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TOWN OF WICKENBURG
AIRPORT PROPERTY LEASE AGREEMENT
with
DALLAS C. GANT, JR. (LESSEE)
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Table of Contents
1.
LEASE. ................................................................................................................................................ 1
2.
TERM. .................................................................................................................................................. 3
3.
NONEXCLUSIVE RIGHTS. ............................................................................................................... 4
4.
RENT. .................................................................................................................................................. 4
5.
PERFORMANCE GUARANTEE. ...................................................................................................... 5
6.
IMPROVEMENTS. ............................................................................................................................. 6
7.
MAINTENANCE................................................................................................................................. 6
8.
ASSIGNMENT, SUBLETTING AND OTHER TRANSFERS. ......................................................... 7
9.
IDENTIFICATION SIGNS. ................................................................................................................ 8
10.
DEFAULT; TERMINATION BY LESSOR. .................................................................................. 8
11.
INDEMNIFICATION.................................................................................................................... 10
13.
PROTECTION OF WETLANDS. ................................................................................................. 17
14.
SPECIAL PROVISIONS. .............................................................................................................. 17
15.
INSURANCE. ................................................................................................................................ 17
16.
SURRENDER OF POSSESSION. ................................................................................................ 18
17.
INSPECTION BY LESSOR. ......................................................................................................... 19
18.
NOTICES. ...................................................................................................................................... 19
19.
SEVERABILITY. .......................................................................................................................... 19
20.
SALES AND PROPERTY TAXES. ............................................................................................. 19
21.
APPROVALS, CONSENTS AND NOTICES. ............................................................................. 20
22.
LIENS AND MORTGAGES. ........................................................................................................ 20
23.
GOVERNING LAW; ATTORNEY’S FEES. ............................................................................... 24
24.
RULES AND REGULATIONS. ................................................................................................... 24
25.
CORPORATE AUTHORIZATION. ............................................................................................. 24
26.
UTILITY LINES AND SERVICE CHARGES............................................................................. 24
27.
RESERVATIONS TO LESSOR. .................................................................................................. 25
28.
FEDERAL AVIATION ADMINISTRATION (FAA) PROVISIONS. ........................................ 25
29.
REQUIRED PROVISIONS. .......................................................................................................... 27
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30.
ARCHEOLOGICAL OR CULTURAL RESOURCES. ................................................................ 27
31.
DEFAULT BY LESSOR. .............................................................................................................. 27
32.
SALE BY LESSOR. ...................................................................................................................... 28
33.
ESTOPPEL CERTIFICATE. ......................................................................................................... 28
34.
MISCELLANEOUS. ..................................................................................................................... 28
35.
INCORPORATION OF RECITALS. ............................................................................................ 29
36.
SIGNATURE ................................................................................................................................. 29
EXHIBIT A (DESCRIPTION OF PREMISES) ……………………………………………………......A-1
EXHIBIT B (AIRPORT FEES)………………………………………………………………………….B-1
EXHIBIT C (STORMWATER PERMIT COMPLIANCE FEES)……………………………………...C-1
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AIRPORT PROPERTY LEASE AGREEMENT
This Property Lease Agreement (the “Lease”) is executed to be effective the 2nd day of
May, 2025 (the “Effective Date”) between the TOWN OF WICKENBURG, an Arizona municipal
corporation (“Lessor”), and Dallas C. Gant, Jr. (“Lessee”). Lessor and Lessee may be referred to
jointly as “Parties,” and each separately may be referred to as a “Party.”
WITNESSETH:
WHEREAS, Lessor is the owner and operator of the Wickenburg Municipal Airport
located at 3410 West Wickenburg Way, Wickenburg, Maricopa County, Arizona (the “Airport”);
and
WHEREAS, Lessor has the right to lease, license and grant the use of property and
facilities on the Airport and has full power and authority to enter into this Lease in respect thereof;
and
WHEREAS, Lessor desires to lease to Lessee, and Lessee desires to lease from Lessor,
that certain real property at the Airport located at 3410 W Wickenburg Way, Wickenburg, AZ
85390 consisting of a total of approximately 57,562 square feet of hangar space as set forth in
Exhibit A attached hereto (the “Premises”); and
WHEREAS, Lessor desires to lease the Premises to Lessee on the terms and conditions
set forth herein;
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and
agreements herein contained, the Parties do hereby undertake, promise and agree, each for itself
and its successors and assigns, as follows:
1.
LEASE.
Lessor hereby leases the Premises to Lessee, subject to all easements and rights of way that
may encumber the Premises, and further subject to all operational and use restrictions and other
terms and conditions set forth in this Lease.
1.1
Supersede Existing Lease.
The Lease Agreements entered into by and between
Lessor and Lessee, dated September 26, 1989, July 11, 2011, and September 26, 2009 are
superseded by this Agreement. It is further understood by the Parties that any and all rights and
obligations accruing to or imposed upon either Party by any of the above-mentioned Agreements
is superseded by the rights and obligations of the Parties in this Lease.
1.2
Right to Use Premises. Lessor agrees that so long as Lessee shall timely pay the
Base Rent and other charges required to be paid hereunder, and perform all of its other obligations
under this Lease, Lessee shall peaceably have and enjoy the use of the Premises without hindrance
from Lessor. Lessee specifically acknowledges that Lessee has inspected the Premises prior to
entering into this Lease and agrees to accept the Premises in an "as is, where is" condition without
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any warranty or representation from Lessor, either express or implied, of any kind or nature
whatsoever with respect to the Premises, including, but not limited to, any warranty of
merchantability, habitability, or fitness for any particular or specific purpose, and all such
warranties are hereby disclaimed. Should Lessee desire any inspection report, environmental
assessment, survey, creation of a legal description, drainage report, or any similar study, Lessee
shall be responsible for the same at Lessee's sole expense.
1.3
Substitution of Premises. In addition to Lessor’s other rights set forth in this Lease,
Lessor has the right (but not the obligation) to substitute Comparable Areas for all or any portion
of the Premises, and any additions, alternations or improvements thereon, should Lessor, in its
reasonable discretion, determine that taking of the Premises, any portion thereof or any
improvement thereon, is required for other Airport purposes, and there exists no appropriate
alternative. In the event Lessor makes the determination to exercise its rights to substitute, all title,
right and interest to any portion of the Premises taken shall immediately vest in Lessor.
Furthermore, Lessor may require Lessee to vacate any portion or all of the Premises taken. For
the purposes of this Section 1.3, the term “Comparable Areas” is defined to mean other facilities
at the Airport, or any additions or extensions thereof, similar in size to the Premises, brought to
the same level of improvement as the Premises and having the same or similar usefulness to Lessee
as the portion taken. Lessor shall bear all expenses of bringing the substituted area to the same
level of improvement as the Premises, and of moving Lessee’s improvements, equipment, furniture
and fixtures to the substituted area. If any of Lessee’s improvements, equipment, furniture or
fixtures cannot be relocated, Lessor shall replace, at Lessor’s expense, such non-relocatable
improvements and other property with comparable property in the Premises, and Lessor shall be
deemed the owner of the non-relocated improvements and other property, free and clear of all
claims of any interest or title therein by Lessee, or any other third party whomsoever. It is the
specific intent of this Section 1.3 that Lessee be placed, to the extent possible, in the same position
it would have been, had Lessor not substituted new premises for the Premises; provided, however,
that Lessor shall not be obligated to reimburse Lessee for any damages, including lost profits or
revenues, due to such substitution. Notwithstanding the foregoing, Lessor shall use reasonable
efforts to avoid disruption to Lessee’s rights under this Lease.
1.4
Access. Lessee is granted the right of reasonable access to and from the Premises
via such portions of the Airport as are or may be necessary to allow Lessee to conduct its business
operations permitted herein at and on the Premises. Lessor reserves the right to designate the
location of such access and to change its location from time to time, as Lessor deems reasonably
necessary and appropriate.
1.5
Permitted Uses. Subject to the provisions of this Section, Lessee may use the
Premises for hangar space.
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1.6
Prohibited Activities. Lessee shall not use or permit its agents, employees,
contractors, invitees, licensees or customers to use the Premises or the Airport for any use that is
in violation of applicable laws, rules, regulations and operating policies of any governmental
authority, including Lessor, or for any other activity or operation that does not have advance,
written approval of Lessor’s Airport Manager. Lessee’s use of the Premises is subject to all
applicable laws, rules and regulations of any governmental authority. Lessee shall not perform
maintenance or repairs that would include use or exposure of petroleum products (oil, fuel,
hydraulics, etc.) within the hangar. All such activities shall only be permitted outside of the hangar
in a designated area as determined by mutual agreement of the Lessor and Lessee.
1.7
Continuous Operation. Upon commencement of operations at and on the Premises,
Lessee shall designate an on-site manager for the term of this Lease who shall be available to
Lessor and Lessee’s stakeholders during normal business hours.
1.8
Lessee Acknowledgement. Lessee acknowledges and agrees that its obligations to
pay Base Rent and all other charges due and owing under the terms hereof shall be absolute and
unconditional, and shall not be affected by any circumstances whatsoever, including, without
limitation: (i) any set-off, counterclaim, recoupment, defense or other right which Lessee may have
against Lessor or the United States of America or anyone else for any reason whatsoever; (ii) any
liens, encumbrances or rights of others with respect to the Premises; (iii) the invalidity or
unenforceability or lack of due authorization or other infirmity of this Lease or any lack of right,
power or authority of Lessor or Lessee to enter into this Lease; (iv) any insolvency, bankruptcy,
reorganization or similar proceedings by or against Lessee, or any other person; or (v) any other
cause, whether similar or dissimilar to the foregoing, any future or present law notwithstanding, it
being the intention of the Parties hereto that all rent being payable by Lessee hereunder shall
continue to be payable in all events and in the manner and at the times provided herein.
2.
TERM.
2.1
Initial Term. The term of this Lease shall be for a period of five (5) year(s),
commencing at 12:00 A.M. on the Effective Date and terminating 11:59 P.M. on May 2, 2030
thereafter (the “Term”).
2.2
Renewal Term(s). The parties may mutually agree in writing to extend the Term
of this Lease for one (1) additional period of five (5) years (“Extension”). Any such agreement
shall be made no later than sixty (60) days prior to the expiration of the Term as set forth in Section
2.1 herein, and shall be subject to the terms and conditions agreed upon at that time.
In the event Lessee or Lessor chooses not to renew this Lease or the Lease is terminated, it
is agreed that the Lessor will have the right of first refusal to purchase any hangars on the Premises
at fifty percent (50%) of the appraised value of the hangars. Lessor will be responsible for
obtaining an appraised value for the hangars. In Lessor’s sole discretion, Lessor may require
Lessee to remove the hangars, at Lessee's expense, or may allow Lessee the opportunity to sell the
hangars to a third-party.
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3.
NONEXCLUSIVE RIGHTS.
Lessee shall have the exclusive right to occupy and use the Premises while in compliance with the
terms and conditions of this Lease. All other rights granted to Lessee under this Lease are
nonexclusive. Lessor may, in its sole discretion and at any time, permit third parties to conduct
any and all business activities at the Airport that Lessor deems appropriate, or conduct such
activities itself, provided that such activities do not require or materially interfere with Lessee’s
use of the Premises.
4.
RENT.
4.1
Base Rent. For the Hangars shown in Exhibit A:
x Hangar “A”: Lessee agrees to pay Lessor rent in the annual amount of 5 CENTS
PER SQUARE FOOT ($0.05/sq ft), payable in equal quarterly installments of
$2,567.25.
x Hangar “B”: Lessee agrees to pay Lessor rent in the amount of thirteen percent
(13%) of gross revenue, payable in quarterly installments.
x Hangar “C”: Lessee agrees to pay Lessor rent in the annual amount of 5 CENTS
PER SQUARE FOOT ($0.05/sq ft), payable in equal quarterly installments of
$3,534.30.
Collectively, the rent that Lessee agrees to pay Lessor for use of all the Hangars in Exhibit
A the “Base Rent.” The Base Rent shall be payable in advance and without any prior demand
therefor and without any abatement, deductions or set-offs whatsoever, and tendered in lawful
currency of the United States, either by check or electronic transfer. Lessee shall only pay for the
premises as described in this Section as part of the rent to the Lessor. Lessee shall pay any other
fees listed in the Airport Fees in Exhibit B of this agreement in addition to the Base Rent.
4.2
Payment.
4.2.1 The first payment of Base Rent shall be paid upon the delivery of this Lease,
for the period from the Effective Date until the end of the calendar month in which the Effective
Date occurs, prorated on the basis of the number of such days to the total number of days in said
month. Thereafter all Base Rent payments shall be paid in monthly installments, in advance, on
the first day of each calendar month (the “Base Rent Due Date”). On each such date, Lessee shall
pay the full Base Rent payment.
4.2.2 No payment to or receipt by Lessor of a lesser amount than that which is
due and payable under the provisions of this Lease at the time of such payment shall be deemed to
be other than a payment on account of the earliest payment due, nor shall any endorsement or
statement on any check or payment prejudice in any way Lessor’s right to recover the balance of
such payment or pursue any other remedy provided in this Lease or by law.
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4.2.3 All payments and reports required by this Section 4.2 shall be remitted to
the following address by the due date(s) specified hereinabove:
Town of Wickenburg
155 North Tegner Street, Suite A
Wickenburg, Arizona 85390
(928) 684-5451
Attn: Finance Department
or such other address specified in writing by Lessor to Lessee. If Lessor chooses not to purchase
the hangars, after obtaining written permission from Lessor, Lessee may has the option to sell the
hangars to a third-party or remove the hangars.
4.3
Finance Charges and Late Fees. If Lessee fails to pay any installment of Base Rent
or any other charge due and owing to Lessor in full on or before the applicable due date, Lessee
shall be responsible for interest on the unpaid installment at the rate of eighteen percent (18%) per
annum from the due date until payment in full is made. In addition, in the event any installment
of Base Rent is paid more than ten (10) days after the due date, a late penalty of ten percent (10%)
of the amount of such delinquent Base Rent installment shall be due and payable in addition
thereto.
4.4
Taxes. In the event any governmental authority shall impose a tax or imposition
based upon any Base Rent payments or any other sums paid or owing hereunder or the receipt of
such payments by Lessor, then Lessee shall pay such amounts to Lessor at the same time and in
addition to payments hereunder, which amounts may include, but are not limited to, any or all
rental, transaction privilege, sales, excise or other similar tax except income taxes. Lessee’s
obligation to pay such amounts together with any interest thereon and/or penalties therefor, shall
survive the termination of this Lease.
4.5
Survival. Lessee’s obligation to pay all amounts stated herein, together with any
interest thereon and/or penalties therefor, shall survive the termination of this Lease.
5.
PERFORMANCE GUARANTEE.
If and to the extent that Lessee operates aircraft at or on the Airport, Lessee shall be subject to the
provisions of Wickenburg’s Aircraft Operations Guidelines. If any subtenant of Lessee on or at
the Premises operates aircraft at the Airport, such subtenant also shall be subject to the provisions
of Wickenburg’s Aircraft Operations Guidelines, which Lessor may enforce directly against such
subtenant, but Lessee shall have no liability or responsibility with respect to such matters.
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6.
IMPROVEMENTS.
6.1
No Alterations. Lessee shall make no exterior improvements or alterations to the
Premises during the Term of this Lease without the prior written permission of Lessor, which shall
not be unreasonably withheld or delayed. Lessee shall provide Lessor with electronic as-built
drawings (or their equivalent) when any improvement or alteration is completed for which such
drawings are reasonably required
6.2
Title to Alterations and Improvements. Title to all improvements and alterations
made by Lessee on the Premises and that may be moved without damage to the Premises shall vest
in Lessee upon the expiration of this Lease.
6.3
Mechanics’ Liens. Lessee shall keep the Premises and any/all improvements
constructed by Lessee thereon free of any mechanic or materialmen’s liens. In the event that any
such lien is filed, Lessee shall, at its sole cost, cause such lien to be removed from the Premises by
bonding or otherwise within thirty (30) days of notice thereof.
6.4
Permit Required. Lessee shall be responsible for determining whether it is subject
to local building codes or building permit requirements, and for compliance with them to the extent
they are applicable. All structural, electrical, plumbing or mechanical construction or
reconstruction shall conform to Town of Wickenburg, Arizona (the “Town”) construction and
technical codes. No such work shall be commenced without first submitting required plans and
obtaining required permits from the Town. All such work shall be permitted, inspected and
approved by the Town prior to concealment or use. Lessee shall provide to Lessor a
contemporaneous copy of Lessee’s permit application and the associated plans and specifications.
6.5
Damage or Destruction. Lessee shall maintain insurance on the Premises and all
improvements and personal property located on and within the Premises. In the event that all or
any portion of the Premises is destroyed or rendered unusable, Lessee shall be entitled to replace,
repair, restore, modify or improve the Premises using insurance proceeds together with any
additional funds from other available sources, or, alternatively, Lessee shall pay the replacement
cost of the Premises to Lessor.
6.6
Fire Department Approval. Lessee shall provide for approval of a fire protection
plan for the premises prior to commencing operations. The Lessee shall maintain the approved
fire protection plan throughout the life of the lease.
7.
MAINTENANCE.
7.1
Maintenance by Lessee. Lessee shall, at its sole cost and expense, keep the
Premises and all improvements therein in a neat and clean condition and in good order, condition
and repair. Lessee shall prepare, maintain and follow a preventative maintenance schedule for all
mechanical, electrical, plumbing, drain, piping and air conditioning systems on the Premises, and,
upon request, provide a copy of such schedule to Lessor and, if required by Lessor, a list of the
dates on which such maintenance was actually done.
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7.2
Damage to Lessor Property. Any real or personal property of Lessor damaged or
destroyed by Lessee as a result of Lessee’s use or occupancy of the Premises shall be promptly
repaired or replaced by Lessee to the satisfaction of Lessor. In lieu of such repair or replacement,
where required by Lessor, Lessee shall pay to Lessor an amount sufficient to compensate for the
loss sustained by Lessor.
7.3
Trash Removal. Lessee shall at all times keep the Premises in a neat, clean, safe,
sanitary and orderly condition and shall keep such area free of all trash and debris. Lessee shall
be responsible for all trash removal from the Premises.
7.4
Emergency Repairs. Within fifteen (15) days of the Effective Date, Lessee shall
provide Lessor with a list of names and telephone numbers for 24-hour emergency contact for the
Premises. Lessee shall promptly provide Lessor with updated lists and changes as necessary.
8.
ASSIGNMENT, SUBLETTING AND OTHER TRANSFERS.
8.1 Right to Transfer. Lessee may transfer, assign, encumber, pledge or hypothecate its
interest in this Lease or any right or interest hereunder, or sublet the Premises or any part thereof,
only in compliance with this Section. Any assignment or sublease is subject to the Lessor’s prior
written consent, which shall not be unreasonably withheld, conditioned, or delayed and shall be
provided through the Town Manager. As a condition of such consent, the proposed assignee or
sublessee must: (i) provide proof of insurance that meets the requirements of the Town Code and
airport insurance standards; (ii) agree in writing to assume and comply with all terms and
obligations of this Lease; and (iii) agree in writing to use the Premises for aeronautical purposes
consistent with Federal Aviation Administration (FAA) regulations. The Town Manager shall not
unreasonably withhold, condition, or delay written consent. A Lessee remains liable for all
obligations under the Lease unless the Lessor expressly releases the Lessee from liability in writing
and the assignee or sublessee expressly assumes such obligations in writing.
8.2 Consent Not Required. Lessee may, without Lessor’s consent, cause a Transfer to an
Affiliate (as hereinafter defined) if Lessee: (i) notifies Lessor at least thirty (30) days prior to such
transfer in writing; (ii) delivers to Lessor, at the time of Lessee’s notice, current financial
statements of Lessee and the proposed transferee that are reasonably acceptable to Lessor; (iii) the
transferee assumes and agrees in writing to perform Lessee’s obligations under this Lease, with
such assumption delivered to Lessor in writing; and (iv) the transferee provides current proof of
insurance meeting the requirements of the Town Code and the Town’s airport insurance standards.
For purposes of this paragraph, “Affiliate” means any person or entity that, directly or indirectly,
controls, is controlled by or is under common control with Lessee. For purposes of this definition,
“control” shall mean possessing the power to direct or cause the direction of the management and
policies of the entity by the ownership of a majority of the voting securities of the entity.
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8.3 Deemed Transfers. For the purposes of this Lease, a Transfer shall be deemed to include
the following: (i) if Lessee is a corporation, partnership, limited liability company, or other legal
entity, the transfer of any ownership interest in such entity resulting in a change in the present
control of such entity by the person or persons owning a majority of the ownership interest thereof
as of the date of this Lease; provided, however, if Lessee is a corporation whose stock is traded on
a nationally recognized stock exchange, the transfer of Lessee’s stock shall not constitute a
Transfer requiring Lessor’s consent; or (ii) the sale of twenty-five percent (25%) or more in value
of the assets of Lessee.
8.4 Subtenant Requirements and Non-Disturbance. All subleases shall be subordinate to
this Lease and shall expressly incorporate the terms herein, including all FAA, Town Code, and
insurance requirements. Subtenants shall not occupy or use the Premises without providing proof
of compliance with Town Code insurance and FAA guidelines and shall assume all liability for
their occupancy and activities on the Premises. In the event of termination of this Lease, the Town
agrees to make reasonable efforts to offer a direct lease to any subtenant in good standing and not
affiliated with Lessee, provided that such subtenant is in compliance with all FAA regulations and
Town Code requirements, has proof of required insurance on file with the Town, and is not
otherwise in default of any term of its sublease.
9.
IDENTIFICATION SIGNS.
Lessee may install on the Premises, a sign or signs identifying its business, provided, however,
that the general type, size, and location of such sign(s) shall be approved in writing by Lessor in
advance of installation and be subject to any signage rules, codes and/or regulations of any
governmental authority.
10.
DEFAULT; TERMINATION BY LESSOR.
10.1
Events of Default. Each of the following shall constitute a material default of this
Lease by Lessee (an “Event of Default”):
10.1.1 The failure of Lessee to pay any installment of Base Rent or any other
amount due from Lessee hereunder, provided that Lessee does not cure such failure within ten (10)
business days after delivery by Lessor of a written notice of such failure.
10.1.2 The failure of Lessee to perform any of its other obligations under this
Lease, provided that Lessee does not cure such failure within thirty (30) calendar days after
delivery by Lessor of a written notice of such default; provided, however, if a cure of the default
reasonably requires more than thirty (30) calendar days to complete, then the time to cure shall be
extended so long as the cure is being diligently pursued.
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10.1.3 The filing of any mechanic’s, materialmen’s or other lien or any kind
against the Premises because of any act or omission of Lessee which lien is not discharged, by
bonding or otherwise, within thirty (30) days of receipt of actual notice thereof by Lessee.
10.2
Lessor’s Remedies. Upon the occurrence of an Event of Default under this Lease,
Lessor may, without prejudice to any other rights and remedies available to a Lessor at law, in
equity or by statute, but subject to the provisions of Sections 10.2 and 21 herein, exercise one or
more of the following remedies, all of which shall be construed and held to be cumulative and non-
exclusive:
10.2.1 Terminate this Lease and re-enter and take possession of the Premises; or
10.2.2 Without terminating this Lease, re-enter and take possession of the Premises
and terminate Lessee’s right of access or occupancy to the Premises; or
10.2.3 Without such re-entry, recover possession of the Premises in the manner
prescribed by any statute relating to summary process, and any demand for Base Rent, re-entry for
condition broken, and any and all notices to quit, or other formalities of any nature to which Lessee
may be entitled, are hereby specifically waived to the extent permitted by law; or
10.2.4 With or without terminating this Lease, Lessor may re-let the Premises or
any portion thereof.
10.3
No Implied Termination. Lessor shall not be deemed to have terminated this Lease
unless Lessor shall have notified Lessee in writing that it has so elected to terminate this Lease.
Lessee hereby waives all claims based on Lessor’s reentering and taking possession of the
Premises or removing and storing the property of Lessee and shall save Lessor harmless from all
losses, costs or damages occasioned thereby. No such reentry shall be considered or construed to
be a forcible entry by Lessor.
10.4
Lessor’s Current Damages. Lessor is authorized to make such repairs,
refurbishments or improvements to the Premises as may be necessary for the purpose of attempting
to re-let the Premises, and the costs and expenses incurred in respect of such repairs, redecorating,
refurbishments and improvements shall be paid by Lessee to Lessor within five (5) business days
after receipt of Lessor’s statement. If Lessor exercises any of the remedies stated above, Lessor
shall be entitled to recover from Lessee all damages incurred by Lessor by reason of the Event of
Default, which shall include, without limitation, (i) the equivalent of the amount of the Base Rent
and all other payments which would be payable under this Lease by Lessee for the remainder of
the term if this Lease were still in effect, less (ii) the net proceeds of any re-letting by Lessor after
deducting all of Lessor’s expenses in connection with such re-letting, which shall include, without
limitation, repossession costs, repairs, redecorating, refurbishments or improvements to the
Premises, brokerage commissions, attorneys’ fees, and legal expenses. Lessee shall pay such
current damages to Lessor, in the amount set forth in the preceding sentence (hereinafter called the
“Deficiency”), in monthly installments on the days on which the Base Rent would have been
payable under this Lease if this Lease were still in effect. All amounts collected by Lessor from
subtenants shall be credited against Lessor’s damages.
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10.5
Lessor’s Final Damages. At any time after an Event of Default, whether or not
Lessor shall have collected any monthly Deficiency as set forth above, Lessor shall be entitled to
recover from Lessee, and Lessee shall pay to Lessor, on demand, as final damages for the
applicable Event of Default, the sum of (a) the then present worth (at a discount at the rate of six
percent (6%) per annum) of (i) the aggregate of the Base Rent and all other amounts to be paid by
Lessee hereunder for the unexpired portion of the term of this Lease (assuming this Lease had not
been terminated), less (ii) the amount of such loss that could have been reasonably avoided, plus
(b) repossession costs, Lessor’s expenses in connection with any attempts is may have made to re-
let the Premises (which shall include, without limitation, repairs, refurbishments or improvements
to the Premises and brokerage commissions), attorneys’ fees, legal expenses, and all other
damages incurred by Lessor as a result of such Event of Default. In determining the amount of
loss that could reasonably be provided, rents to be paid by subtenants pursuant to Section 8.4 and
other reasonably projected rental income from leasing the Premises shall be taken into account.
10.6
No Waiver by Lessor. No waiver by Lessor of any breach or default by Lessee in
the performance of its obligations under this Lease shall be deemed to be a waiver of any
subsequent default by Lessee in the performance of any of such obligations, 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 Lessor to or of any act by Lessee requiring Lessor's consent or approval shall not be
deemed to waive or render unnecessary Lessor's consent or approval to or of any subsequent
similar acts by Lessee.
10.7
Content of Default Notice. Any default notice tendered to Lessee hereunder shall
be deemed to be sufficient if it is reasonably calculated to put Lessee on notice as to the nature and
extent of such default, and is made in accordance with Section 18 herein.
10.8
Limitation on Exercise of Termination Remedy by Lessor. Notwithstanding
anything to the contrary in Section 10.2 hereinabove, if an Event of Default occurs, Lessor shall
not have the remedy of terminating this Lease or of taking possession of the Premises unless: (i)
the Event of Default consists of a failure to pay the Base Rent or other amounts owed to Lessor;
or (ii) Lessor has no other remedy that is adequate to protect Lessor’s interests. Other remedies
that are available to Lessor include self-help and recovery of damages and nothing in this Section
10 shall limit the exercise of any such other remedy.
10.9
Waiver of Landlord’s Lien. Lessor hereby waives all statutory or common law
landlord’s lien rights with respect to personal property located on the Premises.
10.10 Cancellation. This Lease may be cancelled pursuant to the provisions of Arizona
Revised Statutes Section 38-511.
11.
INDEMNIFICATION.
To the fullest extent permitted by law, Lessee hereby agrees to defend, indemnify and hold
harmless Lessor and its members, elected or appointed officials, agents, contractors,
subcontractors, boards, commissions and employees (hereinafter referred to collectively as the
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“Lessor” for purposes of this Section 11) for, from and against any and all claims, causes of action,
liability, suits, litigation (including reasonable attorney’s fees and other costs of investigation and
litigation), actions, losses, damages or claims of any nature whatsoever which arise out of or in
connection with (i) any accident, injury or damages occurring within the Premises, or (ii) any
negligent act or omission of Lessee or its agents, employees, contractors, or subcontractors
(hereinafter referred to collectively as “Lessee” for purposes of this Section 11) in connection with
Lessee’s operations hereunder and which result directly or indirectly in the injury to or death of
any persons or the damage to or loss of any property, or (iii) the failure of Lessee to comply with
any provisions of this Lease, including any claims related to the provisions of Section 12 of this
Lease and Lessee’s use of, and operations on, the Premises. This indemnification shall exclude
responsibility for any consequential damages and for claims arising by reason of the negligent or
wrongful act of Lessor or its employees, contractors or agents.
12.
ENVIRONMENTAL PROTECTION.
12.1
Definitions. Unless the context shall clearly require otherwise, the terms defined
in this section shall, for all purposes of this Lease and of any amendments, have the meanings
herein specified, with the following definitions to be equally applicable to both the single and
plural forms of any of the following:
12.1.1 Environmental Laws. The term "Environmental Laws" shall mean any one
or all of the following, as the same are amended from time to time: the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 USC § 9601 et seq.; the Resource
Conservation and Recovery Act, 42 USC § 6901, et seq.; the Toxic Substances Control Act, 15
USC § 2601 et seq.; the Safe Drinking Water Act, 42 USC § 300h et seq.; the Clean Water Act,
33 USC § 1251 et seq.; the Clean Air Act, 42 USC §7401 et seq.; the Arizona Hazardous Waste
Management Act, A.R.S. § 49-921 et seq., the Arizona Environmental Quality Act, Title 49 of the
Arizona Revised Statutes, as amended; and all regulations thereunder and any other laws,
regulations and ordinances (whether enacted by the local, state or federal government) 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 substrata land, or that govern
the use of hazardous or radioactive materials, hazardous or radioactive waste or emissions and
hazardous substances and petroleum products.
12.1.2 Hazardous Material. The term "Hazardous Material" shall mean any toxic
or hazardous or radioactive material, substance emission or waste, or any pollutant or contaminant
as defined or regulated pursuant to any Environmental law and petroleum products. For purposes
of this definition, petroleum includes petroleum-based substances comprised of a complex blend
of hydrocarbons derived from crude oil through processes of separation, conversion, upgrading
and finishing (e.g., distillate fuel oils, petroleum solvents and used oils).
12.2
Release by Lessor. Lessee is not responsible or liable for any environmental
damage of any kind or for the effects of Hazardous Material on the environment or on any person
or property, if any, which have been caused by the use of, or releases from, the Premises prior to
Lessee's occupancy of any part of the Premises. Lessee is not liable for any claims or damages
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arising from environmental damage resulting or to result from contamination of any kind existing
on the site or surrounding sites prior to Lessee’s occupancy of the Premises.
12.3
Lessee Compliance.
12.3.1 Lessee shall, at the Lessee's own expense, comply with all present and
hereafter enacted Environmental Laws, and any amendments thereto, affecting Lessee’s operation
on and property interest in the Premises during the period of Lessee's occupancy of the Premises
under this Lease.
12.3.2 Lessee shall not cause or permit any Hazardous Material to be brought upon,
kept or used in or about the Airport by Lessee, its agents, employees, contractors or invitees in
violation or threatened or suspected violation of any Environmental Law. The Parties recognize
and agree that Lessee may bring on the Premises and use Hazardous Materials that are ordinarily
and customarily used in aircraft servicing and maintenance, provided that such use shall fully
comply with all applicable Environmental Laws.
12.3.3 If Lessee desires to install upon the Premises, any underground storage
tanks ("USTs"), Lessee shall submit the plans for such USTs to Lessor for prior approval and shall
comply with all applicable Environmental Laws related thereto, including Title 40, Code of
Federal Regulations, Part 280, as adopted by the State of Arizona ("Part 280"), and Lessee shall
be the owner of such USTs for statutory purposes. Installation of USTs shall comply with the
"code of practice" set forth in Part 280. Lessee is solely responsible for the design, construction,
installation, operation, monitoring, inspection, repair and maintenance of any and all USTs,
including any connected piping and/or dispensing apparatus. Lessee shall provide to Lessor a copy
of the Arizona Department of Environmental Quality Notification of Underground Storage Tank
Registration that Lessee submits to the state. All USTs shall meet or exceed the tank performance
standard for USTs installed after December 22, 1998, including corrosion protection, leak
detection and spill/overflow protection. Any UST that stores flammable and combustible liquids
shall meet the provisions of NFPA 30, Flammable and Combustible Liquids Code. Records
demonstrating compliance with release detection requirements, including product inventories,
calibration and maintenance, sampling, tightness testing and any other records, fees and taxes
required by the state or federal governments shall be the responsibility of Lessee. Upon the
expiration of this Lease, Lessee shall remove all USTs in compliance with all UST closure
requirements under all applicable Environmental Laws in effect at that time unless otherwise
allowed by Lessor.
12.4
Indemnification. To the fullest extent permitted by law, Lessee shall indemnify,
defend (with counsel reasonably acceptable to Lessor), protect and hold harmless Lessor and its
employees and agents for, from and against any and all liability, loss, damage, expense, penalties
and legal and investigation fees or costs, arising from or related to any claim or action for injury,
liability, or damage to persons or property and any and all claims or actions brought by any person,
entity or governmental body, alleging or arising in connection with contamination of the
environment or violation of any Environmental Law or other statute, ordinance, rule, regulation,
judgment or order of any government or judicial entity which are incurred or assessed as a result
of any of Lessee's activities or operations on or discharged on or from the Premises during the
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Term of this Lease. This obligation includes, but is not limited to, all costs and expenses related
to cleaning up the property, land, soil and underground or surface water as required under the law.
Lessee's obligations and liabilities under this Section 12.4 shall survive the termination of this
Lease. The indemnification of Lessor by Lessee as described above 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 property or present in the soil or ground
water on or under the Airport. If Lessor's right to enforce Lessee's promise to indemnify is not an
adequate remedy at law for Lessee's failure to abide by the provision of this Section 12.4, Lessor
shall have the right to injunctive relief in the event of any violation or threatened violation by
Lessee.
12.5
Remediation. Without limiting the foregoing, if the presence of any Hazardous
Material during the Term of this Lease caused or permitted by Lessee results in any Release on
the Airport in violation or potential violation of any Environmental Law, Lessee shall promptly
take action to remediate the affected property at its sole expense as is necessary to return the
Airport to the condition existing prior to the introduction of any such Hazardous Material to the
Airport; provided that Lessor's approval of such actions shall first be obtained, except in
emergency, which approval shall not be unreasonably withheld so long as such actions would not
potentially have any material adverse long-term effect on the Airport and Lessee is not under
administrative or court order related to such remediation action. Notwithstanding Lessor's
approval pursuant to this Section 12.5, Lessor is not responsible for directing or managing any
remediation action. For purposes of this Section 12.5, the term "Release" means any releasing,
spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing, or dumping.
12.6
Governmental Submittals. Lessee shall, at Lessee's own expense, make all
submissions to, provide all information to, and comply with all requirements of the appropriate
governmental authority (the "Government") under the Environmental Laws. Should the
Government determine that a site characterization, site assessment and/or cleanup plan should be
prepared and/or that a cleanup should be undertaken because of any spills or discharges of
Hazardous Materials by reasons of Lessee's operations or actions at the Airport which occur during
the term of this Lease, then Lessee shall, at the Lessee's own expense, prepare and submit the
required plans and financial assurances, and carry out the approved plans.
12.7
Information Sharing.
12.7.1 Lessee shall immediately notify Lessor of any of the following: (i) Lessee's
receipt of any notification from any governmental entity either charging or informing Lessee that
it will be charged with a significant (as defined below) violation of Environmental Laws, and (ii)
any significant change in Lessee's operation on the Premises that is reasonably likely to adversely
change Lessee's or Lessor's obligations or liabilities under the Environmental Laws. In addition,
Lessee agrees to provide Lessor with copies of documents reflecting the physical condition of the
Premises, including but not limited to, environmental testing of soils and groundwater, and
information reasonably requested by Lessor to determine the applicability of the Environmental
Laws to the Premises, or to respond to any governmental investigation or claim of liability by third
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parties which is related to environmental contamination of the Premises or Lessee's operation
thereon. A "significant violation of Environmental Law" shall be any violation that requires more
than thirty (30) calendar days to resolve.
12.7.2 Lessee shall install on any UST that it installs pursuant to Section 12.3.3, a
method or a combination of methods for Release detection that can detect a Release from any
portion of the UST and the connected underground piping. Lessee shall immediately notify the
Airport Department of Operations upon discovering a Release or Suspected Release of any amount
of material that is stored inside the UST. For purposes of this Section, a "Suspected Release" is
any discovery of released Hazardous Material at the UST site or surrounding area, erratic behavior
of Hazardous Material dispensing equipment, the sudden loss of a Hazardous Material, an
unexplained presence of water in the UST, or when monitoring indicates that a Release has
occurred. In the case of inventory control, Lessee shall notify the airport operations department
when the second consecutive month of inventory reconciliation data indicates that there is a
discrepancy in the figures recorded.
12.8
Sublease. Lessee shall insert provisions substantially identical to the provisions of
this Section 12 in any sublease agreement or contract by which it grants a right or privilege to any
person, firm or corporation under this Lease.
12.9
Actions of Lessee. The activities or actions of Lessee under this Section 12 shall
include the activities or actions of Lessee's officers, directors, employees, agents, contractors,
invitees and successors.
12.10 Clean Water Act; NPDES Permits and SWPPPs. Without in any way limiting the
foregoing, Lessee shall comply with all Environmental Laws regarding discharges to water and
land, including, without limitation, obtaining and complying with an individual National Pollutant
Discharge Elimination System ("NPDES") permit, or requesting coverage under and complying
with any applicable multi-sector permit obtained by Lessor. If applicable, Lessee shall also prepare
and comply with a site-specific Storm Water Pollution Prevention Plan ("SWPPP") or any
revisions to an SWPPP, with respect to Lessee's operations or activities on the Premises. At
Lessee’s discretion, Lessee may choose to be added to Lessor’s Storm Water Permit and, if such
addition is desired, agrees to be subject to the provisions of Exhibit E attached hereto.
12.11 Environmental Assessments.
12.11.1 If, during the term of this Lease, any of Lessee’s USTs are suspected of
or known to be leaking, Lessee shall perform, or cause to be performed, a site characterization of
the Premises using all appropriate sections of the LUST Site Characterization Manual dated
January 15, 1999, or the most current edition, including tables 1 through 6, as applicable (a "Site
Characterization").
12.11.2 Within thirty (30) calendar days immediately preceding the expiration of
this Lease or within thirty (30) calendar days of any earlier termination of the Lease, Lessee shall:
15
a.
Deliver to Lessor: (i) a Phase I environmental site assessment that
conforms to the standards set forth in 42 USC § 9601(35)(B), as amended, and any regulations
thereunder; and (ii) an environmental compliance audit assessing the status of regulatory
compliance of the Premises and all operations and activities thereon; both prepared by a qualified
engineer licensed by the State of Arizona; and
b.
In the event Lessee installs upon the Premises any USTs, perform or
cause to be performed a Site Characterization of the Premises in the event there is evidence that
there has been or may be a leak or Release of the UST contents; and
c.
If either the assessment described in Section 12.11.2a (i) above or
the Site Characterization described in Section 12.11.2a (ii) above identifies any "recognized
environmental condition" or any other condition indicating a known or potential liability,
including, but not limited to, a known or potential violation of any Environmental Law or a past,
present, or material threat of a future release of a hazardous substance or a petroleum product into
the environment, Lessor reserves the right, at Lessor's sole discretion, to require Lessee to conduct,
at Lessee’s sole expense and with a scope of work subject to Lessor's approval, further reasonable
investigations and reasonable remediation.
12.12 Protective Devices and Plans. If Lessee is required by the Town to estimate the
possible constituents of sanitary sewer discharges in order that the Town may define certain
discharge limitations for the Premises, Lessee shall complete and return an Industrial Wastewater
Discharge Questionnaire (the “Questionnaire”) to the Town and promptly provide Lessor with
updates to the Questionnaire as they arise. Also, if the Town so requires, Lessee shall install and
maintain appropriate protective devices to prevent accidental discharge of any Hazardous
Materials into domestic or industrial drains on the Premises, and for any other material for which
a slug load discharge could pollute the Airport’s storm water discharge or disrupt operations at the
sewage treatment plant serving the Premises. Lessee shall at all times post a notice in a prominent
place on the Premises advising employees what actions to take and whom to call in the event of
said discharge, and shall ensure that all employees of Lessee are trained with regard to the spill
protection plan hereinafter referenced. Lessee also shall provide Lessor with immediate notice of
any spill.
12.13 Right to Enter Premises. Lessor’s rights under this Lease specifically include the
right of Lessor, the United States Government, the Environmental Protection Agency (the EPA),
the Arizona Department of Environmental Quality (ADEQ) and the Arizona Department of
Occupational Safety and Health (ADOSH) to enter the Premises upon reasonable notice to Lessee
for purposes of: (i) inspecting Lessee’s compliance with environmental, occupational safety and
health laws and regulations, whether or not such party is responsible for enforcing such laws; (ii)
conducting environmental investigation or remediation, including, without limitation, performing
tests and surveys, drillings, test-pitting, borings, compiling data and/or records, and other activities
related to environmental investigation; and (iii) carrying out remedial or removal actions as
required or necessary under applicable laws, including, without limitation, installing monitoring
wells, pumping wells and/or treatment facilities. Lessor shall give Lessee twenty-four (24) hours
prior notice of its intention to enter the Premises unless it determines the entry is required for
safety, environmental, operations, or security purposes. Lessee shall have no claim against the
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United States, EPA, ADEQ, the Arizona ADOSH or Lessor, or any officer, agent, employee, or
contractor thereof on account of any such entries.
12.14 Cleanup Requirements. Lessee agrees that Lessor assumes no liability to Lessee
should Hazardous Materials cleanup or related requirements, whether imposed by law, regulatory
agencies, the U.S. Government interfere with Lessee's use of the Premises. Lessee shall have no
claim against Lessor or the United States or any officer, agent, employee or contractor thereof on
account of any such interference whether due to entry, performance of remedial or removal
investigations, or exercise of any right under this Lease or otherwise. Lessee agrees to comply
with the provisions of any health or safety plan in effect or any hazardous substance remediation
or response agreement with environmental regulatory authorities during the course of any of the
above described response or remedial actions. Any inspection, survey, investigation, or other
response or remedial action shall, to the extent practicable, be coordinated with representatives
designated by Lessee. Lessee shall have no claim on account of such entries against the United
States or any officer, agent, employee, contractor, or subcontractor thereof.
12.15 Spill Protection Plan. In the event Lessee undertakes any type of manufacturing,
maintenance or other activities on the Premises involving the use or generation of any Hazardous
Materials regulated by Hazardous Materials Laws, Lessee shall have an approved plan for
responding to Hazardous Materials, fuel, and other chemical spills prior to commencement of
operations on the Premises. Such plan shall comply with all applicable requirements and shall be
updated from time to time as may be required to comply with changes in site conditions or
applicable requirements, and shall be approved by all agencies having regulatory jurisdiction over
such plan. Such plan shall be independent of Lessor’s spill prevention and response plans, if any.
Lessee shall not rely on use of Lessor or Lessor personnel or equipment in execution of its plan.
Lessee shall file a copy of the approved plan and approved amendments thereto with Lessor’s
Airport Manager within thirty (30) calendar days of receipt of a CofO from the Town.
Notwithstanding the foregoing, should Lessor provide any personnel or equipment, whether for
initial fire response and/or spill containment, on the request of Lessee, or because Lessee was not,
in the opinion of Lessor, conducting firefighting, containment or timely cleanup actions, Lessee
agrees to reimburse Lessor for its actual costs in accordance with all applicable laws and
regulations.
12.16 Wells. Lessee shall not install any new drinking water or other wells in any
location on the Premises without the prior written approval of Lessor.
12.17 Construction Activities and Surface Disturbances.
12.17.1 During Lessee’s construction of improvements on the Premises, if any,
Lessee agrees that in the event any hazardous substances, pollutants, contaminants, petroleum or
petroleum derivatives are found, Lessee shall promptly notify Lessor of such discovery and shall
immediately cease said construction pending investigation and remedial action, if necessary, by
Lessor or the appropriate regulatory agency.
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12.17.2 After construction of Lessee’s Improvements on the Premises, Lessee shall
not conduct any subsurface excavation, digging, drilling or other disturbance of the surface without
the prior written approval of Lessor, which shall not be unreasonably withheld.
13.
PROTECTION OF WETLANDS.
Lessee shall minimize the destruction, loss, or degradation of wetlands located on the Premises.
Lessor believes there are no wetlands existing on the Premises as of the Effective Date. However,
before locating new construction in wetlands, if any exist, Lessee shall contact Lessor and the
United States Army Corps of Engineers and obtain a permit or waivers under Section 404 of the
Clean Water Act. For purposes of this Section 13, the term, “new construction,” includes
structures, facilities, draining, dredging, channeling, filling, diking, impounding, and related
activities.
14.
SPECIAL PROVISIONS.
14.1
Lessee shall comply with all applicable Federal, State, and local occupational safety
and health regulations.
14.2
Lessee shall be responsible for determining whether it is subject to State and local
sanitation, licensing, building code or building permit requirements and whether or not it requires
a permit to do business and for compliance with them to the extent they are applicable.
15.
INSURANCE.
15.1
Coverage Required. Lessee shall procure and maintain, or cause to be procured
and maintained, the following types and amounts of insurance with respect to the Premises:
15.1.1 Those insurance requirements set forth in the Wickenburg Minimum
Standard Requirements for Airport Aeronautical Services.
15.1.2 Worker’s Compensation insurance, as required by law, and Employer’s
Liability insurance in the amount stated in the Wickenburg Minimum Standard Requirements for
Airport Aeronautical Services.
15.2
Form. Each insurance policy obtained pursuant to this Section, except for Worker’s
Compensation and Employer’s Liability policies, shall: (i) name Lessor as an additional named
insured; (ii) contain a provision that written notice of cancellation or modification thereof shall be
given to Lessor not less than thirty (30) days before such cancellation or modification takes effect
ten (10) days in case of nonpayment of premium); and (iii) contain a waiver of subrogation in favor
of Lessor. Lessee shall not permit any insurance policy to be canceled or modified without
Lessor’s written consent unless equivalent replacement policies are issued with no lapse in
coverage. All policies shall be obtained from insurance companies authorized to do business in
18
the State of Arizona and possessing a rating of at least A - VII or higher from the A.M. Best
Company, or an equivalent rating and approved by Lessor.
15.3
Certificates of Insurance. Lessee shall deliver a certificate of insurance for each
policy or self-insured letter to Lessor, in a form acceptable to Town, prior to the Effective Date
and shall continue to provide such certificates or self-insured letters throughout the term of this
Lease.
15.4
Additional Insurance. At any time during the term of this Lease, Lessor may, if in
its reasonable determination the insurance coverage required by this Section 15 is no longer
adequate, require Lessee to increase its coverage to commercially reasonable amounts.
15.5
Blanket Insurance. Lessee’s insurance obligations under this Lease may be
satisfied by means of “blanket” or excess policies.
15.6
Insurance by Lessor. In the event Lessee shall fail to procure any insurance or
provide evidence of self-insurance required hereunder, Lessor may, upon written notice to Lessee,
procure and maintain any or all of the insurance required of Lessee under this Section. In such
event, all costs of such insurance procured and maintained by Lessor on behalf of Lessee shall be
the responsibility of Lessee and shall be fully reimbursed to Lessor within ten (10) business days
after Lessor advises Lessee of the cost thereof.
15.7
Deductibles and Self-Insured Retentions. Lessee may select deductibles or self-
insured retentions to satisfy the insurance required herein.
16.
SURRENDER OF POSSESSION.
16.1
Condition of Property. Upon the expiration or termination of this Lease, Lessee’s
right to occupy the Premises and exercise the privileges and rights granted under this Lease shall
cease, and Lessee shall peaceably surrender the same and leave the Premises broom clean and in
good condition except for normal wear and tear. Except as agreed upon in writing by Lessor
pursuant to Section 2, all trade fixtures, equipment, and other personal property installed or placed
by Lessee on the Premises which are not permanently affixed thereto shall remain the property of
Lessee, and Lessee shall have the right at any time during the term of this Lease, to remove the
same from the Airport, and that Lessee shall repair, at its sole cost, any damage caused by such
removal. Any property not removed by Lessee within the thirty (30) day period immediately
following Lease termination shall become a part of the Premises, and ownership thereof shall vest
in Lessor.
16.2
Holding Over. Lessee shall not remain in possession of the Premises after the
expiration or earlier termination of the Term without the express written consent of Lessor. Should
Lessee hold over without the express written consent of Lessor, such tenancy shall be at the
sufferance of Lessor and not a renewal of the Term and in such case, the Base Rent and all other
charges due pursuant to this Lease shall be payable at one hundred fifty percent (150%) of the
amount payable during the last year of the Term and such tenancy at sufferance shall be subject to
every other term, covenant and provision of this Lease. In the event Lessee holds over, Lessee
19
shall be liable for all of Lessor's direct and consequential damages, which shall include, without
limitation, costs, fees, expenses, damages and attorneys' fees incurred by Lessor as a result of
Lessee's holding over, and damages and expenses incurred by Lessor for its inability to deliver
possession of the Premises to a new lessee.
17.
INSPECTION BY LESSOR.
Lessor may enter upon the Premises at reasonable times and upon reasonable notice for any
reasonable purposes including, but not limited to, compliance with the terms and conditions of this
Lease and the exercise of its governmental functions such as fire protection or security purposes.
18.
NOTICES.
18.1
All notices required or permitted under this Lease shall not be effective unless
personally delivered or mailed by certified mail, return receipt requested, postage prepaid, or by
reputable commercial overnight courier service, to the following addresses:
TO LESSOR:
Town of Wickenburg, Arizona
155 North Tegner Street, Suite A
Wickenburg, Arizona 85390
Telephone: 928-684-5451
Attn: Herschel Workman, Public Services Director
TO LESSEE:
Dallas C. Gant, Jr.
P.O. Box 1210
Wickenburg, AZ 85358
18.2
Any notice shall be deemed to have been received two (2) days after the date of
mailing, if given by certified mail, or upon actual receipt if personally delivered or if given by
reputable commercial overnight courier service. Any Party may designate in writing a different
address for notice purposes pursuant to this Section.
19.
SEVERABILITY.
Should a court of competent jurisdiction declare any provision of this Lease invalid, the remaining
terms shall remain effective.
20.
SALES AND PROPERTY TAXES.
Lessee shall pay any leasehold tax, sales tax, personal property tax, transaction privilege tax,
license or permit fees or other tax assessed as the result of its occupancy of Premises or conduct
of business at the Airport under authority of this Lease, including any such tax assessable on
20
Lessor. In the event that laws or judicial decisions result in the imposition of a real property tax
or any other form of tax or imposition on the interest of Lessor, such tax shall also be paid by
Lessee for the period this Lease is in effect to the extent such taxes are reasonably attributable to
the Premises or a portion thereof or the operation of Lessee’s business.
21.
APPROVALS, CONSENTS AND NOTICES.
All approvals, consents and notices called for in this Lease shall be in writing, signed by the
appropriate party, and may not be established solely by oral testimony.
22.
LIENS AND MORTGAGES.
22.1
General Provisions.
22.1.1 Except as provided in this Section 22, Lessee shall not engage in any
financing or other transaction creating any mortgage or deed of trust upon the Premises, place or
suffer to be placed upon the Premises any lien or other encumbrance, or suffer any levy or
attachment to be made on Lessee’s interest in the Premises. Any such mortgage or deed of trust,
encumbrance, or lien shall be deemed to be a violation of this Section, constituting a failure to
comply with the terms of the Lease, on the date of its execution or filing of record regardless of
whether or when it is foreclosed or otherwise enforced.
22.1.2 Notwithstanding anything to the contrary in Section 8 herein, Lessee shall
be entitled from time to time during the Term of this Lease to mortgage, collaterally assign, or
otherwise encumber its leasehold interest under this Lease to secure indebtedness, including,
without limitation, a loan to finance construction of improvements and other development on the
Premises, and refinancings thereof, subject to the restrictions of Section 22.1.3, and provided,
however, that the language of such mortgage or deed of trust and of all related documents that
require the execution, approval, or consent of Lessor shall be subject to the prior review and
approval of legal counsel for Lessor, and that all legal fees incurred by Lessor in connection with
such legal counsel review and approval shall be paid by Lessee. Any such encumbrance is referred
to as a “Mortgage” and the holder thereof a “Mortgagee”. The Mortgagee, upon taking possession
or upon foreclosure or taking an assignment in lieu thereof, shall be liable for all future rents and
obligations hereunder and shall make said payments to Lessor. No Mortgage shall encumber
Lessor’s interest in the Premises or the improvements thereon. Further and promptly after Lessee
assigns or encumbers any portion of the Premises or the improvements thereon, Lessee shall
furnish Lessor with a written notice setting forth the name and address of such Mortgagee or
trustee.
22.1.3 No Mortgage or deed of trust shall extend to or affect the fee, the
reversionary interest or the estate of Lessor in the Premises. No Mortgage or deed of trust shall be
binding upon Lessor in the enforcement of its rights and remedies under this Lease and by law
provided, unless and until a copy thereof shall have been delivered to Lessor and such Mortgage
or deed of trust is authorized in accordance with provisions of this Section 22.
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22.2
Lessor Agreement. With respect to Mortgagees of the Premises, Lessor agrees
that:
22.2.1 If requested by a Mortgagee which shall have duly registered in writing with
Lessor its name and address, and if Lessor shall give any notice, demand, election or other
communication required hereunder (hereafter collectively “Notices”) to Lessee, Lessor shall
concurrently give a copy of each such Notice to the Mortgagee at the address designated by it.
Notices shall be sent by registered or certified mail, return receipt requested, and shall be deemed
given seventy two (72) hours after the time they are deposited in a United States Post Office with
postage charges prepaid, addressed to the Mortgagee. No Notice given by Lessor to Lessee shall
be binding upon or affect Lessee or the Mortgagee unless a copy of the Notice shall be given to
the Mortgagee pursuant to this Section 22.2.1.
22.2.2 Such Mortgagee entitled to such Notices, as specified above, shall have any
and all rights of Lessee with respect to the curing of any default hereunder by Lessee.
22.2.3 If Lessor shall elect to terminate this Lease by reason of any default by
Lessee with respect to the Premises, the Mortgagee that shall have become entitled to notice as
provided in this Section 22.2 shall have any and all rights of Lessee with respect to curing of any
default with respect to the Premises.
22.2.4 Nothing herein contained shall be deemed to impose any obligation on the
part of Lessor to deliver physical possession of the Premises to such holder of a Mortgage. To the
extent the physical possession of the Premises by a secured creditor is not inconsistent with the
terms of this Lease or incompatible with the Lessor’s selection of available remedies in the event
of default, Lessor shall not prevent such physical possession.
22.2.5 If more than one Mortgagee shall seek to exercise any of the rights provided
for in this Section 22, the holder of the Mortgage having priority of lien over the other Mortgagees
shall be entitled, as against the others, to exercise such rights. Should a dispute arise among
Mortgagees regarding the priority of lien, the Mortgagees shall prove to the satisfaction of Lessor
that they have settled that dispute.
22.3
Protection of Mortgagee(s). Until the time, if any, that an approved Mortgage shall
be satisfied and released of record:
22.3.1 A Mortgagee shall have the right, for a period equal to the period afforded
Lessee to perform any term, covenant, or condition and to remedy any default by Lessee hereunder,
and Lessor shall accept such performance with the same force and effect as if furnished by Lessee,
and the Mortgagee shall thereby and hereby be subrogated to the rights of Lessor. Such Mortgagee
cure period shall begin on the later of: (i) the date Mortgagee receives notice pursuant to Section
22.2, or (ii) the date that Lessee’s cure period expires under the Lease. During such Mortgagee
cure period, Lessor will not disturb possession, interest or quiet enjoyment by the Lessee or
Mortgagee in the real property for any reason, subject to the terms of the Lease, until such
Mortgagee cure period has expired. The Mortgagee shall have the right to enter upon the Premises
to give such performance.
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22.3.2 In case of a default by Lessee in the performance or observance of any
nonmonetary term, covenant or condition to be performed by it hereunder, if such default cannot
practicably be cured by the Mortgagee without taking possession of the Premises, in such
Mortgagee’s reasonable opinion, or if such default is not susceptible of being cured by the
Mortgagee, then Lessor shall not serve a notice of lease termination if and so long as:
a.
The Mortgagee shall proceed diligently to obtain possession of the
Premises (including possession by a receiver), and, upon obtaining such possession, shall proceed
diligently to cure such defaults as are reasonably susceptible of cure (subject to any order by a
court of competent jurisdiction staying or otherwise precluding such Mortgagee from obtaining
such possession); or
b.
The Mortgagee shall institute foreclosure proceedings and diligently
prosecute the same to completion (unless in the meantime it shall acquire Lessee’s estate
hereunder, either in its own name or through a nominee, by assignment in lieu of foreclosure),
subject to any order by a court of competent jurisdiction staying or otherwise precluding such
Mortgagee from obtaining such possession.
c.
The Mortgagee shall not be required to obtain possession or to
continue in possession of the Premises pursuant to Section 22.3.2a, or to continue to prosecute
foreclosure proceedings pursuant to Section 22.3.2b, if and when such default shall be cured. If a
Mortgagee, its nominee, or a purchaser at a foreclosure sale shall acquire title to Lessee’s leasehold
estate hereunder, a default that is not reasonably susceptible to cure by the person succeeding to
the leasehold interest shall no longer be deemed a default under this Lease.
d.
If any Mortgagee is prohibited from commencing or prosecuting
foreclosure or other appropriate proceedings in the nature thereof by any process or injunction
issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy
or insolvency proceeding involving Lessee, the times for commencing or prosecuting foreclosure
or other proceedings, including proceedings to obtain possession, shall be extended for the period
of the prohibition.
22.4
New Lease.
22.4.1 Lessor agrees that, in the event of termination of this Lease for any reason
(including but not limited to any default by Lessee), Lessor, if requested by any Mortgagee, will
enter into a new lease of the Premises with the most senior Mortgagee requesting a new lease,
which new lease shall commence as of the date of termination of this Lease and shall run for the
remainder of the original term of this Lease, at the rent and upon the terms, covenants and
conditions herein contained, provided that:
a.
Such Mortgagee shall make written request upon Lessor for the new
lease within sixty (60) days after the date such Mortgagee receives written notice from Lessor that
this Lease has been terminated;
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b.
Such Mortgagee shall pay to Lessor at the time of the execution and
delivery of the new lease any and all sums which would, at that time, be due and unpaid pursuant
to this Lease but for its termination, and in addition thereto all reasonable expenses, including
reasonable attorneys’ fees, which Lessor shall have incurred by reason of such termination;
c.
Such Mortgagee shall perform and observe all covenants in this
Lease to be performed and observed by Lessee, and shall further remedy any other conditions
which Lessee under the Lease was obligated to perform under its terms, to the extent the same are
reasonably susceptible of being cured by the Mortgagee; and
d.
The Lessee under the new lease shall have the same right of
occupancy to the buildings and improvements on the Leased Premises as Lessee had under this
Lease immediately prior to its termination.
Notwithstanding anything to the contrary expressed or implied in this
Lease, any new lease made pursuant to this Section 22 shall have the same priority as this Lease
with respect to any mortgage, deed of trust, or other lien, charge, or encumbrance on the fee of the
Premises, and any sublease under this Lease shall be a sublease under the new Lease and shall not
be deemed to have been terminated by the termination of this Lease.
22.4.2 Nothing herein contained shall require any Mortgagee to enter into a new
lease pursuant to this Section 22.4 or to cure any default of Lessee referred to above.
22.4.3 If any Mortgagee shall demand a new lease as provided in this Section 22.4,
Lessor agrees, at the request of, on behalf of and at the expense of the Mortgagee, upon a guaranty
from it reasonably satisfactory to Lessor, to institute and pursue diligently to conclusion the
appropriate legal remedy or remedies to oust or remove the original Lessee from the Premises, but
not any authorized subtenants actually occupying the Premises or any part thereof.
22.4.4 Unless and until Lessor has received notice from each Mortgagee that the
Mortgagee elects not to demand a new lease as provided herein or until the period therefor has
expired, Lessor shall not cancel or agree to the termination or surrender of any existing subleases
nor enter into any new leases or subleases with respect to the Premises without the prior written
consent of each Mortgagee.
22.5
Effect of Transfer. Neither the foreclosure of any Mortgage (whether by judicial
proceedings or by virtue of any power of sale contained in the Mortgage), nor any conveyance of
the leasehold estate created by this Lease by Lessee to any Mortgagee or its designee by an
assignment or deed in lieu of foreclosure or other similar instrument, shall require the consent of
Lessor or constitute a default under this Lease, and upon such foreclosure, sale or conveyance,
Lessor shall recognize the purchaser or other transferee in connection therewith as the Lessee under
this Lease, subject only to an assumption in writing by such purchaser or transferee of all
obligations of Lessee under this Lease.
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23.
GOVERNING LAW; ATTORNEY’S FEES.
The laws of the State of Arizona shall govern the matters set forth in this Lease. Venue of any
action brought under this Lease shall, at the option of Lessor, lie in Maricopa County, Arizona. In
the event of any litigation or arbitration between Lessor and Lessee arising under this Lease, the
successful party shall be entitled to recover its attorney’s fees, expert witness fees and other costs
incurred in connection with such litigation or arbitration.
24.
RULES AND REGULATIONS.
Lessee shall at all times comply with all Federal, State and local laws, ordinances, rules,
and regulations which are applicable to its operations, the Premises itself (including but not limited
to the Americans with Disabilities Act), or the operation, management, maintenance, or
administration of the Airport, including all laws, ordinances, rules and regulations adopted after
the Effective Date. Lessee shall at all times comply with the Airport Minimum Standards and
Airport Rules and Regulations, as the same may be amended from time to time. Copies of the
current Airport Minimum Standards and Rules and Regulations are attached hereto as Exhibit D.
Lessee acknowledges and agrees that Lessor may amend the Airport Minimum Standards and
Rules and Regulations at any time in Lessor’s sole discretion. Lessee shall be responsible for
controlling and preventing disruptive pedestrian and vehicle traffic associated with its business.
Lessee also shall display to Lessor any permits, licenses, or other evidence of compliance with
laws upon request.
25.
CORPORATE AUTHORIZATION.
In executing this Agreement, Lessee represents and warrants to Lessor that if Lessee is a
corporation, Lessee has obtained and been granted the full right, power and authority to enter into
this Lease.
26.
UTILITY LINES AND SERVICE CHARGES.
26.1
Lessee shall, at no cost or expense to Lessor, provide or arrange for any public
utility, water and sewage lines and connections that are needed in connection with any building(s),
structure(s) or other improvement(s) placed on the Premises by Lessee and shall be responsible for
the maintenance of such lines and connections from where they enter the Premises. If requested
in advance to do so by Lessee, Lessor will grant reasonable rights-of-way on or across the Airport
to suppliers of public utility services for the purpose of supplying Lessee with such services, but
Lessor reserves the right to designate the lands along which such rights-of-way shall be granted so
as to cause the least inconvenience in the operation of the Airport and other Airport tenants.
26.2
Lessee shall pay for all utilities used in its operations at the Airport and the
Premises. The charges and method of payment for each utility or service shall be determined by
the appropriate supplier of the utility or service in accordance with applicable laws and regulations,
on such basis as the appropriate supplier of the utility or service may establish.
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26.3
Notwithstanding the execution of this Lease, Lessor 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 in Lessor's sole discretion, including but not limited to any utility
easements on the Premises. Lessor shall conduct such repairs in such a manner and at such times
as to not unreasonably interfere with Lessee's operations.
27.
RESERVATIONS TO LESSOR.
The Premises are accepted “as is, where is” by Lessee subject to any and all existing easements or
other encumbrances, and Lessor shall have the right to install, lay, construct, maintain, repair and
operate such sanitary sewers, drains, storm water sewers, pipelines, manholes, connections; water,
oil and gas pipelines; telephone and telegraph power lines; and such other appliances and
appurtenances necessary or convenient to use in connection therewith, over, on or across the
Premises, or any part thereof, as will not unreasonably interfere with Lessee’s or any subtenant’s
operations hereunder, and to enter upon the Premises for such purposes. Lessor also reserves the
right to grant franchises, easements, rights-of-way, and permits, over, on or across any portions of
the Premises for the same purposes, provided, that Lessor or the grantee, as applicable, shall not
exercise such rights so as to interfere unreasonably with Lessee’s or any subtenant’s operations on
the Premises and all such interference shall be minimized. Lessor agrees that any rights granted
to any parties by reason of this clause shall contain provisions that the surface of the Premises shall
be restored to its original condition, at no cost to Lessee, upon the completion of any construction.
28.
FEDERAL AVIATION ADMINISTRATION (FAA) PROVISIONS.
28.1
Lessee agrees that in the event facilities are constructed, maintained, or otherwise
operated on the Premises for a purpose for which a Department of Transportation (DOT) program
or activity is intended or for another purpose involving the providing of similar services or benefits,
Lessee shall maintain and operate such facilities and services in compliance with all other
requirements imposed pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted
Programs of the Department of Transportation, as it may be amended.
28.2
Lessee agrees that: (i) no person shall be excluded from participation in, denied
the benefits of, or be otherwise subjected to discrimination on the grounds of race, color, creed,
disability, age, sex or national origin in the use of the Premises; (ii) that in the construction of any
improvements on, over, or under the Premises and the furnishing of services thereon, no person
shall be excluded from participation in, denied the benefits of, or otherwise be subjected to
discrimination on the grounds of race, color, or national origin; and (iii) that Lessee shall use the
Premises in compliance with all other requirements imposed by or pursuant to 49 CFR Part 21, as
it may be amended.
28.3
Lessee assures that it will comply with pertinent statutes, Executive Orders, and
rules promulgated to assure that no person shall on the grounds of race, creed, color, national
origin, or sex, age or handicap be excluded from participating in any activity.
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28.4
Lessor 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 Lessee, and without interference or
hindrance.
28.5
Lessor reserves the right, but shall not be obligated to Lessee, 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 Lessee in this regard. Lessor and Lessee agree
that Lessee has no responsibility whatsoever with respect to maintenance and repair of the landing
area of the Airport or any publicly owned facilities of the Airport.
28.6
This Lease shall be subordinate to the provisions and requirements of any existing
or future agreement between Lessor and the United States relative to the development, operation
or maintenance of the Airport.
28.7
There is reserved unto Lessor, for the use and benefit of the public, a right of flight
for the passage of aircraft in the airspace above the surface of the Premises, which shall include
the right to cause in the airspace any noise inherent in the operation of aircraft, now known or
hereafter used for navigation of or flight in or through the airspace, and for the use of such airspace
for landing on, taking off from, or operation on the Airport.
28.8
Lessee agrees to comply with the notification and review requirements covered in
14 CFR Part 77 in the event future construction of a building is planned for the Premises or in the
event of any planned modification or alteration of any present or future building or structure
situated on the Premises.
28.9
Lessee shall not erect or permit the erection of any structure or building, nor permit
the growth of any tree on the Premises, or any other obstruction that exceeds height requirements
contained in 14 CFR Part 77 or amendments thereto, or interferes with the runway and/or taxiway
"line of sight" of the control tower. In the event these covenants are breached, Lessor reserves the
right to enter upon the Premises and to remove the offending structure or object at the expense of
Lessee.
28.10 Lessee shall not make use of the Premises in any manner that might interfere with
the landing and taking off of aircraft from the Airport or otherwise constitute a hazard. In the
event this covenant is breached, Lessor reserves the right to enter upon the Premises and cause the
abatement of such interference at the expense of Lessee.
28.11 Nothing contained in this Lease shall be construed to grant or authorize the granting
of an exclusive right within the meaning 49 U.S.C. §§ 40103(e) and 47107 (a)(4).
28.12 This Lease and all of 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.
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28.13 To the extent that Lessee conducts or engages in any aeronautical activity for
furnishing services to the public at the Airport, Lessee shall furnish its services on a reasonable
and not unjustly discriminatory basis to all users and charge reasonable and not unjustly
discriminatory prices for each unit or service; provided that Lessee may be allowed to make
reasonable and nondiscriminatory discounts, rebates, or other similar type of price reductions to
volume purchasers.
28.14 Lessee shall conform to Lessor and FAA safety and security rules and regulations
regarding use of the Airport operations area including runways, taxiways, aircraft aprons by
vehicles, employees, customers, visitors, etc. in order to prevent security breaches and avoid
aircraft incursions and vehicle/pedestrian deviations; shall complete and pass airfield safe driving
instruction program when offered or required by Lessor; and shall be subject to penalties as
prescribed by Lessor for violations of the Airport safety and security requirements.
29.
REQUIRED PROVISIONS.
29.1. The following provisions are included in this Lease:
29.1.1 In furnishing services to the public, Lessee shall not discriminate against
any person or class of persons by reason of race, color, creed, or national origin, and Lessee shall
otherwise provide such services on a fair, equal, and not unjustly discriminatory basis to all users
thereof.
29.1.2 Lessee shall charge fair, reasonable, and not unjustly discriminatory prices
for each unit for service, provided, that the Lessee may be allowed to make reasonable and
nondiscriminatory discounts, rebates, or other similar types of price reductions to volume
purchasers.
30.
ARCHEOLOGICAL OR CULTURAL RESOURCES.
In the event any archeological or cultural resources are discovered during the construction
contemplated by this Lease, Lessor shall use its best efforts to expedite any necessary actions with
respect thereto, at Lessor’s sole cost and expense; provided, however, that in the event the
necessary actions with respect to any archeological or cultural resources exceeds or is estimated
to exceed $10,000.00, Lessee shall be entitled to terminate this Lease upon ten (10) days prior
written notice to Lessor.
31.
DEFAULT BY LESSOR.
In the event of any alleged breach by Lessor of its covenants contained in this Lease, Lessee shall
have available all rights and remedies provided at law or in equity, subject to the terms and
conditions of this Lease; provided, however, Lessee may not exercise any such right or remedy
unless Lessee has notified Lessor by written notice of such alleged default, and Lessor has not
cured such default within the thirty (30) day period subsequent to receipt of such notice or, in the
28
event such alleged default is of such a nature that it cannot reasonably be cured within such thirty
(30) day period, Lessor has failed to cure such alleged default with all due diligence.
Notwithstanding anything to the contrary contained in this Lease, in no event shall Lessee be
entitled to terminate this Lease or to abate or offset any installment of Base Rent or any other
payments to be made by Lessee hereunder.
32.
SALE BY LESSOR.
Lessee agrees to look solely to Lessor's interest in the Premises for the recovery of any judgment
from Lessor, it being agreed, neither Lessor nor the holders of the equity interests of Lessor nor
the members, partners, officers, directors or shareholders of Lessor shall be personally liable for
any such judgment. In the event of any sale or other conveyance by Lessor of its interest in the
Premises, Lessor shall be automatically freed and released from all personal liability accruing from
and after the date of such sale or conveyance as respects the performance of any covenant or
obligation on the part of Lessor contained in this Lease to be performed, it being intended hereby
that the covenants and obligations contained in this Lease on the part of Lessor shall be binding
on the Lessor and its successors and assigns only during and in respect to the respective successive
periods of ownership of the Premises.
33.
ESTOPPEL CERTIFICATE.
Lessee shall, without charge, at any time and from time to time hereafter, within ten (10) days after
written request of Lessor to do so, certify by written instrument duly executed and acknowledged
by Lessee and certified to Lessor and to any prospective lender or purchaser: (i) as to whether this
Lease has been supplemented or amended, and if so, the substance and manner of such supplement
or amendment; (ii) as to the existence of any default hereunder to the best of Lessee’s knowledge;
(iii) as to the date on which Lessee was obligated to commence paying Base Rent and all other
charges hereunder and the expiration date of the Term; (iv) as to whether the Lessee has assigned
or transferred its interests or any portion thereof in this Lease; and (v) as to any other matters as
may be reasonably requested. Lessor and any prospective purchaser or lender to whom the same
was certified may rely upon any such certificate.
34.
MISCELLANEOUS.
34.1
Personal Liability. No member of or employee of either Party shall be charged
personally or held contractually liable by or to the other Party under any term or provision of this
Lease because of any breach thereof or because of its execution or attempted execution.
34.2
No Waiver. No provision of this Lease may be waived or modified except by a
writing signed by the Party against whom such waiver or modification is sought.
34.3
Non-Waiver of Rights. No waiver or default by Lessor of any of the terms,
conditions, covenants or agreements hereof to be performed, kept or observed by Lessee shall be
construed or act as a waiver of any subsequent default of any of the terms, covenants, conditions
29
or agreements herein contained to be performed, kept or observed by Lessee, and Lessor shall not
be restricted from later enforcing any of the terms and conditions of this Lease.
34.4
Amendment. Only a written instrument executed by the Parties may amend this
Lease.
34.5
Invalid Provisions. Should any provision of this Lease or any application thereof
be held invalid by a court of competent jurisdiction, the remainder of this Lease shall not be
affected thereby, unless one or both Parties would be substantially and materially prejudiced.
34.6
Litigation Expenses. In the event of litigation between Lessor and Lessee, the
prevailing Party shall be entitled to recover its attorney’s fees and all costs and expenses of
litigation, including witness fees, expert witness fees, and court costs.
34.7
Headings. The headings contained herein are for convenience in reference only
and are not intended to define or limit the scope of this Lease or any term thereof.
34.8
Entire Agreement. This Lease, including exhibits attached hereto at the time of its
execution, constitutes the entire agreement between the Parties hereto and supersedes all prior
negotiations, understandings and agreements between the Parties concerning such matters.
35.
INCORPORATION OF RECITALS.
The recitals set forth herein are acknowledged by the Parties to be true and correct and are
incorporated herein by this reference.
36.
SIGNATURE
The parties have executed this Lease as of the Effective Date.
[SIGNATURES ON FOLLOWING PAGE]
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY BLANK.]
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LESSOR:
TOWN OF WICKENBURG, an Arizona municipal
corporation
By____________________________________
BG Bratcher, Mayor
ATTEST:
__________________________________
Amy Brown, Town Clerk
APPROVED AS TO FORM:
__________________________________
Trish Stuhan, Town Attorney
LESSEE:
DALLAS C. GANT, JR.
an Arizona individual
By:____________________________________
Dallas C. Gant, Jr.
A-1
Exhibit A
DESCRIPTION OF PREMISES
B-1
Exhibit B
AIRPORT FEES
C-1
Exhibit C
STORM WATER PERMIT COMPLIANCE
1.
Acknowledgments.
1.1
The Lessee acknowledges that as a consequence of its activities, operations or
location at the Town of Wickenburg Airport, the Lessee, may be required by EPA Regulations 40
CFR Part 122 (Regulations) to obtain a National Pollution Discharge Elimination System
(NPDES) Storm water discharge permit (the “Permit”), a requirement that Lessee can fulfill by:
1.1.1 Obtaining its own permit; or
1.1.2 Joining as a co-permittee under Lessor’s current storm water permit.
1.2
Lessor has undertaken to obtain a storm water discharge permit, and Lessee
acknowledges that it will enjoy a substantial economic benefit by joining as a co-permittee, and
that such benefit serves as good and sufficient consideration for the obligations imposed upon and
assumed by Lessee under this Exhibit.
1.3
Lessee acknowledges that it will have to devise and implement Best Management
Practices (BMPs) to minimize the contact of storm and other precipitation event water with
“significant materials” (as defined in the Regulations) generated, stored, handled or otherwise used
by Lessee, and to document such BMPs with a written storm water management plan.
2.
Agreement.
2.1
Lessee agrees to be made, and to be, a co-permittee on Lessor’s NPDES storm
water discharge permit, and agrees that said Permit, as it is issued by the EPA, and as it may
thereafter be amended, modified or otherwise changed, is incorporated by reference into this
Exhibit and any subsequent renewals.
2.2
Lessor agrees that, to the extent allowed by law, Lessee shall have the right to be
removed from Lessor’s Permit should this Lease be cancelled or terminated for other reasons, or
due to Lessee’s relocation, noncompliance with Permit requirements or exercise of choice;
provided that, in no event shall Lessee be relieved of its obligation to comply with the requirements
of the NPDES permit program with regard to its occupation and use of the Premises, nor shall
Lessee be excused from any obligations or indemnifications incurred and owed to Lessor prior to
Lessee’s removal from the Permit, resulting from a failure of Lessee to fulfill an obligation of the
Permit.
C-2
3.
Compliance.
3.1
Lessor will provide Lessee with a true and complete copy of the Permit and any
revisions thereto, and will, as time and personnel allow, consult with and assist Lessee with regard
to Permit and other requirements.
3.2
Lessor shall have the right to monitor Lessee’s compliance with the Permit
requirements, including, but not limited to: certification of non-storm water discharges; collection
of storm water samples; preparation of storm water management plans; implementation of BMPs;
and the maintenance of necessary records.
3.3
Lessor reserves the right to impose upon Lessee any BMP or other action necessary
to insure Lessor’s ability to comply with its Permit requirements or applicable Rules. Lessee shall
have ten (10) days from date of receipt of written notice imposing such BMPs or other
requirements to notify Lessor in writing if it objects to any action it is being directed to undertake.
If Lessee does not provide the specified timely notice, it will be deemed to have assented to
implement the BMPs or other requirements. If Lessee provides Lessor with timely written notice
of its objections, the Parties agree to negotiate a prompt resolution of their differences. Lessee
warrants that it will not serve a written notice of objections for purposes of delay or avoiding
compliance.
3.4
Lessee agrees to implement at its sole expense, unless otherwise agreed to in
writing between Lessor and Lessee, those Permit and other requirements which pertain to its
operations and activities on the Airport, Lessee warrants that it will use its best efforts to meet all
deadlines established by statute, regulation or ordinance, or that are agreed to by the Parties.
Lessee acknowledges that time is of the essence in the implementation of all Permit requirements.
4.
Permit Changes. Lessee acknowledges that the terms and conditions of Lessor’s Permit
may change from time to time, and upon prior written notice from Lessor to Lessee of proposed
changes, Lessee shall be given the opportunity to submit comments to Lessor prior to negotiations
with the appropriate governmental entity(ies) for permit modifications.
5.
Material Condition. Full compliance with the NPDES permit program, 40 C.F.R. Part
122, is a material condition of this EXHIBIT and for any breach thereof which exposes Lessor to
civil or criminal fine, penalty, sanction or remediation cost by any governmental entity. Lessor
may terminate this Exhibit without recourse by Lessee.
6.
Covenant of Good Faith. Lessor and Lessee covenant to act in good faith to implement
any requirements imposed by Lessor’s Permit, to the end that the purposes of Section 402(P) of
the Federal Water Pollution control Act (33 U.S.C. 1342 (P)) may be achieved. The Parties
acknowledge that close cooperation will be necessary to ensure compliance with any Permit
requirements to promote safety and minimize costs, and each Party agrees to a candid exchange of
information necessary to coordinate a storm water management and monitoring plan.
C-3
7.
Indemnification. The covenants of insurance and indemnification in favor of Lessor
imposed by other provisions of this Lease shall extend to, and are incorporated into, the provisions
of this Exhibit.
1
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NOTICE OF LESSEE INTENTION TO JOIN OR REJECT NPDES CO-PERMITTEE
STATUS
I,
, on behalf of ___________________, being duly
authorized to do so, acknowledge that I am fully informed of our obligations under the National
pollutant Discharge Elimination System permit program as mandated by Section 402 (P) of the
Federal Water Pollution Control Act (33 U.S.C. 1342 (P)), and regulations published in 40 C.F.R.
Part 122.
I further acknowledge that we have been offered the opportunity to join with the Town of
Wickenburg Airport as a co-permittee of the NPDES permit issued by the Environmental
Protection Agency as it pertains to the Town of Wickenburg Airport (the “Airport”), in accordance
with the terms and conditions set forth above.
I, on behalf of _________________ and being duly authorized to do so,
desire to
decline to (please check the appropriate box) join the Town of Wickenburg Airport as a co-
permittee. I understand and accept the obligation to comply with the aforesaid statute and
regulations as they may apply to our activities and operations at the Airport.
Dated this 2nd day of May, 2025.
By:
Name:
Its: