<\/p>\nARTICLE IV. DEFAULTS, REMEDIES AND TERMINATION …………………………………….. 11
\n Section 401. Defaults – General …………………………………………… 11
\n Section 402. Institution of Legal Actions ………………………………….. 12
\n Section 403. Applicable Law ………………………………………………. 12
\n Section 404. Acceptance of the Legal Process ……………………………….. 12
\n Section 405. Rights and Remedies Are Cumulative …………………………….. 13
\n Section 406. Remedies ……………………………………………………. 13
\n Section 406.1. Damages ……………………………………………. 13
\n (a) Notice and Cure ……………………………………….. 13
\n (b) Limitation on Damages ………………………………….. 13
\n Section 406.2. Specific Performance ………………………………… 13
\n Section 406.3. Rights of Termination ……………………………….. 14
\n (a) Termination by Developer ……………………………….. 14
\n (b) Termination by City ……………………………………. 14<\/p>\n
ARTICLE V, GENERAL PROVISIONS ……………………………………………………. 15
\n Section 501. Notices, Demands and Communications Between the Parties ………….. 15
\n Section 502. Conflict of Interests ………………………………………… 16
\n Section 503. Warranty Against Payment of Consideration for Agreement ………….. 16
\n Section 504. Nonliability of City Officials and Employees ……………………. 16
\n Section 505. Enforced Delay: Extension of Time of Performance ………………… 16
\n Section 506. Approvals by the City and the Developer ………………………… 17
\n Section 507. Submission of Documents for Approval …………………………… 17
\n Section 508. Time of Essence ……………………………………………… 17
\n Section 509. No Waiver …………………………………………………… 17
\n Section 510. Severability ………………………………………………… 17
\n Section 511. Captions ……………………………………………………. 17
\n Section 512. Entire Agreement, Waivers and Amendments ……………………….. 18
\n Section 513. Conflict of Terms ……………………………………………. 18
\n<\/c><\/s><\/caption>\n<\/table>\n
ATTACHMENTS<\/p>\n
Attachment No. I – Development Lease<\/p>\n
Attachment No. 2 – Site Map<\/p>\n
ii
\n 4
\n DISPOSITION AND REDEVELOPMENT AGREEMENT<\/p>\n
THIS AGREEMENT is entered into by and between the CITY OF PHOENIX,
\nARIZONA (“City”) and AMERICA WEST AIRLINES, a Delaware corporation
\n(“Developer”). The City and the Developer agree as follows:<\/p>\n
ARTICLE I. SUBJECT OF AGREEMENT<\/p>\n
SECTION 101. PURPOSE OF AGREEMENT<\/p>\n
The purpose of this Disposition and Redevelopment Agreement
\n(“Agreement”) is to put into effect the Sky Harbor Center Redevelopment Area
\nPlan for a redevelopment project (the “Project”) by providing for the
\ndisposition and development of certain real property designated and referred to
\nherein as the “Site”. The development of the Site pursuant to this Agreement,
\nand the fulfillment generally of this Agreement, are in the vital and best
\ninterests of the City of Phoenix and the health, safety, and welfare of its
\nresidents, and in accord with the public purposes and provisions of applicable
\nfederal, state, and local laws and requirements and, pursuant to Arizona Revised
\nStatutes Section 9-500.11, will assist in the creation or retention of jobs or
\nwill otherwise improve or enhance the economic welfare of the inhabitants of the
\nCity of Phoenix.<\/p>\n
SECTION 102. REDEVELOPMENT PLAN<\/p>\n
This Agreement shall be subject to the provisions of the Sky Harbor
\nCenter Redevelopment Area Plan, approved on April 24, 1985 by the City Council
\nof the City of Phoenix by Resolution No. 16569, which is incorporated herein by
\nthis reference and made a part hereof as though fully set forth herein.<\/p>\n
SECTION 103. THE SITE<\/p>\n
The Site consists of approximately 27 acres generally located at the
\nnorthwest corner of Buckeye Road and the Papago Freeway (I-10), in Phoenix,
\nMaricopa County, Arizona, within the portion of the Redevelopment Area legally
\ndescribed as PHOENIX SKY HARBOR CENTER, PHASE 1, according to the plant of
\nrecord in the Office of the County Recorder of Maricopa County, Arizona, in Book
\n341 of Maps at page 37. The Site is comprised of approximately 13 acres,
\n 5
\nhereinafter defined as the “Initial Parcel”, which includes the “Development
\nParcel” and the “Driveway Parcel”, and an adjacent parcel containing
\napproximately 13 acres, hereinafter defined as the “Option Parcel.”<\/p>\n
SECTION 104. PARTIES TO THE AGREEMENT<\/p>\n
SECTION 104.1 THE CITY<\/p>\n
The City is a municipal corporation of the State of Arizona, a public
\nbody corporate, exercising governmental functions and powers pursuant to the
\nSlum Clearance and Redevelopment Act of the State of Arizona. The execution of
\nthis Agreement and any other documents required to implement the provisions of
\nthis Agreement was authorized by Ordinance No. S-26932, passed by the Phoenix
\nCity Council on March 15, 2000.<\/p>\n
The principal office of the City is located at 200 West Washington
\nStreet, Phoenix, Arizona, 85003-1611.<\/p>\n
“City” as used in this Agreement, includes the City of Phoenix, the
\nCommunity and Economic Development Department and any assignee or delegate of or
\nsuccessor to their rights, powers and responsibilities under the Arizona Slum
\nClearance and Redevelopment Law.<\/p>\n
The obligations, approvals and other actions by the City under this
\nAgreement are the exercise of redevelopment powers for the purpose of compliance
\nwith the redevelopment considerations expressed in this Agreement, and is not an
\nagreement as a municipality exercising regulatory powers. The Developer
\nhereunder still must comply with land use regulations, codes and laws affecting
\nthe acquisition, ownership, use, improvement and development of property, and
\nthe vacation and abandonment of public rights-of-way and easements. Nothing in
\nthis Agreement constitutes an exemption or grant of a variance from applicable
\ncodes and laws.<\/p>\n
SECTION 104.2 THE DEVELOPER<\/p>\n
Developer, America West Airlines, a Delaware corporation authorized to
\ndo business in Arizona.<\/p>\n
2
\n 6
\n The principal office of the Developer is located at 4000 East Sky
\nHarbor Boulevard, Arizona 85___.<\/p>\n
Notwithstanding any other provisions hereof, all of the terms,
\ncovenants, and conditions of this Agreement shall be binding on and shall inure
\nto the benefit of the Developer and the permitted successors and assigns of the
\nDeveloper. Wherever the term “Developer” is used herein, such term shall include
\nany such permitted successors and assigns.<\/p>\n
SECTION 104.3 PROHIBITION AGAINST CHANGES IN OWNERSHIP.
\n MANAGEMENT AND CONTROL OF DEVELOPER<\/p>\n
(a) The Developer represents and agrees that the leasing and
\ndevelopment of the Site and other undertakings pursuant to this Agreement are
\nand will be used for the purpose of redevelopment of the Site and not for
\nspeculation in landholding. The Developer further recognizes:<\/p>\n
(i) the importance of the redevelopment of the Site to
\n the general welfare of the community; and<\/p>\n
(ii) the substantial financing and other public aids that
\n have been made available by law and by the government
\n for the purpose of making such redevelopment
\n possible; and<\/p>\n
(iii) the fact that a significant change in ownership or
\n control of the Developer or of a substantial part
\n thereof, as defined in this Section 104.3 of this
\n contract, is for practical purposes a transfer or
\n disposition of the Site; and<\/p>\n
(iv) the fact that the Site is not to be acquired or used
\n for speculation, but only for development by
\n Developer in accordance with this Agreement.<\/p>\n
In view of the foregoing, the qualifications and identity of the Developer, its
\npartners and principals, are of particular concern to the City. The Developer
\nfurther recognizes that it is because of such qualifications and identity that
\nCity is entering into this Agreement with Developer. No voluntary or involuntary
\nsuccessor in<\/p>\n
3
\n 7
\ninterest of Developer shall acquire any rights or powers under this Agreement
\nexcept as expressly set forth herein.<\/p>\n
(b) The Developer shall promptly notify the City of any and all changes
\nwhatsoever in the identity of the parties associated with the Developer, in
\njoint ventures or partnerships for the purpose of acquiring and developing the
\nSite or any part thereof as hereinabove provided, which are known to the
\nDeveloper or its officers. Except as provided in this Agreement, this Agreement
\nmay be terminated by the City if there is any significant change (voluntary or
\ninvoluntary) in the ownership or control of the Developer (other than such
\nchanges occasioned by the public trading of stock which does not result in a
\nchange in the present control of Developer), that has not been approved in
\nwriting by the City at the time of such change, which approval may be given or
\nwithheld in City’s absolute discretion, prior to the issuance of Certificates of
\nOccupancy for construction of all minimum required development on the Site as
\nmore fully described in Article 10 of the Development Lease referenced in
\nSection 201 below.<\/p>\n
(c) Within ten (10) calendar days after receipt of a written request
\nfrom the City, Developer shall provide the City with a copy of any contract,
\nagreement, document and related papers which directly or indirectly conveys,
\nassigns or changes Developer’s interest as outlined in this Section 104.3. The
\nDeveloper agrees to and shall indemnify and hold City harmless from or against
\nall claims, demands and obligations asserted by or from any party claiming a
\nright, interest or ownership to this Agreement, the Site or the Development
\nthereof through or with Developer arising out of or in connection with
\nrelationships entered into by Developer or its partners with such other party.<\/p>\n
SECTION 104.4 INDEPENDENT CONTRACTOR<\/p>\n
Developer is an independent contractor in the performance of all
\nactivities, functions, duties and obligations pursuant to this Agreement.
\nDeveloper or City are not and shall not be considered as joint venturers,
\npartners or agents of each other. Developer’s officers, employees, agents and
\nsubcontractors shall not be considered as officers, employees or agents of the
\nCity. The City and Developer hereby agree not to represent to anyone that they
\nare agents of one another or have authority to act on behalf of one another.<\/p>\n
4
\n 8
\nARTICLE II. LEASE OF SITE<\/p>\n
SECTION 201. INITIAL PARCEL<\/p>\n
Within 6 months after the execution of this Agreement, unless more time
\nis granted in writing by the City or if such time is extended pursuant to
\nSection 505 below, Developer shall enter into an unsubordinated development
\nlease with the City for the Initial Parcel. The lease (“Lease”) shall be
\nsubstantially in the form attached hereto as Attachment No. 1. Failure to timely
\nexecute the Lease pursuant to this Section 201 shall result in immediate
\ntermination of this Agreement and all rights of Developer hereunder without any
\nfurther notice or action by the City, notwithstanding anything contained herein
\nto the contrary. Upon timely execution and delivery of the Lease, this Agreement
\nshall terminate, and all of the rights and obligations of the parties shall be
\ngoverned solely by the terms and conditions of the Lease.<\/p>\n
SECTION 202. EXPANSION OPTIONS<\/p>\n
Developer shall have, for a period of 6 years from the date of
\nexecution of the Lease or 5 years from issuance of a certificate of occupancy
\nfor the New Building, as defined in the Lease, whichever first occurs, so long
\nas Developer is not in default of the Lease, the exclusive option to lease the
\nOption Parcel depicted on the Site Map attached hereto as Attachment No. 2),
\nsubject to the terms and conditions set forth in Article 35 of the Lease.<\/p>\n
SECTION 203. CONVEYANCE OF LEASEHOLD<\/p>\n
SECTION 203.1 TITLE INSURANCE<\/p>\n
The City and Developer shall request a preliminary title commitment
\nfrom First American Title Insurance Company or other title insurance company
\nacceptable to the City, reflecting the condition of title in anticipation of the
\nissuance of an owner’s extended leasehold title insurance policy prior to Ground
\nLease execution and prior to exercise of the option to lease each Option Parcel;
\nprovided, however, that the City shall be under no obligation to cure any title
\nexceptions contained therein.<\/p>\n
5
\n 9
\n The City and the Developer shall each pay half of the following fees
\nand costs in connection with conveyance of each leasehold:<\/p>\n
(a) The cost of any standard form title insurance policy.
\n Developer shall pay for any special endorsements or extended
\n coverage desired by Developer.<\/p>\n
(b) Recording fees.<\/p>\n
(c) Notary fees.<\/p>\n
SECTION 203.2 CONVEYANCE OF LEASEHOLD INTEREST AND DELIVERY OF
\n POSSESSION<\/p>\n
Subject to any mutually agreed upon extensions of time, conveyance of
\nthe leasehold interest shall be completed on or prior to the date specified in
\nthis Agreement. The City and the Developer agree to perform all acts necessary
\nfor conveyance in sufficient time for the property interest to be conveyed in
\naccordance with the foregoing provisions.<\/p>\n
Possession shall be delivered to the Developer concurrently with the
\nconveyance of the leasehold interest, except that access and entry by Developer
\nmay be granted before conveyance as permitted pursuant to this Agreement.<\/p>\n
SECTION 203.3 EXECUTION OF LEASE BY CITY<\/p>\n
Subject to any mutually agreed upon extensions of time, the City shall
\nexecute the Lease and the Memorandum of Lease upon receipt of all fees and other
\namounts required to be paid by Developer prior to Lease execution pursuant to
\nthis Agreement.<\/p>\n
SECTION 203.4 RECORDATION OF DOCUMENTS<\/p>\n
The City shall file the Memorandum of Lease and any other instruments
\nwhich are necessary and proper to vest the leasehold interest for recordation
\namong the land records in the Office of the County Recorder for Maricopa County,
\nState of Arizona. The Lease shall not be recorded.<\/p>\n
6
\n 10
\n SECTION 203.5 TAXES AND ASSESSMENTS<\/p>\n
Ad valorem taxes and assessments, if any, on the Site and taxes upon
\nthis Agreement or any rights thereunder, levied, assessed, or imposed for any
\nperiod prior to the conveyance of any leasehold and other interests thereto,
\nshall be borne by the City. Any taxes and assessments levied, assessed or
\nimposed during the term of the leasehold shall be borne by the Developer,
\nsubject to the terms and conditions of the Lease with respect thereto.<\/p>\n
SECTION 203.6 CONDITION OF THE SITE<\/p>\n
The Site shall be conveyed in an “as is” condition with no warranty,
\nexpress or implied, by the City as to title or the condition of the soil, its
\ngeology or the presence of known or unknown faults. It shall be the sole
\nresponsibility of the Developer at its expense to investigate and determine
\nwhether or not the proposed development can be constructed on the Site. If, in
\nthe opinion of Developer, the conditions are not in all respects suitable for
\nthe use or uses to which the parcels will be put, and Developer still wishes to
\nproceed with the leasing of the Site, then it is the sole responsibility and
\nobligation of the Developer, at Developer’s expense, to take such action as may
\nbe necessary to place the Site in a condition suitable for its development.<\/p>\n
SECTION 203.7 ACCESS TO AND ENTRY BY THE DEVELOPER UPON THE
\n SITE<\/p>\n
Prior to the conveyance of the leasehold, representatives of the
\nDeveloper or its agents, employees, designees and nominees, shall have the right
\nof access to and entry upon the Site to be leased at all reasonable times, for
\nthe purpose of obtaining data and making surveys and tests necessary to carry
\nout this Agreement. The Developer agrees to and shall indemnify and hold the
\nCity harmless from any and all injuries or damages arising out of any work or
\nactivity of the Developer, its respective agents, employees, designees and
\nnominees.<\/p>\n
The City agrees to provide, or cause to be provided, to the Developer
\nall data and information pertaining to the Site and available to the City when
\nrequested by the Developer.<\/p>\n
7
\n 11
\n SECTION 203.8 OBLIGATIONS OF CITY AND DEVELOPER WHICH ARE
\n CONDITIONS PRECEDENT TO LEASE EXECUTION BY CITY<\/p>\n
(a) Subject to any mutually agreed upon extensions of time, which shall
\nnot be unreasonably withheld, and also subject to the satisfaction of all
\nconditions contained herein or the waiver of any such condition by the party who
\nis affected thereby, the City shall execute the Lease on or prior to the date
\nspecified therefor in this Agreement.<\/p>\n
(b) The obligation of City to execute the Lease is conditioned upon
\nreceipt of the following:<\/p>\n
(i) All fees payable by Developer pursuant to this
\n Section 202;<\/p>\n
(ii) Delivery to the City of a Development Lease and
\n Memorandum of Lease previously approved as to form by
\n the City and signed (in triplicate) by the Developer;
\n and<\/p>\n
(iii) Approval by the City of a legal description of the
\n Site (which shall separately describe the areas
\n designated by the City for the Initial Parcel and the
\n Option Parcel) and a conceptual site for the Initial
\n Parcel, which shall have been prepared by Developer
\n at Developer’s sole expense.<\/p>\n
(c) Notwithstanding any provision contained herein to the contrary, the
\nparties hereto agree that Developer shall have no obligation to execute the
\nLease if, in the opinion of Developer, conditions are not in all respects
\nsuitable for the use or uses to which the parcel will be put, or if Developer
\nhas not approved any aspects of its due diligence with respect to this Site
\nincluding, without limitation, title review and approval, environmental review
\nand approval, infrastructure review and approval, evidence of tax abatement, and
\nother planning and architectural committee approvals.<\/p>\n
8
\n 12
\n ARTICLE III DEVELOPMENT OF THE SITE<\/p>\n
SECTION 301. USES<\/p>\n
Subject to the Conditions of Development contained in the Lease, the
\nSky Harbor Center Redevelopment Area Plan, the Hazardous Materials Handling
\nGuidelines contained in the Phoenix Sky Harbor Center Hazardous Materials
\nProgram, and applicable City plans and ordinances, the Site shall be used and
\noccupied by Developer only as a training\/flight simulation\/office facility and
\nother airline purposes, as further provided in Section 8.2 of the Lease.<\/p>\n
SECTION 302. LIENS AND ENCUMBRANCES<\/p>\n
Developer shall not place, or allow to be placed, any lien or
\nencumbrance on any portion of the Site prior to the execution of the Lease and,
\nthereafter, no liens or encumbrances other than a mortgage or other financing
\ninstrument permitted by the Lease shall be placed or allowed to be placed on the
\nSite by or on behalf of Developer.<\/p>\n
SECTION 303. CITY AND OTHER GOVERNMENTAL AGENCY PERMITS<\/p>\n
In addition to any other approvals required by this Agreement or the
\nLease, before commencement of construction or development of any buildings,
\nstructures or other work of improvement upon any of the Site (but not
\nnecessarily before the conveyance of possession), the Developer shall secure, or
\ncause to be secured, any and all permits which may be required by the City or
\nany other governmental agency affected by such construction, development or work
\nthereon. The City shall provide all proper assistance to the Developer in
\nsecuring these permits.<\/p>\n
SECTION 304. INDEMNIFICATION AND INSURANCE<\/p>\n
Developer agrees to and shall indemnify and hold City harmless from and
\nagainst all liability, loss, damage, costs or expenses (including reasonable
\nattorney’s fees and court costs) arising from or as a result of the death of a
\nperson or any accident, injury, loss or damage whatsoever caused to any person
\nor to the property of any person which shall occur on or adjacent to the Site to
\nthe extent<\/p>\n
9
\n 13
\ndirectly or indirectly caused by any acts done thereon or any errors or
\nomissions of Developer or its agents, servants, employees or contractors.<\/p>\n
Developer, all agents, servants and employees of the Developer and all
\ncontractors of the Developer will hold all goods, materials, furniture,
\nfixtures, equipment, machinery and other property whatsoever in the Site and
\nimprovements thereon at the sole risk of Developer and save the City harmless
\nfrom any loss or damage thereto by any cause whatsoever.<\/p>\n
The obligations of Developer under this Section 304 shall not, in any
\nway, be affected by the absence in any case of covering insurance or by the
\nfailure of any insurance carrier to perform any obligation on its part to be
\nperformed under insurance policies affecting the Site.<\/p>\n
If any claim, action or proceeding is made or brought against the City
\nby reason of any event which is the subject of Developer’s foregoing indemnity,
\nthen, upon demand by City, Developer, at its sole cost and expense, shall resist
\nor defend such claim, action or proceeding. Notwithstanding the foregoing, City
\nmay engage its own attorneys to defend it or to assist in its defense and
\nDeveloper shall pay the reasonable fees and disbursements of such attorneys.<\/p>\n
SECTION 305. LOCAL, STATE AND FEDERAL LAWS<\/p>\n
The Developer shall carry out the construction of the improvements on
\nthe Site in conformity with all applicable laws, including all applicable
\nfederal and state labor standards.<\/p>\n
SECTION 306. EQUAL EMPLOYMENT OPPORTUNITY<\/p>\n
The Developer, for itself and its successors and assigns, agrees that
\nin the construction of the Improvements provided for in this Agreement:<\/p>\n
(a) It will not discriminate upon the basis of race, color, religion,
\ngender, national origin, sexual orientation, age or disability in the sale,
\nlease or rental, or in the use or occupancy of the Site or the Improvements to
\nbe erected thereon and the City of Phoenix and the United States shall be the
\nbeneficiaries of this provision and entitled to enforce it.<\/p>\n
10
\n 14
\n (b) That the following clause appear in all contracts for all services
\nand supplies or in all leases or subleases: “Any supplier in performing under
\nthis contract, shall not discriminate against any worker, employee or applicant,
\nor any member of the public, because of race, color, religion, gender, national
\norigin, sexual orientation, age or disability, nor otherwise commit an unfair
\nemployment practice. The supplier will take affirmative action to ensure that
\napplicants are employed, and that employees are dealt with during employment
\nwithout regard to their race, color, religion, gender, national origin, sexual
\norientation, age or disability. Such action shall include, but not be limited to
\nthe following: employment, upgrading, demotion or transfer; recruitment or
\nrecruitment advertising; layoff or termination; rates of pay or other forms of
\ncompensation; and selection for training, including apprenticeship. The supplier
\nfurther agrees that this clause will be incorporated in all subcontracts entered
\ninto with suppliers of materials or services, and all labor organizations
\nfurnishing skilled, unskilled and union labor, or who may perform any such labor
\nor services in connection with this contract.”<\/p>\n
The Developer will comply with all applicable local, state and federal
\nfair employment laws and regulations.<\/p>\n
ARTICLE IV. DEFAULTS, REMEDIES AND TERMINATION<\/p>\n
SECTION 401. DEFAULTS – GENERAL<\/p>\n
Subject to the extensions of time set forth in Section 505, failure or
\ndelay by any party to perform any term or provision of this Agreement
\nconstitutes a default under this Agreement. Except as provided in Section 201
\nabove, the party who so fails or delays must immediately commence to cure,
\ncorrect, or remedy such failure or delay, and shall complete such cure,
\ncorrection or remedy with reasonable diligence.<\/p>\n
A nondefaulting party shall give written notice of default to the party
\nin default, specifying the default complained of by the injured party. Failure
\nor delay in giving such notice shall not constitute a waiver of any default, nor
\nshall it change the time of default.<\/p>\n
Except as otherwise expressly provided in this Agreement, any failure
\nor delay by any party in asserting any of its rights or remedies as to any
\ndefault, shall<\/p>\n
11
\n 15
\nnot operate as a waiver of any default, or of any such rights or remedies, or
\ndeprive either such party of its right to institute and maintain any actions or
\nproceedings which it may deem necessary to protect, assert or enforce any such
\nrights or remedies.<\/p>\n
SECTION 402. INSTITUTION OF LEGAL ACTIONS<\/p>\n
In addition to any other rights or remedies, either party may institute
\nlegal action to cure, correct or remedy any default, to recover damages for any
\ndefault, or to obtain any other remedy consistent with the purpose of this
\nAgreement. Such legal actions may be instituted in the County of Maricopa, State
\nof Arizona, or in the Federal District Court in the District of Arizona.<\/p>\n
If any legal action is instituted pursuant to this Agreement, the
\nprevailing party in such action shall be reimbursed by the other party for all
\ncosts and expenses of such action, including reasonable attorneys’ fees as may
\nbe fixed by the Court<\/p>\n
SECTION 403. APPLICABLE LAW<\/p>\n
The laws of the State of Arizona shall govern the interpretation and
\nenforcement of this Agreement.<\/p>\n
SECTION 404. ACCEPTANCE OF THE LEGAL PROCESS<\/p>\n
In the event that any legal action is commenced by the Developer
\nagainst the City, service of process on the City shall be made by personal
\nservice upon the City Clerk of the City of Phoenix, or in such other manner as
\nmay be provided by law.<\/p>\n
In the event that any legal action is commenced by the City against the
\nDeveloper, service of process shall be made by personal service or in such other
\nmanner as may be provided by law, whether made within or without the State of
\nArizona.<\/p>\n
12
\n 16
\n SECTION 405. RIGHTS AND REMEDIES ARE CUMULATIVE<\/p>\n
Except as otherwise expressly stated in this Agreement, the rights and
\nremedies of the parties are cumulative, and the exercise by any party of one or
\nmore of such rights or remedies shall not preclude the exercise by it, at the
\nsame time or different times, of any other rights or remedies for the same
\ndefault or any other default by such defaulting party.<\/p>\n
SECTION 406. REMEDIES<\/p>\n
SECTION 406.1. DAMAGES<\/p>\n
(a) NOTICE AND CURE<\/p>\n
If any party defaults with regard to any of the provisions of this
\nAgreement except in the event of Developer’s failure to timely sign and deliver
\nthe Lease as required pursuant to Section 201, which shall result in immediate
\ntermination of this Agreement without notice or time to cure, a nondefaulting
\nparty shall deliver written notice of such default upon the defaulting party. If
\nthe default is not commenced to be cured within thirty (30) calendar days after
\nservice of the notice of default and is not cured promptly in a continuous and
\ndiligent manner within a reasonable period of time after commencement, the
\ndefaulting party shall be liable to the nondefaulting parties for any damages
\ncaused by such default, and the nondefaulting parties may thereafter (but not
\nbefore) commence an action for damages against the defaulting party with respect
\nto such default.<\/p>\n
(b) LIMITATION ON DAMAGES<\/p>\n
Anything herein to the contrary notwithstanding, neither City nor
\nDeveloper shall in any event be responsible or liable for consequential,
\nexemplary or punitive damages as a result of any act or omission in connection
\nwith this Agreement.<\/p>\n
SECTION 406.2. SPECIFIC PERFORMANCE<\/p>\n
If any party defaults with regard to any of the provisions of this
\nAgreement except Section 201, default of which shall result in immediate
\ntermination of this Agreement without notice or time to cure, the nondefaulting
\nparties shall serve written notice of such default upon the defaulting party. If
\nthe default is not<\/p>\n
13
\n 17
\ncommenced to be cured within thirty (30) calendar days after service of the
\nnotice of default and is not cured promptly in a continuous and diligent manner
\nwithin a reasonable period of time after commencement, a nondefaulting party, at
\nits option, may thereafter (but not before) commence an action for specific
\nperformance of the terms of this Agreement pertaining to such defaults.<\/p>\n
SECTION 406.3 RIGHTS OF TERMINATION<\/p>\n
(a) TERMINATION BY DEVELOPER<\/p>\n
The Developer, at its option, may terminate this Agreement prior to
\nconveyance of the leasehold if: (i) the City, in breach of this Agreement, does
\nnot tender conveyance of a leasehold, or deliver possession thereof, in the
\nmanner and condition and by the date provided in this Agreement or fails to
\nperform any condition precedent thereto, and such failure is not cured within
\nthirty (30) calendar days after written demand by the Developer; or (ii) the
\ncondition of the Site is determined to be unsuitable for development. In the
\nevent of such termination, neither party shall have any further rights or
\nliabilities hereunder.<\/p>\n
(b) TERMINATION BY CITY<\/p>\n
The City at its option may terminate this Agreement immediately and
\nwithout further notice or action by City if:<\/p>\n
(i) The Developer assigns or attempts to assign and\/or convey this
\n Agreement (or any rights therein) in violation of this
\n Agreement;<\/p>\n
(ii) City does not receive from Developer all items required under
\n Article II above within the times specified;<\/p>\n
(iii) The Developer shall fail to perform any other obligations and
\n duties provided in this Agreement within the time for
\n performance specified therefor, or if no such time is
\n specified, within thirty (30) calendar days after the date of
\n written demand by the City to the Developer to perform such
\n obligation and duty.<\/p>\n
14
\n 18
\nARTICLE V. GENERAL PROVISIONS<\/p>\n
SECTION 501. NOTICES, DEMANDS AND COMMUNICATIONS BETWEEN THE PARTIES<\/p>\n
All notices, demands or other writings in this Agreement provided to be
\ngiven, made or sent by any party hereto to other parties shall be deemed to have
\nbeen fully given, made or sent when made in writing and personally delivered,
\ntransmitted by telefax or received by United States postpaid registered or
\ncertified mail and addressed as follows:<\/p>\n
TO CITY:<\/p>\n
Director of the Community and
\n Economic Development Department
\n 200 West Washington Street, 20th Floor
\n Phoenix, Arizona 85003-1611
\n FAX: (602) 495-5097<\/p>\n
and<\/p>\n
City Clerk
\n City of Phoenix
\n 200 West Washington, 15th Floor
\n Phoenix, Arizona 85003-1611<\/p>\n
TO DEVELOPER:<\/p>\n
Attn: Senior Director, Corporate Real Estate
\n America West Airlines
\n 4000 East Sky Harbor Blvd.
\n Phoenix, Arizona 85034-3899<\/p>\n
The address to which any notice, demand or other writing may be given, made or
\nsent to any party may be changed by written notice given by such party as above
\nprovided.<\/p>\n
15
\n 19
\n SECTION 502. CONFLICT OF INTERESTS<\/p>\n
No member, official or employee of the City shall have any direct or
\nindirect interest in this Agreement; nor participate in any decision relating to
\nthe Agreement which is prohibited by law. The parties hereto acknowledge that
\nthis Agreement is subject to cancellation pursuant to the provisions of A.R.S.
\nSection 38-511.<\/p>\n
SECTION 503. WARRANTY AGAINST PAYMENT OF CONSIDERATION FOR AGREEMENT<\/p>\n
The Developer warrants that it has not paid or given, and will not pay
\nor give, any third person any money or other consideration for obtaining this
\nAgreement, other than normal costs of conducting business and costs of
\nprofessional services such as architects, engineers, realtors and attorneys.<\/p>\n
SECTION 504. NONLIABILITY OF CITY OFFICIALS AND EMPLOYEES<\/p>\n
No member, official or employee of the City shall be personally liable
\nto the Developer, or any successor in interest, in the event of any default or
\nbreach by the City or for any amount which may become due to the Developer or
\nsuccessor, or on any obligation under the terms of this Agreement.<\/p>\n
SECTION 505. ENFORCED DELAY: EXTENSION OF TIME OF PERFORMANCE<\/p>\n
In addition to specific provisions of this Agreement, performance by
\nany party hereunder shall not be deemed to be in default where delays or
\ndefaults are due to war; insurrection; strikes, lock-outs; riots; floods;
\nearthquakes; fires; casualties; acts of God; acts of the public enemy;
\nepidemics; quarantine restrictions; freight embargoes; lack of transportation;
\ngovernmental restrictions or priority; litigation; unusually severe weather;
\ninability (when either party is faultless) of any contractor, subcontractor or
\nsupplier; acts of the other party. An extension of time for any such cause shall
\nonly be for the period of the enforced delay, which period shall commence to run
\nfrom the time of the commencement of the cause. If, however, notice by the party
\nclaiming such extension is sent to the other parties more than thirty (30)
\ncalendar days after the commencement of the cause, the period shall commence to
\nrun only thirty (30) calendar days prior to the giving of such notice. Times of
\nperformance under this Agreement may also be extended in writing by the parties
\nhereto.<\/p>\n
16
\n 20
\n SECTION 506. APPROVALS BY THE CITY AND THE DEVELOPER<\/p>\n
Wherever this Agreement requires the City and the Developer to approve
\nany contract, document, plan, proposal, specification, drawing or other matter,
\nsuch approval shall not be unreasonably withheld or delayed.<\/p>\n
SECTION 507. SUBMISSION OF DOCUMENTS FOR APPROVAL<\/p>\n
Whenever this Agreement requires one party to submit plans, drawings or
\nother documents to another party for approval, the items shall be accompanied by
\na letter stating that they are being submitted pursuant to this Agreement and
\nthat they will be deemed approved unless rejected within the time stated in the
\nAgreement.<\/p>\n
SECTION 508. TIME OF ESSENCE<\/p>\n
Time is of the essence of this Agreement and of every term, condition
\nand covenant hereof.<\/p>\n
SECTION 509. NO WAIVER<\/p>\n
Except as otherwise expressly provided in this Agreement, any failure
\nor delay by any party in asserting any of its rights or remedies as to any
\ndefault, shall not operate as a waiver of any default, or of any such rights or
\nremedies, or deprive any such party of its right to institute and maintain any
\nactions or proceedings which it may deem necessary to protect, assert or enforce
\nany such rights or remedies.<\/p>\n
SECTION 510. SEVERABILITY<\/p>\n
If any provision of this Agreement shall be found invalid or
\nunenforceable by a court of competent jurisdiction, the remaining provisions of
\nthis Agreement shall not be affected thereby and shall be valid and enforceable
\nto the fullest extent permitted by law.<\/p>\n
SECTION 511. CAPTIONS<\/p>\n
The captions contained in this Agreement are merely a reference and are
\nnot to be used to construe or limit the text.<\/p>\n
17
\n 21
\n SECTION 512. ENTIRE AGREEMENT WAIVERS AND AMENDMENTS<\/p>\n
This Agreement is executed in three (3) duplicate originals each of
\nwhich is deemed to be an original. This Agreement contains nineteen (19) pages
\nof text and the below listed attachments which are incorporated herein by this
\nreference, and constitutes the entire understanding and agreement of the
\nparties.<\/p>\n
Attachment No. 1 – Development Lease
\n Attachment No. 2 – Site Map<\/p>\n
This Agreement integrates all of the terms and conditions mentioned
\nherein or incidental hereto, and supersedes all negotiations or previous
\nagreements between the parties with respect to all or any part of the subject
\nmatter hereof.<\/p>\n
All waivers of the provisions of this Agreement must be in writing and
\nsigned by the appropriate authorities of the City or the Developer, and all
\namendments hereto must be in writing and signed by the appropriate authorities
\nof the parties hereto.<\/p>\n
SECTION 513. CONFLICT OF TERMS<\/p>\n
In the event of any ambiguity or conflict between the terms and
\nprovisions of the text of this Agreement and the Lease executed pursuant to this
\nAgreement, the terms and provisions of the Lease shall control.<\/p>\n
DATED THIS 5 DAY OF FEBRUARY, 2001.<\/p>\n
CITY OF PHOENIX, a municipal
\n corporation
\n FRANK FAIRBANKS, City Manager<\/p>\n
By \/s\/ Patrick Grady
\n —————————–
\n Its COMMUNITY AND ECONOMIC
\n DEVELOPMENT DIRECTOR<\/p>\n
ATTEST:<\/p>\n
\/s\/ Vicky Miel
\n————————
\n City Clerk<\/p>\n
18
\n 22
\nAPPROVED AS TO FORM:<\/p>\n
\/s\/ [Illegible Signature]
\n————————-
\n City Attorney<\/p>\n
AMERICA WEST AIRLINES, INC.
\n a Delaware corporation<\/p>\n
By \/s\/ William A. Franke
\n —————————-<\/p>\n
Its Chairman & Ceo
\n —————————-<\/p>\n
19
\n 23
\n ATTACHMENT NO. 1<\/p>\n
The form of Development Lease has
\n been provided to both parties.
\n 24
\n ATTACHMENT NO. 2
\n (SITE MAP)<\/p>\n
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