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HomeMy WebLinkAboutResolution 2019-126 Approving Boeing Company Lease AgreementMARANA RESOLUTION NO. 2019-126 RELATING TO THE MARANA REGIONAL AIRPORT; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A LEASE AGREEMENT WITH THE BOEING COMPANY FOR THE LEASE OF REAL PROPERTY LOCATED AT THE MARANA REGIONAL AIRPORT, 11700 WEST AVRA VALLEY ROAD WHEREAS A.R.S. § 28-8411 authorizes the Town Council of the Town of Marana to undertake all activities necessary to acquire, establish, construct, own, control, lease, equip, improve, maintain, operate and regulate an airport; and WHEREAS the Town Council finds that entering into a Lease Agreement with The Boeing Company to allow the use of property at the Marana Regional Airport for flight test activities and related ground activities is in the best interests of the Town and its citizens. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, as follows: The Lease Agreement between the Town of Marana and The Boeing Company attached to and incorporated by this reference in this resolution as Exhibit A is hereby approved, the Mayor is hereby authorized and directed to execute it for and on behalf of the Town of Marana, and the Town's Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of the agreement. PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 17th day of December, 2019. Mayor Ed Honea ATTEST - Cherry L. Laws n, Town Clerk Marana Resolution No. 2019-126 MARANA Z ESTABLISHED 1977 Exhibit A to Marana Resolution No. 2019-126 LEASE AGREEMENT This Lease Agreement ("Agreement") is entered into between The Boeing Company ("Boeing") and the Town of Marana, an Arizona municipal corporation ("Marana"). Boeing and Marana are sometimes collectively referred to as the "Parties," each of which is sometimes individually referred to as a "Party." Premises: Marana owns the premises located at Marana Regional Airport, as depicted on Schedule 1 and on Exhibit A, both of which are attached to this Agreement and incorporated herein by this reference, comprised of approximately 1,600 square feet ("sf') of land and an accompanying parking area (the "Premises"). 2. Lease: Marana hereby leases to Boeing the Premises for the term of this Agreement, subject to Boeing's performance of its obligations under this Agreement. 3. Use: Boeing shall use the Premises for flight test activities and related ground activities. 4. Term: The term of this Agreement shall commence on the date that Boeing aircraft or Boeing personnel arrive at the Premises. The Commencement Date shall be noted here once it is known and shall be incorporated herein by this reference as if fully set forth in this Agreement at the time of execution: . This Agreement shall continue from month to month, unless otherwise terminated pursuant to the terms of this Agreement, until Boeing gives Marana written notice of termination, not less than ten days' prior to the end of any given month during the term of the Agreement. 5. Rent: Boeing shall pay to Marana rent in the amount of $350.00 per month during the Term of this Agreement. Each rent payment shall be due in advance on the first day of each month during the Term. The rent amount for any partial calendar month shall be prorated on a daily basis. 6. Indemnity: a. Boeing shall indemnify, defend and hold harmless Marana from and against any and all third party bodily injury, death, or property damage claims arising out of Boeing's use of the Premises to the extent caused by the negligence or willful misconduct of Boeing, its agents, employees, contractors or invitees, and except to the extent caused by any negligence of Marana, its agents, employees, contractors or invitees. The foregoing is conditioned on Marana promptly notifying Boeing of any occurrence that may give rise to a claim by Marana for indemnification hereunder, Boeing having the opportunity to defend or settle any such claim, and Marana cooperating with Boeing in connection with any such defense or settlement. Marana shall indemnify, defend and hold harmless Boeing, its agents, employees, contractors or invitees, from and against any and all third party bodily injury, death, or property damage claims arising out of Boeing's use of the Premises to the extent caused by the negligence or willful misconduct of Marana, its agents, employees, officers, directors, guests, invitees and independent contractors and except to the extent caused by the negligence of Boeing, its agents, employees, contractors or invitees. b. Under no circumstances shall Marana be responsible or have any liability whatsoever for Boeing's aircraft, and other tangible property of Boeing, or any third party property that Boeing has caused or allowed to be placed on the Premises except to the extent that Marana, its agents, employees, contractors or invitees caused the damage to such tangible property or Aircraft or tangible property. 00067169.DOCX /2 - 1 - Exhibit A to Marana Resolution No. 2019-126 c. Under no circumstances shall Marana or Boeing be liable for the other Party's incidental or consequential damages, loss of use, loss of income, loss of profits, or other similar economic loss. The foregoing limitation of liability shall not apply to claims by either Party against the other for contribution toward third party bodily injury or property damage. Insurance: Boeing, at Boeing's own cost and expense, will provide and keep in full force and effect during the term of this Agreement, public liability insurance with limits of not less than Five Million Dollars ($5,000,000) covering bodily injury to any person, including death and loss of or damage to real and personal property. Such insurance may be provided under Boeing's blanket comprehensive liability insurance policy. The Town of Marana shall be named as an additional insured on Boeing's insurance policy. Boeing shall provide a certificate or memorandum of insurance and an additional insured endorsement confirming that such insurance is in effect prior to entry. 8. Movement of Aircraft. All physical movements of Boeing's Aircraft will be handled by Boeing unless Boeing specifically approves of a non -Boeing person moving Boeing's Aircraft, in which case all physical movements must be directly supervised by Boeing and Boeing's instructions followed. Marana shall have no responsibility or liability for Boeing's Aircraft whatsoever except for any damages caused to the Aircraft caused by Marana or its designee. 9. Environmental: Boeing shall hold harmless, defend and indemnify Marana from and against any and all claims, losses, damages, penalties, response costs and expenses arising out of all hazardous materials releases to the extent such releases are caused by Boeing. Marana shall hold harmless, defend and indemnify Boeing from and against any and all claims, losses, damages, penalties, response costs and expenses arising out of for existing environmental conditions and hazardous materials releases to the extent such releases and conditions are not caused by Boeing. This indemnity, and the indemnity in paragraph 6 covering property damage, shall only apply to remediation costs to the extent such costs result from work required by regulators. 10. Maintenance: All maintenance of the Premises, including without limitation structural and building systems, shall be performed by Marana at its expense, except that Boeing shall pay for damage to the extent caused by Boeing or its employees, agents, officers, directors, guests, invitees, and independent contractors while on the Premises. 11. Alterations: Boeing, at Boeing's cost, shall have the right to install the alterations described in Schedule 10, attached and incorporated herein by this reference, on the Premises. The alterations shall be installed in a location approved by Marana's Water Department. Prior to installation, Boeing shall perform load calculations to ensure that service is adequate to handle both Boeing's needs and those of Marana's Water Department. Boeing shall promptly pay all entities supplying labor or materials in connection with any construction on the Premises and shall keep the Premises free and clear of liens and claims of lien. All improvements made to the Premises shall become the property of Marana at expiration or termination of this Agreement, without compensation to Boeing. 12. Utilities: Boeing will be solely responsible for securing and paying for all utilities servicing the Premises, including electric service. 13. Confidentiality and Publicity: The Parties acknowledge that this Agreement is a public record for purposes of the Arizona public records law. Notwithstanding the foregoing, except with the express prior written approval of Boeing in each instance, Marana shall not (i) make any press, media or publicity releases regarding the discussions resulting in this Agreement or the fact that the Parties have entered into this Agreement; (ii) make any public comments in connection with 00067I69.DOCX /2 - 2 - Exhibit A to Marana Resolution No. 2019-126 Boeing's occupancy, or (iii) use or allow the use of the Boeing name or of any trademarks, service mark or logos, including any aircraft marks or logos, belonging to Boeing or its subsidiaries. All written approvals pursuant to this section shall be obtained solely from Robert Parchinski at (480) 455-2787. 14. Access: Boeing acknowledges that the Premises are located within a secure, fenced facility used by Marana's Water Department staff and its consultants and contractors on a daily basis. Water Department staff and Water Department consultants and contractors will continue to access the secure, fenced facility as needed, and Boeing's permission will not be required for this access. Other than access by Marana's Water Department, Marana shall have access to the Premises only if escorted by Boeing personnel, except in emergencies, or for maintenance as required. Any such access shall comply with Boeing security requirements (see Schedule 12, attached and incorporated herein by this reference). 15. Interference with Existing Uses: Boeing's use of the Premises and installation, operation and maintenance of Boeing's alterations shall not damage or interfere in any way with existing Marana operations, including existing radio operations, or related activities or other existing lessee or licensee activities. Boeing agrees to immediately cease all such actions which materially interfere with existing activities upon written notice of such interference; provided, however, in such case Boeing shall have the right to terminate this Agreement. 1.6. Notices: All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested to the following addresses: If to Marana, to: Town of Marana Attn: Airport Director 11555 W. Civic Center Drive Marana, AZ 85653 And Town of Marana Attn: Water Director 11555 W. Civic Center Drive Marana, AZ 85653 If to Boeing, to: The Boeing Company c/o MBG Consulting Inc. 980 N. Michigan Ave., Suite 1000 Chicago, IL 60611-4521 17. Breach by Boeing: If Boeing breaches this Agreement, Marana shall have the right to terminate this Agreement and shall have all other rights and remedies provided by law. Boeing shall have five days after receipt of written notice from Marana of any breach to correct the condition specified in the notice, or if the corrections cannot reasonably be made within the five-day period, Boeing shall have a reasonable time to correct the default if action is commenced and thereafter diligently pursed by Boeing within five days after receipt of this notice. 18. Breach by Marana: If Marana breaches this Agreement, Boeing's sole and exclusive remedy shall be to terminate this Agreement. 00067169.DOCX /2 - 3 - Exhibit A to Marana Resolution No. 2019-126 19. Termination for Convenience: Either Party may terminate this Agreement without cause, for convenience, with 30 days' written notice to the other Party. 20. Surrender of Premises Upon Termination: Upon termination of this Agreement, Boeing agrees to surrender the Premises to Marana in as good a condition as when received, ordinary wear and tear or damage resulting from causes beyond the reasonable control of Boeing excepted. Boeing agrees to remove all equipment and personal property belonging to Boeing upon termination of this Agreement without causing damage to the Premises. Any damage to the Premises resulting from the removal of Boeing's personal property or equipment shall be solely the responsibility of Boeing. 21. General. a. Entire Agreement, Amendments: This Agreement is the only agreement between the Parties with respect to its subject matter and supersedes all prior agreements, written or oral, and can only be amended in writing signed by both of them. The Parties agree that any special services shall be provided per separate agreement. b. Authority: Each Party represents and warrants that it has the authority to enter into and perform this Agreement. c. Conflict of Interest: This Agreement is subject to the provisions of A.R.S. § 38-511, which provides for termination in certain instances involving conflicts of interest. d. Compliance. Each Party shall be responsible for complying with all applicable federal, state and local laws. e. Assi ng ment. Neither Party may assign its rights under this Agreement without prior written consent of the other Party. f. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the state of Arizona. g. Severability, Waiver. If any of the provisions of this Agreement are held unlawful or otherwise ineffective by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force. Any waiver shall only be effective if in writing. h. Counterparts. This Agreement may be signed in one or more counterparts, each of which shall be deemed to be one and the same original document. Reproductions of this execution original (with reproduced signatures) shall be deemed to be original counterparts of this Agreement. [SIGNATURE PAGE FOLLOWS] 00067169.00cx i2 - 4 - Exhibit A to Marana Resolution No. 2019-126 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last Party's signature date below. "Marana": "Boeing": THE TOWN OF MARANA, THE BOEING COMPANY, a Delaware corporation an Arizona municipal corporation Ed Honea Printed Name: Mayor Title: Date Date ATTEST: Cherry L. Lawson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney STATE OF ss. County of The foregoing instrument was acknowledged before me this day of by ,the of THE BOEING COMPANY, a Delaware corporation, on behalf of the corporation. (Seal) Notary Public 00067169.DOCx i2 -5 - , 2019 SCHEDULE 1 DEPICTION OF PREMISES Marana Regional Airport SCHEDULE 10 Boeing will install 240 volt, 200 amp power. All work will be performed by a licensed and bonded professional. SCHEDULE 12 Boeing Security Requirements Any person needing access to the Premises for any reason must first be approved by Boeing. Any person approved for access to the Premises must comply with any additional Security Requirements provided by Boeing or other authorities. Marana shall inform any of its employees, contractors or agents who will have access to the Premises of these Security Requirements. Any person accessing the Premises shall, prior to entering the Premises check in with the Boeing point of contact or the Airplane Leader designated by Boeing. 00067169.DOCX /2