Sixth Amendment to
Permit No. 441
This Sixth Amendment to Permit No. 441 is entered into as of the 30th day
of August, 1993 between the City of Los Angeles, a municipal corporation (the
"City") acting by and through its Board of Harbor Commissioners (the "Board"),
and American President Lines, Ltd., a Delaware corporation having its principal
office at 0000 Xxxxxxxx, Xxxxxxx, XX 00000 (the "Permittee").
Whereas, the parties entered into an agreement relating to terminal
facilities granted to Permittee by City dated as of November 26, 1980, as
amended by the First through Fifth Amendments ("Permit No. 441"), and
Whereas, City and Permittee's subsidiary corporation Eagle Marine Services,
Ltd. ("Eagle Marine") have concurrently herewith entered into an agreement
relating to terminal facilities granted to Eagle Marine by City at Xxxx 000
("Xxxxxx Xx. 000") at which facilities Permittee intends to relocate as an
invitee of Eagle Marine, and
Whereas, Permittee and City wish to provide for the sale or lease of
certain Permittee-owned container gantry cranes located at the Permit No. 441
premises, and for early termination of Permit No. 441 in connection with such
relocation;
Therefore, the Parties agree as follows:
Article 1. Effective Date.
This Sixth Amendment shall become effective concurrently with Permit No.
733 on the thirty-first (31st) day after publication of the Order of the Board
approving this Amendment following City Council approval of the Amendment and
shall continue in effect until discharged by full performance.
Article 2. Amendments to Permit No. 441.
Section 2.1. Paragraph (a) of Section 3 of Permit No. 441 is hereby
amended to read as follows:
(a) The term of this Permit shall be twenty years from the date this Permit
becomes effective; provided however, this Permit shall terminate at 2400
hours on the 60th day following the Occupancy Date, as defined in Permit
No. 733 of Eagle Marine at the Pier 300 premises; provided further, that
any undischarged obligations arising under this Permit on the part of
either party on the date of termination shall continue in effect under the
terms hereof until discharged.
Section 2.2. Section 4 is hereby amended by adding the following new
paragraphs (m) and (n):
(m) In the event that this agreement has not terminated under the provisions
of paragraph 3(a) as amended by the Sixth Amendment, on or before December
31, 1996, then the provisions of Article 3 of the Fifth Amendment of
Permit No. 441 shall continue to apply after December 31, 1996 until such
time as the Occupancy Date of the Pier 300 premises under the Permit No.
733 occurs. In no event, however, shall such continuation extend past the
twenty year term hereof. During any such extension of the provisions of
Section 3.2 after December 31, 1996, the provisions of section 5 of the
Permit shall not apply to the fourth quarter of the term of this Permit.
In the event that Eagle Marine terminates Permit No. 733 pursuant to
Section 9(f) thereof, Permittee and City shall immediately commence to
negotiate compensation to be paid for each compensation period of the
fourth quarter of the term hereof, pursuant to the procedure established
in Section 4B of the Permit, as amended by the Fourth Amendment to this
Permit No. 441. The provisions of article 3 of the Fifth Amendment of
Permit No. 441, as extended under subsection (m) above, shall cease to
apply on the date following Eagle Marine's termination of Permit No. 733
and the compensation determined under Section 4B shall apply from and
after such date.
(n) Permittee's obligation to pay compensation based on minimum guaranteed
throughput as specified in this Section 4 for the year in which
the Occupancy Date (as defined in Agreement No. 733) occurs shall be
prorated in the proportion that the number of days from January 1st to the
Occupancy Date of the year of termination bears to 365.
Section 2.3. Exchange of C-10 Cranes.
(a) Not later than 24 months prior to the then scheduled Delivery
Date (as that term is defined in Permit No. 733) of the Pier 300
Premises, Permittee shall notify City whether the C-10 cranes
identified in Agreement No. 1404 dated October 29, 1986, as
amended and in effect between the parties (the "Crane Agreement")
are available for purchase as of the Occupancy Date of the Pier 300
premises. City shall have a preferential right to purchase the C-10
cranes over all other persons; provided, City shall give notice to
Permittee of its election to purchase the C-10 cranes within 45 days
of the giving of Permittee's notice of availability. Upon such
election, Permittee shall, on the Occupancy Date, convey all of
its right, title and interest in and to the C-10 cranes concurrently
with payment by City to Permittee in immediately available funds of
the then fair market value of said cranes in their then existing
condition. Permittee shall continue to maintain said cranes as
required in said Crane Agreement until title is conveyed to City.
(b) If City does not elect to purchase the C-10 cranes, or if Permittee
does not offer the cranes for purchase, as provided in paragraph
(a) above, City shall have the option to lease the C-10 cranes from
Permittee under terms and conditions to be agreed between the
parties at the time of the lease. At the end of said lease, if
any, City shall have the option, exercisable upon one
year's prior written notice, to purchase the cranes at their then
fair market value.
(c) In the event that the parties are unable to agree upon the fair market
value of the cranes under the provisions of paragraphs (a) or (b)
above, the parties shall jointly appoint an independent appraiser
to determine such fair market value, or, failing such joint
appointment within fifteen (15) calendar days of a receipt by a
party of a written proposal to jointly appoint an independent
appraiser by the other party, the parties shall each designate an
independent appraiser who together shall jointly designate a third.
The failure of one party to appoint an appraiser within thirty (30)
calendar days of receipt of the other party's proposal of a joint
appraiser shall be deemed a joint appointment of such proposed
appraiser. The appraisal of a jointly appointed appraiser or two
or more of a panel of three appraisers shall be binding and
conclusive on both the City and Permittee; provided however, if a
majority of a panel do not concur, the appraisal which is neither
highest nor lowest shall be conclusive. The
parties hereby jointly instruct such appraiser(s) to render any
appraisal within sixty (60) days following their appointment or as
soon thereafter as practicable. The parties shall share
appraisers' fees equally. City shall pay the fair market value as
determined by such appraisal within 60 days of such appraisal, plus
a late payment charge accruing from the Occupancy Date or the end
of any lease term, as applicable, at the rate of 10% per annum.
(d) At the time of any conveyance of
title of the C-10 cranes to the City under this article 2, the City
shall cooperate with Permittee to permit it to derive certain
federal income tax benefits pursuant to section 1031 and other
sections of the Internal Revenue Code of 1986, as amended;
provided, in no event shall City be required to incur any expense
(other than City employee time and effort) or undertake any
liability or obligation that would be greater than that incurred or
undertaken if the cranes were purchased directly from APL and APL
shall indemnify City therefrom.
Article 3. Continuing Effect.
Except as expressly amended herein above, all of the terms and conditions
of Permit No. 441, as amended, shall continue in effect.
In witness whereof, the parties have executed this Sixth Amendment to
Permit No. 441 by their authorized representatives.
THE CITY OF LOS ANGELES, BY
ITS BOARD OF HARBOR COMMISSIONERS
ATTEST: September 1, 1993 By: /s/ Tay Yoshitani
/s/ Xxxxxx X. Xxxxxx
Board Secretary Title: Executive Director
AMERICAN PRESIDENT LINES, LTD.
ATTEST: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxxx Xxxx X. Xxxxxxx
Asst. Secretary Title: Executive Vice President
Approved as to form:
/s/ June 29, 1993
Xxxxx X. Xxxx, City Attorney
By: /s/ Xxxxxxxxx X. Xxx
, Assistant
