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HomeMy WebLinkAboutResolution 2017-063 Marana Regional Airport Sky Dive Lease Agreement MARANA RESOLUTION NO, 2017-063 RELATING TO REAL ESTATE; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE THE SECOND AMENDMENT TO MARANA REGIONAL AIRPORT 7.91-ACRE LEASE AGREEMEN r r BETWEEN THE TOWN OF MARANA AND PIMA AVIATION, INC. AND THE FIRST AMENDMENT TO MARANA REGIONAL AIRPORT SKY DIVE LEASE AGREEMEN-r F BETWEEN THE TOWN OF MARANA AND PIMA AVIATION, INC. WHEREAS the Town of Marana and Pima Aviation, Inc. ("PAI") are parties to a lease agreement entitled "Avra Valley Airport Lease Agreement" (also known as the "7.91-Acre Lease") with an Effective Date of June 28, 1991, by which the Town leases to PAI a certain portion of real property located at the Marana Regional Airport (formerly the Avra Valley Airport), 11700 West Avra Valley Road, Town of Marana; and WHEREAS the Town of Marana and PAI are parties to a lease agreement entitled "Avra Valley Airport Lease Agreement" (also known as the "Sky Dive Lease") with an Effective Date of February 12, 1991, by which the Town leases to PAI a certain portion of real property located at the Marana Regional Airport (formerly the Avra Valley Airport), 11700 West Avra Valley Road, Town of Marana; and WHEREAS the Town and PAI now desire to amend the two lease agreements to extend them while the parties negotiate the terms and conditions of new leases for the premises; and WHEREAS the Mayor and Council of the Town of Marana find that this resolution is in the best interests of the Town of Marana and its citizens. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, that the Second Amendment to Marana Regional Airport 7.91-Acre Lease Agreement between the Town of Marana and Pima Aviation, Inc. attached to and incorporated within this resolution as Exhibit A, and the First Amendment to Marana Regional Airport Sky Dive Lease Agreement between the Town of Marana and Pima Aviation, Inc. attached to and incorporated within this resolution as Exhibit B, are hereby approved and the Mayor is authorized to execute both amendments for and on behalf of the Town of Marana. IT IS FURTHER RESOLVED that the Town Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms., obligations, conditions and objectives of the agreements as amended. 00052775,I)OC/I Marana Resolution No. 2017-063 PASSED AND ADOPby the Mayor and Ca unci l o f`t Pa ��W � I �l�arat�, ��rizona, this 20th day of June, 2017. Mayor Ed Honea .ATTEST: APPROVED S TO FORM: r 1 ce1ynAronson, Town Clerk ra CasSid , awn Atarn PL MARANA AZ ESTABLISHED 1477 00052775.Dac Il. Marana Resolution No.2017-063 2 SECOND AMENDMENT TO MARANA REGIONAL AIRPORT 7.91.-ACRE .LEASE AGREEMENT Ti-IIS SECOND AMENDMENT, TO MARANA REGIONAL AIRPORT 7.91-ACRI a I.'EASE AGREEMENT (this "Second Amendment") is entered into by and between the TOWN OF M.ARANA, an .Arizona municipal corporation, successor in interest to Pima County, ("Lessor") and PIMA AVIATION, INC., an Arizona corporation ("Lessee"). Lessor and Lessee are collectively referred to in this Second Amendment as the "Parties," and each is sometimes individually referred to as a"Party." J?ECITALS A. Lessor and Lessee are parties to that certain lease agreement entitled "Aura Valley Airport Lease Agreement" (also known as the "7.91--Acre Lease") with an Effective Date of June 28, 1991, (the "original Lease") by which Lessor leases to Lessee a certain portion of real property located at the Marana Regional Airport (formerly the Avra Valley Airport), 11700 west Avra Valley Road., Town of Marana, County of Pima, State of Arizona, APN: 215--I0-0500 (the "Premises"). B. on September 4, 2001, the Parties entered into the "First Amendment to 7.91.-Acre Lease" recorded in the office of the Recorder of Pima County, Arizona, on December 28, 2001, at Docket 11705, Page 5236 (Sequence 20012501213) (the "First Amendment") by which the Parties amended the original Lease to revise the legal descriptions of the Premises. C. Paragraph 2 of the First Amendment provided that upon completion and acceptance of the revised legal descriptions of the Premises, the original Lease and the First Amendment were to be recorded in the office of the Recorder of Pima County, Arizona. The First Amendment was recorded as noted in recital B above; however, it appears that the original Lease was not recorded. D. The Premises are more particularly described in Exhibit B attached to the First Amendment and incorporated by reference within the original Lease. E. Article 11 Section 1 of the original Lease provided that the initial term of the original Lease was for a period of 25 years beginning on the first day of the month following the execution of the Original Lease. The Parties agree that based on this language, the original Lease commenced on July 1., 1.991, and expired on June 30, 2016. F. Article 11 Section 2 of the original Lease provided that if Lessee was not in default in the performance of any of the terns of the original Lease when the initial 25-year term expired, Lessor shall extend the original Lease at the option of Lessee for a single additional 10--year Option Period. The original Lease further provided that Lessee was to exercise the option to extend the original Lease by notifying Lessor in writing at least 90 days prior to the expiration of the original Lease. 00052709.DOC/3 6/8/2017 SECOND AMLNDMENT'I'o 7.91-ACRE L1�ASF'l"]'OWN/PIMA AVIATION,.INC.. - 1 G. Lessee provided written notice to Lessor of Lessee's desire to exercise the option Period on April 1.1-, 201.6, less than 90 days prior to the expiration of the original Lease; thus, the Original Lease expired on its own terms at the end of the initial 25-year tern. 14. The Parties have been negotiating the terms and conditions of a new lease for the Premises since the expiration of the original Lease, and Lessee has continued to occupy the Premises and pay rent on the Premises as Lessee did prior to the expiration of the original Lease. I. Article XIX Section 6 of the original Lease provided that the original Lease 11-.ay not be enlarged, modified, or altered except in writing by the Parties. J. The Parties desire to amend the original Lease to retroactively extend the tern of the Original Lease ,while the Parties continue to negotiate the terms and conditions of a new lease for the Premises. AGREEMENT Now, 'MEREFORL in consideration. of the recitals set forth above and the mutual covenants, conditions and agreements set forth in the original Lease, the First Amendment, and this Second. Amendment, the Parties agree as follows: 1. Extension of Tern. The tern of the original Lease is retroactively extended for a period beginning July 1, 2016 and ending September 30, 2020, (the "Extension Period") unless sooner terminated pursuant to the provisions of this Second Amendment. The terms and provisions of the original Lease shall apply during the Extension Period. 2. Negotiation of New Lease. The Parties shall continue to negotiate the terms and. conditions of a new lease for the Premises, or any portion of the Premises, in good faith during the Extension Period. The Parties agree that they intend to reach final agreement on the new lease within four months of execution of this Second Amendment. Failure to reach final agreement within this four-month period shall provide grounds for Lessor to terminate the Original Lease pursuant to paragraph 3(b) below, unless Lessor agrees in writing to negotiate beyond the four-month period. 3. Termination of ori final Lease. In addition to the termination provisions set forth in Articles XVI and XVII of the original Lease, the following termination provisions shall apply during the Extension Period. a. 'Fhe original Lease shall automatically terminate upon the effective date of any new lease for the Premises or any portion of the Premises. b. If Lessee defaults on the terms of this Second Amendment by failing to negotiate the terms and conditions of a new lease for the Premises, or any portion of the Premises, in good faith, Lessor shall provide written notice to Lessee in accordance with Article XX of the original Lease of Lessor's default. Lessee shall have 30 days after receipt of the written notice to cure or remedy the default. If Lessee fails to cure or remedy the default, Lessor may, at its option, terminate the original Lease, without further notice to Lessee, reenter the Premises and recover damages, including but not limited to, all costs of repossession- and reletting and brokerage commissions for services performed by or for the Z-3Own. 4. .Effective Date of Second Amendment. This Second Amendment shall be effective as of the signature date of the last Party to sign this Second .Amendment. 00052709.DOC/3 6/8/201.7 SECOND AMENDMEN" ro 7.91 ACRE LEAST:TOWNIPIMA AVIATION,INC. - 2- 5. Recordation. Lessor shall at its expense record this Second Amendment in the office of the Recorder of Pinna County, Arizona within ten days of execution of this Second Amendment by all Parties. C. Attachment of Original Lease. For reference purposes, the Parties agree and acknowledge that a true and correct copy of the original Lease is hereby attached to this Second Amendment as Exhibit A, and shall be recorded in the office of the Recorder of Pima County, .Arizona with this Second Amendment. 7. other Terms and Provisions. All other terms and provisions of the original Lease and its exhibits, as amended by the First Amendment, not specifically changed by this Second Amendment, shall remain in effect and be binding upon the Parties as provided for in the Original Lease. words and phrases having a defined meaning in the original Lease have the same respective meanings when used in this Second Amendment unless otherwise expressly stated. 8. Recitals. The recitals set forth at the beginning of this Second Amendment are hereby acknowledged, confirmed to be accurate and incorporated here by reference. 9. Entire Agreement. This Second Amendment constitutes the entire agreement between the Parties pertaining to the subject matter of this Second Amendment. All prior and contemporaneous agreements, representation and understanding of the Parties, oral or written, are hereby superseded and merged in this Second Amendment. IO. Severability. If any provision of this Second Amendment is declared illegal, invalid or unenforceable, in whole or in part, under present or future laws, it shall be severed from the remainder of this Second Amendment, which shall otherwise remain in full force and effect. In lieu of the illegal, invalid or unenforceable provision, there shall be added automatically as part of this Second Amendment a provision as similar in terms to the illegal, invalid, or unenforceable provisions as may be possible and still be legal, valid, and enforceable, and this Second Amendment shall be deemed reformed accordingly. I L .Governing Law. This Second Amendment is entered into in Arizona and shall be construed and interpreted under the laws of Arizona, and any actions to enforce or interpret the terms and provisions of this Second Amendment shall be brought and maintained in Pirna County, Arizona. 12. Interpretation. This Second Amendment has been negotiated by Lessor and Lessee, and neither Party shall be deemed to have drafted this Second Amendment for purposes of construing any portion of this Second Amendment for or against any Party. [SIGNATURE PAGE FOLLOWS] 00052709.DOC/3 6/8/2017 SECOND AMENDMI_N'I'To 7.91-ACRE LEASE TO'WNIPIMA AVIATION,INC. -3 - IN WITNESS WHEREOF, the Parties have executed this Second Amendment as of the last date set forth below their respective signatures. LESSOR: LESSEE: TOWN OF MARANA, an A izona municipal PIMA AVIATION, INC.,an Arizona corporation corporate r By. By• Ed -Iollea, Mayor ary L. Abrams, President Date: - ' Date. ATTEST'. Feeyn C. Yonson, Town Clerk APPROVE AS To ORM: _r r k Cas ' ,Town Att n STATE OF_�L_) SS. County of The g s foregoing instrument was acknowledged before me this day of g mn E, , 2017, by Gary L. Abrams, President of, MA AVIATION, INC., an Arizona p cor oration on behalf of the corporation. r`� (Sea CRYSTAL LEE BREEDING Notary Public Notary Public-Arizona. Pima County • My Comm.Expires Aug 3I,2020 IST OF EXHIBITS Exhibit A: Copy of Avra Valley Airport Lease Agreement (also known as the "7.91-Acre Lease") 00052709.DOC/3 6/8/2017 SECOND AMENDMENT To 7.91-ACRE LEASE TOWN/PIMA AVIATION,INC. -4- FIRST AMENDMENT TO MARANA REGIONAL AIRPORT SKY DIVE ...EASE AGREEMENT TI-IIS FIRST AMENDM ENT TO MARANA R-EGIONAt,AIRPORT SKY DIVE LEAST;AGREEMENT (this "First Amendment") is entered into by and between the 'rowN 0I-4 MARANA, an Arizona municipal corporation, successor in interest to Pima County, ("Lessor") and PIMA .AVIATION, INC., an Arizona corporation ("Lessee"). Lessor and Lessee are collectively referred to in this First Amendment as the "Parties," and each is sometimes individually referred to as a"Party." ,RECITALS A. Lessor and Lessee are parties to that certain lease agreement entitled "Avra Valley Airport Lease Agreement" (also known as the "Sky Dive Lease") with an Effective Date of February 12, 1991, (the "original Lease") by which Lessor leases to Lessee a certain portion of real property located at the Marana Regional Airport (formerly the Avra Valley Airport), 11700 west Avra Valley Road, Town of Marana, County of Pima, State of Arizona, APN: 215-09-0450 (the "Premises"). B. On or about November 27, 2001., the Parties approved a legal description of the Premises, based upon a survey prepared by Carlson-Putt Surveyors, Inc. dated November 27, 2001. The legal description and map were recorded in the office of the Recorder of Pima County, Arizona, on December 28, 2001., at Docket 11705, Page 5258 (Sequence 20012501216). The Premises are more particularly described in the November 27, 2001 legal description. C. Article 1.1 Section 1 of the original Lease provided that the initial term of the Original Lease was for a period of 25 years beginning on the first day of the month following the execution of the original Lease. The Parties agree that based on this language, the Original Lease commenced on March 1, 1991., and expired on February 29, 2016. D. Article 1.1 Section. 2 of the original Lease provided that if Lessee was not in default in the performance of any of the terms of the Original Lease when the initial 25-year term expired, Lessor shall extend the original Lease at the option of Lessee for a single additional 25-year Option Period. The original Lease further provided that Lessee was to exercise the option to extend the original Lease by notifying Lessor in writing at least 90 days prior to the expiration of the Original Lease. E. Lessee provided written notice to Lessor of Lessee's desire to exercise the Option Period on April 11, 2016, after the expiration of the original Lease; thus, the Original Lease expired on its own terms at the end of the initial 25 year term. F. The Parties have been negotiating the terms and conditions of a new lease for the Premises since the expiration of the original Lease, and Lessee has continued to occupy the Premises and pay rent on the Premises as Lessee did prior to the expiration of the original Lease. G. Article XIX Section 6 of the original Lease provided that the Original Lease may not be enlarged, modified, or altered except in writing by the Parties. 00052740.DOC/2 6/7/2017 FIRS-i,AMENDMENT TO SKY DIVE LEASE TOWN/PIMA AVIATION,INC. - 1 - H. The Parties desire to amend the original Lease to retroactively extend the tern of the Original Lease while the Parties continue to negotiate the terns and conditions of a new lease for the Premises. AGREEMENT 'Now, r'I ERI11"oI I=J, in consideration of the recitals set forth above and the mutual covenants, conditions and agreements set forth in the original Lease and this First Amendment, the Parties agree as follows: 1. Extension of Term. The term of the original Lease is retroactively extended for a period beginning March 1, 2016 and ending September 30, 2020, (the "Extension Period") unless soonerterminated pursuant to the provisions of this First Amendment. The terms and provisions of the original Lease shall apply during the Extension Period. 2. 'Negotiation of New Lease. The Parties shall continue to negotiate the terms and conditions of a new lease for the Premises, or any portion of the Premises, in good faith during the Extension Period. The Parties agree that they intend to reach final agreement on the new lease within four months of execution of this First Amendment. Failure to reach final agreement within this four-month period shall provide grounds for Lessor to terminate the original Lease pursuant to paragraph 3(b) below, unless Lessor agrees in writing to negotiate beyond the four-month period. 3. Termination of ori final Lease. In addition to the termination provisions set forth in Articles XVI and XVII of the original Lease, the following termination provisions shall apply during the Extension Period. a. The original Lease shall automatically terminate upon the effective date of any new lease for the Premises or any portion of the Premises. b. If Lessee defaults on the terms of this First Amendment by failing to negotiate the terms and conditions of a new lease for the Premises, or any portion of the Premises, in good faith, Lessor shall provide written notice to Lessee in accordance with Article xx of the original Lease of Lessor's default. Lessee shall have 30 days after receipt of the written notice to cure or remedy the default. If Lessee fails to cure or remedy the default, Lessor may, at its option, terminate the original Lease, without further notice to Lessee, reenter the Premises and recover damages, including but not limited to, all costs of repossession and reletting and brokerage commissions for services performed by or for the Town. 4. Effective Date of First Amendment. This First Amendment shall be effective as of the signature date of the last Party to sign this First Amendment. 5. Recordation. Lessor shall at its expense record this First Amendment in the office of the Recorder of Pima County, Arizona within ten days of execution of this First Amendment by all Parties. 6. Attachment of Original Lease. For reference purposes, the Parties agree and. acknowledge that a true and correct copy of the original Lease is hereby attached to this First Amendment as Exhibit A, and shall be recorded in the office of the Recorder of Pima County, Arizona with this First Amendment. 00052740.DOC/2 6/7/2017 Fim,r AMENDMI:,"N'r'ro SKY DTVI_:LEASE TOWN/PIMA AVIATION,INC. - 2 - 7. other ,rer ins and Provisions. All other terms and provisions of the original Lease and its exhibits not specifically changed by this First Amendment, shall remain in effect and be binding upon the Parties as provided for in the original Lease. Words and phrases having a defined meaning in the original Lease have the same respective meanings when used in this First Amendment unless otherwise expressly stated. $. Recitals. The recitals set forth at the beginning of this First Amendment are hereby acknowledged, confirz-ned to be accurate and incorporated here by reference. 9. Entire Agreement. This First Amendment constitutes the entire agreement between the Parties pertaining to the subject matter of this First Amendment. All prior and contemporaneous agreements, representation and understanding of the Parties, oral or written, are hereby superseded and merged in this First Amendment. 10. 'Sever xty4 If any provision of this First Amendment is declared illegal, invalid or unenforceable, in whole or in part, under present or future Laws, it shall be severed from the remainder of this First Amendment, which shall otherwise remain in full force and effect. In lieu of the illegal, invalid or unenforceable provision, there shall be added automatically as part of this First Amendment a provision as similar in terms to the illegal, invalid, or unenforceable provisions as may be possible and still be legal, valid, and enforceable, and this First Amendment shall be deemed reformed accordingly. I L.Governing Law. This First Amendment is entered into in Arizona and shall be construed and interpreted under the laws of Arizona, and any actions to enforce or interpret the terms and provisions of this First Amendment shall be brought and maintained in Pima County, Arizona. 12. Interpretation. This First Amendment has been negotiated by Lessor and Lessee, and neither Party shall be deemed to have drafted this First Amendment for purposes of construing any portion of this First Amendment for or against any Party. [SIGNATURE PAGE FOLLOWS] 00052740.DOC/2 6/7/2017 Fii�s'r AM1=:NDM1:NT'T'0 SKY Divi-LEASE TOWN/PIMA AVIATION,INC. -3 - IN WITNr`.SS wI-IEREOF, the Parties have executed this First Amendment as of the last date set forth below their respective signatures. LESSOR: LESSEE: TowN OF MARANA, an Arizona municipal PIMA A ATION,INC.,an Arizona corporation corporation 4By• f Ed Hon ea, Mayor C.ry L. Abrams, President �' - (0 727, Date. Date:/ ATTEST: n C. Vonson, Town Clerk APPROV AS To ORM: Fr k Cass* , Tbwn Attor STATE OF ) ss. County of)yj� The foregoing instrument was acknowledged before me this day of i� 2017, by Crary L. Abrams, President of PIMA AVIATION, INC., an Arizona corporation on behalf of the corporation. - (Seal CRYSTAL LEE BREEDING Notary Public-Arizona Notary Public Pima County my comm.Expires Aug 31,202 1 Sly OF ExIIIBITS Exhibit A: Copy of Avra Valley Airport Lease Agreement (also known as the "Sky Dive Lease") 00052740.Doc/2 6/7/2017 FIRST AMENDMENT To SKY 1_)1 V f:I,1`A51:;T0WN/PIMA AVIATION,INC. 4