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Exhibit 10.44
SKY HARBOR CENTER REDEVELOPMENT AREA
PHOENIX, ARIZONA
DISPOSITION AND REDEVELOPMENT
AGREEMENT
By and Between
CITY OF PHOENIX, ARIZONA,
CITY,
AND
AMERICA WEST AIRLINES,
DEVELOPER.
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TABLE OF CONTENTS
Page
ARTICLE 1. SUBJECT OF AGREEMENT ........................................................... 1
Section 101 Purpose of Agreement ................................................... 1
Section 102. Redevelopment Plan .................................................... 1
Section 103. The Site .............................................................. 1
Section 104. Parties to the Agreement .............................................. 2
Section 104.1 The City ..................................................... 2
Section 104.2 The Developer ................................................ 2
Section 104.3 Prohibition Against Changes in Ownership, Management and
Control of Developer ......................................... 3
Section 104.4 Independent Contractor ....................................... 4
ARTICLE II. LEASE OF SITE ................................................................. 5
Section 201. Initial Parcel ........................................................ 5
Section 202. Expansion Options ..................................................... 5
Section 203. Conveyance of Leasehold ............................................... 5
Section 203.1 Title Insurance .............................................. 5
Section 203.2 Conveyance of Leasehold Interest and Delivery of Possession .. 6
Section 203.3 Execution of Lease by City ................................... 6
Section 203.4 Recordation of Documents ..................................... 6
Section 203.5 Taxes and Assessments ........................................ 7
Section 203.6 Condition of the Site ........................................ 7
Section 203.7 Access to and Entry by the Developer Upon the Site ........... 7
Section 203.8 Obligations of City and Developer Which Are Conditions
Precedent to Lease Execution by City ......................... 8
ARTICLE III. DEVELOPMENT OF THE SITE ...................................................... 9
Section 301. Uses .................................................................. 9
Section 302. Liens and Encumbrances ................................................ 9
Section 303. City and Other Governmental Agency Permits ............................ 9
Section 304. Indemnification and Insurance ......................................... 9
Section 305. Local, State and Federal Laws ......................................... 10
Section 306. Equal Employment Opportunity .......................................... 10
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TABLE OF CONTENTS
Page
ARTICLE IV. DEFAULTS, REMEDIES AND TERMINATION ............................................ 11
Section 401. Defaults - General ................................................... 11
Section 402. Institution of Legal Actions ......................................... 12
Section 403. Applicable Law ....................................................... 12
Section 404. Acceptance of the Legal Process ...................................... 12
Section 405. Rights and Remedies Are Cumulative ................................... 13
Section 406. Remedies ............................................................. 13
Section 406.1. Damages .................................................... 13
(a) Notice and Cure ............................................... 13
(b) Limitation on Damages ......................................... 13
Section 406.2. Specific Performance ....................................... 13
Section 406.3. Rights of Termination ...................................... 14
(a) Termination by Developer ...................................... 14
(b) Termination by City ........................................... 14
ARTICLE V, GENERAL PROVISIONS ............................................................. 15
Section 501. Notices, Demands and Communications Between the Parties .............. 15
Section 502. Conflict of Interests ................................................ 16
Section 503. Warranty Against Payment of Consideration for Agreement .............. 16
Section 504. Nonliability of City Officials and Employees ......................... 16
Section 505. Enforced Delay: Extension of Time of Performance ..................... 16
Section 506. Approvals by the City and the Developer .............................. 17
Section 507. Submission of Documents for Approval ................................. 17
Section 508. Time of Essence ...................................................... 17
Section 509. No Waiver ............................................................ 17
Section 510. Severability ......................................................... 17
Section 511. Captions ............................................................. 17
Section 512. Entire Agreement, Waivers and Amendments ............................. 18
Section 513. Conflict of Terms .................................................... 18
ATTACHMENTS
Attachment No. I - Development Lease
Attachment No. 2 - Site Map
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DISPOSITION AND REDEVELOPMENT AGREEMENT
THIS AGREEMENT is entered into by and between the CITY OF PHOENIX,
ARIZONA ("City") and AMERICA WEST AIRLINES, a Delaware corporation
("Developer"). The City and the Developer agree as follows:
ARTICLE I. SUBJECT OF AGREEMENT
SECTION 101. PURPOSE OF AGREEMENT
The purpose of this Disposition and Redevelopment Agreement
("Agreement") is to put into effect the Sky Harbor Center Redevelopment Area
Plan for a redevelopment project (the "Project") by providing for the
disposition and development of certain real property designated and referred to
herein as the "Site". The development of the Site pursuant to this Agreement,
and the fulfillment generally of this Agreement, are in the vital and best
interests of the City of Phoenix and the health, safety, and welfare of its
residents, and in accord with the public purposes and provisions of applicable
federal, state, and local laws and requirements and, pursuant to Arizona Revised
Statutes Section 9-500.11, will assist in the creation or retention of jobs or
will otherwise improve or enhance the economic welfare of the inhabitants of the
City of Phoenix.
SECTION 102. REDEVELOPMENT PLAN
This Agreement shall be subject to the provisions of the Sky Harbor
Center Redevelopment Area Plan, approved on April 24, 1985 by the City Council
of the City of Phoenix by Resolution No. 16569, which is incorporated herein by
this reference and made a part hereof as though fully set forth herein.
SECTION 103. THE SITE
The Site consists of approximately 27 acres generally located at the
northwest corner of Buckeye Road and the Papago Freeway (I-10), in Phoenix,
Maricopa County, Arizona, within the portion of the Redevelopment Area legally
described as PHOENIX SKY HARBOR CENTER, PHASE 1, according to the plant of
record in the Office of the County Recorder of Maricopa County, Arizona, in Book
341 of Maps at page 37. The Site is comprised of approximately 13 acres,
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hereinafter defined as the "Initial Parcel", which includes the "Development
Parcel" and the "Driveway Parcel", and an adjacent parcel containing
approximately 13 acres, hereinafter defined as the "Option Parcel."
SECTION 104. PARTIES TO THE AGREEMENT
SECTION 104.1 THE CITY
The City is a municipal corporation of the State of Arizona, a public
body corporate, exercising governmental functions and powers pursuant to the
Slum Clearance and Redevelopment Act of the State of Arizona. The execution of
this Agreement and any other documents required to implement the provisions of
this Agreement was authorized by Ordinance No. S-26932, passed by the Phoenix
City Council on March 15, 2000.
The principal office of the City is located at 200 West Washington
Street, Phoenix, Arizona, 85003-1611.
"City" as used in this Agreement, includes the City of Phoenix, the
Community and Economic Development Department and any assignee or delegate of or
successor to their rights, powers and responsibilities under the Arizona Slum
Clearance and Redevelopment Law.
The obligations, approvals and other actions by the City under this
Agreement are the exercise of redevelopment powers for the purpose of compliance
with the redevelopment considerations expressed in this Agreement, and is not an
agreement as a municipality exercising regulatory powers. The Developer
hereunder still must comply with land use regulations, codes and laws affecting
the acquisition, ownership, use, improvement and development of property, and
the vacation and abandonment of public rights-of-way and easements. Nothing in
this Agreement constitutes an exemption or grant of a variance from applicable
codes and laws.
SECTION 104.2 THE DEVELOPER
Developer, America West Airlines, a Delaware corporation authorized to
do business in Arizona.
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The principal office of the Developer is located at 4000 East Sky
Harbor Boulevard, Arizona 85___.
Notwithstanding any other provisions hereof, all of the terms,
covenants, and conditions of this Agreement shall be binding on and shall inure
to the benefit of the Developer and the permitted successors and assigns of the
Developer. Wherever the term "Developer" is used herein, such term shall include
any such permitted successors and assigns.
SECTION 104.3 PROHIBITION AGAINST CHANGES IN OWNERSHIP.
MANAGEMENT AND CONTROL OF DEVELOPER
(a) The Developer represents and agrees that the leasing and
development of the Site and other undertakings pursuant to this Agreement are
and will be used for the purpose of redevelopment of the Site and not for
speculation in landholding. The Developer further recognizes:
(i) the importance of the redevelopment of the Site to
the general welfare of the community; and
(ii) the substantial financing and other public aids that
have been made available by law and by the government
for the purpose of making such redevelopment
possible; and
(iii) the fact that a significant change in ownership or
control of the Developer or of a substantial part
thereof, as defined in this Section 104.3 of this
contract, is for practical purposes a transfer or
disposition of the Site; and
(iv) the fact that the Site is not to be acquired or used
for speculation, but only for development by
Developer in accordance with this Agreement.
In view of the foregoing, the qualifications and identity of the Developer, its
partners and principals, are of particular concern to the City. The Developer
further recognizes that it is because of such qualifications and identity that
City is entering into this Agreement with Developer. No voluntary or involuntary
successor in
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interest of Developer shall acquire any rights or powers under this Agreement
except as expressly set forth herein.
(b) The Developer shall promptly notify the City of any and all changes
whatsoever in the identity of the parties associated with the Developer, in
joint ventures or partnerships for the purpose of acquiring and developing the
Site or any part thereof as hereinabove provided, which are known to the
Developer or its officers. Except as provided in this Agreement, this Agreement
may be terminated by the City if there is any significant change (voluntary or
involuntary) in the ownership or control of the Developer (other than such
changes occasioned by the public trading of stock which does not result in a
change in the present control of Developer), that has not been approved in
writing by the City at the time of such change, which approval may be given or
withheld in City's absolute discretion, prior to the issuance of Certificates of
Occupancy for construction of all minimum required development on the Site as
more fully described in Article 10 of the Development Lease referenced in
Section 201 below.
(c) Within ten (10) calendar days after receipt of a written request
from the City, Developer shall provide the City with a copy of any contract,
agreement, document and related papers which directly or indirectly conveys,
assigns or changes Developer's interest as outlined in this Section 104.3. The
Developer agrees to and shall indemnify and hold City harmless from or against
all claims, demands and obligations asserted by or from any party claiming a
right, interest or ownership to this Agreement, the Site or the Development
thereof through or with Developer arising out of or in connection with
relationships entered into by Developer or its partners with such other party.
SECTION 104.4 INDEPENDENT CONTRACTOR
Developer is an independent contractor in the performance of all
activities, functions, duties and obligations pursuant to this Agreement.
Developer or City are not and shall not be considered as joint venturers,
partners or agents of each other. Developer's officers, employees, agents and
subcontractors shall not be considered as officers, employees or agents of the
City. The City and Developer hereby agree not to represent to anyone that they
are agents of one another or have authority to act on behalf of one another.
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ARTICLE II. LEASE OF SITE
SECTION 201. INITIAL PARCEL
Within 6 months after the execution of this Agreement, unless more time
is granted in writing by the City or if such time is extended pursuant to
Section 505 below, Developer shall enter into an unsubordinated development
lease with the City for the Initial Parcel. The lease ("Lease") shall be
substantially in the form attached hereto as Attachment No. 1. Failure to timely
execute the Lease pursuant to this Section 201 shall result in immediate
termination of this Agreement and all rights of Developer hereunder without any
further notice or action by the City, notwithstanding anything contained herein
to the contrary. Upon timely execution and delivery of the Lease, this Agreement
shall terminate, and all of the rights and obligations of the parties shall be
governed solely by the terms and conditions of the Lease.
SECTION 202. EXPANSION OPTIONS
Developer shall have, for a period of 6 years from the date of
execution of the Lease or 5 years from issuance of a certificate of occupancy
for the New Building, as defined in the Lease, whichever first occurs, so long
as Developer is not in default of the Lease, the exclusive option to lease the
Option Parcel depicted on the Site Map attached hereto as Attachment No. 2),
subject to the terms and conditions set forth in Article 35 of the Lease.
SECTION 203. CONVEYANCE OF LEASEHOLD
SECTION 203.1 TITLE INSURANCE
The City and Developer shall request a preliminary title commitment
from First American Title Insurance Company or other title insurance company
acceptable to the City, reflecting the condition of title in anticipation of the
issuance of an owner's extended leasehold title insurance policy prior to Ground
Lease execution and prior to exercise of the option to lease each Option Parcel;
provided, however, that the City shall be under no obligation to cure any title
exceptions contained therein.
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The City and the Developer shall each pay half of the following fees
and costs in connection with conveyance of each leasehold:
(a) The cost of any standard form title insurance policy.
Developer shall pay for any special endorsements or extended
coverage desired by Developer.
(b) Recording fees.
(c) Notary fees.
SECTION 203.2 CONVEYANCE OF LEASEHOLD INTEREST AND DELIVERY OF
POSSESSION
Subject to any mutually agreed upon extensions of time, conveyance of
the leasehold interest shall be completed on or prior to the date specified in
this Agreement. The City and the Developer agree to perform all acts necessary
for conveyance in sufficient time for the property interest to be conveyed in
accordance with the foregoing provisions.
Possession shall be delivered to the Developer concurrently with the
conveyance of the leasehold interest, except that access and entry by Developer
may be granted before conveyance as permitted pursuant to this Agreement.
SECTION 203.3 EXECUTION OF LEASE BY CITY
Subject to any mutually agreed upon extensions of time, the City shall
execute the Lease and the Memorandum of Lease upon receipt of all fees and other
amounts required to be paid by Developer prior to Lease execution pursuant to
this Agreement.
SECTION 203.4 RECORDATION OF DOCUMENTS
The City shall file the Memorandum of Lease 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 Lease shall not be recorded.
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SECTION 203.5 TAXES AND ASSESSMENTS
Ad valorem taxes and assessments, if any, on the Site and taxes upon
this Agreement or any rights thereunder, levied, assessed, or imposed for any
period prior to the conveyance of any leasehold and other interests thereto,
shall be borne by the City. Any taxes and assessments levied, assessed or
imposed during the term of the leasehold shall be borne by the Developer,
subject to the terms and conditions of the Lease with respect thereto.
SECTION 203.6 CONDITION OF THE SITE
The Site shall be conveyed in an "as is" condition with no warranty,
express or implied, by the City as to title or the condition of the soil, its
geology or the presence of known or unknown faults. It shall be the sole
responsibility of the Developer at its expense to investigate and determine
whether or not the proposed development can be constructed on the Site. If, in
the opinion of Developer, the conditions are not in all respects suitable for
the use or uses to which the parcels will be put, and Developer still wishes to
proceed with the leasing of the Site, then it is the sole responsibility and
obligation of the Developer, at Developer's expense, to take such action as may
be necessary to place the Site in a condition suitable for its development.
SECTION 203.7 ACCESS TO AND ENTRY BY THE DEVELOPER UPON THE
SITE
Prior to the conveyance of the leasehold, representatives of the
Developer or its agents, employees, designees and nominees, shall have the right
of access to and entry upon the Site to be leased at all reasonable times, for
the purpose of obtaining data and making surveys and tests necessary to carry
out this Agreement. The Developer agrees to and shall indemnify and hold the
City harmless from any and all injuries or damages arising out of any work or
activity of the Developer, its respective agents, employees, designees and
nominees.
The City agrees to provide, or cause to be provided, to the Developer
all data and information pertaining to the Site and available to the City when
requested by the Developer.
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SECTION 203.8 OBLIGATIONS OF CITY AND DEVELOPER WHICH ARE
CONDITIONS PRECEDENT TO LEASE EXECUTION BY CITY
(a) Subject to any mutually agreed upon extensions of time, which shall
not be unreasonably withheld, and also subject to the satisfaction of all
conditions contained herein or the waiver of any such condition by the party who
is affected thereby, the City shall execute the Lease on or prior to the date
specified therefor in this Agreement.
(b) The obligation of City to execute the Lease is conditioned upon
receipt of the following:
(i) All fees payable by Developer pursuant to this
Section 202;
(ii) Delivery to the City of a Development Lease and
Memorandum of Lease previously approved as to form by
the City and signed (in triplicate) by the Developer;
and
(iii) Approval by the City of a legal description of the
Site (which shall separately describe the areas
designated by the City for the Initial Parcel and the
Option Parcel) and a conceptual site for the Initial
Parcel, which shall have been prepared by Developer
at Developer's sole expense.
(c) Notwithstanding any provision contained herein to the contrary, the
parties hereto agree that Developer shall have no obligation to execute the
Lease if, in the opinion of Developer, conditions are not in all respects
suitable for the use or uses to which the parcel will be put, or if Developer
has not approved any aspects of its due diligence with respect to this Site
including, without limitation, title review and approval, environmental review
and approval, infrastructure review and approval, evidence of tax abatement, and
other planning and architectural committee approvals.
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ARTICLE III DEVELOPMENT OF THE SITE
SECTION 301. USES
Subject to the Conditions of Development contained in the Lease, the
Sky Harbor Center Redevelopment Area Plan, the Hazardous Materials Handling
Guidelines contained in the Phoenix Sky Harbor Center Hazardous Materials
Program, and applicable City plans and ordinances, the Site shall be used and
occupied by Developer only as a training/flight simulation/office facility and
other airline purposes, as further provided in Section 8.2 of the Lease.
SECTION 302. LIENS AND ENCUMBRANCES
Developer shall not place, or allow to be placed, any lien or
encumbrance on any portion of the Site prior to the execution of the Lease and,
thereafter, no liens or encumbrances other than a mortgage or other financing
instrument permitted by the Lease shall be placed or allowed to be placed on the
Site by or on behalf of Developer.
SECTION 303. CITY AND OTHER GOVERNMENTAL AGENCY PERMITS
In addition to any other approvals required by this Agreement or the
Lease, before commencement of construction or development of any buildings,
structures or other work of improvement upon any of the Site (but not
necessarily before the conveyance of possession), the Developer shall secure, or
cause to be secured, any and all permits which may be required by the City or
any other governmental agency affected by such construction, development or work
thereon. The City shall provide all proper assistance to the Developer in
securing these permits.
SECTION 304. INDEMNIFICATION AND INSURANCE
Developer agrees to and shall indemnify and hold City harmless from and
against all liability, loss, damage, costs or expenses (including reasonable
attorney's fees and court costs) arising from or as a result of the death of a
person or any accident, injury, loss or damage whatsoever caused to any person
or to the property of any person which shall occur on or adjacent to the Site to
the extent
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directly or indirectly caused by any acts done thereon or any errors or
omissions of Developer or its agents, servants, employees or contractors.
Developer, all agents, servants and employees of the Developer and all
contractors of the Developer will hold all goods, materials, furniture,
fixtures, equipment, machinery and other property whatsoever in the Site and
improvements thereon at the sole risk of Developer and save the City harmless
from any loss or damage thereto by any cause whatsoever.
The obligations of Developer under this Section 304 shall not, in any
way, be affected by the absence in any case of covering insurance or by the
failure of any insurance carrier to perform any obligation on its part to be
performed under insurance policies affecting the Site.
If any claim, action or proceeding is made or brought against the City
by reason of any event which is the subject of Developer's foregoing indemnity,
then, upon demand by City, Developer, at its sole cost and expense, shall resist
or defend such claim, action or proceeding. Notwithstanding the foregoing, City
may engage its own attorneys to defend it or to assist in its defense and
Developer shall pay the reasonable fees and disbursements of such attorneys.
SECTION 305. LOCAL, STATE AND FEDERAL LAWS
The Developer shall carry out the construction of the improvements on
the Site in conformity with all applicable laws, including all applicable
federal and state labor standards.
SECTION 306. EQUAL EMPLOYMENT OPPORTUNITY
The Developer, for itself and its successors and assigns, agrees that
in the construction of the Improvements provided for in this Agreement:
(a) It will not discriminate upon the basis of race, color, religion,
gender, national origin, sexual orientation, age or disability in the sale,
lease or rental, or in the use or occupancy of the Site or the Improvements to
be erected thereon and the City of Phoenix and the United States shall be the
beneficiaries of this provision and entitled to enforce it.
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(b) That the following clause appear in all contracts for all services
and supplies or in all leases or subleases: "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, national
origin, sexual orientation, age or disability, nor otherwise commit an unfair
employment practice. The supplier will take affirmative action to ensure that
applicants are employed, and that employees are dealt with during employment
without regard to their race, color, religion, gender, national origin, sexual
orientation, 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. The supplier
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."
The Developer will comply with all applicable local, state and federal
fair employment laws and regulations.
ARTICLE IV. DEFAULTS, REMEDIES AND TERMINATION
SECTION 401. DEFAULTS - GENERAL
Subject to the extensions of time set forth in Section 505, failure or
delay by any party to perform any term or provision of this Agreement
constitutes a default under this Agreement. Except as provided in Section 201
above, the party who so fails or delays must immediately commence to cure,
correct, or remedy such failure or delay, and shall complete such cure,
correction or remedy with reasonable diligence.
A nondefaulting party shall give written notice of default to the party
in default, specifying the default complained of by the injured party. Failure
or delay in giving such notice shall not constitute a waiver of any default, nor
shall it change the time of default.
Except as otherwise expressly provided in this Agreement, any failure
or delay by any party in asserting any of its rights or remedies as to any
default, shall
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not operate as a waiver of any default, or of any such rights or remedies, or
deprive either such party of its right to institute and maintain any actions or
proceedings which it may deem necessary to protect, assert or enforce any such
rights or remedies.
SECTION 402. INSTITUTION OF LEGAL ACTIONS
In addition to any other rights or remedies, either party may institute
legal action to cure, correct or remedy any default, to recover damages for any
default, or to obtain any other remedy consistent with the purpose of this
Agreement. Such legal actions may be instituted in the County of Maricopa, State
of Arizona, or in the Federal District Court in the District of Arizona.
If any legal action is instituted pursuant to this Agreement, the
prevailing party in such action shall be reimbursed by the other party for all
costs and expenses of such action, including reasonable attorneys' fees as may
be fixed by the Court
SECTION 403. APPLICABLE LAW
The laws of the State of Arizona shall govern the interpretation and
enforcement of this Agreement.
SECTION 404. ACCEPTANCE OF THE LEGAL PROCESS
In the event that any legal action is commenced by the Developer
against the City, service of process on the City shall be made by personal
service upon the City Clerk of the City of Phoenix, or in such other manner as
may be provided by law.
In the event that any legal action is commenced by the City against the
Developer, service of process shall be made by personal service or in such other
manner as may be provided by law, whether made within or without the State of
Arizona.
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SECTION 405. RIGHTS AND REMEDIES ARE CUMULATIVE
Except as otherwise expressly stated in this Agreement, the rights and
remedies of the parties are cumulative, and the exercise by any party of one or
more of such rights or remedies shall not preclude the exercise by it, at the
same time or different times, of any other rights or remedies for the same
default or any other default by such defaulting party.
SECTION 406. REMEDIES
SECTION 406.1. DAMAGES
(a) NOTICE AND CURE
If any party defaults with regard to any of the provisions of this
Agreement except in the event of Developer's failure to timely sign and deliver
the Lease as required pursuant to Section 201, which shall result in immediate
termination of this Agreement without notice or time to cure, a nondefaulting
party shall deliver written notice of such default upon the defaulting party. If
the default is not commenced to be cured within thirty (30) calendar days after
service of the notice of default and is not cured promptly in a continuous and
diligent manner within a reasonable period of time after commencement, the
defaulting party shall be liable to the nondefaulting parties for any damages
caused by such default, and the nondefaulting parties may thereafter (but not
before) commence an action for damages against the defaulting party with respect
to such default.
(b) LIMITATION ON DAMAGES
Anything herein to the contrary notwithstanding, neither City nor
Developer shall in any event be responsible or liable for consequential,
exemplary or punitive damages as a result of any act or omission in connection
with this Agreement.
SECTION 406.2. SPECIFIC PERFORMANCE
If any party defaults with regard to any of the provisions of this
Agreement except Section 201, default of which shall result in immediate
termination of this Agreement without notice or time to cure, the nondefaulting
parties shall serve written notice of such default upon the defaulting party. If
the default is not
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commenced to be cured within thirty (30) calendar days after service of the
notice of default and is not cured promptly in a continuous and diligent manner
within a reasonable period of time after commencement, a nondefaulting party, at
its option, may thereafter (but not before) commence an action for specific
performance of the terms of this Agreement pertaining to such defaults.
SECTION 406.3 RIGHTS OF TERMINATION
(a) TERMINATION BY DEVELOPER
The Developer, at its option, may terminate this Agreement prior to
conveyance of the leasehold if: (i) the City, in breach of this Agreement, does
not tender conveyance of a leasehold, or deliver possession thereof, in the
manner and condition and by the date provided in this Agreement or fails to
perform any condition precedent thereto, and such failure is not cured within
thirty (30) calendar days after written demand by the Developer; or (ii) the
condition of the Site is determined to be unsuitable for development. In the
event of such termination, neither party shall have any further rights or
liabilities hereunder.
(b) TERMINATION BY CITY
The City at its option may terminate this Agreement immediately and
without further notice or action by City if:
(i) The Developer assigns or attempts to assign and/or convey this
Agreement (or any rights therein) in violation of this
Agreement;
(ii) City does not receive from Developer all items required under
Article II above within the times specified;
(iii) The Developer shall fail to perform any other obligations and
duties provided in this Agreement within the time for
performance specified therefor, or if no such time is
specified, within thirty (30) calendar days after the date of
written demand by the City to the Developer to perform such
obligation and duty.
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ARTICLE V. GENERAL PROVISIONS
SECTION 501. NOTICES, DEMANDS AND COMMUNICATIONS BETWEEN THE PARTIES
All notices, demands or other writings in this Agreement provided to be
given, made or sent by any party hereto to other parties shall be deemed to have
been fully given, made or sent when made in writing and personally delivered,
transmitted by telefax or received by United States postpaid registered or
certified mail and addressed as follows:
TO CITY:
Director of the Community and
Economic Development Department
200 West Washington Street, 20th Floor
Phoenix, Arizona 85003-1611
FAX: (602) 495-5097
and
City Clerk
City of Phoenix
200 West Washington, 15th Floor
Phoenix, Arizona 85003-1611
TO DEVELOPER:
Attn: Senior Director, Corporate Real Estate
America West Airlines
4000 East Sky Harbor Blvd.
Phoenix, Arizona 85034-3899
The address to which any notice, demand or other writing may be given, made or
sent to any party may be changed by written notice given by such party as above
provided.
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SECTION 502. CONFLICT OF INTERESTS
No member, official or employee of the City shall have any direct or
indirect interest in this Agreement; nor participate in any decision relating to
the Agreement which is prohibited by law. The parties hereto acknowledge that
this Agreement is subject to cancellation pursuant to the provisions of A.R.S.
Section 38-511.
SECTION 503. WARRANTY AGAINST PAYMENT OF CONSIDERATION FOR AGREEMENT
The Developer warrants that it has not paid or given, and will not pay
or give, any third person any money or other consideration for obtaining this
Agreement, other than normal costs of conducting business and costs of
professional services such as architects, engineers, realtors and attorneys.
SECTION 504. NONLIABILITY OF CITY OFFICIALS AND EMPLOYEES
No member, official or employee of the City shall be personally liable
to the Developer, or any successor in interest, in the event of any default or
breach by the City or for any amount which may become due to the Developer or
successor, or on any obligation under the terms of this Agreement.
SECTION 505. ENFORCED DELAY: EXTENSION OF TIME OF PERFORMANCE
In addition to specific provisions of this Agreement, 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; litigation; unusually severe weather;
inability (when either party is faultless) of any contractor, subcontractor or
supplier; acts of the other party. 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)
calendar days after the commencement of the cause, the period shall commence to
run only thirty (30) calendar days prior to the giving of such notice. Times of
performance under this Agreement may also be extended in writing by the parties
hereto.
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SECTION 506. APPROVALS BY THE CITY AND THE DEVELOPER
Wherever this Agreement requires the City and the Developer to approve
any contract, document, plan, proposal, specification, drawing or other matter,
such approval shall not be unreasonably withheld or delayed.
SECTION 507. SUBMISSION OF DOCUMENTS FOR APPROVAL
Whenever this Agreement requires one party to submit plans, drawings or
other documents to another party for approval, the items shall be accompanied by
a letter stating that they are being submitted pursuant to this Agreement and
that they will be deemed approved unless rejected within the time stated in the
Agreement.
SECTION 508. TIME OF ESSENCE
Time is of the essence of this Agreement and of every term, condition
and covenant hereof.
SECTION 509. NO WAIVER
Except as otherwise expressly provided in this Agreement, any failure
or delay by any party in asserting any of its rights or remedies as to any
default, shall not operate as a waiver of any default, or of any such rights or
remedies, or deprive any such party of its right to institute and maintain any
actions or proceedings which it may deem necessary to protect, assert or enforce
any such rights or remedies.
SECTION 510. SEVERABILITY
If any provision of this Agreement shall be found invalid or
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall not be affected thereby and shall be valid and enforceable
to the fullest extent permitted by law.
SECTION 511. CAPTIONS
The captions contained in this Agreement are merely a reference and are
not to be used to construe or limit the text.
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SECTION 512. ENTIRE AGREEMENT WAIVERS AND AMENDMENTS
This Agreement is executed in three (3) duplicate originals each of
which is deemed to be an original. This Agreement contains nineteen (19) pages
of text and the below listed attachments which are incorporated herein by this
reference, and constitutes the entire understanding and agreement of the
parties.
Attachment No. 1 - Development Lease
Attachment No. 2 - Site Map
This Agreement integrates all of the terms and conditions mentioned
herein or incidental hereto, and supersedes all negotiations or previous
agreements between the parties with respect to all or any part of the subject
matter hereof.
All waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of the City or the Developer, and all
amendments hereto must be in writing and signed by the appropriate authorities
of the parties hereto.
SECTION 513. CONFLICT OF TERMS
In the event of any ambiguity or conflict between the terms and
provisions of the text of this Agreement and the Lease executed pursuant to this
Agreement, the terms and provisions of the Lease shall control.
DATED THIS 5 DAY OF FEBRUARY, 2001.
CITY OF PHOENIX, a municipal
corporation
FRANK FAIRBANKS, City Manager
By /s/ Patrick Grady
-----------------------------
Its COMMUNITY AND ECONOMIC
DEVELOPMENT DIRECTOR
ATTEST:
/s/ Vicky Miel
- ------------------------
City Clerk
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APPROVED AS TO FORM:
/s/ [Illegible Signature]
- -------------------------
City Attorney
AMERICA WEST AIRLINES, INC.
a Delaware corporation
By /s/ William A. Franke
----------------------------
Its Chairman & Ceo
----------------------------
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ATTACHMENT NO. 1
The form of Development Lease has
been provided to both parties.
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ATTACHMENT NO. 2
(SITE MAP)
[MAP GRAPHIC-ALTA/ACSM LAND TITLE SURVEY]