or application of portions of the Premises for compliance
therewith or interfere with the use and enjoyment of the Premises, the intention
of the parties being with respect thereto that Tenant during the Term hereby
granted, shall discharge and perform all the obligations of Landlord, as well as
all obligations of Tenant, arising as aforesaid, and save Landlord harmless
therefrom, so that at all times the rental of the Premises shall be net to the
Landlord without deduction or expenses on account of any such law, act, rule,
requirement, order direction, ordinance and/or regulation whatever it may be;
provided, however, that Tenant may, in good faith (and wherever necessary, in
the name of, but without expense to and with the prior written permission of,
Landlord), contest the validity of any such law, act, rule, requirement, order,
direction, ordinance and/or regulation and, pending the determination of such
contest, may postpone compliance therewith, except that Tenant shall not so
postpone compliance therewith, as to subject Landlord to the risk of any fine or
penalty or to prosecute for a crime, or to cause the Premises or any part
thereof to be condemned or to be vacated.
SECTION 9.2. AVIGATION REQUIREMENTS AND LIMITATIONS. Tenant acknowledges
the limitations placed upon the land and Premises by virtue of its proximity to
the Phoenix Sky Harbor International Airport. Such avigation requirements and
limitations are for the purpose of free and unobstructed passage of aircraft in,
through and across the air space above and over the land and Premises. A
detailed statement of the requirements and limitations are set forth in Article
30 of this Lease and Tenant specifically agrees to be bound thereby.
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SECTION 9.3. CERTIFICATE OF OCCUPANCY. Tenant shall obtain any Certificate
of Occupancy with respect to the Premises which may at any time be required by
any governmental agency having jurisdiction thereof.
(This is the end of Article 9)
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ARTICLE 10 --CONSTRUCTION OF NEW BUILDING
AND LANDSCAPING
SECTION 10.1. CONCEPT PLANS. In accordance with the approved Concept Plans
(attached as Exhibit "D") Tenant shall develop, or shall cause to be developed,
construction plans, specifications and landscaping plans for the New Building,
which shall be an office/training/flight simulation facility of approximately
150,000 square feet, pursuant to the Design Guidelines, for submittal to the
Architectural Committee.
SECTION 10.2. GENERAL DESCRIPTION. Within six months after the execution
of this Lease and approval by the Architectural Committee pursuant to the Design
Guidelines of the construction plans, specifications and landscaping for the New
Building, Tenant shall commence the construction of the New Building and
Landscaping as approved. The New Building and Landscaping shall be constructed
solely upon the Land and shall be completed within 18 months from the
commencement of construction. For the purposes of this Lease, construction shall
be deemed to have commenced when a building permit has been issued, materials
have been delivered and work on the structure is visible.
SECTION 10.3. APPROVAL OF PLANS. At least thirty (30) days before
commencement of construction or filing for necessary building permits, Tenant
will submit to Landlord for Landlord's approval all plans, documents and
specifications for development of the land pursuant to the Design Guidelines.
Prior to commencement of construction of the New Building and Landscaping,
Tenant will cause the Permitted Mortgagee who is financing construction of the
New Building and Landscaping to notify Landlord in writing that it has received
and approved the final plans and specifications for the construction thereof. In
like manner, Tenant shall submit to Landlord all amendments to said final plans
and specifications along with the written approval of such Permitted Mortgagee
to all amendments to said final plans and specifications where such approval is
required by such Mortgagee. At or prior to the completion date of the New
Building and Landscaping, Tenant shall deliver to Landlord true copies of the
final "as built" plans and specifications. The approval by Landlord or by such
Permitted Mortgagee of the plans and specifications or any other action taken by
the Landlord or such Permitted Mortgagee with respect thereto under the
provisions of this Lease shall not constitute an opinion or representation by
the Landlord or such Mortgagee as to the sufficiency of said plans and
specifications nor impose any present or future liability or responsibility upon
the Landlord or such Mortgagee.
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SECTION 10.4. GOVERNMENT APPROVAL. Tenant will also obtain the approval of
the final plans and specifications by any and all federal, state, municipal, and
other governmental authorities, offices, and departments having jurisdiction in
the matter, and provide conformed copies of executed approvals to Landlord.
SECTION 10.5. COMPLETION REQUIREMENTS. Tenant will erect the New Building
and install the Landscaping in a good, careful, proper, and workmanlike manner
in accordance with:
A. The approved plans and specifications;
B. All provisions of law and any and all permits and authority
required by ordinance, code, law, or public regulations or by any
authority at any time having jurisdiction over the Premises; and,
C. The requirements of any public or quasi-public body having similar
jurisdiction.
SECTION 10.6. OWNERSHIP OF BUILDINGS AND IMPROVEMENTS.
A . DURING TERM. Prior to receipt of a Certificate of Occupancy, title to
all buildings and improvements constructed on the Premises by Tenant pursuant to
this Lease shall be in the Tenant. Following issuance of a Certificate of
Occupancy and thereafter, title shall be in the Landlord.
B. OWNERSHIP AT TERMINATION. On the expiration or sooner termination of
this Lease term (or any extension of such term), title to all buildings and
improvements, which constitute or are a part of the Premises, exclusive of trade
fixtures and personal property of Tenant and subtenants (which shall expressly
be deemed to include Tenant's flight simulators and related equipment), shall
(without the payment of compensation to Tenant or others) remain in Landlord
free and clear of all claims and encumbrances on such buildings and improvements
by Tenant, and anyone claiming under or through Tenant. Any piping, ▇▇▇▇▇,
pumps, tanks or other equipment installed on the property by Tenant shall be
left in a structurally sound, nonleaking condition so as not to become the
source of any future environmental contamination or hazard. Tenant shall then
quitclaim to Landlord its possessory interest in the buildings and improvements.
Tenant agrees to and shall defend, indemnify and hold Landlord harmless from and
against all liability and
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loss which may arise from the assertion of any claims and any encumbrances on
such buildings and Improvements; provided, however, such duty to indemnify and
hold harmless shall not apply to any claims or encumbrances which are
attributable to the acts or conduct of the Landlord. Additionally, Tenant shall
assign to Landlord, and Landlord shall be entitled to the benefit of, any
licenses, warranties or guarantees applicable to equipment, systems, fixtures or
personal property conveyed or otherwise transferred to, or for the benefit of,
Landlord under this Lease. The foregoing notwithstanding, Tenant shall not
quitclaim its possessory interest in the aforementioned buildings and equipment
to Landlord until such buildings and equipment have been inspected by Landlord
and they have been determined not to present a potential environmental hazard.
This provision 10.6 shall survive the expiration or earlier termination of this
Lease.
SECTION 10.7. GRANT OF EASEMENTS. Landlord and Tenant each covenant and
agree that they will, from time to time, as requested by the other, jointly
grant to governmental entities and public utility companies easements or rights
of way on, across or under the Land for utility lines and public streets, walks,
alleys and access ways to the extent such may be required for the implementation
of any approved development plan for the Premises or, so long as such easement
does not interfere with Tenant's use and enjoyment of the Premises, for any
other property within the Center. The word "utility" shall have the meaning
ascribed to it in Section 31.2(D) of this Lease. Tenant acknowledges that
Landlord has also reserved the right to grant additional easements as further
provided in Section 31.2.
SECTION 10.8. DRIVEWAY PARCEL. As further provided in the Authorization
to Enter City Property ("Access Agreement") executed this date by Landlord and
Tenant and attached hereto as Exhibit E, Tenant may construct a driveway across
the portion of the Option Parcel identified in Exhibits A and B as the Driveway
Parcel, for the sole purpose of providing nonexclusive access to Sky Harbor
Circle North from the Premises during the Rental Period and any Extension
Periods. Landlord may, in its discretion at any time, provide Tenant with
alternate access to Sky Harbor Circle North at a location to be determined by
Landlord, in which event a comparable driveway will be constructed at no cost to
Tenant. The term of the Access Agreement shall be concurrent with the term of
the Lease and any Renewal Periods, subject to termination if Tenant leases the
Option Parcel.
(This is the end of Article 10)
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ARTICLE 11 -- IMPAIRMENT OF LANDLORD'S TITLE
SECTION 11.1. NO LIENS. Tenant shall not create, or suffer to be created
or to remain, and shall discharge any mechanic's, laborer's, or materialman's
lien which might be or become a lien, encumbrance, or charge upon the Premises
or any part thereof or the income therefrom and Tenant will not suffer any other
matter or thing arising out of Tenant's use and occupancy of the Premises
whereby the estate, rights, and interests of Landlord in the Premises or any
part thereof might be impaired.
The provisions of this Article 11 are not intended to limit any rights
Tenant may have under Article 4 of this Lease.
SECTION 11.2. DISCHARGE. If any such mechanic's, laborer's, or
materialman's lien shall at any time be filed against the Premises or any part
thereof contrary to the prohibitions set forth above, Tenant, within thirty (30)
days after notice of the filing thereof, shall cause such lien to be discharged
of record by payment, deposit, bond, order of court of competent jurisdiction or
otherwise. Tenant shall notify Landlord in writing of its action to either
satisfy or contest the lien and, if contested, of the matter's status on a
monthly basis until concluded. If Tenant shall fail to cause such lien to be
discharged within the period aforesaid, then, in addition to any other right or
remedy, Landlord may, but shall not be obligated to, discharge the same either
by paying the amount claimed to be due or by procuring the discharge of such
lien by deposit or by bonding. Any amount so paid by Landlord and costs and
expenses incurred by Landlord in connection therewith, shall constitute an
Additional Payment payable by Tenant and shall be paid by Tenant to Landlord on
demand.
SECTION 11.3. NO IMPLIED CONSENT. Nothing contained in this Lease shall be
deemed or construed in any way as constituting Landlord's expressed or implied
authorization, consent or request to any contractor, subcontractor, laborer or
materialman, architect, or consultant, for the construction or demolition of
any improvement, the performance of any labor or services or the furnishing of
any materials for any improvements, alterations to or repair of the Premises or
any part thereof.
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SECTION 11.4. NO AGENCY INTENDED. The parties acknowledge that Tenant is
entitled to construct the New Building. In connection therewith, the parties
agree that Tenant is not the agent of Landlord for the construction, alteration
or repair of any improvement Tenant may construct upon the Premises, the same
being done at the sole expense of Tenant.
(This is the end of Article 11)
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ARTICLE 12 -- INSPECTION
SECTION 12.1. INSPECTION AND ENTRY. Landlord shall have the right to show
the Premises at any reasonable time during the Term hereof to any prospective
purchasers or mortgagees of the same, and may enter upon the Premises, or any
part thereof, for the purpose of ascertaining their condition or whether Tenant
is observing and performing the obligations assumed by it under this Lease, all
without hindrance or molestation from Tenant, provided that such entry does not
interfere with Tenant's business operations and provided that Landlord shall
give Tenant at least seventy-two (72) hours written notice prior to any
inspection of any building interior. Any such inspections by Landlord will be
conducted in accordance with Tenant's security requirements.
The foregoing provision shall not be construed to prohibit or delay any
entry by Landlord in its capacity as a municipality exercising its police power
or in its criminal law enforcement capacity, nor to any entry authorized by any
writ or warrant issued by any Court, nor to any entry authorized by any health
or welfare statute, code, ordinance, rule or regulation.
(This is the end of Article 12)
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ARTICLE 13 - INDEMNIFICATION
SECTION 13.1. INDEMNIFICATION OF LANDLORD
A. Tenant shall indemnify and save Landlord harmless from and against any
and all liabilities, suits, obligations, fines, damages, penalties, claims,
costs, charges and expenses, including property damage, personal injury and
wrongful death and further including, without limitation, architects' and
attorneys' fees and disbursements, which may be imposed upon or incurred by or
asserted against Landlord by reason of any of the following occurring during the
term unless caused by the negligence of Landlord, its agents or employees or a
failure to act by the Landlord, its agents or employees when a duty to act is
present:
(1) construction of the buildings or any other work or thing done
in, on or about the Premises or any part thereof by Tenant or its agents;
(2) any use, nonuse, possession, occupation, alteration, repair,
condition, operation, maintenance or management of the Premises, Option
Parcel(s) (at any time after Tenant leases the Option Parcel except to the
extent of Tenant's maintenance obligation pursuant to Section 35.3 below) or
improvements or any nuisance made or suffered thereon or any failure by Tenant
to keep the Premises, Option Parcel(s) (at any time after Tenant leases the
Option Parcel except to the extent of Tenant's maintenance obligation pursuant
to Section 35.3 below), or improvements or any part thereof, in a safe
condition;
(3) any acts of the Tenant or any subtenant or any of its or their
respective agents, contractors, servants, employees, licensees or invitees;
(4) any fire, accident, injury (including death) or damage to any
person or property occurring in, on or about the Premises or improvements or any
part thereof;
(5) any failure on the part of Tenant to pay rent or to perform or
comply with any of the covenants, agreements, terms or conditions contained in
this Lease on its part to be performed or complied with and the exercise by
Landlord of any remedy provided in this Lease with respect thereto;
(6) any lien or claim which may be alleged to have arisen against or
on the Premises or improvements or any part thereof or any of the assets of, or
funds appropriated to, Landlord or any liability which may be asserted against
Landlord with respect thereto to
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the extent arising, in each such case, out of the acts of Tenant, its
contractors, agents, sublessees;
(7) any failure on the part of Tenant to keep, observe, comply with
and perform any of the terms, covenants, agreements, provisions, conditions or
limitations contained in the subleases or other contracts and agreements
affecting the Premises or improvements or any part thereof, on Tenant's part to
be kept, observed or performed;
(8) any tax, including any tax attributable to the execution,
delivery or recording of this Lease, with respect to events occurring during the
term of this Lease.
The provisions hereof shall survive the expiration or earlier
termination of this Lease.
B. Tenant will hold all goods, materials, furniture, fixtures, equipment,
machinery and other property whatsoever on the Premises and improvements at the
sole risk of Tenant and save the Landlord harmless from any loss or damage
thereto by any cause whatsoever except to the extent caused by the negligence or
willful misconduct of Landlord, its agents, employees and contractors.
C. The obligations of Tenant under this Section shall not in any way be
affected by the absence in any case of covering insurance or by the failure or
refusal of any insurance carrier to perform any obligation on its part to be
performed under insurance policies affecting the Premises.
D: If any claim, action or proceeding is made or brought against
Landlord by reason of any event to which reference is made in this Section,
then, upon demand by Landlord, Tenant, at its sole cost and expense, shall
resist or defend such claim, action or proceeding in Landlord's name, if
necessary, by the attorneys for Tenant's insurance carrier (if such claim,
action or proceeding is covered by insurance), otherwise by such attorneys as
Landlord shall approve, which approval shall not be unreasonably withheld or
delayed. Notwithstanding the foregoing, Landlord may engage its own attorneys to
defend it or to assist in its defense and Tenant shall pay the reasonable fees
and disbursements of such attorneys.
(This is the end of Article 13)
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ARTICLE 14 - DAMAGE OR DESTRUCTION
SECTION 14.1. TENANT REPAIR AND RESTORATION. If, at any time during the
Term hereof, the New Building or any part thereof shall be damaged or destroyed
by fire or other occurrence of any kind or nature, ordinary or extraordinary,
foreseen or unforeseen, Tenant shall have sixty (60) days to determine whether
to restore and repair or demolish the improvements and to provide written notice
to the Landlord of its decision (the "Determination"). Subject to the provisions
of Section 14.6, if, at any time during the Term hereof, the Premises, Option
Parcel(s) or any part thereof shall be damaged or destroyed by fire or other
occurrence of any kind or nature, ordinary or extraordinary, foreseen or
unforeseen, Tenant, at its sole cost and expense, and whether or not the
insurance proceeds, if any, shall be sufficient for the purpose, shall proceed
with reasonable diligence to repair, alter, restore, replace, or rebuild the
same as nearly as possible to its value, condition, and character immediately
prior to such damage or destruction [including temporary repairs and work
necessary to protect the Premises and Option Parcel(s) from further damage].
Such repair, alteration, restoration, replacement, or rebuilding, including such
changes and alterations as aforementioned and including temporary repairs for
the protection of other property pending the completion of any thereof, are
sometimes referred to in this Article as the "Work." Tenant shall then, at its
sole cost and expense, and whether or not the insurance proceeds, if any, shall
be sufficient for the purpose, either (i) proceed with reasonable diligence to
repair, alter, restore, replace, or rebuild the same (subject to the provisions
of Section 8.4) so that the damaged portions may once more be occupied; or (ii)
in accordance with the provisions of Section 14.6, remove the damaged portion
(or the entire New Building, in Tenant's discretion) and restore the affected
portion of the Land to a safe condition.
SECTION 14.2. PAYMENT OF INSURANCE PROCEEDS. All insurance proceeds on
account of such damage or destruction under the policies of insurance provided
for in Article 5, less the cost, if any, incurred in connection with the
adjustment of the loss and the collection thereof (herein sometimes referred to
as the "insurance proceeds") shall be paid to the Depositary. All insurance
proceeds shall be applied by the Depositary to the payment of the cost of the
Work to the extent such insurance proceeds shall be sufficient for the purpose,
and shall be paid out to or for the account of Tenant from time to time as such
Work progresses. Subject to any additional requirements or conditions set forth
in any Permitted Mortgage which are not inconsistent with the provisions of this
Lease, the Depositary shall make such payments or disbursements upon the written
request by Tenant when accompanied by the following:
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A. CERTIFICATES OF COSTS. A certificate dated not more than fifteen (15)
days prior to such request, signed by Tenant (by an officer, if Tenant be a
corporation) and by an architect in charge of the Work who shall be selected by
Tenant setting forth that:
(1) The sum then requested either has been paid by Tenant or is
justly due to contractors, subcontractors, materialmen, architects, or other
persons who have rendered services or furnished materials in connection with the
Work, giving a brief description of the services and materials and the several
amounts so paid or due and stating that no part thereof has been made the basis
of any previous or then pending request or has been paid out of any insurance
proceeds received by Tenant, and that the sum requested does not exceed the
value of the services and materials described in the certificate. If sums are
sought by way of reimbursement the request shall be accompanied by a lien
release; if sums are sought for payment in the first instance a lien release
shall be submitted to the Depositary within seven (7) day of disbursement by the
Depositary; and,
(2) Except for the amount stated in such certificate to be due as
aforesaid, there is no outstanding indebtedness known to the persons signing
such certificate after due inquiry which might become the basis of a vendor,
mechanic, or materialman or similar lien upon such Work, the Premises or
Tenant's leasehold interest, or any part thereof, and
B. SUMS PAID TO TENANT. Upon compliance with the foregoing provisions of
this Section, the Depositary, out of the insurance proceeds, shall pay or cause
to be paid to Tenant or to the persons named in the certificate the respective
amounts stated therein to have been paid by Tenant or to be due to them, as the
case may be.
Upon receipt by the Depositary of a lien release from every contractor and
subcontractor working on the project and such other evidence satisfactory to it
of the character required by 14.2(A) that the Work is complete and paid for in
full and that there are no liens of the character referred to therein, and if
Tenant is not then in default, the Depositary shall pay to Tenant any remaining
balance of said insurance proceeds.
C. DEFICIENCY. If the insurance proceeds received by the Depositary shall
not be sufficient to pay the entire cost of the Work, Tenant shall supply the
amount of any such deficiency. Under no circumstances shall Landlord be
obligated to make any payment, reimbursement, or contribution towards the cost
of the Work.
SECTION 14.3. FAILURE TO COMMENCE REPAIRS. If the Work shall not have been
commenced within six (6) months from the date of the Determination, or if such
Work after
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commencement shall not proceed expeditiously, Landlord may terminate this Lease
pursuant to Article 18. On such termination the insurance proceeds received by
the Depositary shall be paid over to the Landlord and all policies of insurance
and insurance proceeds receivable shall belong to and be retained by Landlord
without claim thereon by Tenant, but subject to the rights of any Permitted
Mortgagee as herein set forth.
SECTION 14.4. CURE BY MORTGAGEE. If, within thirty (30) days from receipt
by First Permitted Mortgagee of Landlord's notice of any default of Tenant, the
holder of the First Permitted Mortgage or any other Permitted Mortgage moves,
either itself or through a receiver, to take possession of the Premises and
begins or continues the Work; and if, with respect to any default by Tenant
under this Lease, the right of Landlord to terminate this Lease shall not have
accrued, then the Depositary shall pay over to the holder of such Permitted
Mortgage, or to the receiver, as the case may be, the proceeds of insurance
pursuant to Section 14.2 upon receipt from the holder of such Permitted Mortgage
or such receiver of the certificates of the character required from Tenant under
Section 14.2(A).
SECTION 14.5. LEASE OBLIGATIONS CONTINUE. In no event shall Tenant be
entitled to any abatement, allowance, reduction, or suspension of rent because
part or all of the Premises shall be untenantable owing to the partial or total
destruction thereof. No such damage or destruction shall affect in any way the
obligation of Tenant to pay the rent, Additional Payments, and other charges
herein reserved or required to be paid, nor release Tenant of or from
obligations imposed upon Tenant hereunder.
SECTION 14.6. DAMAGE AT END OF TERM. If 50% or more of the square footage
of the structural component of the New Building is substantially damaged or
destroyed by fire or other casualty at any time during the last five (5) years
of the Rental Period:
A. TENANT ELECTION TO TERMINATE. Tenant may, at its option, terminate this
Lease within sixty (60) days after such damage or destruction by serving upon
the Landlord at any time within said sixty (60) day period, a ten (10) day
written notice of Tenant's election to so terminate, accompanied by the written
consent of the holder of any Permitted Mortgage. Such notice of election and
consent shall specify the date of termination, which shall be subject to the
provisions of Article 6, at which time all Tenant's obligations to pay rent
shall cease with the exception of the Additional Payment provisions set out
below. In the event that Tenant elects to terminate this Lease, all insurance
proceeds on account of such damage or destruction under the policies of
insurance provided for in Article 5, less the cost, if any, incurred in
connection with the adjustment of the loss and the collection thereof, and the
restoration of the Land to its condition on the Commencement Date, and payment
of any
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outstanding permanent financing used to finance construction of the New
Building, shall be paid to Landlord.
B. ADJUSTMENT OF ADDITIONAL PAYMENTS. Upon the service of such notice and
consent, this Lease shall cease and terminate on the termination date specified
in such notice and consent with the same force and effect as if such date were
the date originally fixed for the termination hereof. With respect to any items
of Additional Payment which are payable to Landlord in the event of such
termination or which have accrued but are not yet payable at the date of
termination, but which are not then capable of ascertainment, Tenant shall pay
to Landlord an amount reasonably computed by Landlord, who will hold such
payment as trust funds until such Additional Payment becomes determined. Upon
the determination of the Additional Payment due, if there be a surplus in the
trust account, Landlord will promptly refund the surplus to Tenant; if there be
a deficit, Tenant will promptly pay the amount of such deficit to Landlord. If
as a result of any action or proceeding to obtain a reduction of Impositions
Tenant shall be entitled to a refund, the amount of such refund (less the cost
and expense of collection including reasonable attorneys' fees) when collected
by Landlord shall be paid by Landlord to Tenant, unless there remains at the
time a deficit in the trust account, or unless Tenant shall be otherwise in
default under the terms hereof. The covenants and agreements with respect to the
adjustment and payment of these items of Additional Payment shall survive the
termination hereof.
SECTION 14.7. MUTUAL TERMINATION. In the event that, prior to the last
five (5) years of the Lease term, 50% or more of the square footage of the
structural component of the New Building is damaged or destroyed by fire or
other casualty, Tenant may request that Landlord consent to termination of 'this
Lease in the manner provided in Section 14.6 above.
(This is the end of Article 14)
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ARTICLE 15 -- CONDEMNATION
SECTION 15.1. TOTAL, SUBSTANTIAL, OR UNUSABLE REMAINDER.
A. IF AT ANY TIME DURING THE TERM OF THIS LEASE:
(1) Total or Substantial. Title to the whole or substantially all of
the Premises which, for the purpose of this Article 15, shall mean 25% or more
of the square footage of the structural component of the New Building, shall be
taken in condemnation proceedings or by any right of eminent domain or by
agreement in lieu of such proceedings, this Lease shall terminate and expire on
the date of such taking and the Net Rent and Additional Payments reserved shall
be apportioned and paid to the date of such taking; or
(2) Remainder Unusable for Purposes Leased. Title to a substantial
portion of the Premises shall be taken in condemnation proceedings or by any
right of eminent domain or by agreement in lieu of such proceeding, and the
remaining part of the Premises cannot feasibly be used or converted for use by
Tenant for the uses set forth in Section 8.2 hereof, Tenant may, at its option,
terminate this Lease within ninety (90) days after such taking by serving upon
Landlord at any time within said ninety (90) day period, a thirty (30) day
written notice of Tenant's election to so terminate accompanied by a certificate
of Tenant that the remaining part of the Premises cannot feasibly be used or
converted for use by Tenant as contemplated in Section 8.2 hereof.
B. DEMOLITION--AWARD. In the event of such taking and the
termination of this Lease:
(1) The Landlord shall first be entitled to receive such portion of
said award or awards with the interest thereon as shall represent compensation
for the value of the Land, or the part thereof so taken, considered as improved
vacant land unencumbered by this lease and such portion of such award or awards,
with the interest thereon, if separately stated in the award or the decree as
shall represent consequential damages, if any, to the portion of the Land not so
taken, considered as improved vacant land unencumbered by this Lease plus an
amount equal to the estimated cost of demolition and removal of the untaken
portion of the Building (unless such cost shall have been included in the
consequential damages above mentioned);
(2) The remaining balance of the award shall be divided by the
number of years in the full lease term with Tenant receiving a sum equal to the
quotient times the
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number of years remaining on the lease and Landlord receiving the balance after
payment of any outstanding permanent financing used to finance construction of
the New Building.
SECTION 15.2. PARTIAL TAKING -- LEASE CONTINUES. In the event of any such
taking of less than the whole or substantially all of the Premises and, if such
taking is not of the character described in Section 15.1(A)(2) (or if such
taking is of such character and the option of Tenant to terminate this Lease is
not exercised), the Term of this Lease shall not be reduced or affected in any
way, and
A. LANDLORD ENTITLEMENT. The Landlord shall first be entitled to receive
and shall be paid the portion of such award or awards, with the interest
thereon, as shall represent compensation for the value of the Land, or the part
thereof so taken, considered as improved vacant land unencumbered by this Lease
and such portion of such award or awards, with the interest thereon, if
separately stated in the award or the decree as shall represent consequential
damages, if any, to the portion of the Land not so taken, considered as improved
vacant land unencumbered by this Lease.
B. AWARD PAYMENT. The award or awards (herein sometimes referred to as
"Condemnation Proceeds") shall be deposited with the Depositary for disbursement
to Landlord and Tenant pursuant to this lease.
C. RESTORATION OF REMAINDER. If the remaining part of the Premises can
feasibly be used or converted for use by Tenant as contemplated in Section 8.2
hereof, Tenant, at its sole cost and expense and whether or not the Condemnation
Proceeds payable after disbursement to Landlord under Section 15.2(A) shall be
sufficient for the purpose, shall proceed with reasonable diligence to repair,
alter (including any necessary demolition and reconstruction) and restore the
remaining part of the Premises to substantially their former condition, so as to
be complete, rentable and usable and of the quality provided for in this Lease
and the Design Guidelines for the original construction of the affected
buildings. If the remaining part of the Premises cannot feasibly be used or
converted for use by Tenant as provided in Section 8.2, Tenant, at its sole cost
and expense, shall proceed with due diligence to repair, alter (including any
necessary demolition and reconstruction) and restore the remaining part of the
Premises so as to constitute a complete, rentable building for a purpose deemed
appropriate by Landlord in the manner hereinafter provided in this subsection
(C); provided, however, that not less than sixty (60) days prior to proceeding
with any such repairs, alterations, or restoration, Tenant shall have given
written notice to the Landlord certifying that the remaining part of the
Premises cannot feasibly be used or converted for use by Tenant as
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contemplated in Section 8.2 hereof and requesting approval of a new use, and
Landlord shall have approved in writing such restoration and new use.
Such repairs, alterations, or restoration, including such changes and
alterations as above mentioned and including temporary repairs, or the
protection of other property pending the completion of any thereof, are
sometimes referred to in this Section as the Work;
D. PAYOUTS BY DEPOSITARY. After the Condemnation Proceeds are deposited
with the Depositary under the provisions of Section 15.2(B), the Depositary
shall first pay over to Landlord those sums required under Section 15.2(A) and
then shall hold, apply, make available and, subject to any additional
requirements or conditions set forth in any Permitted Mortgage which are not
inconsistent with the provisions of this Lease, pay over to Tenant the remaining
Condemnation Proceeds in the same manner as is provided with respect to
insurance proceeds under the provisions of Section 14.2, and provided that upon
the completion and payment of the cost of the Work, the remaining balance of the
Condemnation Proceeds shall be paid to Tenant.
E. REDUCTION OF NET RENT. The Net Rent payable for that part of the
balance of the Term hereof occurring prior to the termination of the Lease,
effective as of the date of such partial taking, shall be based on the remaining
square footage of leased Land at the prevailing Adjusted Net Rent rate. The
Adjusted Net Rent shall thereafter be adjusted as provided in Section 3.1(A)(3)
hereof.
F. INTERIM RENT PAYMENT. Until the amount of the Net Rent payable under
Section 15.3 shall have been ascertained, Tenant shall continue to pay to
Landlord during the interim period the Net Rent and Additional Payments as
herein provided. If the Net Rent paid during such interim period shall be more
or less than the amount of the Net Rent as thereafter ascertained, within thirty
(30) days after the amount of such Net Rent shall have been ascertained, Tenant
shall pay to Landlord, the amount of such deficiency or, if there has been an
overpayment the amount thereof shall be credited by Landlord to Tenant's next
occurring rental payment(s).
SECTION 15.3. DIVISION OF AWARD. If the order or decree in any
condemnation or similar proceeding shall fail separately to state the amount to
be awarded to the Landlord and the amount to be awarded to the Tenant under the
provisions of Sections 15.1 or 15.2 hereof, by way of compensation, damages,
rent, the cost of demolition, removal or restoration or otherwise, and if the
Landlord and the Tenant cannot agree thereon within thirty (30) days after the
final award or awards shall have been fixed and determined, the value shall be
determined by
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using the following valuation process: Landlord and Tenant, at their respective
costs and by notice to the other, shall each appoint a qualified real estate
appraiser with at least five (5) years, full-time commercial appraisal
experience in Maricopa County to appraise and set the fair market value of the
Land (as improved vacant land), upon which the New Buildings and parking areas
have been constructed, as of the day of the taking. If a party does not appoint
an appraiser within ten (10) days after the other party has given notice of the
name of its appraiser, the single appraiser appointed shall be the sole
appraiser and shall set the fair market value of the Land. If the two appraisers
are appointed by the parties as stated in this paragraph, they shall meet
promptly and attempt to arrive at the fair market value of the Land. If the two
appraisers are unable to agree on the fair market value of the Land within
thirty (30) days after the second appraiser has been appointed, they shall
attempt to elect a third appraiser meeting the qualifications stated in this
paragraph within ten (10) days thereafter. If the two appraisers are unable to
agree on the third appraiser, either of the parties to this Lease on ten (10)
days notice to the other party may apply to the president of the Arizona Chapter
of the American Institute of Real Estate Appraisers or any successor association
or body of comparable standing if such institute is not then in existence or a
court of competent jurisdiction for the selection of a third appraiser who meets
the qualifications stated in this paragraph. Each of the parties shall bear
one-half (1/2) of the cost of appointing the third appraiser and the third
appraiser's fee.
Within thirty (30) days after the selection of the third appraiser, a
majority of the appraisers shall determine the fair market value of the Land. If
a majority of the appraisers are unable to determine the fair market value of
the Land within the stipulated period of time, the three appraisals of fair
market value shall be added together and the sum shall be divided by three and
the resulting quotient shall be the fair market value of the Land. If, however,
the low and/or high appraisal of fair market value is more than fifteen percent
(15%) lower and/or higher than the middle appraisal of fair market value, the
low and/or the high appraisal shall be disregarded. Then the remaining two
appraisals of fair market value shall be added together and the sum shall be
divided by two, and the resulting quotient shall be the fair market value of the
Land. If both the low and the high appraisals are disregarded as stated in this
subsection (2), the middle appraisal shall constitute the fair market value of
the Land. In establishing the fair market value of the Land, the appraisers
shall appraise the Land as improved vacant land without regard to the
improvements located thereon. The fair market value of the Land shall be
determined by the appraisers as of the date of the taking.
SECTION 15.4. RIGHTS OF PARTICIPATION. Each party shall have the right, at
its own expense, to appear in any condemnation proceeding and participate in any
and all hearings, trials, and appeals therein.
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SECTION 15.5. NOTICE OF PROCEEDING. In the event Landlord or Tenant shall
receive notice of any proposed or pending condemnation proceedings affecting the
Premises, the party receiving such notice shall promptly notify the other party
of the receipt and contents thereof.
(This is the end of Article 15)
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ARTICLE 16 - SUBTENANT NON-DISTURBANCE
SECTION 16.1. AGREEMENT FOR NON-DISTURBANCE OF SUBTENANTS. Landlord
covenants and agrees, for the benefit of any subtenant, that Landlord shall
recognize the subtenant as the direct tenant of Landlord upon the termination of
this Lease pursuant to any of the provisions of Article 18 hereof if (a) all
Mortgagees shall have agreed in writing substantially to the effect that they
will not join the subtenant as a party defendant in any foreclosure action or
proceeding which may be instituted or taken by said Mortgagees, nor evict the
subtenant from the portion of the Premises demised to it, nor affect any of the
subtenant's rights under its sublease by reason of any default under any
Mortgage, or (b) Tenant shall deliver to Landlord a certificate of an
independent real estate appraiser who is a member of the American Institute of
Appraisers, or such other similar organization, reasonably satisfactory to
Landlord, stating, in substance, that the rent payable by the subtenant under
its sublease, after taking into account any credits, offsets, or deductions to
which the subtenant may be entitled thereunder, constitutes not less than the
then fair rental value of the space demised thereunder; provided, however, that
at the time of the termination of this Lease (i) no default exists under the
subtenant's sublease which at such time would then permit the landlord
thereunder to terminate the same or to exercise any dispossess remedy provided
for therein, and (ii) the subtenant shall deliver to Landlord an instrument
confirming the agreement of such subtenant to attorn to Landlord and to
recognize Landlord as the subtenant's landlord under its sublease, which
instrument shall provide that neither Landlord, nor anyone claiming by, through
or under Landlord shall be:
A. liable for any act or omission of any prior landlord (including,
without limitation, the then defaulting landlord), or
B. subject to any offsets or defenses which the subtenant may have against
any prior landlord (including, without limitation, the then defaulting
landlord), or
C. bound by any payment of rent which the subtenant might have paid for
more than the current month to any prior landlord (including, without
limitation, the then defaulting landlord), or
D. bound by any covenant to undertake or complete any construction of the
Premises or any portion thereof demised by said sublease, or
E. bound by any obligation to make any payment to the subtenant, or
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F. bound by any modification of the sublease which reduces the basic rent,
Additional Payments, supplemental rent or other charges payable under the
sublease, or shortens the term thereof, or otherwise materially adversely
affects the rights of the landlord thereunder, made without the written consent
of Landlord.
(This is the end of Article 16)
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ARTICLE 17 -- ASSIGNMENT, SUBLETTING, MORTGAGE
SECTION 17.1. PRIOR CONSENT-PERMITTED SUBLEASES. With the exception of an
assignment or sublease for a use permitted by Section 8.2 above to either an
entity controlling, controlled by or under common control with Tenant or in
which Tenant is a general partner, manager, equity member or managing member, or
to any entity existing or formed for the purpose of effecting a "sale/leaseback"
transaction as a method of financing the construction and operation of any
approved improvements on the Premises, Tenant shall not assign, sublease,
mortgage, pledge, encumber or in any manner transfer this Lease or any part
thereof, or the interest of Tenant in any sublease or the rentals thereunder,
without the prior written consent of Landlord in each instance, which shall be
given or withheld in Landlord's reasonable discretion, and any attempt to
assign, sublease, mortgage, pledge or encumber without the prior written consent
of Landlord shall be void except as is permitted under the provisions of
Sections 17.6, 17.7, or 17.10 except that the assignment of this Lease by Tenant
to another person or entity, and the subsequent re-assignment of this Lease by
such person or entity to Tenant, in each case solely for the purpose of causing
such person or entity to execute and deliver a Permitted Mortgage, or to receive
a construction advance thereunder, shall not require the consent of Landlord.
Partial assignments shall not be permitted. This covenant shall apply to the
subletting of space in the Premises for any purpose not expressly permitted by
Section 8.2 this Lease. Additionally:
A. Each sublease shall be subject and subordinate to this Lease and the
rights of Landlord hereunder, and the rights of a Permitted Mortgagee as
provided for in this Lease.
B. Any violation of any provision of this Lease, whether by act or
omission by a subtenant, shall be deemed a violation of such provision by
Tenant, it being the intention and meaning of the parties that Tenant shall
assume and be liable to Landlord for any and all acts and omissions of any and
all subtenants with respect to this Lease.
C. Each such sublease shall provide that in the event such Lease (or any
new lease made pursuant to Section 17.11) is terminated, the subtenant will
attorn to Landlord if Landlord shall accept such attornment upon such
termination.
SECTION 17.2. RENT FROM ASSIGNEE. If this Lease is assigned, whether or
not in violation of the provisions hereof, Landlord may and hereby is empowered
to collect rent from the assignee. In such event, Landlord may apply the net
amount received by it to Net Rent and Additional Payments, and no such
collection shall be deemed a waiver of the covenant herein against assignment,
or an acceptance of the assignee or subtenant as a Tenant under this
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Lease, or a release of Tenant from the further performance of the covenants
herein contained on the part of Tenant. Nothing herein contained shall be deemed
to prohibit Tenant from assigning its interest in this Lease or its interest as
sublessor in any subleases to the holder of any Permitted Mortgage as further
security for the indebtedness outstanding under such Mortgage.
SECTION 17.3. CONTINUING LIABILITY. Unless expressly agreed to in writing
by Landlord, the making of any assignment in whole or in part, shall not operate
to relieve Tenant from its obligations under this Lease and, notwithstanding any
such assignment, except as otherwise provided in this Article, Tenant shall
remain liable for the payment of all Net Rent and Additional Payments and for
the due performance of all the covenants, agreements, terms, and provisions of
this Lease to the full end of the Term hereof, whether or not there shall have
been any prior termination of this lease by summary proceedings or otherwise.
SECTION 17.4. ASSIGNEE BOUND. Every assignee, whether as assignee or as
successor in interest of any assignee of Tenant herein named or as assignee of
the holder of any Permitted Mortgage, or as successor in interest of any
assignee, including any purchaser of the Lease under a foreclosure of any
Permitted Mortgage, shall immediately be and become and remain liable for the
payment of Net Rent and Additional Payments, and for the due performance of all
the covenants, agreements, terms, and provisions hereof on Tenant's part to be
performed to the end of the Term hereof, except as hereinafter provided in this
Section, and every provision of this Lease applicable to Tenant shall apply to
and bind every such assignee and purchaser with the same force and effect as
though such assignee or purchaser were the Tenant named in this Lease. No
transfer to such assignee or to such purchaser shall be binding upon Landlord
unless such assignee or purchaser shall deliver to the Landlord a recordable
instrument which contains a covenant of assumption by said assignee or purchaser
to such effect, but the failure or refusal of such assignee or purchaser to
deliver such instrument shall not release or discharge such assignee or
purchaser from its obligations and liability as above set forth.
SECTION 17.5. CONSENT LIMITED. Any consent by Landlord herein contained or
hereafter given to any act of assignment, shall be held to apply only to the
specific transaction hereby or thereby approved. Such consent shall not be
construed as a waiver of the duty of Tenant, or its successors or assigns, to
obtain from the Landlord a consent to any other or subsequent assignment, or as
a modification or limitation of the right of Landlord with respect to the
foregoing covenant by Tenant.
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SECTION 17.6. PERMITTED MORTGAGES--CONDITIONS OF. Tenant from time to time
during the Term of this Lease may make one or more Permitted Mortgages, provided
that:
A. Each Permitted Mortgage shall cover no interests in real property other
than Tenant's interest in the Premises and the subleases;
B. Tenant or the holder of such Permitted Mortgage shall promptly deliver
to Landlord in the manner herein provided for the giving of notice to Landlord,
a true copy of the Permitted Mortgage(s), of any assignment thereof, and of the
satisfaction thereof; and
C. Unless otherwise agreed to in writing by Landlord, each Permitted
Mortgage shall contain provisions permitting the disposition and application of
the insurance proceeds and Condemnation Awards in the manner provided in this
Lease.
D. Landlord agrees to negotiate in good faith to amend this Lease to
include commercially reasonable Permitted Mortgagee protection provisions which
may be necessary to secure financing for the construction of the New Building,
provided that the requested modifications do not adversely affect any rights of
Landlord or materially alter the terms and conditions of this Lease, all as
determined by Landlord in its reasonable discretion.
SECTION 17.7. MORTGAGES--PROVISIONS. With respect to any Permitted
Mortgage made in accordance with the provisions of Section 17.6, the following
provisions shall apply:
A. For the purposes of the Notice requirements of this Article, the term
"Permitted Mortgagee" shall mean only the holder of the outstanding Permitted
Mortgage that is the first to be recorded in the office of the Maricopa County
Recorder and who also gives Landlord a written request for notice of default and
a current address where such notice may be sent (also sometimes referred to
herein as the "First Permitted Mortgagee of Record").
B. For the purpose of this Section the making of a Permitted Mortgage
shall not be deemed to constitute an assignment or transfer of this Lease, nor
shall any holder of a Permitted Mortgage, as such, be deemed an assignee or
transferee of this Lease or of the leasehold estate hereby created so as to
require such holder of a Permitted Mortgage, as such, to assume the performance
of any of the terms, covenants, or conditions on the part of Tenant to be
performed hereunder; but the purchaser at any sale of this Lease in any
proceedings for the foreclosure of any Permitted Mortgage, or the assignee or
transferee of this Lease under any instrument of assignment or transfer in lieu
of the foreclosure of any Permitted Mortgage, shall be deemed to be an assignee
or transferee within the meaning of this Section
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and shall be deemed to have assumed the performance of all the terms, covenants,
and conditions on the part of Tenant to be performed hereunder from and after
the date of such purchase and assignment.
SECTION 17.8. NOTICE OF MORTGAGEES. So long as any Permitted Mortgage
shall remain a lien on Tenant's leasehold estate hereunder, Landlord agrees,
simultaneously with the giving of any notice required by Section 18.1 or Section
18.2 of this Lease to Tenant (i) of default, or (ii) of a termination hereof, to
give duplicate copies thereof or of any process in any action or proceeding
brought to terminate or to otherwise in any way affect this Lease, to the
Permitted Mortgagee as defined in Section 17.7(a) only, and no such notice to
Tenant or process shall be effective unless a copy of such notice is given to
the Permitted Mortgagee in the manner herein provided. Concurrently with Tenant,
the Permitted Mortgagee will have the same period after receipt of the aforesaid
notice by Tenant to remedy the default or cause the same to be remedied plus
twenty (20) days thereafter; and Landlord agrees to accept such performance on
the part of the Permitted Mortgagee or the holder of any Permitted Mortgage as
though the same had been done or performed by Tenant.
SECTION 17.9. MORTGAGEE CURES. Landlord will take no action to effect a
termination of this Lease by reasons of any default without first giving to the
First Permitted Mortgagee of Record a reasonable time within which either (i) to
obtain possession of the Premises (including possession by a receiver) and
thereafter to cure such default if the default be one which can be cured with
the exercise of reasonable diligence by the Permitted Mortgagee, or (ii) to
institute foreclosure proceedings and to complete such foreclosure, or otherwise
to acquire Tenant's interest under this Lease with diligence and without
unreasonable delay in the case of a default which cannot be cured with the
exercise of reasonable diligence by the Permitted Mortgagee. In either such
case, the default of which notice shall have been given shall be deemed cured.
The Permitted Mortgagee shall not be required to continue such foreclosure
proceedings if the default shall be cured by Tenant; provided, further, that
nothing herein shall preclude Landlord from exercising any rights or remedies
under this Lease with respect to any other default by Tenant during any period
of such forbearance. In the event that the First Permitted Mortgagee obtains
possession of the Premises pursuant to the provisions of this Section, Landlord
agrees that, notwithstanding the use restrictions set forth in the second
sentence of Section 8.2, with prior approval by Landlord of the proposed use,
which approval shall not be unreasonably withheld, the Premises may be used for
any purpose not prohibited under this Lease. Landlord acknowledges that it would
be unreasonable to withhold its approval of a use which is the same as or is
substantially similar to an existing use within the center which was previously
approved by Landlord.
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SECTION 17.10. CONDITIONS OF CURE. The provisions of Section 17.9 are
conditioned on the following:
A. Permitted Mortgagee notifying Landlord of its election to proceed with
due diligence promptly to acquire possession of the Premises or to foreclose the
Permitted Mortgage or otherwise to extinguish Tenant's interest in this Lease;
and
B. Permitted Mortgagee delivering to Landlord an instrument in writing
duly executed and acknowledged wherein such Permitted Mortgagee agrees that:
(1) During the period that such Permitted Mortgagee shall be in
possession of the Premises and so long as it remains in possession and/or during
the pendency of any such foreclosure or other proceedings and until the interest
of Tenant in this Lease shall terminate or such proceeding shall be discontinued
as provided in this Section, as the case may be, it will pay or cause to be
promptly paid to Landlord all sums that are then due or that may, from time to
time, become due hereunder for Net Rent or Additional Payments; and
(2) If delivery of possession of the Premises shall be made to such
Permitted Mortgagee, whether voluntarily or pursuant to any foreclosure, other
proceedings or otherwise, such Permitted Mortgagee shall, promptly following
such delivery of possession, perform all the covenants and agreements herein
contained on Tenant's part to be performed (including but not limited to payment
of Net Rent and Additional Payments) to the extent that Tenant shall have failed
to perform the same to the date of delivery of possession, as aforesaid.
SECTION 17.11. NEW LEASE WITH MORTGAGEE. In the event of the termination
of this Lease prior to its stated expiration date, Landlord agrees that it will
give the Permitted Mortgagee notice of such termination and will enter into a
new lease of the Premises with such permitted Mortgagee or, at the request of
such Permitted Mortgagee, with its previously approved (by Landlord) assignee,
designee, or nominee for the remainder of the Term effective as of the date of
such termination, upon the same covenants, agreements, terms, provisions, and
limitations herein contained, provided (i) such Permitted Mortgagee makes
written request upon Landlord for such new lease within thirty (30) days after
the Landlord's giving notice of termination and such written request is
accompanied by payment to Landlord of all amounts then due to Landlord of which
Landlord shall have given the Permitted Mortgagee notice, (ii) such Permitted
Mortgagee pays or causes to be paid to Landlord at the time of the execution and
delivery of such new lease any and all additional sums which, would at the time
of the execution and delivery thereof be due under this Lease but for such
termination and
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pays or causes to be paid any and all expenses, including reasonable attorney's
fees, court costs, and costs and disbursements incurred by Landlord in
connection with any such termination and in connection with the execution and
delivery of such new lease, less the net income from the Premises collected by
Landlord subsequent to the date of the termination of this Lease and prior to
the execution and delivery of such new lease. If Landlord receives more than one
written request in accordance with the provisions of this Section, Landlord
shall only be required to deliver the new lease to the Permitted Mortgagee whose
Permitted Mortgage is prior in lien to any and all other Permitted Mortgages
whose holders have made such request, and the written request, and its rights
hereunder, of any holder of a Permitted Mortgage which is subordinate in lien
shall be null and void and of no force or effect. Landlord may rely upon the
certificate of any title insurance company authorized to do business in Arizona
in determining which Permitted Mortgage is prior in lien to all others. The
provisions of this Section shall survive the termination of this Lease and shall
continue in full force and effect thereafter to the same extent as if this
Section were a separate and independent contract among Landlord, Tenant, and
Permitted Mortgagee. Landlord shall deliver possession of the Premises, subject
to any outstanding third party claims, and shall assign to the new Lease Tenant
all subleases remaining in the Building which have not been terminated by
Landlord or otherwise.
SECTION 17.12. PRIORITY OF NEW LEASE. Any new lease made pursuant to the
preceding Section shall be prior to any mortgage or other lien, charge, or
encumbrance on the fee of the Premises or on this Lease, and the priority of
such new lease shall date back to the date of execution of this Lease.
SECTION 17.13. ASSIGNMENT OF SUBLEASES. Tenant hereby assigns to Landlord,
effective upon the occurrence of any Event of Default hereunder, and so long as
such Default remains uncured, as collateral security for the performance of all
obligations of Tenant under this Lease, any sublease created by Tenant and each
and every amendment, modification, or extension thereof. In no event shall such
assignment impose upon Landlord any duty or obligation to perform any of the
obligations of Tenant as landlord under any such lease or subleases. After
default by Tenant, Landlord may collect the rents and subrents from any and all
subtenants or occupants and apply the net amount collected to the Net Rent and
Additional Payments, but no such collection by Landlord will be deemed to be a
waiver of any agreement, term, covenant, or condition of this Lease by Landlord,
nor the acceptance by Landlord of any subtenant or occupant, as Tenant. The
assignment in this Section shall be subordinate to any assignment of rents to a
Permitted Mortgagee.
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SECTION 17.14. LANDLORD'S LIEN WAIVER. At Tenant's request, Landlord
agrees to execute a form of landlord's lien waiver with respect to Tenant's
financing of any personal property located on the .Premises, subject to
Landlord's review and approval of any such landlord's lien waiver form.
(This is the end of Article 17)
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ARTICLE 18 - DEFAULT BY TENANT
Section 18.1. EVENTS OF DEFAULT. The happening of any one of the
following events (herein called "Events of Default") shall be considered a
material breach and default by Tenant under this Lease.
A. MONETARY DEFAULT. If default shall be made in the due and punctual
payment of any Net Rent or Additional Payments within twenty (20) days after
written notice thereof to Tenant;
B. NON-MONETARY DEFAULT. If default shall be made by Tenant in the
performance of or compliance with any of the covenants, agreements, terms,
limitations, or conditions hereof other than those referred to in the foregoing
subsection (A), and such default shall continue for a period of thirty (30) days
after written notice thereof from Landlord to Tenant (provided, that if Tenant
proceeds with due diligence during such thirty (30) day period to substantially
cure such default and is unable by reason of the nature of the work involved, to
cure the same within the required thirty (30) days, its time to do so shall be
extended by the time reasonably necessary to cure the same as determined by
Landlord); or
C. BANKRUPTCY, VOLUNTARY. If Tenant shall file a voluntary petition in
bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall take the
benefit of any relevant legislation that may be in force for bankrupt or
insolvent debtors or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief for itself under any present or future federal, state, or
other statute, law or regulation, or if Tenant shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or
of all or any substantial part of its properties, or shall make any general
assignment for the benefit of creditors; or
D. BANKRUPTCY, INVOLUNTARY. If a petition shall be filed against Tenant
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future federal, state, or
other statute, law or regulation, and shall remain undismissed or unstayed for
ninety (90) days, of if any trustee, receiver or liquidator of Tenant, or of all
or substantial part of its properties, shall be appointed without the consent or
acquiescence of Tenant and such appointment shall remain unvacated and unstayed
for ninety (90) days.
E. INSURANCE, LAPSE OR TERMINATION. Notwithstanding the provisions of
paragraph B, above, the lapse or cancellation of any policy of insurance
required herein, in
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whole or in part for the benefit of Landlord, shall be an event of default. No
cure of such default can be accomplished unless a new or renewed policy is
issued which specifically provides the required coverage to the Landlord for any
liability arising during the lapsed or previously uncovered period.
Section 18.2. NOTICE AND TERMINATION. Upon the occurrence of one or
more of the events listed in Section 18.1 the Landlord at any time thereafter,
but not after such default is cured, may give written notice ("Second Notice")
to Tenant specifying such Event(s) of Default and stating that this Lease and
the Term hereby demised shall expire and terminate on the date specified in such
notice, which shall be at least fifteen (15) calendar days after the giving of
such Second Notice, and upon the date specified in such Second Notice, subject
to the provisions of Article 17 or of Section 18.4, this Lease and the Term
hereby demised and all rights of Tenant under this Lease shall expire and
terminate as though such date were the date originally set forth herein for the
termination hereof.
SECTION 18.3. RELETTING. At any time after any expiration or
termination of this Lease as provided in this Article or by summary proceedings,
ejectment or otherwise, Landlord shall use its best efforts to relet the
Premises or any part thereof, in the name of Landlord. It being understood that
if other suitable parcels are available, Landlord is not required to relet the
subject property first.
Section 18.4. TENANT LIABILITY CONTINUES. No such expiration or
termination of this Lease shall relieve Tenant of its liability and obligations
under this Lease, and such liability and obligations shall survive any such
expiration or termination. In the event of any such expiration or termination,
whether or not the Premises or any part thereof shall have been relet, Tenant
shall pay to Landlord the Net Rent and Additional Payments required to be paid
by Tenant up to the time of such expiration or termination of this Lease, and
thereafter Tenant, until the end of what would have been the Term of this Lease
in the absence of such expiration or termination, shall be liable to Landlord
for, and shall pay to Landlord, as and for the liquidated and agreed current
damages for Tenant's default:
The equivalent of the amount of the Net Rent and Additional Payments
which would be payable hereunder by Tenant if this Lease were still in effect,
less the net proceeds of any reletting effected pursuant to the provisions of
Section 18.3 after deducting all Landlord's expenses in connection with such
reletting, including, without limitation, all repossession costs, brokerage
commissions, legal expenses, reasonable attorney's fees, alteration costs, and
expenses of preparation for such reletting, which shall be due and payable to
Landlord on the
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days on which the Net Rent and Additional Payments would have been payable
under this Lease if this Lease were still in effect.
SECTION 18.5. NO IMPLIED WAIVERS. No failure by Landlord to insist upon
the strict performance of any covenant, agreement, term or condition hereof or
to exercise any right or remedy consequent upon a breach hereof, and no
acceptance of full or partial rent during the continuance of any such breach,
shall constitute a waiver of any such breach or of such covenant, agreement,
term or condition. No covenant, agreement, term or condition hereof to be
performed or complied with by Landlord or Tenant, and no breach thereof, shall
be waived, altered or modified, except by a written instrument executed by the
party to be charged therewith. No waiver of any breach shall affect or alter
this Lease, but each and every covenant, agreement, term, limitation and
condition hereof shall continue in full force and effect with respect to any
other then existing or subsequent breach hereof.
Section 18.6. REMEDIES CUMULATIVE. In the event of any breach by Tenant
of any of the covenants, agreements, terms or conditions hereof, Landlord, in
addition to any and all other rights, shall be entitled to enjoin such breach
and shall have the right to invoke any right and remedy allowed at law or in
equity or by statute or otherwise for such breach as though reentry, summary
proceedings, and other remedies were not provided for in this Lease. In the
event of Tenant's failure to pay Net Rent or Additional Payments on the date
when due, Tenant shall pay Landlord interest on any such overdue payments and
associated late charges at the rate of two percent (2%) per month, but in no
event an amount greater than permitted by law, but this shall in no way limit
any claim for damages for Landlord for any breach or default by Tenant.
SECTION 18.7. LATE CHARGE. In the event that any payment required to be
made by Tenant to Landlord under the terms of this Lease is not received within
ten (10) days after the due date thereof, a late charge shall become immediately
due and payable as an Additional Payment in an amount equal to two and one-half
percent (2.5%) of the late payment.
(This is the end of Article 18)
ARTICLE 19 - DEFAULT BY LANDLORD
Section 19.1. LIMITATIONS OF LANDLORD'S LIABILITY. The term "Landlord,"
as used herein, so far as Landlord's covenants and agreements hereunder are
concerned, shall be limited to mean and include only the owner or owners of the
fee title to the Premises or those having the right of immediate possession in a
pending condemnation action at the time in question.
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In the event of any conveyance of such title, and regardless of whether the
grantee is financially responsible or solvent and notwithstanding that the
grantor may be a stockholder, officer or director of a corporate grantee,
Landlord herein named and each subsequent grantor shall be automatically
relieved, from and after the date of such conveyance, of all personal liability
as respects the performance of any of Landlord's covenants and agreements
thereafter to be performed, and such grantee shall be bound by all such
covenants and agreements; it being intended that Landlord's covenants and
agreements shall be binding on Landlord, its successors and assigns, only during
and in respect of their successive periods of ownership.
Section 19.2. Remedies. In the event of any breach by Landlord of any
of the covenants, agreements, terms, or conditions hereof, Tenant, in addition
to any and all other rights, shall be entitled to enjoin such breach and shall
have the right to invoke any right and remedy allowed at law or in equity or by
statute or otherwise for such breach.
(This is the end of Article 19)
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ARTICLE 20 - UNENFORCEABLE TERMS
Section 20.1. PROVISIONS SEVERABLE. If any term or provision hereof or
the application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision hereof shall be valid and be enforced to the fullest extent
permitted by law.
(This is the end of Article 20)
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ARTICLE 21 - NOTICES
SECTION 21.1. NOTICES. Any notice, request, demand, statement, or
consent herein required or permitted to be given by either party to the other
hereunder, except as pursuant to Article 12, shall be in writing signed by or on
behalf of the party giving the notice and addressed to the other at the address
as set forth below:
Landlord
Director of the Community and
Economic Development Department
City of Phoenix
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
and
City Clerk
City of Phoenix
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Tenant
America West Airlines
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Each party may by notice in writing change its address for the purpose
of this Lease, which address shall thereafter be used in place of the former
address. Each notice, demand, request, or communication which shall be mailed to
any of the aforesaid shall be deemed sufficiently given, served, or sent for all
purposes hereunder only upon actual receipt by the addressee after it shall be
mailed by receipt requested, upon personal delivery, or upon delivery by
commercial air courier or express service.
Section 21.2. NOTICE TO FIRST PERMITTED MORTGAGEE OF RECORD ONLY. When,
under the terms of this Lease, any Notice is required or permitted to be given
to a Permitted Mortgagee it is the intention of the parties that such notice
shall only be required to be given to the First Permitted Mortgagee of Record.
Notice to other Permitted Mortgagees shall be the responsibility of Tenant.
Should Tenant fail to give notice to other Permitted Mortgagees,
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such failure shall not affect the validity of any action taken by Landlord. This
provision takes precedence over any other provisions of this Lease that may
impose a greater notice requirement upon Landlord.
(This is the end of .Article 21)
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ARTICLE 22 - CONDITION
Section 22.1. CONDITION OF PREMISES. Tenant represents that the
Premises, any sidewalks, vaults, the title to the Premises, parking areas
adjoining the same, any subsurface conditions thereof, and the present uses and
nonuses thereof, have been examined by Tenant and that Tenant accepts the same
in the condition or state in which they or any of them may be on the date of the
execution of this Lease, without representation or warranty, express or implied
in fact or by law, by Landlord and without recourse to Landlord, as to the
nature, condition, or usability thereof or the use or uses to which the Premises
or any part thereof may be put.
(This is the end of Article 22)
ARTICLE 23 - QUIET ENJOYMENT
Section 23.1. QUIET ENJOYMENT. Subject to all of the conditions, terms,
and provisions contained in this Lease, Landlord covenants that Tenant, upon
paying the Net Rent, and additional payments and observing and keeping all
terms, covenants, agreements, limitations, and conditions hereof on its part to
be kept, shall quietly have and enjoy the Premises during the term hereof,
without hindrance or molestation by Landlord.
(This is the end of Article 23)
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ARTICLE 24 - ESTOPPEL
Section 24.1. ESTOPPEL CERTIFICATES. Landlord or Tenant may request, a
certificate evidencing whether or not
A. The Lease is in full force and effect along with the amount and
current status of the Net Rent and Additional Payments due hereunder;
B. The Lease has been modified or amended in any respect or describing
such modifications or amendments, if any; and
C. There are any existing defaults thereunder to the knowledge of the
party executing the certificate, and specifying the nature of such defaults, if
any.
(This is the end of Article 24)
ARTICLE 25 - CONSENTS
Section 25.1. Wherever in this Lease the consent or approval of either
party is required, such consent or approval shall not be unreasonably withheld
nor delayed, except where otherwise specifically provided. The remedy of the
party requesting such consent or approval, in the event such party should claim
or establish that the other party has unreasonably withheld or delayed such
consent or approval, shall be limited to injunction or declaratory judgment and
in no event shall such other party be liable for a money judgment.
(This is the end of Article 25)
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ARTICLE 26 - ADJOINING EXCAVATION
Section 26.1. ENTRY AND REPAIRS. Tenant shall allow, with prior notice
to Tenant and reasonable good faith efforts to schedule such work to accommodate
Tenant's business operations on the Premises, any person, municipality, or
agency authorized by law and desiring to excavate upon land or streets adjacent
to the Premises, to enter the Premises and shore up any walls during such
excavation to the extent required. Tenant shall, at Tenant's own expense, repair
or cause to be repaired, any damage caused to any part of the Premises because
of any excavation, construction work, or other work of a similar nature which
may be done on any property or street adjoining or adjacent to the Premises, and
Landlord hereby assigns to Tenant any and all rights to ▇▇▇ for or recover
against any parties causing such damages, the amounts expended or incurred by
Tenant because of the provisions hereof requiring Tenant to repair any damages
sustained by such excavation work or other work.
(This is the end of Article 26)
ARTICLE 27 LANDLORD NOT LIABLE
Section 27.1. LIMITATION OF LIABILITY. Landlord shall not be
responsible or liable for any damage or injury to any property, fixtures,
merchandise, or decorations or to any person or persons at any time on the
Premises and the Option Parcels from steam, gas, electricity, water, rain, or
any other source whether the same may leak into, issue or flow from any park of
the Building or from pipes or plumbing work of the same, or from any other place
or quarter (except if resulting from Landlord's negligence in connection with
Landlord's operation or maintenance of any public utilities serving the
Premises); nor shall Landlord be in any way responsible or liable in case of any
accident or injury including death to any of Tenant's employees, agents,
subtenants, or to any person or persons in or about the Premises and the Option
Parcels or the streets, sidewalks or vaults adjacent thereto; and Tenant agrees
that it will not hold Landlord in any way responsible or liable therefor.
Landlord shall not be liable for interference with light or incorporeal
hereditaments caused by anybody or the operation of or for any governmental
authority in the construction of any public or quasi-public work (except to the
extent performed by Landlord) and Landlord shall not be liable for any latent or
any other defects in the Premises or the Option Parcels.
(This is the end of Article 27)
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ARTICLE 28 - MISCELLANEOUS
Section 28.1. TAX INCENTIVES; PAYMENT IN LIEU OF TAXES (PILOT). The
Land is located within a single central business district designated by Landlord
as the Sky Harbor Center Tax Incentive District, an area within the Sky Harbor
Center Redevelopment Area and which Landlord has determined by Resolution No.
18260, approved by the Phoenix City Council on October 25, 1993, to be in need
of incentives to encourage private investments in the construction of new
improvements. It is further acknowledged by Landlord that the improvements to be
made to the Land pursuant to this Lease will result in an increase in its value
of at least one hundred percent (100%) from the date of Tenant's possession of
the Land pursuant to this Lease to the date of Landlord's issuance to the Tenant
of a Certificate of Occupancy for the New Building. Accordingly, it is the
intent of the parties that, pursuant to the provisions of Arizona Revised
Statutes Section 42-6209 or any applicable substitute legislation which may
hereafter be enacted, Tenant shall not be required to pay any lease excise tax
upon the New Building for the eight (8) year period commencing with the issuance
of a Certificate of Occupancy for the New Building.
In addition to the Net Rent and Additional Payments payable by Tenant
under this Lease (including but not limited to items set forth in Articles 3 and
4), Tenant shall pay to Landlord during the term of this Lease beginning in the
ninth year after title to the New Building vests in Landlord, for each Lease
Year during which there is no lease excise or ad valorem property tax upon the
New Building, a PILOT in an amount equal to what the lease excise tax would have
been on the New Building had the New Building been subject to bearing such tax.
The PILOT to be paid Landlord during any Lease Year shall be due on the
date provided by law to be the date after which property tax payments to the
Maricopa County Tax Collector become delinquent. If Tenant is required to pay
any ad valorem property tax or lease excise tax upon a parcel, which is a
component of the property tax, all such taxes shall be subtracted from the PILOT
due hereunder for that parcel.
Section 28.2. TRAVEL REDUCTION PROGRAMS. Tenant and all subtenants
shall comply with any applicable requirements of Arizona Revised Statutes
Sections 49-581, et seq., to develop and implement a travel reduction plan to
encourage employees to use public transit, rideshare, walk or ride a bike for
their commute to and from work at Phoenix Sky Harbor Center. The implemented
program shall include provision of preferential parking spaces for car and
vanpoolers.
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Section 28.3. CHOICE OF LAW. This Lease shall be construed and enforced
in accordance with the laws of the State of Arizona.
Section 28.4. MEMORANDUM. Landlord and Tenant agree that at the request
of either, each will execute a short form memorandum of this Lease in a form
satisfactory for recording in the Office of the County Recorder, Maricopa
County, Arizona.
Section 28.5. ENTIRE AGREEMENT. This Lease with its schedules and
annexes contains the entire agreement between Landlord and Tenant and any
executory agreement hereafter made between Landlord and Tenant shall be
ineffective to change, modify, waive, release, discharge, terminate, or effect
an abandonment of this Lease, in whole or in part, unless such executory
agreement is in writing and signed by the party against whom enforcement of the
change, modification, waiver, release, discharge, termination, or the effect of
the abandonment is sought.
Section 28.6. CAPTIONS. The captions of Articles and Sections in this
Lease and its Table of Contents are inserted only as a convenience and for
reference and they in no way define, limit, or describe the scope of this Lease
or the intent of any provision thereof. References to Articles and Section
numbers are to those in this Lease unless otherwise noted.
Section 28.7. EXECUTION AND DELIVERY. This Lease shall bind Tenant upon
its execution thereof. Landlord shall be bound only after it executes and
delivers the Lease to Tenant.
Section 28.8. SINGULAR AND PLURAL, GENDER. If two or more persons,
firms, corporations, or other entities constitute either the Landlord or the
Tenant, the word "Landlord" or the word "Tenant" shall be construed as if it
reads "Landlords" or "Tenants" and the pronouns "it," "he," and "him" appearing
herein shall be construed to be the singular or plural, masculine, feminine, or
neuter gender as the context in which it is used shall require.
Section 28.9. MULTIPLE PARTIES. If at any time Landlord, Tenant, any
Permitted Mortgagee (Landlord, Tenant or any such mortgagee being in this
Section referred to as a "party") is other than one individual, partnership,
firm, corporation, or other entity, the act of, or notice, demand, request, or
other communication from or to, or payment of refund from or to, or signature
of, or any one of the individuals, partnerships, firms, corporations, or other
entities then constituting such party with respect to such party's estate or
interest in the Premises or this Lease shall bind all of them as if all of them
so had acted, or so had given
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or received such notice, demand, request, or other communication, or so had
given or received such payment or refund, or so had signed, unless all of them
theretofore have executed and acknowledged in recordable form and given a notice
(which has not theretofore been revoked by notice given by all of them)
designating not more than three individuals, partnerships, firms, corporations,
or other entities as the agent or agents for all of them. If such a notice of
designation has theretofore been given, then, until it is revoked by notice
given by all of them, the act of, or notice, demand, request or other
communication from or to, or payment or refund from or to, or signature of, the
agent or agents so designated with respect to such party's estate or interest in
the Premises or this Lease shall bind all of the individuals, partnerships,
firms, corporations, or other entities then constituting such party as if all of
them so had acted, or so had given or received such notice, demand, request, or
other communication, or so had given or received such payment or refund, or so
had signed.
Section 28.10. EXHIBITS AND INCORPORATION. The following exhibits,
which are attached hereto or are in the possession of the Landlord and Tenant,
are incorporated herein by reference as though fully set forth:
Exhibit "A" Legal Description
Exhibit "B" Parcel Map
Exhibit "C" Net Rent Schedule
Exhibit "D" Tenant's Concept Plans
Section 28.11. IMMIGRATION REFORM AND CONTROL ACT OF 1986 (IRCA).
Tenant understands and acknowledges the applicability of the IRCA to it and
agrees to comply with the IRCA for all activities undertaken under this lease.
Section 28.12. CITY'S RIGHT OF CANCELLATION. All parties hereto
acknowledge that this agreement is subject to cancellation by the City of
Phoenix pursuant to the provisions of Section 3 8-51.1, Arizona Revised
Statutes.
(This is the end of Article 28)
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ARTICLE 29 - EQUAL EMPLOYMENT OPPORTUNITY
Tenant shall comply with all elements and requirements of the City of
Phoenix Equal Employment Opportunity ordinances. In that regard, the following
clause is required to appear in this Lease and all subleases, if any:
In performing under this contract, Tenant shall not discriminate
against any worker, employee or applicant, or any member of the public, because
of race, color, religion, gender, national origin, age, sexual orientation or
disability, nor otherwise commit an unfair employment practice. Tenant will take
affirmative action to insure that applicants are employed, and that employees
are dealt with during employment, without regard to their race, color, religion,
gender, national origin, age, sexual orientation or disability. Such action
shall include, but not be limited to the following: employment, upgrading,
demotion or transfer; recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for
training, including apprenticeship. Tenant further agrees that this clause will
be incorporated in all subcontracts entered into with suppliers of materials or
services, and all labor organization furnishing skilled, unskilled and union
labor, or who may perform such labor or services in connection with this
contract.
Tenant's attention is called to Ordinance No. G-881, passed October 8,
1968; Ordinance No. G-1080, passed April 6, 1971; and Ordinance No. G-1121,
passed October 5, 1971; and Ordinance No. G-3472, passed November 20, 1991.
(This is the end of Article 29)
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ARTICLE 30 - FEDERAL GRANT ASSURANCE CONTRACTUAL PROVISIONS
Section 30.1. NON-DISCRIMINATION PROVISIONS.
A. Tenant does hereby covenant and agree, as a covenant running with
the land, that the facilities constructed, maintained, or otherwise operated on
the property described in this Lease shall be maintained and operated in
compliance with all requirements imposed pursuant to Title 49, Code of Federal
Regulations, DOT, Subtitle A, Office of the Secretary, Part 21,
Nondiscrimination in Federally-Assisted Programs of the Department of
Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and
as said regulations may be amended.
B. Tenant does hereby covenant and agree, as a covenant running with
the land, that: (1) no person on the grounds of race, color, or national origin
shall be excluded from participation in, denied the benefits of, or be otherwise
subjected to discrimination in the use of said facilities, (2) that in the
construction of any improvements on, over, or under such land and the furnishing
of services thereon, no person on the grounds of race, color, or national origin
shall be excluded from participation in, denied the benefits of, or otherwise be
subject to discrimination, (3) that Tenant shall use the Premises in compliance
with all other requirements imposed by or pursuant to Title 49, Code of Federal
Regulations, Department of Transportation, Subtitle A, Office of the Secretary,
Part 21, Nondiscrimination in Federally-Assisted Programs of the Department of
Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as
said Regulations may be amended.
C. That in the event of breach of any of the above nondiscrimination
covenants, Landlord shall have the right to terminate this Lease and to reenter
and repossess said land and the facilities thereon, and hold the same as if this
Lease had never been made or issued. This provision does not become effective
until the procedures of 49 CFR Part 21 are followed and completed including
expiration of appeal rights.
D. Tenant agrees that it shall insert the above five provisions of this
Section in any sublease, assignment or any other agreement by which Tenant
grants a right or privilege to any person, firm, or corporation to render
accommodations and/or services to the public on the Premises herein leased.
E. Tenant will comply with the affirmative action program as required
by 14 CFR Part 152, Subpart E, to insure that no person shall on the grounds of
race, creed,
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color, national origin, or sex be excluded from participating in any employment
activities covered in 14 CFR Part 152, Subpart E. Tenant assures that no person
shall be excluded on these grounds from participating in or receiving the
services or benefits of any program or activity conducted on the leased
Premises. Tenant assures that it will require that its tenants provide
assurances to the Tenant that they similarly will undertake affirmative action
programs and that they will require similar assurances as required by 14 CFR
152, Subpart E, to the same effort.
Section 30.2. OTHER FEDERAL REQUIREMENTS.
A. The City of Phoenix reserves the right to further develop or improve
the landing area of the airport as it sees fit, regardless of the desires or
view of the Tenant and without interference or hindrance.
B. The City of Phoenix reserves the right, but shall not be obligated
to the Tenant to maintain and keep in repair the landing area of the airport and
all publicly owned facilities of the airport, together with the right to direct
and control all activities of the Tenant in this regard.
C. This Lease shall be subordinate to the provisions and requirements
of any existing or future agreement between the City of Phoenix and the United
States, relative to the development, operation or maintenance of the airport.
D. There is hereby reserved to the City of Phoenix, its successors and
assigns, for the use and benefit of the public, a right of flight for the
passage of aircraft in the airspace above the surface of the Premises herein
leased. This public right of flight shall include the right to cause in said
airspace any noise inherent in the operation of any aircraft used for navigation
or flight through the said airspace or landing at, taking off from or operation
on the Sky Harbor International Airport.
E. Tenant agrees to comply with the notification and review
requirements covered in Part 77 of the Federal Aviation Regulations in the
construction of building(s) on the leased Premises, or in the event of any
planned modification or alteration of any present or future building or
structure situated on the leased Premises.
F. Tenant expressly agrees that it will not erect nor permit the
erection of any structure or object, nor permit the growth of any tree on the
land leased hereunder in excess of that permitted by the City of Phoenix Airport
Height Zoning Ordinance. In the
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event the aforesaid covenants are breached, the Landlord reserves the right to
enter upon the land leased hereunder and to remove the offending structure or
object and cut the offending tree, all of which shall be at the expense of the
Tenant.
G. The Tenant by accepting this Lease agrees that it will not make use
of the leased Premises in any manner which might interfere with the landing and
taking off of aircraft from the Airport or otherwise constitute a hazard. In the
event the aforesaid covenant is breached, the Landlord reserves the right to
enter upon the Premises hereby leased and cause the abatement of such
interference at the expense of the Tenant.
H. It is understood and agreed that nothing herein contained shall be
construed to grant or authorize the granting of an exclusive right within the
meaning of Section 308a of the Federal Aviation Act of 1958 (49 U.S.C. 1349a).
I. This Lease and all the provisions hereof shall be subject to
whatever right the United States Government now has or in the future may have or
acquire, affecting the control, operation, regulation and taking over of said
airport or the exclusive or nonexclusive use of the airport by the United States
during the time of war or national emergency.
(This is the end of Article 30)
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ARTICLE 31 - CONDITIONS OF DEVELOPMENT
Section 31.1. Additional Definitions.
A. "Application": All materials submitted to the Architectural
Committee appointed by Landlord, or such other entity as may be designated by
Landlord for the purpose of administering the provisions of this Article 31.
B. "Common Areas": Any real or personal property or improvements (as
hereinafter defined) now or at any time hereafter restricted, set aside, used or
maintained for the benefit of the Center, Tenant or other tenants or users of
the Center, including but not limited to any private roadways, pavement, curbs,
sidewalks, lights, landscaped areas, parking areas, open spaces, amenities
tracts, drainage and retention areas, buildings and other property or
Improvements, including any such areas which are adjacent to the Center in
public roadways or landscaped areas, but not including the Land. Public streets
and rights-of-ways are not included within this term except to the extent that
rights-of-way have been upgraded from standard City of Phoenix streets such as
for special light fixtures, pavers, public art, directional signage and special
utilities.
D. "Improvements": Buildings, outbuildings, underground installations,
slope and grade alterations, roads, curbs, gutters, storm drains, utilities,
driveways, parking areas, fences, screening walls and barriers, retaining walls,
stairs, decks, windbreaks, plantings, planted trees and shrubs, sidewalks,
poles, signs, loading areas, docks, utility installations and all other grading,
structures, landscaping, alterations or improvements of every kind within the
Common Areas.
E. "Parcel(s)": Each separate portion of the Center which Landlord has
leased or may hereafter lease to a tenant.
Section 31.2. RESERVATION OF EASEMENTS.
A. Easement Over Common Areas. Landlord and Tenant shall have a
non-exclusive right and easement of use and enjoyment in and to the Common Areas
for their intended purposes which shall be appurtenant to and shall pass with
the leasehold interest under this Lease. Such easement shall be subject to the
following:
(1) Landlord shall have the power to suspend for any period it
deems appropriate, the rights of Tenant to use the Common Areas when Tenant has
not paid any
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assessment or other sum payable under this Lease or is otherwise in breach of
its obligations hereunder;
(2) Landlord shall have the power to dedicate or transfer all
or any part of the Common Areas or easements thereon to any public agency,
authority or utility for such purposes and subject to such conditions as
Landlord may deem appropriate; and
(3) Tenant may make recommendations to Landlord regarding
governing the use of and conduct upon the Common Areas by all persons. Landlord,
acting in its sole and absolute discretion, shall be entitled to approve or
disapprove any such recommendations by Tenant, and shall have the power to
promulgate such rules and regulations as Landlord deems appropriate to govern
the use and conduct upon the Common Areas by all persons.
B. DELEGATION OF USE. Tenant may delegate all or a part of its right to
use and enjoy the Common Areas to licensees, invitees, guests or other persons
properly within the Center, subject to the provisions of this Lease.
C. ENTRY FOR CONSTRUCTION AND MAINTENANCE. Landlord hereby reserves to
itself and its agents, contractors, employees, licensees or invitees a
nonexclusive easement for ingress and egress over all portions of the Land for
the purposes of (i) construction, installation, repair, reconstruction,
restoration, landscaping and maintenance of any Improvements now or hereafter
constructed or installed on the Common Areas, and (ii) performance of any other
obligations of Landlord hereunder. Such easement shall not be utilized in any
manner which would unreasonably interfere with the use and enjoyment by Tenant
of the Land.
D. UTILITY EASEMENTS TO BE GRANTED ONLY BY LANDLORD. Landlord hereby
reserves for itself the right to grant easements upon, over, across and under
the Common Areas where utilities are, or are to be, installed. If granted by
Landlord, such easements may grant to the providing utility rights of access to,
and egress from and to occupy and use the land subject thereto for the purposes
of installing, maintaining, repairing, servicing, enlarging, extending,
modernizing and upgrading any utility located thereon for the benefit of the
Center or Tenant, or other person duly occupying any portion of the Center. For
purposes hereof, the term "utility" shall include electricity, natural gas,
water, sanitary sewers, telephone, cable television, telecommunications, fiber
optics and other similar. facilities of general use and benefit commonly
regarded as utilities.
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E. AIRPORT AVIGATION EASEMENT. Landlord hereby reserves to itself, its
successors and assigns, an assignable easement and right-of-way for the free and
unobstructed passage of aircraft in, through and across the air space above and
over the Land, together with the continuing right to clear and keep clear the
Land of any and all obstructions, infringing upon or extending into or above an
imaginary line, the extension, distance and height of which are prescribed in
Federal Aviation Regulation, Part 77,14 CFR 77, as the same may be amended, and
for this purpose to cut and remove underbrush and soil and to demolish and
remove buildings or any other structures or obstructions infringing upon or
extending into or above the air space above such imaginary line and further, the
right to cut the ground, remove, clear and keep clear any and all trees which
extend above a point ten feet below said imaginary line, whether any of such
structures or obstructions are located on or extending into or over so much of
the above-described land as lies below such imaginary line; together with the
right of ingress and egress for the purpose of effecting and maintaining such
clearance; and including the right in such air space to allow such noise as may
be inherent in the operation of aircraft now known or hereafter used for
navigation or flight in the air. Tenant's use, rights and privileges in the Land
may not interfere with or abridge the rights hereby reserved. Included within
this easement is the right to cause or permit in said air space such noise,
smoke, fumes, droppings and vibrations as may be inherent in the operation of
aircraft now or hereafter used for navigation of or flight in the air using said
air space for landing and taking off from, or operation on Phoenix Sky Harbor
International Airport until said airport shall be abandoned and shall cease to
be used for airport purposes.
F. REFERENCE TO EASEMENTS NOT REQUIRED. Any easements granted or
reserved in this Lease shall be appurtenant to and pass with the leasehold
interest in the Land or any portion thereof, whether or not specifically
referred to in any instrument granting or conveying any such interest.
Section 31.3. REGULATION OF NEW BUILDINGS.
A. APPROVAL REQUIRED. No New Buildings shall be constructed, erected,
placed, altered, maintained or permitted to remain on any Parcel within the Land
until plans, specifications and all other information required by the
Architectural Committee have been submitted to and approved in writing by the
Architectural Committee. The Architectural Committee may require, among other
things, site plans, floor plans, landscaping plans, exterior elevations and
sections and information pertaining to materials, colors, irrigation, signage,
exterior lighting and any other information needed to describe the appearance or
functional characteristics of said New Buildings, all in such detail as the
Architectural Committee may deem necessary or appropriate.
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B. FILING FEE. As a means of defraying its expenses, the Architectural
Committee may require a reasonable filing fee to accompany each Application.
C. BASIS FOR APPROVAL. The Architectural Committee shall have the right
to disapprove any Application submitted to it if the Application is incomplete
or otherwise inadequate in the judgment of the Architectural Committee to allow
a decision, or if the proposed New Buildings: (i) are not, in conformance with
this Lease or the Design Standards Manual; (ii) are not in compliance with
applicable governmental requirements; or (iii) are deemed by the Architectural
Committee not to be in the best interests of the Center. Without limiting the
foregoing, the Architectural Committee may base its approval or disapproval on
criteria established by it which may include but are not limited to the
following: building locations and dimensions relative to the Parcels within the
Land; adequacy of the parking to be provided; conformity and harmony of external
design with neighboring structures and the general character of the Center
intended by Landlord; effect of location and use of proposed New Buildings on
neighboring Parcels and the types of operations and uses thereof; relation of
topography, grade and finish ground elevation on the Parcels within the Land and
relative to neighboring Parcels; proper facing of main elevation with respect to
nearby streets; adequacy of screening of trash facilities and mechanical,
air-conditioning or rooftop installations; adequacy of landscaping; and
conformity of the Application to the purpose and general plan and intent of this
Lease and the Design Guidelines. The Architectural Committee may grant or deny
approval of Applications submitted to it for any reason in its sole and absolute
discretion, and the decision of the Architectural Committee shall be final. The
Architectural Committee may revoke any approval if it determines that such
approval was induced by or resulted from inaccurate or incomplete information
submitted to the Architectural Committee in connection with the Application
thereof.
D. RESULT OF INACTION. The Architectural Committee shall approve or
disapprove any Application within sixty (60) days after receipt thereof. If the
Architectural Committee fails either to approve or disapprove any Application
within said sixty (60) day period, such Application shall be deemed disapproved.
E. PROCEEDING WITH WORK. Upon receipt of approval from the
Architectural Committee pursuant to this Section, Tenant shall, as soon as
practicable, satisfy all conditions thereof and diligently proceed with the
commencement and completion of all approved construction. If construction is not
commenced within six (6) months following the Commencement Date, or such longer
or shorter period as may be expressly required by the Architectural Committee,
then the approval shall be deemed revoked.
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F. RESPONSIBILITY. The Architectural Committee shall review
Applications solely for its own use and benefit in order to enable the
Architectural Committee to exercise its powers as provided herein and not for
the benefit of any other person. The Architectural Committee shall have no
liability for any structural or other defect in any plans approved by it or any
New Building constructed pursuant to such plans or any failure of such plans to
comply with any requirements hereof, including the Design Standards Manual, or
of law. Any person constructing New Buildings or causing New Buildings to be
constructed on any Parcel within the Land shall be solely responsible for the
safety thereof and for compliance with all governmental or other requirements
pertaining thereto, and approval by the Architectural Committee shall not be
deemed to satisfy or to exempt any person from the obligation to comply with any
applicable governmental or other requirements.
G. VARIANCES. Subject to the other provisions of this Lease, the
Architectural Committee may in its sole and absolute discretion grant written
variances from the architectural requirements contained herein. In reviewing any
request for such a variance, the Architectural Committee shall consider whether
such variance will materially injure any of the Parcels or New Buildings in the
Center or unreasonably interfere with the use and enjoyment by any other tenants
of their Parcels. If Tenant requests such a variance, Tenant shall be solely
responsible for complying with any governmental or other requirements pertaining
thereto. No variance granted pursuant to this Section shall constitute a waiver
of any provision of this Lease as applied to any other Parcel, person or
situation.
H. EXEMPTION OF LANDLORD. The provisions of this Section 31.3 shall not
apply to any Improvement approved in writing by or constructed or installed by
or at the direction of Landlord.
Section 31.4. USES AND MAINTENANCE.
A. GENERAL RESTRICTIONS. Anything herein to the contrary
notwithstanding, no Use or activity shall be conducted on the Land which: (i) is
prohibited by any applicable governmental requirement, including without
limitation zoning ordinances or F.A.A. regulations; (ii) violates the provisions
of this Lease or any other agreement between the Landlord and Tenant; or (iii)
constitutes a nuisance, is hazardous, unsanitary, noxious, offensive or
objectionable on account of any noise, odor, dust, visual effect or other
physical impact (such as vibrations, electro-mechanical or electro-magnetic
disturbances, radiation or other harmful or toxic emissions) located upon or
emanating from such Land. Landlord may adopt and amend from time to time
specific guidelines of general and prospective application pertaining to noise
or odor disturbances, hazardous substances or activities,
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nuisances and other matters within the scope of this Section, which guidelines,
as amended from time to time, shall constitute a part of this Lease as if fully
set forth herein and are hereby incorporated herein by this reference.
B. Specific Prohibitions. Without limiting the generality of the
foregoing paragraph, the following uses and activities are prohibited:
1. Residential;
2. Camping;
3. Mobile homes sales and storage yards or trailer or recreational
vehicle courts or sales facilities;
4. Labor camps;
5. Junk yards and auto dismantling operations;
6. Fermentation or distillation facilities;
7. Dumping, disposal, incineration or reduction of garbage, sewage,
dead animals, refuse or silage;
8. Saw or planing ▇▇▇▇▇;
9. Manufacturing, excavation (if applicable) or production of cement,
lime asphalt, gypsum, fireworks, wood pulp or the like;
10. Production of fish products, sauerkraut, vinegar or the like;
11. Fat rendering;
12. Stockyard, feed lot or slaughtering of animals;
13. Surface mining operations;
14. Smelting of iron, tin, zinc or other ores;
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15. Cemeteries;
16. Tent shelters or storage facilities;
17. Processing of sugar beets;
18. Gasoline service stations (except in connection with permitted
automobile rental agencies or ancillary to other permitted uses),
garages and auto repair, automotive paint and body shops;
19. Drilling for and/or the removal of gas or oil;
20. Refining of petroleum or other hydrocarbon products or by-products
or the storage of such products and by-products;
21. Manufacturing, distillation or storage of chemicals (unless such
storage is incidental to other permitted activities, is not in
bulk, or has been approved by the Architectural Committee) or any
other operation involving offensive odors, noise levels or air
pollution or such other operation or use which is deemed by the
Landlord in its sole and absolute discretion to be dangerous,
unsafe, offensive or harmful to the senses or which is deemed to
constitute a nuisance;
22. Jail or detention facilities (except for City of Phoenix police
precinct operations and facilities);
23. Carnivals, amusement parks or arcades, racetracks, rodeos and the
like (except on a short-term, temporary basis with the prior
written consent of Landlord);
24. Equipment rental yards, other than automobile rentals;
25. Hospitals or veterinary clinics; and
26. Agricultural uses, including animal husbandry.
27. On site disposal of hazardous materials (except authorized
discharges to sewer systems);
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28. Outside sales or displays, except as expressly approved by the
Architectural Committee;
29. Blood or plasma banks, clinics or similar facilities;
30. Gambling establishments or gambling uses ancillary to uses
otherwise permitted hereunder;
31. The dispensing or sale of alcoholic beverages, except by
restaurants or hotels with liquor licenses issued pursuant to
A.R.S. Sections 4-205.01 or 4-205.02 (or any successor statutes
pertaining to the sale of liquor by restaurants or hotels ancillary
to food service);
32. Plumbing shops;
33. Driving ranges;
34. Religious missions;
35. Sheltered workshops;
36. Pawnshops;
37. Auction houses;
38. Scrap metal dealers; and
39. Adult or sexually-oriented businesses of any kind whatsoever
including, but not limited to, escort bureaus, adult bookstores,
retailers of sexually-oriented merchandise, massage establishments,
adult motion picture theaters or cabarets, arcades, nude model
studios, sexual encounter centers, adult motels or private room
dancing establishments.
40. Outside storage of any type except as expressly approved by the
Architectural Committee;
41. Outside placement of vending machines, pay telephones, newspaper or
magazine racks, video games or similar items;
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42. Outside work of any nature other than loading or unloading
including, but not limited to, maintenance, repairs, processing,
packaging, assembling or dismantling.
C. DRAINAGE. Tenant may not alter or obstruct established drainage over
any Parcel within the Land unless adequate drainage is provided and approved in
writing by the Architectural Committee and any governmental authority having
jurisdiction. Any alternation of established drainage must comply with all
applicable governmental requirements. For the purpose hereof, "established
drainage" shall mean the natural drainage or any previous alteration thereof
which has been approved as herein provided. Approval of any such alteration or
obstruction of established drainage shall not relieve the person responsible for
such alteration or obstruction from any liability to other persons which might
result therefrom.
D. EROSION AND LATERAL SUPPORT. Tenant shall maintain on its Land
sufficient landscaping and other materials or devices to prevent erosion of its
Land or of any adjacent Parcel or Common Area. Tenant may not perform any
excavation upon its Land which might result in loss of lateral support to any
adjacent Parcel or Common Area.
E. VARIANCES. Landlord may in its sole and absolute discretion grant
written variances from the use restrictions contained herein. In reviewing any
request for such a variance, Landlord shall consider whether such variance will
materially injure any of the Parcels or Improvements in the Center or
unreasonably interfere with the use and enjoyment by any other tenants or users.
Tenant shall be solely responsible for complying with any governmental or other
requirements pertaining thereto.
F. EXEMPTION OF LANDLORD. The provision of this Section 31.4 shall not
apply to any use or activity approved in writing by or conducted or undertaken
by or at the direction of Landlord.
SECTION 31.5. COMMON AREAS AND ASSESSMENTS.
A. MAINTENANCE AND INSURANCE FOR COMMON AREAS. Except as provided
herein, the Common Areas and all Improvements therein shall be maintained and
either self-insured or insured by Landlord. Tenant shall maintain and keep
insured, pursuant to Tenant's obligations under Article 5 of this Lease,
pursuant to policies and in amounts acceptable to Landlord all driveways and
similar cross-easements over the Common Areas connecting the Land to a public
street.
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B. CREATION OF LIEN. Tenant shall pay to Landlord: (i) regular
assessments and special assessments; and (ii) such other charges and assessments
as Landlord is authorized to levy or impose pursuant to the provisions of this
Lease. Such charges and assessments, together with interest, costs and
reasonable attorney's fees, shall be a continuing lien and charge upon Tenant's
interest under this Lease against which each such assessment is made, provided,
however, that such lien or charge shall not encumber Landlord's interest in and
to the Land.
C. INSURANCE ON COMMON AREAS. Landlord shall either self-insure or
shall obtain and maintain casualty, liability and other insurance as
appropriate.
D. REGULAR ASSESSMENTS.
(1) Purpose. Regular assessments shall be levied for the
purposes of paying all expenses incurred by Landlord for the administration,
operation, repair, replacement, restoration, maintenance and insurance of the
Common Areas, public art and for Landlord's performance of all of its other
obligations under this Lease and any future activities reasonably approved by
both Landlord and Tenant. Regular assessments may include payments for such
other matters as may be approved by Landlord in its sole and absolute
discretion.
(2) Date of Commencement of Regular Assessments. Regular
assessments may be commenced by Landlord at any time; provided, however, that
Landlord may delay the start of regular assessments for any period which it
deems appropriate in its sole and absolute discretion.
(3) Budget. Prior to or at the beginning of any period subject
to assessment, Landlord shall establish the budget and regular assessment for
such period.
(4) Payment of Assessments. Regular assessments shall be due
and payable by Tenant to Landlord in advance in four (4) equal quarterly
installments, on or before the first day of January, April, July and October of
each year, or as may be changed by Landlord upon one (1) month notice to Tenant.
(5) Allocation of Assessments. Regular assessments shall be
allocated among the Parcels within the Land in the same proportions as the gross
acreage of each Parcel bears to the sum of the gross acreages of all land owned
by Landlord in the Center upon which buildings can be constructed.
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E. SPECIAL ASSESSMENTS. Special assessments may be levied for the same
purposes as regular assessments if at any time Landlord determines that the
current regular assessments will be inadequate. Special assessments shall be
allocated among the Parcels on the same basis and payable on the same terms as
regular assessments, except that Landlord may require payment in full upon not
less than fifteen (15) days following written notice to Tenant or in
installments at such time and over such period as Landlord may determine.
F. REIMBURSEMENT ASSESSMENT. Landlord may levy an assessment against
Tenant if Tenant is in breach of any provision of this Section 31.5, the Design
Standards Manual or any other rules or guidelines adopted pursuant to this
Lease in an amount equal to any monies expended or obligations incurred by
Landlord in exercising any right or remedy in connection with such breach, and
any cost, expense, obligation or liability of Landlord resulting from such
breach. Reimbursement assessments shall be due and payable in full upon not less
than fifteen (15) days written notice to Tenant or in installments at such times
and over such period as Landlord may determine.
G. CAPITAL IMPROVEMENT ASSESSMENT. Capital improvement assessments may
be levied by Landlord for the purpose of defraying the cost of constructing all
Improvements to the Common Areas including road construction and reconstruction,
signage and any Improvements in or to the Common Areas as the same may be
determined to be necessary by Landlord for the benefit of the Center. Capital
improvement assessments shall be payable in full upon not less than fifteen (15)
days written notice to Tenant or in installments at such times and over such
period as Landlord may determine.
H. COLLECTION OF ASSESSMENTS; LIENS.
(1) Right to Enforce. Landlord may enforce the obligations of
Tenant to pay assessments provided for in this Section 31.5 by means of a suit
at law or in equity, by foreclosure of the lien created pursuant hereto, or by
any other means authorized by law or under this Lease. A suit to recover a money
judgment for unpaid assessments together with all other amounts payable pursuant
hereto shall be maintainable without foreclosing or waiving such lien.
(2) Creation of Lien. Any assessment payable hereunder
(whether regular, special, reimbursement, capital improvement or otherwise)
shall be payable as an Additional Payment.
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(3) No Offsets. No offsets against any assessments shall be
permitted for any reason.
(4) Failure to Fix Regular Assessments. The failure by
Landlord to fix regular assessments hereunder before or at the beginning of any
year shall not be deemed a waiver or modification of any provision of this Lease
or a release of Tenant from the obligation to pay such assessments or any
installation thereof for that or any subsequent year, but the regular assessment
then in effect shall continue until a new regular assessment is determined as
herein provided.
(5) Insurance Proceeds Insufficient. If following damage or
destruction to the Common Areas, the proceeds of insurance available to Landlord
are insufficient to pay the full cost of repair, reconstruction and restoration
of the damaged or destroyed portions of the Common Areas, Landlord may obtain
any additional funds needed to repair, reconstruct and restore the Common Areas
by means of a capital improvement assessment pursuant to Section 31.5(G) hereof.
(This is the end of Article 31)
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ARTICLE 32 - INUREMENT
Section 32.1. COVENANTS BIND AND INURE. The covenants and agreements
herein contained shall bind and inure to the benefit of Landlord and Tenant and
their respective heirs, legal representatives, successors, and assigns, except
as otherwise provided herein.
(This is the end of Article 32)
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ARTICLE 33 - COMPLIANCE WITH ENVIRONMENTAL LAWS
Section 33.1. Definitions.
A. "Environmental Laws": Those laws promulgated for the protection of
human health or the environment, including but not limited to the following as
the same are amended from time to time: the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq.; the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; the Clean Water Act, 33 U.S.C.
Section 1251 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the
Arizona Environmental Quality Act, Title 49 of the Arizona Revised Statutes; the
Occupational Safety and Health Act of 1970, as amended, 84 Stat. 1590, 29 U.S.C.
Sections 651-678; Maricopa County Air Pollution Control Regulations; Title 41,
Article 4, Archeological Discovery, Arizona Revised Statutes; and the
regulations promulgated thereunder and any other laws, regulations and
ordinances (whether enacted by the local, state or federal government) now in
effect or hereinafter enacted that deal with the regulation or protection of
human health and the environment, including the ambient air, ground water,
surface water, and land use, including substrata soils.
B. "Regulated Substances":
(1) Any substance identified or listed as a hazardous substance,
pollutant, hazardous material, or petroleum in the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq., and in
the regulations promulgated thereto; and Underground Storage Tanks, U.S.C.
Sections 6991 TO 6991i.
(2) Any substance identified or listed as a hazardous substance,
pollutant, toxic pollutant, petroleum, or as a hazardous special or solid waste
in the Arizona Environmental Quality Act, A.R.S. Section 49-201 et seq.;
including, but not limited to, the Water Quality Assurance Revolving Fund Act,
A.R.S. Section 49-281 et seq.; the Solid Waste Management Act, A.R.S. Section
49-701 et seq.; the Underground Storage Tank Regulation Act, A.R.S. Section
49-1001 et seq.; and A.R.S. Section 49-851 TO 49-868.
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(3) All substances, materials and wastes that are, or that become,
regulated under, or that are classified as hazardous or toxic under any
Environmental Law during the term of this Agreement.
C. "RELEASE": Any releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, disposing, or
dumping.
Section 33.2. COMPLIANCE: Tenant shall, at Tenant's own expense, comply
with all present and hereinafter enacted Environmental Laws, and any amendments
thereto, affecting Tenant's operation on the Premises.
Tenant shall not cause or permit any Regulated Substance to be used;
generated, manufactured, produced, stored, brought upon, or released on, or
under the Premises, or transported to or from the Premises, by Tenant, its
agents, employees, contractors, invitees or a third party in a manner that would
constitute or result in a violation of any Environmental Law or that would give
rise to liability under an Environmental Law.
Tenant may provide for the treatment of certain discharges regulated
under the pretreatment ordinances pursuant to Chapter 28, of the Phoenix City
Code or such other ordinances as may be promulgated and the Federal Clean Water
Act, 33 U.S.C. Section 1251 et seq.
Section 33.3. INDEMNIFICATION.
A. Tenant shall indemnify, defend and hold harmless, on demand,
Landlord, its successors and assigns, its elected and appointed officials,
employees, agents, boards, commissions, representatives, and attorneys, for,
from and against any and all liabilities, obligations, damages, charges and
expenses, penalties, suits, fines, claims, legal and investigation fees or
costs, arising from or related to any claim or action for injury, liability,
breach of warranty or representation, or damage to persons, property, the
environment or the Premises and any and all claims or actions brought by any
person, entity or governmental body, alleging or arising in connection with
contamination of, or adverse effects, on, human health, property or the
environment pursuant to any Environmental Law, the common law, or other statute,
ordinance, rule, regulation, judgment or order of any governmental agency or
judicial entity, which are incurred or assessed as a result, whether in part or
in whole, of any use of the Premises during the term of this Lease or any
previous uses of the Premises by Tenant or its owners or affiliated entities,
agents, employees, invitees, contractors, visitors or licensees, unless caused
by the negligence of Landlord, its agents, employees or contractors. Regardless
of the date of termination of this Lease,
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Tenant's obligations and liabilities under this Article 33 shall continue so
long as the Landlord bears any liability or responsibility under the
Environmental Laws for any use of the Premises during the term of this Lease.
This indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation of site conditions or any cleanup,
remedial actions, removal or restoration work required or conducted by any
federal, state or local governmental agency or political subdivision because of
Regulated Substances located on the Premises or present in the soil or ground
water on, or under the Premises. The parties agree that Landlord's right to
enforce this covenant to indemnify is not an adequate remedy at law for Tenant's
violation of any provision of this Article and that Landlord shall also have the
rights set forth in this Article in addition to all other rights and remedies
provided by law or otherwise provided for in this Lease.
B. Without limiting the foregoing, if the presence of any Regulated
Substance on, or under the Premises results in any contamination of the demised
Premises or any adjacent real property during the term of this Lease, Tenant
shall promptly take all actions at its sole cost and expense as are necessary to
mitigate any immediate threat to human health or the environment. Tenant shall
then undertake any further action necessary to return the Premises or other
property to the condition existing prior to the introduction of any Regulated
Substance to the Premises; provided that Landlord's written approval of such
actions shall first be obtained. Tenant shall undertake such actions without
regard to the potential legal liability of any other person, however, any
remedial activities by Tenant shall not be construed as to impair Tenant's
rights, if any, to seek contribution or indemnity from another person.
C. Tenant shall, at Tenant's own cost and expense, make all tests,
reports, studies and provide all information to any appropriate governmental
agency as may be required pursuant to the Environmental Laws pertaining to
Tenant's use of the. Premises. This obligation includes but is not limited to
any requirements for a site characterization, site assessment and/or a cleanup
plan that may be necessary due to any actual or potential spills or discharges
of Regulated Substances on, or under the Premises, during the term of this
Lease. At no cost or expense to Landlord, Tenant shall promptly provide all
information requested by Landlord pertaining to the applicability of the
Environmental Laws to the Premises, to respond to any governmental
investigation, or to respond to any claim of liability by third parties which is
related to environmental contamination alleged to have occurred since the
Commencement Date.
In addition, Landlord shall have the right to access, within ten (10)
days of Tenant's receipt of written request, and copy any and all records, test
results, studies and/or
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other documentation, other than trade secrets, regarding environmental
conditions relating to the use, storage, or treatment of Regulated Substances by
the Tenant on, or under the Premises.
D. Tenant shall immediately notify Landlord of any of the following:
(1) any correspondence or communication from any governmental agency regarding
the application of Environmental Laws to the Premises or Tenant's use of the
Premises, (2) any change in Tenant's use of the Premises that will change or has
the potential to change Tenant's or Landlord's obligations or liabilities under
Environmental Laws, and (3) any assertion of a claim or other occurrence for
which Tenant may incur an obligation under this Article.
E. Tenant shall insert the provisions of this Article 33 in any
sublease agreement or contract by which it grants a right or privilege to any
person, firm or corporation under this Lease.
F. Tenant shall, at its own expense, obtain and comply with any permits
or approvals that are required or may become required as a result of any use of
the Premises by the Tenant, its agents, employees, contractors, invitees and
assigns.
G. Tenant shall obtain and maintain compliance with any applicable
financial responsibility requirements of federal and/or state law regarding the
ownership or operation of any underground storage tank(s) or any device used for
the treatment or storage of a Regulated Substance and present evidence thereof
to Landlord, as may be applicable.
Section 33.4. Noncompliance.
A. Tenant's failure or the failure of its agents, employees,
contractors, invitees or of a third party to comply with any of the requirements
and obligations of this Article 33 or applicable Environmental Law shall
constitute a material default of this Lease. Notwithstanding any other provision
in this Lease to the contrary, Landlord shall have the right of "self-help" or
similar remedy in order to minimize any damages, expenses, penalties and related
fees or costs, arising from or related to a violation of Environmental Law on,
or under the Premises, without waiving any of its rights under this Lease. The
exercise by the City of any of its rights under this Article shall not release
Tenant from any obligation it would otherwise have hereunder.
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B. The covenants in this Article 33 shall survive the expiration or
earlier termination of this Lease.
(This is the end of Article 33)
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ARTICLE 34 - UNAVOIDABLE DELAY
Section 34.1. UNAVOIDABLE DELAY; EXTENSION OF TIME OF PERFORMANCE. In
addition to specific provisions of this Lease, performance by any party
hereunder shall not be deemed to be in default where delays or defaults are due
to war; insurrection; strikes, lock-outs; riots; floods; earthquakes; fires;
casualties; acts of God; acts of the public enemy; epidemics; quarantine
restrictions; freight embargoes; lack of transportation; governmental
restrictions or priority(except for restrictions or priority of Landlord acting
in its proprietary capacity); litigation; unusually severe weather; inability
(when either party is faultless) of any contractor, subcontractor or supplier;
acts of the other party. A lack of funds or inability to obtain funds shall not
be included in this definition of Unavoidable Delays. An extension of time for
any such cause shall only be for the period of the enforced delay, which period
shall commence to run from the time of the commencement of the cause. If,
however, notice by the party claiming such extension is sent to the other
parties more than thirty (30) days after the commencement of the cause, the
period shall commence to run only thirty (30) days prior to the giving of such
notice. Times of performance under this Lease may also be extended in writing by
the parties hereto.
(This is the end of Article 34)
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ARTICLE 35 - OPTION TO LEASE ADDITIONAL PROPERTY
Section 35.1 OPTION to LEASE. Landlord hereby grants to Tenant the
right to lease ("Option") an additional parcel of real property ("Option
Parcel") adjacent to the Premises, depicted in the Parcel Map as "Option
Parcel", according to the terms and conditions hereinafter set forth, at no
additional cost for the Option. Tenant understands and agrees that this Option
may only be exercised by Tenant and is not transferrable except in connection
with an assignment of Tenant's entire interest in this Lease in compliance with
the provisions of Section 17.1.
Section 35.2. EXERCISE OF OPTION. The Option granted herein shall
become effective and Tenant shall have the right to exercise the Option
hereunder at any time within six (6) years after the Commencement Date of this
Lease or five (5) years after issuance of a certificate of occupancy for the New
Building, whichever first occurs ("Option Period"), provided that Tenant's right
to exercise the Option shall be conditioned upon Tenant not being in default
under this Lease or under any other lease or subsidiary agreement between
Landlord and Tenant regarding or relating to the Premises. All rights in favor
of Tenant with respect to the Option Parcel shall be forever extinguished if the
Option is not exercised during the Option Period.
The Option granted herein may be exercised by Tenant at any time during
the Option Period by Tenant delivering written notice of exercise to Landlord,
along with a legal description of the Option Parcel and a conceptual site plan,
each prepared at Tenant's sole expense, which shall both have been approved by
Landlord.
Section 35.3. TENANT'S MAINTENANCE OBLIGATIONS AND RESTRICTIONS ON
ENTRY. During the Option Period, Tenant shall be responsible for all maintenance
and upkeep for the Option Parcel. The Parcel shall be kept and maintained in a
neat, clean and well-groomed manner.
Tenant's entry upon and use of the Option Parcel during the Option
Period is limited to landscaping, landscape and site maintenance for the
construction and use of a driveway pursuant to the provisions of Section 10.8
above and for site investigation pursuant to Landlord's written authorization.
Entry upon or use of the Option Parcel for any other purpose shall only be with
prior written consent of Landlord.
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Section 35.4. OPTION PARCEL LEASE. Subject to the provisions of Section
35.5 below, for conveyance of the Option Parcel leasehold Landlord and Tenant
shall execute, at Tenant's option, either an amendment to this Lease or a
separate Unsubordinated Development Lease substantially in the form of this
Lease, except as hereinafter provided. The amendment or new lease shall include
the following terms and conditions:
A. The Rental Period for the Option Parcel, including any Renewal
Options, shall expire concurrently with the term of this Lease and any Renewal
Options exercised in accordance with Section 1.4.
B. Rent payments shall begin for the Option Parcel one year after the
Option Parcel is leased. The annual Net Rent for the Option Parcel shall start
at the rate listed in Exhibit C for the Lease Year in which the rent payments
begin, increasing thereafter as set forth in the schedule.
C. The Option Parcel may only be devoted to the uses and shall be
subject to the terms and conditions set forth in Section 8.2 of this Lease.
D. Construction must begin on the Option Parcel within six (6) months
after exercise of the Option.
Section 35.5. CONVEYANCE OF OPTION PARCEL LEASEHOLD
A. TITLE INSURANCE
Within thirty (30) days following Tenant's exercise of the Option as
prescribed above, Landlord and Tenant shall request a preliminary title
commitment from Lawyers Title Company of Arizona, Inc., or other title insurance
company acceptable to Landlord, reflecting the condition of title in
anticipation of the issuance of an owner's extended leasehold title insurance
policy prior to exercise of the Option; provided, however, that Landlord shall
be under no obligation to cure any title exceptions contained therein.
Landlord and Tenant shall each pay half of the following fees and costs
in connection with conveyance of the Option Parcel leasehold:
(i) The cost of any standard form title insurance policy. Tenant
shall pay for any special endorsements or extended coverage
desired by Tenant.
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(ii) Recording fees.
(iii) Notary fees.
B. Conveyance of Leasehold Interest and Delivery of Possession
Landlord and Tenant agree to perform all acts necessary for
conveyance in sufficient time for the property interest to be conveyed within a
reasonable time after exercise of the Option.
Possession shall be delivered to Tenant concurrently with the
conveyance of the leasehold interest.
(C) Execution of Documents by Landlord
Subject to any mutually agreed upon extensions of time, Landlord shall
execute the Development Lease and the Memorandum of Lease (or Lease Amendment,
as applicable) upon receipt of all fees and other amounts required to be paid by
Tenant.
D. Recordation of Documents
Landlord shall file the Memorandum of Lease or Lease Amendment and any
other instruments which are necessary and proper to vest the leasehold interest
for recordation among the land records in the Office of the County Recorder for
Maricopa County, State of Arizona. The Development Lease shall not be recorded.
E. Taxes and Assessments
Ad valorem taxes and assessments, if any, on the Option Parcel and
taxes upon the Option Parcel for any period prior to the conveyance of the
leasehold and other interests thereto, shall be borne by Landlord. Any taxes and
assessments levied, assessed or imposed during the term of the leasehold shall
be borne by Tenant.
(This is the end of Article 35)
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The parties have caused this instrument to be duly executed this 5 day
of February, 2001.
LANDLORD:
CITY OF PHOENIX, a municipal corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, City Manager
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Its: Community and Economic
Development Director
-------------------------
ATTEST: /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------
City Clerk
APPROVED AS TO FORM:
/s/ [ILLEGIBLE SIGNATURE]
-----------------------------
Acting City Attorney JLB
TENANT: AMERICA WEST AIRLINES, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Its: Chairman & CEO
-------------------------
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Exhibit 10.45
EXHIBIT "A"
PAGE 1 OF 5
AMERICA WEST LEGAL DESCRIPTION
LEASEHOLD PARCEL
PARCEL A
That portion of ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ I, according to Book
341 of Maps, Page 37, records of Maricopa County, Arizona, located in a
portion of the South half of Section ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇,
▇▇▇▇ and Salt River Base and Meridian, Maricopa County, Arizona, being more
particularly described as follows:
COMMENCING at the Southeast corner of said Section 10;
thence North 89 degrees 40 minutes 53 seconds West, along the South line of
said Section 10, a distance of 2413.62 feet;
thence North 00 degrees 14 minutes 07 seconds East, a distance of 60.05 feet
to the Southeast corner of said ▇▇▇ ▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇;
thence continuing North 00 degrees 14 minutes 07 seconds East, along the
Westerly Right-of-Way line of the I-10 Freeway, a distance of 115.02 feet to
the beginning of a non-tangent curve concave Easterly whose radius point
bears North 46 degrees 17 minutes 56 seconds East;
thence Northerly along the arc of said curve, to the right, having a central
angle of 31 degrees 44 minutes 50 seconds and a radius of 730.26 feet for an
arc distance of 404.63 feet to the beginning of a curve whose radius point
bears North 78 degrees 02 minutes 47 seconds East;
thence Northerly along the arc of said curve, to the right, having a central
angle of 36 degrees 59 minutes 47 seconds and a radius of 740.76 feet for an
arc distance of 478.32 feet to a non-tangent line;
thence departing said Westerly Right-of-Way line, along the South line of
property leased to Wyle Laboratories in instrument recorded as ▇▇-▇▇▇▇▇▇▇,
of Official Records, North 89 degrees 44 minutes 07 seconds West (North 89
degrees 42 minutes 38 seconds West Record), a distance of 800.24 feet;
thence South 00 degrees 00 minutes 02 seconds West, a distance of 916.37
feet the South line of said Lot 9;
thence South 87 degrees 24 minutes 59 seconds last along said South line, a
distance of 128.36 feet;
thence South 89 degrees 58 minutes 46 seconds East along said South line, a
distance of 594.94 feet;
thence South 03 degrees 42 minutes 28 seconds West along said South line, a
distance of 15.26 feet;
thence South 89 degrees 40 minutes 53 seconds East along said South line, a
distance of 210.46 feet to the POINT OF BEGINNING.
100
EXHIBIT "A"
PAGE 2 OF 5
AMERICA WEST LEGAL DESCRIPTION
OPTION PARCEL
PARCEL B
▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇, according to Book 341 of Maps,
Page 37, records of Maricopa County, Arizona, located in a portion of the
South half of ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇▇ and Salt
River Base and Meridian, Maricopa County, Arizona.
EXCEPTING therefrom, any portion lying within the following three parcels,
all being portions of ▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇,
according to Book 341 of Maps, Page 37, records of Maricopa County, Arizona,
and further described as follows:
EXCEPTION PARCEL 1
COMMENCING at the Southeast corner of said Section 10;
thence North 89 degrees 40 minutes 53 seconds West, along the South line of
said Section 10, a distance of 2413.62 feet;
thence North 00 degrees 14 minutes 07 seconds East, a distance of 60.05 feet
to the Southeast corner of said ▇▇▇ ▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇;
thence continuing North 00 degrees 14 minutes 07 seconds East, along the
Westerly Right-of-Way line of the I-10 Freeway, a distance of 115.02 feet to
the beginning of a non-tangent curve concave Easterly whose radius point
bears North 46 degrees 17 minutes 56 seconds East;
thence Northerly along the arc of said curve, to the right, having a central
angle of 31 degrees 44 minutes 50 seconds and a radius of 730.26 feet for
an arc distance of 404.63 feet to the beginning of a curve whose radius
point bears North 78 degrees 02 minutes 47 seconds East;
thence Northerly along the arc of said curve, to the right, having a central
angle of 36 degrees 59 minutes 47 seconds and a radius of 740.76 feet for an
arc distance of 478.32 feet to a non-tangent line;
thence departing said Westerly Right-of-Way line, along the South line of
property leased to Wyle Laboratories in instrument recorded as ▇▇-▇▇▇▇▇▇▇,
of Official Records, North 89 degrees 44 minutes 07 seconds West (North 89
degrees 42 minutes 38 seconds West Record), a distance of 800.24 feet;
thence South 00 degrees 00 minutes 02 seconds West, a distance of 916.37
feet the South line of said Lot 9;
thence South 87 degrees 24 minutes 59 seconds East along said South line, a
distance of 128.36 feet;
CONTINUED ....
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EXHIBIT "A"
PAGE 3 OF 5
thence South 89 degrees 58 minutes 46 seconds East along said South line, a
distance of 594.94 feet;
thence South 03 degrees 42 minutes 28 seconds West along said South line, a
distance of 15.26 feet;
thence South 89 degrees 40 minutes 53 seconds East along said South line, a
distance of 210.46 feet to the POINT OF BEGINNING.
EXCEPTION PARCEL 2
COMMENCING at the Northeast corner of Lot 9;
thence North 89 degrees 42 minutes 38 seconds West along the North line of
Lot 9, 858.05 feet to a point on the arc of a circle, the center of which
bears South 00 degrees 17 minutes 22 seconds West 581.62 feet
therefrom;
thence Southwesterly along said arc, through a central angle of 06 degrees
24 minutes 58 seconds, a distance of 65.13;
thence South 00 degrees 18 minutes 51 seconds West (South 00 degrees 17
minutes 22 seconds West Record) 583.18 feet;
thence South 89 degrees 42 minutes 38 seconds East 750.24 feet (750.16 feet
Record) to a point on the East line of said Lot 9, said point being on the
arc of a second curve, the center of which bears South 62 degrees 34 minutes
54 seconds East (South 65 degrees 01 minutes 46 seconds East Record) 740.76
feet therefrom;
thence Northeasterly along said second arc through a central angle of 02
degrees 26 minutes 14 seconds, a distance of 31.51 feet;
thence North 27 degrees 25 minutes 07 seconds East (North 27 degrees 25
minutes 42 seconds East Record) 244.41 feet;
thence North 26 degrees 26 minutes 04 seconds East (North 26 degrees 26
minutes 39 seconds East Record) 109.88 feet;
thence North 00 degrees 05 minutes 23 seconds East (North 00 degrees 05
minutes 58 seconds East Record) 24.35 feet to the POINT OF BEGINNING
CONTINUED ....
102
EXHIBIT "A"
PAGE 4 OF 5
EXCEPTION PARCEL 3
COMMENCING at the Northeast corner of Lot 9;
thence North 89 degrees 42 minutes 38 seconds West along the North line of
Lot 9, 858.05 feet to a point on the arc of a circle, the center of which
bears South 00 degrees 17 minutes 22 seconds West 581.62 feet therefrom;
thence Southwesterly along said arc, through a central angle of 06 degrees
24 minutes 58 seconds, a distance of 65.13 feet, to the TRUE POINT OF
BEGINNING;
thence South 00 degrees 18 minutes 51 seconds West 583.18 feet;
thence North 89 degrees 44 minutes 07 seconds West 628.63 feet to a point
on the West line of said Lot 9, said point being on the arc of a second
curve, the center of which bears South 77 degrees 49 minutes 50 seconds East
581.62 feet therefrom;
thence Northeasterly along said second arc through a central angle of 32
degrees 59 minutes 03 seconds, a distance of 334.83 feet;
thence North 4.5 degrees 10 minutes 42 seconds East 176.27 feet to a point
on the arc of a third curve, the center of which bears South 44 degrees 50
minutes 47 seconds East 581.62 feet therefrom;
thence Northeasterly along said third curve, through a central angle of 38
degrees 43 minutes 10 seconds, a distance of 393.05 feet to the POINT OF
BEGINNING.
103
EXHIBIT "A"
PAGE 5 OF 5
AMERICA WEST LEGAL DESCRIPTION
ACCESS PARCEL
ACCESS PARCEL
That portion of ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇, according to Book
341 of Maps, Page 37, records of Maricopa County, Arizona, located in a
portion of the South half of ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇,
▇▇▇▇ and Salt River Base and Meridian, Maricopa County, Arizona, being more
particularly described as follows:
COMMENCING at the Southeast corner of said Section 10;
thence North 89 degrees 40 minutes 53 seconds West along the South line of
said Section 10, a distance of 2413.62 feet;
thence North 00 degrees 14 minutes 07 seconds East, a distance of 60.05 feet
to the Southeast corner of said Lot 9;
thence continuing North 00 degrees 14 minutes 07 seconds East along the
Westerly Right-of-Way line of the I-10 Freeway, a distance of 115.02 feet to
the beginning of a non-tangent curve concave Easterly whose radius point
bears North 46 degrees 17 minutes 56 seconds East;
thence Northerly along the arc of said curve, to the right, having a
central angle of 31 degrees 44 minutes 50 seconds and a radius of 730.26
feet for an arc distance of 404.63 feet to the beginning of a curve whose
radius point bears North 78 degrees 02 minutes 47 seconds East;
thence Northerly along the arc of said curve, to the right, having a central
angle of 36 degrees 59 minutes 47 seconds and a radius of 740.76 feet for
an arc distance of 478.32 feet to a non-tangent line;
thence departing said Westerly Right-of-Way line, North 89 degrees 44
minutes 07 seconds West, a distance of 800.24 feet to the POINT OF
BEGINNING;
thence South 00 degrees 00 minutes 02 seconds West, a distance of 40.00
feet;
thence North 89 degrees 44 minutes 07 seconds West, a distance of 585.78
feet to the West line of said Lot 9, and the beginning of a non-tangent
curve whose radius bears South 81 degrees 51 minutes 39 seconds East;
thence Northeasterly along the are of said curve, to the right, having a
central angle of 04 degrees 00 minutes 02 seconds and a radius of 581.62
feet for an arc distance of 40.61 feet to a non-tangent line;
thence departing the West line of said ▇▇▇ ▇, ▇▇▇▇▇ ▇▇ degrees 44 minutes 07
seconds East, a distance of 578.63 feet to the POINT OF BEGINNING.
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EXHIBIT B
PARCEL MAP
[MAP OF PARCEL DESCRIBED IN EXHIBIT A]
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Exhibit C
ANNUAL RENT SCHEDULE
Year Annual Rent per
Square Foot
====================================
[...***...]
*** CONFIDENTIAL TREATMENT REQUESTED
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EXHIBIT D
Preliminary Tenant's Concept Plans including site plan, exterior excavation
plan, landscaping plan, and parking and driveway plan.
▇▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇
AUTHORIZATION TO ENTER CITY PROPERTY
(Driveway Access Agreement)
AUTHORIZATION is hereby granted by the CITY OF PHOENIX, a municipal
corporation, ("City") to America West Airlines, Inc., a Delaware corporation
authorized to do business in Arizona ("America West"), to enter upon that
certain real property owned by the City at Phoenix Sky Harbor Center ("Access
Parcel"), as depicted in Exhibit A, attached hereto and incorporated herein by
this reference.
Entry by America West is for the sole purpose of enabling America
West to construct, maintain and use a driveway from Sky Harbor Circle North to
land leased by the City to America West pursuant to the Unsubordinated Ground
Lease executed this date by the City and America West (the "Lease") across the
northern portion of the Option Parcel, as defined in the Lease.
This authorization is nonexclusive and is granted subject to the
following terms and conditions:
1. The term of this authorization shall be from the date of
execution through the expiration or termination of the Lease or until America
West leases the Option Parcel from the City, whichever first occurs.
2. The driveway shall be constructed (in accordance with plans
approved by the Architectural Committee) and maintained by America West at its
sole cost and expense. The City may, in its discretion at any time, provide
alternate access at a location to be determined by the City and a replacement
driveway will be constructed at no cost to America West.
3. America West hereby agrees to indemnify and hold harmless the
City, its departments, agencies, officers, or employees from all suits, actions,
loss, liability, cost, damage or expense of any character or any nature related
to the death of any person or any accident, injury, loss or damage resulting
from any activity, condition or event arising out of the performance or
nonperformance of any provision of this Authorization by America West or in the
exercise of this Authorization by America West, any of its
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agents or independent contractors. This indemnification shall include, in the
event of any such action, court costs, expenses of litigation and reasonable
attorneys' fees.
America West shall furnish, or cause to be furnished, to the City
prior to the execution of this Authorization, duplicate originals or appropriate
certificates of bodily injury and property damage insurance policies, covering
the above described real property and improvements thereon in the amount of at
least $1,000,000.00 single limit for public liability and property damage, with
the City of Phoenix as an additional insured; said certification to read: "The
City of Phoenix, a municipal corporation, is an additional insured for the
parcel described in the attached legal description." The insurance policy shall
provide that coverage is primary and shall not be reduced or canceled until
after thirty (30) days prior written notice of cancellation or reduction be
served upon the City in the manner provided in paragraph 16 herein.
4. America West shall maintain the Access Parcel in a neat, clean
and safe condition free of any holes, obstructions or debris. America West shall
repair any damage to the Access Parcel resulting from its use.
5. America West shall comply with all federal, state and local
laws, regulations and guidelines in the use of hazardous materials and waste,
petroleum products and inflammable and explosive materials on the Access Parcel.
Such materials and products may not be stored on the Access Parcel. America West
shall be liable for the cleanup and elimination of all hazardous conditions,
materials or waste resulting from the use of the Access Parcel by America West
and hereby indemnifies City for all costs incurred by City for America West's
failure to perform this obligation. Oil brought onto the Access Parcel by
America West, its agents, employees, contractors, licensees or invitees must be
immediately removed from the site and disposed of properly after use. Under no
circumstances will oil be changed on the Access Parcel or left there in
containers. This provision shall survive the termination of this Authorization
and shall apply to any hazardous material, waste or other conditions caused by
the use or activities of America West, its agents, employees, contractors,
licensees or invitees.
6. Any supplier in performing under this contract, shall not
discriminate against any worker, employee or applicant, or any member of the
public, because of race, color, religion, gender, sexual orientation, national
origin, age or disability, nor otherwise commit an unfair employment practice.
America West will take affirmative action to ensure that applicants are
employed, and that employees are dealt with during employment without regard to
their race, religion, gender, sexual orientation, national
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109
origin, age or disability. Such action shall include, but not be limited to the
following: employment, upgrading, demotion or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. America West
further agrees that this clause will be incorporated in all subcontracts entered
into with suppliers of materials or services, and all labor organizations
furnishing skilled, unskilled and union labor, or who may perform any such labor
or services in connection with this contract.
7. Except in connection with an assignment or sublease which is
permitted pursuant to the terms of the Lease, the rights granted by this
revocable Authorization shall not be assigned, nor shall any of the rights or
privileges herein granted or authorized be leased, assigned, sold or
transferred, either in whole or in part, without the express written consent of
the City.
8. Except as otherwise provided in the Lease, America West shall
have no recourse whatsoever against the City or its officials, boards, agents or
employees for any loss, costs, expenses or damage arising out of any of the
conditions or provisions of this revocable Authorization or because of any
defects in the revocable Authorization, or should America West be lawfully
deprived of the use and possession of the property heretofore described.
9. America West shall keep the Access Parcel free and clear of all
mechanics', materialsmen's, contractors' or subcontractors' liens arising from
America West's use or occupancy of the Access Parcel by America West or its
agents.
10. America West, its officers, employees, agents, contractors,
licensees and invitees will hold all of its or their vehicles, materials and
equipment on the Access Parcel at the sole risk of America West and save the
City harmless from any loss or damage thereto by any cause whatsoever.
11. Notwithstanding the provisions of Paragraph 1 herein, this
Authorization shall terminate immediately without further notice from the City
if America West commits any breach of the terms and conditions contained herein
and fails to cure said breach within any applicable period for cure set forth in
the Lease after written notice thereof by City. In the event that America West
holds over its possession of the Access Parcel beyond the expiration or prior
termination hereof, America West agrees that it will pay City fair market rent
for the use of the property and will be responsible for all costs, expense and
damages, including reasonable attorney's fees, incurred by City as a result of
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110
America West's unauthorized use of the Access Parcel and for the restoration of
the Access Parcel.
12. America West shall peaceably surrender the Access Parcel on the
expiration of this Authorization or earlier termination as provided herein, and
the Access Parcel shall be in as good condition as at the commencement of the
authorization term subject to reasonable wear and tear and the elements.
13. Upon expiration of the term of this Authorization or upon such
earlier termination as provided herein, it shall be lawful for City to reenter
and repossess the Access Parcel without process of law, and America West, in
such event, does hereby waive any demand for possession thereof, and agrees to
surrender and deliver the Access Parcel peaceably to the City immediately upon
such expiration of term or termination.
14. Formal notices, demands and communications shall be
sufficiently given if dispatched by registered or certified mail, postage
prepaid, return receipt requested, by facsimile transmission or by personal
delivery with receipts provided to both parties, to the principal offices of
each party addressed as follows:
City: Administrator
Central City Division
Community and Economic Development Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
America West: Corporate Real Estate
America West Airlines
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Such written notices, demands and communications may be sent in the same manner
to such other addresses as any party may from time to time designate by mail as
provided in this paragraph.
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15. All parties hereto acknowledge that this Authorization is
subject to cancellation pursuant to the provisions of Section 38-511, Arizona
Revised Statutes.
DATED this _______ day of __________________, 2001.
CITY OF PHOENIX, a municipal
corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, City Manager
By [NOT FOR EXECUTION]
_____________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇, Director
Community and Economic Development Department
ATTEST:
___________________________
City Clerk
APPROVED AS TO FORM:
___________________________
City Attorney
America West Airlines, Inc.
a Delaware corporation
By [NOT FOR EXECUTION]
_________________________________
Its _________________________________
5