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EXHIBIT 10.5.11
850 E. TETON
INDUSTRIAL SUBLEASE
EFFECTIVE DATE: JANUARY 1, 1999
PARTIES AND ADDRESSES:
"AUTHORITY": TUCSON AIRPORT AUTHORITY, INC.,
an Arizona nonprofit corporation
7005 S. Plumer Avenue
Tucson, Arizona 85706
"TENANT": COMPLETE CONTROLS INC.
AN ARIZONA CORPORATION
850 E. TETON RD. SUITE 8
TUCSON, ARIZONA 85706
EXHIBITS: Exhibits lettered A and B are annexed to
this Sublease and incorporated herein by
this reference.
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RECITALS
A. Authority has leased from the City of Tucson, a municipal corporation,
the airport known as Tucson International Airport located in Pima
County, State of Arizona (the "Airport").
B. Tenant desires to sublease from Authority a portion of the Airport and
to have certain rights, licenses, services and privileges in
connection with the Airport.
COVENANTS AND CONDITIONS
ARTICLE I - PREMISES
1.1 PREMISES
Authority does hereby demise and let unto Tenant, for its exclusive
use and occupancy, and Tenant does hereby lease from Authority, the
portion of the Airport that is illustrated on the attached Exhibit A,
of the Building (the "Building"), located at 850 E. TETON RD on the
Airport (the "Premises"), THE OUTSIDE FENCED AREA NORTH OF HANGAR ONE
AND APPROXIMATELY TWO THOUSAND SQUARE FEET ON THE EAST SIDE OF THE
BUILDING subject to all utility easements and rights of way that
encumber the Premises and subject to the terms hereof.
1.2 ACCESS
Tenant is granted the right of reasonable access to the Premises over
such other portions of the Airport and the Building as are necessary
to provide reasonable access to and from the Premises. Authority
reserves the right to designate the location of such access and to
change its location from time to time, as Authority deems reasonably
necessary and appropriate.
1.3 SECURITY
By signing this Sublease, Tenant is deemed to acknowledge and is
hereby advised that the Building houses a number of rental spaces and
diverse tenants. Tenant is responsible for securing Tenant's Premises,
and neither the Authority nor its agents or employees will be
responsible for any loss of or damage to Tenant's possessions while
stored on the Premises.
1.4 PARKING
Tenant shall be entitled to utilize the parking areas associated with
the Building in common with other Tenants. The Authority reserves the
right, but shall not be obligated, to assign specific parking spaces
to tenants.
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1.5 ENTRY UPON PREMISES
Authority may enter upon the Premises subleased exclusively to Tenant
hereunder at any reasonable time, for any purpose necessary, incidental
to or connected with the exercise of its governmental functions, or to
inspect the Premises for compliance with all applicable laws and rules
and regulations or to prevent waste, loss or destruction. Authority
shall, in addition, have the right to enter upon the Premises and
perform any actions necessary or appropriate in connection with any
environmental investigation or remediation, including but not limited
to the trenching, drilling and installation, monitoring, repair,
replacement and operation of pipes, wells, and related equipment. The
rent due hereunder shall equitably abate with respect any portion of
the Premises rendered unusable as a result of the Authority's exercise
of its rights under this Section.
ARTICLE II - TERM
2.1 TERM
This Sublease shall be a month-to-month tenancy beginning on the
Effective Date hereof and continuing until terminated by either party
with thirty (30) days' written notice to the other.
ARTICLE III - RENT AND DEPOSITS
3.1 BASE RENT
Tenant covenants and agrees to pay Authority rent from the Effective
Date until the expiration of the term of this Sublease in an amount
equal to NINE HUNDRED DOLLARS AND NO CENTS ($900.00) per month ($500.00
for fenced yard, $400.00 for 2,000 sq. ft.) due and payable to
Authority in advance. Rent payments shall be delivered to Authority's
Property Manager who is currently Tucson Industrial Centers, Inc.,
located at 850 E. Teton, Suite 1, Tucson, AZ 85706, or such other
person as directed by Authority in writing.
3.2 COMMENCEMENT OF RENTAL OBLIGATION
The first monthly payment, prorated to reflect the partial month for
which it is paid, shall be due on the Effective Date hereof and
subsequent installments shall be due on the first day of each
succeeding calendar month thereafter during the term of this Sublease.
3.3 LATE FEES
If any rent or any other sum due from the Tenant shall not be received
within FIVE (5) DAYS after such amount shall be due, Tenant shall pay a
late fee equal to TEN PERCENT (10%) of such overdue amount. Acceptance
of such late fees shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount nor prevent Authority from
exercising any of the other right and remedies granted hereunder.
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3.4 SECURITY DEPOSIT
Simultaneously with the entry into this Sublease by the parties
hereto, the Tenant shall deposit with Authority $0.00, which shall be
retained by Authority as security for the Tenant's payment of the Rent
and performance of all of its other obligations under the provisions
of this Lease, and shall not be deemed to represent payment of any
rent. On the occurrence of an Event of Default (as defined in Section
XI.1 hereinbelow), Authority shall be entitled, at its sole
discretion, (a) to apply any or all of such sum in payment of (i) any
Rent due and unpaid, (ii) any expense incurred by Authority in curing
any such default, and/or (iii) any damages incurred by Authority by
reason of such default (including, by way of example rather than by
limitation, reasonable attorney's fees), in which event the Tenant
shall, immediately on its receipt of a written demand there for from
Authority, pay to Authority a sum equaling the amount so applied, so
as to restore the security deposit to its original amount; and /or (b)
at Authority's election, to retain any or all of such sum not
otherwise applied pursuant to the provisions of clause (a) of this
sentence in liquidation of any or all damages suffered by Authority by
reason of such default. On the termination of this Sublease, any of
such sum which is not so applied or retained shall be returned to
Tenant. Such sum shall not bear interest while being held by
Authority.
ARTICLE IV - USE OF PREMISES
4.1 PURPOSES
The Premises shall not, without prior written consent of Authority, be
used for any purpose other than or in addition to that set forth on
Exhibit B attached hereto.
4.2 INDEMNITY
Tenant agrees to fully indemnify and save and hold harmless Authority
and the City of Tucson from and against all claims, fines, damages,
penalties, actions and all expenses, including reasonable attorneys'
fees incidental to the investigation and defense thereof, related to
or arising out of the fault or negligence of or violation of law by
Tenant, its agents, employees or subtenants in the use, occupancy, or
maintenance of the Premises by any of them.
4.3 DANGEROUS CONDITIONS
Tenant agrees to exercise reasonable care when using the Premises and
all improvements thereon to discover and promptly remedy any
conditions that may pose an unreasonable risk of harm to members of
the general public or that may constitute a violation of law. If an
unsafe, defective or dangerous condition, or violation of the law is
discovered, Tenant warrants that no one other than Tenant and
Authority employees, agents and representatives will be admitted to
the Premises and no property belonging to any party other than Tenant
and Authority will be transported to, collected at or stored upon the
Premises until the
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unsafe, defective or dangerous condition, or violation of law is
corrected.
4.4 ALTERATIONS
Tenant shall not construct or substantially alter or modify any
buildings, structures, or other improvements on the Premises without
the Authority's prior written approval of its plans and
specifications, which approval may be withheld in the Authority's sole
discretion. Without limiting the generality of the above consent
requirement, no alterations may be made that are of such an extent or
nature that they would subject the Premises or the Building or any
part thereof to current building codes as they pertain to electrical,
building, safety or fire (except to the extent that the Premises or
Building are already subject to such codes) or would conflict with any
restrictions on the alteration of the Building that might exist as a
result of any registration or eligibility for registration on any
historic register.
4.5 UTILITIES
A. Tenant's Responsibilities:
Tenant shall pay for all utility services supplied to it or
its subtenants on the Airport.
B. Authority's Rights and Responsibilities:
Notwithstanding the execution of this Sublease, Authority
retains the right to the continued use of such utility lines
and services as are presently on the Premises and the right
to repair the same when necessary. Authority shall conduct
such repairs in such manner and at such times as to not
unreasonably interfere with Tenant's operations.
4.6 MAINTENANCE AND REPAIR
A. Tenant:
(1) Tenant shall, at no expense to Authority, maintain
the Premises in a neat, clean, safe condition and in
a manner that is compatible with the rest of the
Building, and in compliance with all applicable laws,
rules, regulations and orders.
(2) General combustible storage shall not exceed 12 feet
in height.
(3) Aisle separation shall be between 4 feet to 8 feet
wide. (Width to be determined by Fire Department and
classification of commodities being stored).
(4) Must have stable storage piles (No leaning stacks).
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B. Authority:
Subject to Section 5.9 the Authority shall be responsible for
all structural repairs in the Premises and the Building
unless necessitated by any negligence or willful misconduct
of Tenant or Tenant's subtenants, employees, agents, invitees
or guests.
ARTICLE V - INSURANCE AND CASUALTY
5.1 INSURANCE REQUIRED
Tenant shall obtain and maintain in full force, with a company or
companies authorized to transact the business of insurance in the
State of Arizona and of sound and adequate financial responsibility,
selected by Tenant and acceptable to Authority, comprehensive
insurance policy (either as part of any other policy or policies
carried by Tenant, or separately) providing for the protection of the
Authority and the City of Tucson and officers, directors, agents and
employees of either of them, against:
(1) general liability, including all direct or
contingent loss or liability for damages for bodily
injury, personal injury, death or damage to
property, including loss of use thereof, occurring
on or in any way related to the Premises or
occasioned by reason of occupancy by and the
operations of Tenant upon, in and around the
Premises, with limits of $1,000,000 per occurrence
for personal injury or death or damage to property,
with coverage at least as broad as that provided by
INSURANCE SERVICES OFFICE COMMERCIAL GENERAL
LIABILITY COVERAGE form CG0001 (Occurrence Form),
and such policy or policies shall cover all of
Tenant's operations on the entire Premises,
including but not limited to any elevators and
escalators therein and any sidewalks, streets or
other public ways adjoining the Premises; and
(2) automobile liability covering owned, non-owned,
leased and hired vehicles with combined single
limits of no less than $250,000 per occurrence.
5.2 DEDUCTIBLE
The deductible for any policy required hereunder shall not exceed
$1,000.
5.3 MODIFICATION OF REQUIREMENTS
Authority may adjust or increase liability insurance amounts and
requirements as Authority deems reasonably necessary, or as may be
required because of changes in the insurance requirements imposed by
Authority's insurer or by applicable law. Tenant shall comply with
such adjustments or increases within such reasonable time period as is
requested by Authority.
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5.4 CERTIFICATES
Upon or prior to the commencement of the term of this Sublease and at
least annually thereafter Tenant shall furnish to Authority
certificates of insurance showing the amount and type of the insurance
then in effect that is required to be procured and maintained by it
hereunder and stating the date and term of the policies evidencing
such insurance. Tenant shall, upon request, supply Authority with
certified copies of all applicable insurance policies, riders,
endorsements and declaration pages. Certificates evidencing any
renewal, replacement or extension of any or all of the insurance
required hereunder, or of renewals, replacements or extensions of such
renewals, replacements or extensions, shall be delivered by Tenant to
Authority not less than thirty (30) days prior to the expiration of
any policy of insurance renewed, replaced or extended by the insurance
represented by any such certificate. Each policy of insurance required
hereunder shall provide for not less than thirty (30) days notice to
Authority and Tenant before such policy may be canceled.
5.5 ADDITIONAL INSURANCE
The provisions of this Sublease as to insurance required to be
procured and maintained shall not limit or prohibit, or be construed
as limiting or prohibiting, Authority or Tenant from obtaining any
other or greater insurance with respect to the Premises or
improvements thereon or the use and occupancy thereof that either or
both of them may wish to carry, but in the event Authority or Tenant,
as the case may be, shall procure or maintain any such insurance not
required by this Sublease, the cost thereof shall be at the expense of
the party procuring or maintaining the same.
5.6 ADDITIONAL INSUREDS
All insurance required by this Article shall be procured and
maintained in the name of Tenant and shall add Authority and the City
of Tucson as additional insureds as their interests appear.
5.7 WAIVER OF SUBROGATION
Each party hereto waives all claims for recovery from the other party
for any loss or damage to any of its property on the Premises insured
under valid and collectible insurance policies to the extent of any
recovery collected from such policies. The parties agree that all
material insurance policies shall be endorsed with a clause which
waives subrogation against the other party.
5.8 INSURANCE BY AUTHORITY
Authority may, upon written notice to Tenant, in the event that Tenant
fails to timely provide proof of insurance as required by Section 5.4
above, procure and maintain any or all of the insurance required of
Tenant under this Article. In such event, all costs of such insurance
procured and maintained by Authority on behalf of Tenant shall be the
responsibility of
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Tenant and shall be fully reimbursed to Authority within ten (10)
business days after Authority advises Tenant of the cost thereof.
5.9 CASUALTY TO PREMISES
Authority may, but shall not be required to, maintain insurance
against loss or damage to the Building and the Premises, but shall
have no obligation to repair the Building or the Premises in the event
of casualty or damage thereto. In the event that any such casualty
renders the Premises unsafe or untenantable, this Sublease shall
terminate immediately.
ARTICLE VI - TAXES
6.1 TENANT'S RESPONSIBILITY
Tenant shall pay before delinquency any and all taxes levied or
assessed against the Premises, any levied or assessed against or by
reason of personal property located in, on or about the Premises, any
levied or assessed because of Tenant's right to possession of the
Premises and improvements thereon, all applicable taxes levied or
assessed by any government body as the result of Tenant's operations
and all taxes which may be levied or assessed as the result of rentals
payable under this Sublease. All such taxes and assessments for
partial years shall be apportioned and adjusted on a time basis.
6.2 PROTEST
Tenant shall have the right at its own cost and expense to contest the
amount or validity of any such tax or assessment and to bring or
defend any actions involving the amount or validity of any such tax or
assessment in its own name or in the name of Authority; provided that,
if unsuccessful, Tenant shall pay and discharge any such tax or
assessment so contested, together with any penalties, fines, interest,
costs and expenses, including reasonable attorneys' fees, that may
result from any such action by Tenant.
ARTICLE VII - RULES, REGULATIONS AND LAWS
7.1 COMPLIANCE WITH ALL APPLICABLE LAWS
Tenant and all persons operating under the rights granted hereby shall
observe and obey all reasonable and lawful rules and regulations with
respect to the use of the Airport which have been or may in the future
be adopted by Authority and shall further abide by all applicable
laws, statutes, ordinances, rules, orders, and regulations of all
governing bodies which are now in effect or which may hereafter be put
into effect.
7.2 NON-DISCRIMINATION
A. NON-DISCRIMINATION COVENANTS
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(1) The Tenant for himself, his heirs, personal
representatives, subtenants, successors in interest,
and assigns, as a part of the consideration hereof,
does hereby covenant and agree, as a covenant
running with the land, that in the event
improvements are constructed, maintained, or
otherwise operated on the Premises for a purpose for
which a Department of Transportation ("DOT") program
or activity is extended or for another purpose
involving the provision of similar services or
benefits, Tenant shall maintain and operate such
improvements and services in compliance with all
other 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.
(2) The Tenant for himself, his personal
representatives, successors in interest, and
assigns, as a part of the consideration hereof, 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 improvements, (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, Non-discrimination 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.
(3) Tenant shall furnish its accommodations and/or
services on a fair, equal and not unjustly
discriminatory basis to all users thereof and it
shall charge fair, reasonable and not unjustly
discriminatory prices for each unit or service,
PROVIDED THAT Tenant may be allowed to make
reasonable and nondiscriminatory discounts, rebates
or other similar type of price reductions to volume
purchasers.
(4) Tenant assures that it will undertake an affirmative
action program as required by 14 CFR Part 152,
Subpart E, to insure that no person shall on the
grounds of race, creed, color, national origin, or
sex be excluded from participating in any employment
activities covered in 14 CFR Part 152, Subpart E.
Tenant assures that it will require that its covered
sub organizations provide assurances from their sub
organizations, as required by 14 CFR Part 152,
Subpart E, to the same effort.
B. NON-COMPLIANCE
Non-compliance with an provision of this Section shall
constitute a material breach
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hereof and in the event of such non-compliance Authority
shall have the right to terminate this Sublease and the
estate hereby created without liability therefore or at the
election of Authority or the United States, either or both
shall have the right to judicially enforce these provisions.
C. SUBLEASES
Tenant agrees that it shall insert the provisions of this
Section in any sublease by which Authority grants a right or
privilege to any person, firm or corporation to render
accommodations and/or services to the public on the Premises
herein subleased.
7.3 COMPLIANCE WITH FAR PART 77
Tenant shall comply with the notification and review requirements
covered in Part 77 of the Federal Aviation Regulations in connection
with any improvements or modification or alteration of improvements on
the Premises.
7.4 FAR PART 107; AIRPORT ACCESS
Tenant and all persons operating under the rights granted hereunder
shall comply with Part 107 of the Federal Aviation Regulations with
respect to aircraft operations and airport security at the Airport.
Tenant shall at all times take all reasonable steps to control, police
and regulate the use of the Premises and of the Airport premises to
prevent unauthorized persons and the general public from obtaining
access to the Airport. Such steps by Tenant shall include, but not be
limited to, steps requested by Authority and those required under
Federal Regulations. Tenant must secure the Premises so that there is
no inadvertent or purposeful unauthorized entry in or upon the Airport
by people, vehicles, or animals.
7.5 STATE AND FEDERAL AVIATION REGULATIONS
Tenant will conduct its operations and activities on the Airport so as
to conform to all applicable regulations of the Federal Aviation
Administration and the Aeronautics Division of the Arizona Department
of Transportation.
7.6 EXCLUSIVE RIGHTS PROHIBITED
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 49 U.S.C. 40103(e).
7.7 ENVIRONMENTAL LAWS
Tenant, at its own expense, shall ensure that Tenant and Tenant's
agents, employees, invitees, and sublessee comply with all present and
hereafter enacted Environmental Laws, and any amendments thereto,
affecting Tenant's operation on the Premises.
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A. DEFINITIONS
(1) "Environmental Laws" means any laws, regulations
and ordinances (whether enacted by the local, state,
federal government, or by the Authority) now in
effect or hereafter enacted that deal with the
regulation or protection of the environment
(including the ambient air, ground water, surface
water, and land use, including sub-strata land), or
with the generation, storage, disposal or use of
chemicals or substances that could be detrimental to
human health or the environment.
(2) "Extremely Hazardous Substances" means any substance
or material designated by the United States
Environmental Protection Agency as an "extremely
hazardous substance" under Section 302(a)(2) of the
Superfund Amendment and Reauthorization Act ("SARA")
(42 U.S.C. Section 11002(a)(2)).
(3) "Hazardous Material" means all substances, materials
and wastes that are, or that become, regulated under,
or that are classified as hazardous or toxic under
any environmental law (including, but not limited to,
Extremely Hazardous Substances and Toxic Chemicals).
(4) "Release" means any releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, disposing, or dumping.
B. COMPLIANCE
(1) Compliance with Environmental Laws Generally. Tenant
shall not cause or permit any Hazardous Material to
be used, generated, manufactured, produced, stored,
brought upon, or released, on, under or about the
Premises, or transported to and from the Premises,
by Tenant, its agents, employees, contractors,
invitees, sublessees or any third party in violation
of any Environmental Law, provided that, in no
circumstances shall Tenant cause or permit any
Extremely Hazardous Substance or Toxic Chemical to
be used, generated, manufactured, produced, stored,
brought upon, or Released, on, under or about the
Premises, or transported to and from the Premises.
(2) Cleanup. Without limiting the foregoing, if the
presence of any Hazardous Material on, under or
about the Premises caused or permitted by Tenant
results in any contamination of the Premises, Tenant
shall promptly take all actions at its sole cost and
expense as are necessary to return the Premises to
the condition existing prior to the introduction of
any such Hazardous Material to the Premises;
provided that Authority's approval of such actions
shall first be obtained, which approval shall not be
unreasonably withheld so long as such actions would
not potentially have any material adverse effect on
the Premises. In the event Tenant shall fail timely
to commence or cause to be commenced or fail
diligently to prosecute to completion such actions
as are necessary to return the Premises to the
conditions existing prior to the introduction of any
Hazardous Material to the Premises, Authority may,
but shall not be obligated to, cause such action to
be performed, and all costs and
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expenses (including, without limitation, attorneys'
fees) thereof or incurred by Authority in connection
therewith shall be paid by Tenant.
(3) Governmental Submittals. Tenant shall, at Tenant's
own cost and expense, make all submissions to,
provide all information to, and comply with all
requirements of any governmental authority having
jurisdiction (the "Government") under the
Environmental Laws. Should the Government determine
that a site characterization, site assessment and/or
a cleanup plan be prepared or that a cleanup should
be undertaken because of any release of hazardous
materials at the Premises which occur during the
term of this Sublease, then Tenant shall, at
Tenant's own cost and expense, prepare and submit
the required plans and financial assurances, and
carry out the approved plans in accordance with all
requirements of the Government.
(4) Information Sharing. Tenant shall provide to Tucson
Airport Authority a copy of any and all information,
reports, and applications submitted to the
Government as described in Paragraph X.6B.(4),
whether such submittal is routine or in response to
a release or threatened release of any Hazardous
Material, and whether the impetus for such submittal
is generated by Tenant, or by an inquiry or action
by the Government or another third party. At no cost
or expense to Authority, Tenant shall promptly
provide all information requested by Authority to
determine the applicability of the Environmental
Laws to the Premises, or to respond to any
governmental investigation or to respond to any
claim of liability by third parties which is related
to environmental contamination. Tenant shall
immediately notify Authority of any correspondence
or communication from any governmental entity
regarding the application of Environmental Laws to
the Premises or Tenant's operation of the Premises.
(5) Change in Use of Premises. Tenant shall immediately
notify Authority of any changes in Tenant's
operation on the Premises that will change or has
the potential to change Tenant's or Authority's
obligations or liabilities under the Environmental
Laws.
C. INDEMNITY
Tenant shall indemnity, defend and hold harmless Authority,
its successors and assigns, its employees, agents and
attorneys from and against any and all liability, loss,
damage, expense, penalties and costs (including legal and
investigation fees or costs) arising from or related to any
claim or action for injury, liability, breach or warranty or
representation, or damage to persons or property and any and
all claims or actions brought by any party or governmental
body, alleging or arising in connection with (i)
contamination of, or adverse effects on, the environment
(whether known, alleged, potential, or threatened), or (ii)
alleged or potential violation of any Environmental Law or
other statute, ordinance, rule, regulation, judgment or order
of any government or judicial entity which are brought as a
result (whether in part or in whole) of any activity or
operation on or Release from the Premises (caused by
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any person or entity other than Authority) during the term of
this Sublease or any previous sublease of the Premises by
Tenant or its owners or related entities. This obligation
includes but is not limited to all costs and expenses related
to investigation and/or cleaning up the Premises and all
land, soil, and underground or surface water as required
under the law. Tenant's obligations and liabilities under
this paragraph shall continue so long as Authority bears any
liability or responsibility under the Environmental Laws for
any action that occurred on the Premises during the term of
the Sublease. This indemnification of Authority by Tenant
includes, without limitation, costs incurred in connection
with any investigation of site conditions or any cleanup,
remedial, removal or restoration work required by any
federal, state, or local governmental agency or political
subdivision because of Hazardous Material located on the
Premises or present in the soil or ground water on, under or
about the Premises. The parties agree that Authority's right
to enforce Tenant's Promise to indemnify is not an adequate
remedy at law for Tenant's violation of any provision of this
paragraph; Authority shall have all the rights and remedies
set forth in this Sublease as well as all other rights and
remedies provided by law.
D. SUBTENANTS
Tenant shall insert the provisions of this section in any
lease agreement or contract by which it grants a right or
privilege to any person, firm or corporation under this
Sublease.
ARTICLE VIII - SUPERIOR RIGHTS
8.1 AGREEMENTS WITH UNITED STATES
This Sublease shall be subordinate to the provisions and requirements
of any existing or future agreement between Authority and the United
States, relative to the development, operation or maintenance of the
Airport.
8.2 RIGHTS OF GOVERNMENT DURING WAR OR NATIONAL EMERGENCY
This Sublease 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 the Airport or the exclusive or non-exclusive use of
the Airport by the United States during the time of war or national
emergency.
Tenant and Authority recognize that during the time of war or national
emergency the City of Tucson, owner of the Airport, has the right to
enter into agreements with the United States government for military or
naval use of part or all of the Airport. If any such agreement is
executed by the City of Tucson, the provisions of this Sublease,
insofar as they are inconsistent with the provisions of any agreement
so made by the City of Tucson with the United States government, shall
be subject to the terms of such agreement and Tenant shall have no
claim against Authority or the City of Tucson for any loss or damage
sustained by
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Tenant because of the making of such agreement by the City of Tucson.
In such event, however, the amounts, if any, payable from the City of
Tucson or the United States for improvements placed on the Premises by
Tenant shall be paid to Tenant if this Sublease is in effect at the
time of such taking.
8.3 RIGHTS OF AUTHORITY
Authority 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 Tenant and without interference or hindrance.
Authority reserves the right, but shall not be obligated to 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 Tenant in this regard.
8.4 AGREEMENTS WITH CITY OF TUCSON
This Sublease is subject to the existing lease between Authority and
the City of Tucson and to the provisions of any existing or future
agreement between the City of Tucson and Authority.
8.5 ABATEMENT OF OBLIGATION TO CONSTRUCT OR REBUILD
Inasmuch as this Sublease contains certain provisions concerning
repairs, replacement and rebuilding of damaged or destroyed buildings,
construction of buildings, quiet enjoyment and other related causes
applicable to the parties to this Sublease, and inasmuch as the
Premises constitute a portion of a public Airport, it is agreed that
the parties hereto shall not be required to repair, replace, rebuild
or construct any building or portion of any building so long as the
obligated party is prevented from so doing by action of the United
States government or any agency or department thereof.
ARTICLE IX - RESERVATION OF NAVIGATION EASEMENT
9.1 EASEMENT
There is hereby reserved to Authority for the use and benefit of
aircraft using the Airport a right of flight for the passage of
aircraft in the airspace above the uppermost surface of the Premises,
together with the right to cause such noise as may be inherent in the
operation of any aircraft now known or hereafter used for navigation
of or flight in said airspace, or landing at, or taking off from, or
operating on the Airport.
9.2 STRUCTURES; ELEVATION LIMIT
Tenant, by accepting this Sublease, expressly agrees for itself, its
successors and assigns that it will not erect nor permit the erection
of any structure or object, nor permit the growth of any tree on the
Premises above the mean sea level elevation of 2460 feet. In the event
the aforesaid covenants are breached, Authority reserves the right to
enter upon the Premises and
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to remove the offending structure or object and cut the offending
tree, all of which shall be at the expense of Tenant.
9.3 PURPOSES
Tenant, by accepting this Sublease agrees for itself, its successors
and assigns that it will not make use of the 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, Authority reserves the right to enter
upon the Premises and cause the abatement of such interference at the
expense of Tenant.
ARTICLE X - ASSIGNMENT AND SUBLEASE
10.1 CONSENT OF AUTHORITY
Tenant shall not sublease, assign or sell this Sublease or any
interest therein, or any portion of the Premises, without first
obtaining written consent from Authority. For this purpose, any change
in ownership or control of Tenant shall be considered an assignment of
rights hereunder. Tenant shall furnish the Authority with a copy of
any sublease or assignment entered into with respect to this Sublease
or the Premises or any portion thereof.
10.2 CONTINUING RESPONSIBILITY OF TENANT
If it is a complete assignment or sublease of the entire Premises it
shall be in writing and provide that the subtenant or assignee assumes
and agrees to perform all of the terms, covenants and agreements which
Tenant has agreed to perform under this Sublease, and that Tenant's
subtenant or assignee shall become jointly and severally liable with
Tenant, or any successor in interest of Tenant, for the performance of
the terms and covenants of this Sublease. A sublease for less than the
entire Premises shall be in writing and shall recite that it is
subject and subordinate to all the terms and provisions of this
Sublease. Neither the execution of such sublease or assignment, the
Authority's consent to the same, nor the acceptance of rent by
Authority from Tenant's subtenant or assignee shall release or in any
manner affect Tenant's liability to Authority hereunder.
10.3 SUBJECT TO THIS SUBLEASE
Any sublease between Tenant and a subtenant shall be in writing and
shall provide that said sublease is subject to all the provisions of
this Sublease.
ARTICLE XI - DEFAULTS AND REMEDIES
11.1 DEFAULT BY TENANT
Tenant shall be in default under this Sublease upon the occurrence of
any of the following "Events of Default":
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A. Tenant shall fail to pay when due any installment of rent
payable pursuant to this Sublease and such failure shall
continue unremedied for a period of ten (10) days; provided
that Tenant shall not be entitled to the benefit of more than
one (1) grace period of ten (10) days under this paragraph
A(1) within any calendar year.
B. Tenant or any of Tenant's agents, employees, guests,
invitees, or subtenants, shall use Premises for any unlawful
or illegal purpose or for any purpose other than those set
forth on Exhibit B.
C. Tenant shall fail to observe or perform any other covenant,
agreement or obligation hereunder and such failure shall not
be remedied within thirty (30) days (or such additional time
as is reasonably required in the opinion of Authority to
correct any such failure, if Tenant has instituted corrective
action and is diligently pursuing the same) after Authority
shall have given Tenant written notice specifying which
covenant, agreement or obligation Tenant has failed to
observe or perform; provided that Tenant shall not be
entitled to the benefit of more than two (2) grace periods of
thirty (30) days (or more if permitted) under this paragraph
within any calendar year.
D. There is commenced by or against Tenant any case under the
Bankruptcy Code (Title XI of the United States Code) or any
other bankruptcy, arrangement, reorganization, receivership,
custodianship or similar proceeding under any federal, state
or foreign law, and with respect to any such case or
proceeding that is involuntary, such case or proceeding is
not dismissed with prejudice within sixty (60) days of such
filing.
E. Tenant makes a general assignment for the benefit of
creditors or applies for, consents to, or acquiesces in the
appointment of a trustee, receiver, or other custodian for
Tenant or the property of Tenant or any part thereof, or in
the absence of such application, consent, or acquiescence, a
trustee, receiver or other custodian is appointed for Tenant
or the property of Tenant or any part thereof, and such
appointment is not discharged within sixty (60) days.
F. Any action is commenced against Tenant to foreclose any lien
or mortgage or other rights of Tenant in or to the Premises.
G. Tenant abandons, deserts or vacates the Premises for seven
(7) consecutive days or more.
11.2 REMEDIES OF AUTHORITY
If Tenant shall be in default hereunder as set forth above, the
Authority may exercise any of the following remedies.
A. TERMINATION
Authority may, at its election, give Tenant written notice of
its intention to terminate this Sublease on a date which
shall not be earlier than ten (10) days after such notice
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is given. If all defaults have not been cured on or before
the date specified in the notice, Tenant's rights to
possession of the Premises shall cease, and with or without
re-entry by Authority, this Sublease and the term hereof
shall terminate, and Authority may then re-enter and take
possession of the Premises as provided below with respect to
reentry without termination. Any such termination must be
express, and neither notice to pay rent or to deliver up
possession of the Premises given pursuant to law, nor any
proceeding instituted by Authority, nor the failure by Tenant
for any period of time to pay any of the rent herein
reserved, shall of itself operate to terminate this Sublease.
(1) Damages. Notwithstanding the termination of this
Sublease or any re-entry by Authority upon such
termination, Tenant shall continue to be liable for
and Authority shall be entitled to recover as
damages:
(a) the sum of all rent that is due and owing
as of the date of termination and all other
sums then owing by Tenant hereunder;
(b) all rent that would otherwise continue to
accrue during the remaining term hereof or,
at the election of Authority, the
discounted present value of the sum of all
rentals remaining to be paid for the
remaining term of this Sublease, calculated
by the Authority in its reasonable
discretion; and
(c) the reasonable costs incurred by Authority
in re-letting the Premises and the
reasonable costs to Authority necessary to
place the Premises in condition for
re-letting.
(2) Credit. Any rent, income, receipts, profits or other
monies received or derived by Authority from any
re-letting or other use of the Premises after the
termination of this Sublease shall, so long as
Tenant shall continue to be liable for the payment
of rent hereunder, be credited against such rent as
received and collected.
B. REENTRY WITHOUT TERMINATION
As an alternative remedy, Authority may, without terminating
this Sublease, and after giving Tenant ten (10) days written
notice, re-enter the Premises and take possession thereof
pursuant to any legal proceedings or notice required by law,
in which event Tenant shall remain liable for the payment of
all rent and the performance of all conditions contained in
this Sublease.
(1) Reentry. Upon any such re-entry of the Premises
by Authority, Authority may expel Tenant and those
claiming through or under Tenant and remove their
property and effects (forcibly, if necessary)
without being guilty in any manner of trespass and
without any liability therefor and without prejudice
to any remedies of Authority in the event of default
by Tenant, and without liability for any
interruption of the conduct of the affairs of Tenant
or those claiming through or under Tenant which may
result from such entry. Tenant hereby irrevocably
appoints Authority as the agent and attorney-in-fact
of Tenant to remove all of Tenant's property
whatsoever situated upon the
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Premises and to place such property in storage in any
warehouse or other suitable place in Tucson, Arizona, for the
account of and at the expense of Tenant and Tenant hereby
exempts and agrees to save harmless Authority from any costs,
loss or damage whatsoever arising or occasioned by any such
removal and storage of such property by Authority or its duly
authorized agents in accordance with the provisions herein
contained.
(2) Reletting. After such re-entry, Authority shall use reasonable
diligence to re-let the Premises, or any part or parts
thereof, for such period or periods and upon such term or
terms and at such reasonable rental or rentals and upon such
other conditions as Authority may deem advisable, with the
right to make alterations and repairs to the Premises. Tenant
hereby irrevocably appoints Authority as the agent and
attorney-in-fact of Tenant to enter upon and re-let the
Premises and to incur any necessary expenses in doing so, all
to be reimbursed by Tenant. Tenant agrees that no acts of
Authority in effecting such re-letting shall constitute a
termination of this Sublease, irrespective of the period for
which such re-letting is made or the terms and conditions of
such re-letting or otherwise.
(3) Credit. Tenant shall receive a credit against such rental in
the amount of the proceeds, if any, of such re-letting.
Tenant's obligations, in addition to rent, for which it shall
remain liable include, but shall not be limited to, all
repossession costs, brokerage commissions, legal expenses,
attorneys' fees, expenses of employees, removal costs,
alteration costs and expenses of preparation for re-letting,
and any other amounts expended pursuant to action taken under
this paragraph.
11.3 REMEDIES CUMULATIVE
All rights, options and remedies of Authority contained in this
Sublease shall be construed and held to be cumulative, and no one of
them shall be exclusive of the other, and Authority shall have the
right to pursue any one or all of such remedies or any other remedy or
relief which may be provided by law, whether or not stated in this
Sublease (including but not limited to any right of "self help" or
similar remedy in order to minimize any damages, expenses, penalties
and related fees or costs).
11.4 NO WAIVER
No waiver of any Event of Default of Tenant hereunder shall be implied
from any acceptance by Authority of any rent or other payments due
hereunder or any omission by Authority to take any action on account
of such default if such default persists or is repeated, and no
express waiver shall affect an Event of Default in a manner other than
as specified in said waiver. The consent or approval by Authority to
or of any act by Tenant requiring Authority's consent or approval
shall not be deemed to waive or render unnecessary Authority's consent
or approval to or of any subsequent similar acts by Tenant.
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11.5 NOTICE
Any default notice tendered to Tenant hereunder shall be deemed to be
sufficient if it is reasonably calculated to put Tenant on inquiry as
to the nature and extent of such default.
11.6 INTEREST
All amounts due the Authority hereunder shall accumulate interest at a
rate of 12% per annum or the maximum amount allowed by law, whichever
is less.
ARTICLE XII - TERMINATION BY TENANT
12.1 TERMINATION EVENTS
Tenant may terminate this Sublease at any time upon thirty (30) days
written notice to Authority upon or after the happening or
continuation of any of the following events:
A. The inability of Tenant to use, for a period of
thirty (30) consecutive days, any portion of the
rights, licenses, services or privileges of Tenant
hereunder because of any law, rule, regulation or
other action or failure to act on the part of any
United States governmental authority having
jurisdiction thereof.
B. The default by Authority in the performance of any
covenant or agreement herein required to be
performed by Authority and the failure of Authority
to remedy such default for a period of thirty (30)
days after receipt of written request or demand from
Tenant to remedy the same.
C. The assumption by the United States government or
any authorized agency thereof of the operation or
control of the Airport or any part thereof, in such
manner as to substantially restrict Tenant for a
period of at least thirty (30) consecutive days from
conducting any of its operation on the Premises.
12.2 CURE
If any of the foregoing reasons for termination by Tenant cease to
exist prior to a termination, then the right to terminate for such
reason shall cease.
12.3 NO WAIVER
No waiver by Tenant of Authority's default of any of its obligations
hereunder shall be construed to be or act as a waiver by Tenant of any
subsequent default by Authority.
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ARTICLE XIII - SURRENDER OF POSSESSION, CONDITION OF
PREMISES
13.1 SURRENDER
Upon the expiration or earlier termination of this Sublease or any
extensions thereof, all rights herein granted to Tenant shall cease
and terminate and Tenant shall forthwith surrender the Premises to
Authority.
13.2 GOOD CONDITION
The Premises shall be returned to Authority in as good condition as at
the time of occupancy by Tenant, except as otherwise provided in this
Sublease, ordinary wear and tear excepted.
13.3 REMOVAL OF PROPERTY
Tenant, and Tenant's subtenants, may remove any and all personal
property, including portable buildings, signs, trade fixtures,
machinery and equipment from the Premises prior to expiration of this
Sublease; provided, however, that Tenant shall repair any damage
caused by such removal. Title to any property remaining in the
Premises after expiration or termination of this Sublease shall vest
in Authority and Authority shall have the right and option to remove
the same, restore the Premises and recover from Tenant the costs and
expenses of doing so.
ARTICLE XIV - MISCELLANEOUS
14.1 NOTIFICATION OF CHANGES
Tenant shall promptly notify Authority of any change in Tenant's name
or address or a change in ownership.
14.2 SUCCESSORS AND ASSIGNS BOUND
All the terms, covenants and conditions of this Sublease shall extend
to and bind the successors and assigns of the respective parties
hereto.
14.3 ARTICLE HEADINGS
The article headings contained herein are for convenience and
reference and are not intended to define or limit the scope of any
provisions of this Sublease.
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14.4 SEVERABILITY
If any term or condition of this Sublease shall be deemed to be
invalid or unenforceable, all other terms and conditions shall remain
in full force and effect.
14.5 APPLICABLE LAW
The terms and conditions of this sublease shall be interpreted in
accordance with the laws of the State of Arizona.
14.6 CONSTRUCTION OF SUBLEASE
Authority and Tenant agree that each party and its counsel have
reviewed and revised this Sublease and that any rule of construction
to the effect that ambiguities are to be resolved against the drafting
party shall not apply in the interpretation of this Sublease. No
remedy or election given by any provisions of this Sublease shall be
deemed exclusive unless so indicated, but each shall, whenever
possible, be cumulative with all other remedies in law or equity. Each
provision hereof shall be deemed both a covenant and a condition and
shall run with the land for the duration of the leasehold term or any
extensions thereof. Whenever the content of any provision shall
require it, the singular number shall be held to include the plural
number and vice versa. The form of this Sublease contemplates that
Tenant will be an entity and not one or more natural persons. If
Tenant is one or more natural persons, then all pronouns referring to
Tenant shall be deemed to be appropriately changed to fit those
circumstances.
14.7 COSTS AND ATTORNEYS' FEES
A. AUTHORITY'S REVIEW
Tenant shall pay the expenses (including reasonable
attorneys' fees and the fees of other consultants) incurred
by Authority in reviewing any of the documents (including
subleases, plans and specifications of any improvements to be
constructed by Tenant, and documents created pursuant to
Section ) for which Authority's approval is required by the
terms hereof.
B. ENFORCEMENT OF RIGHTS
The non-prevailing party shall promptly pay to the prevailing
party, upon demand, all costs and other expenses paid or
incurred by the prevailing party (including, without
limitation, reasonable attorney's fees) in enforcing or
exercising its rights or remedies created by, connected with
or provided for in this Sublease, whether or not any action
or proceeding is brought (including, without limitation, all
such costs, expenses and fees incurred in connection with any
bankruptcy, receivership, or other court proceedings [whether
at the trial or the appellate level]).
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14.8 NOTICES
A. TO AUTHORITY
Notices to Authority in connection with this Sublease shall
be sufficiently served if physically delivered or sent by
certified mail, postage prepaid, addressed to Authority at
the address shown for it above.
B. TO TENANT
Notices to Tenant in connection with this Sublease shall be
sufficiently served if physically delivered or sent by
regular mail, postage prepaid, addressed to Tenant at the
address shown for it above, provided that notice of utility
interference shall be sufficiently served if Authority gives
said notice to the current supervisor of Tenant's operations
on the Premises.
C. TIMING
Service of any notice or demand by physical delivery shall be
deemed complete upon the date of delivery. Service of any
notice or demand by certified mail shall be deemed complete
at the expiration of three (3) days after the date of the
certified mailing if mailed within the continental United
States.
D. CHANGE IN ADDRESS
Each party may change its address to such other addresses as
such party may designate to the other in writing from time to
time.
14.9 AUTHORITY TO EXECUTE
Each party represents and warrants to the other that it has the right
and authority to enter into this Sublease.
IN WITNESS WHEREOF the parties have executed this Sublease as of the
day and year first above written.
TUCSON AIRPORT AUTHORITY, INC.,
an Arizona nonprofit corporation
By: /s/ Signature Illegible
-------------------------------
Its: CEO
-------------------------------
"AUTHORITY"
COMPLETE CONTROLS, INC.
By: Micah Chapman
-------------------------------
Its: President
-------------------------------
"TENANT"
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