EXHIBIT 10.10
LONG BEACH MUNICIPAL AIRPORT
LEASE AGREEMENT
XXXXXX LONG BEACH ASSOCIATES
a California Limited Partnership
"DEVELOPER"
CITY OF LONG BEACH
"LANDLORD"
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1. SUBJECT OF LEASE 1
1.1 Purpose of Lease.............................................. 1
1.2 Lease of Premises............................................. 1
1.3 The Project Area.............................................. 1
1.4 The Premises.................................................. 2
1.4.1 Adjacent Properties................................. 2
1.5 Parties to the Lease Agreement................................ 3
1.5.1 Landlord............................................ 3
1.5.2 Developer........................................... 3
1.5.3 Association by Developer............................ 4
2. TERM................................................................. 4
2.1 Basic Term ................................................... 4
2.2 Options for Extensions ....................................... 4
3. RENT................................................................. 5
3.1 Minimum Ground Rent .......................................... 5
3.1.1 Amount of Ground Rent .............................. 5
3.1.2 Allocation of Ground Rent........................... 5
3.1.3 Payment of Ground Rent ............................. 6
3.1.4 Initial Ground Rent................................. 7
3.1.5 Change in Scope of Development...................... 8
3.1.6 Delays in Commencement of Ground Rent .............. 9
3.1.7 Due Dates and Place of Payment...................... 9
3.2 Ground Rent Adjustments ...................................... 10
3.2.1 Adjustment Dates.................................... 10
3.2.2 Ground Rent Adjustments by Appraisal................ 10
3.2.2.1 Adjustments for Predevelopment
and Infrastructure Costs.......................... 11
3.2.3 Appraisal .......................................... 11
3.2.4 Maximum Rent Increase .............................. 13
3.2.4.1 Allocation to Parcels....................... 13
3.2.4.2 Base Sublease Rental........................ 14
3.2.4.3 Sublease Rental Percentage Change........... 14
3.2.4.4 Adjusted Ground Rent........................ 14
3.2.4.5 Sale or Assignment of Leasehold Interest.... 15
3.3 Ground Rent Adjustments Following Reconstruction.............. 15
3.3.1 Ground Rent Adjustments............................. 16
3.3.1.1 Adjustment Date ............................ 16
3.3.1.2 Alternate Adjustment Date................... 16
3.3.2 No Adjustment At Next Scheduled Adjustment Date..... 17
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3.3.3 Maximum Ground Rent Adjustment............... 17
3.4 Adjustments to Ground Rent During Option Term........... 17
3.5 Maximum Ground Rent Increase ........................... 17
3.6 Definition of Predevelopment and
Infrastructure Costs.................................. 18
3.7 Approval of Improvement Plans........................... 18
3.8 Determination of Predevelopment and
Infrastructure Costs.................................. 19
3.9 Construction by Landlord................................ 20
3.10 Phasing of Improvements................................. 21
3.11 Exceptions to Maximum Predevelopment and
Infrastructure Costs.................................. 21
3.11.1 Rights-of-Way................................ 21
3.11.2 Sewer and Storm Drain........................ 22
3.11.3 Traffic Mitigation........................... 22
4. LEASEHOLD MORTGAGES.............................................. 22
4.1 Leasehold Mortgage Authorized........................... 22
4.2 Notice to Landlord...................................... 23
4.2.1 Leasehold Mortgage Requirements.............. 23
4.2.2 Assignment of Leasehold Mortgage............. 23
4.2.3 Landlord's Acknowledgement of Notice......... 23
4.2.4 Developer to Provide Copies.................. 24
4.3 Definitions............................................. 25
4.3.1 Institutional Lender......................... 25
4.3.2 Leasehold Mortgage........................... 25
4.3.3 Leasehold Mortgagee.......................... 25
4.4 Consent of Leasehold Mortgagee Required................. 25
4.5 Default Notice.......................................... 26
4.6 Notice to Leasehold Mortgagee........................... 26
4.6.1 Landlord's Termination Notice................ 26
4.6.2 Proper Address of Leasehold Mortgagee........ 28
4.7 Procedure on Default.................................... 28
4.7.1 Extension of Termination Notice Period ...... 28
4.7.1.1 Payment of Monetary Obligations...... 29
4.7.1.2 Foreclosure of Leasehold Mortgage.... 29
4.7.2 Cure of Default ............................. 29
4.7.3 Compliance of Leasehold Mortgagee............ 30
4.7.4 Leasehold Mortgage Not an Assignment......... 30
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4.7.5 Obligation of Leasehold Mortgagee
to Repair or Reconstruct........................... 31
4.7.6 Leasehold Mortgagee's Right to Transfer............. 32
4.7.7 Leasehold Mortgagee Transfer a Permitted Sale....... 32
4.8 New Lease...................................................... 33
4.8.1 Terms of New Lease................................... 33
4.8.1.1 Written Request to Landlord.................. 33
4.8.1.2 Payment of Obligations....................... 33
4.8.1.3 Remedy of Developer's Defaults............... 34
4.8.1.4 New Lease to Have First Priority............. 35
4.8.1.5 Developer's Obligations Under New Lease...... 35
4.9 New Lease Priorities........................................... 35
4.10 Eminent Domain................................................. 36
4.11 Notice of Arbitration.......................................... 36
4.12 Amendment to Facilitate Leasehold Financing.................... 36
4.13 Security Deposit............................................... 36
4.14 Estoppel Certificate........................................... 37
4.15 Notices........................................................ 38
4.16 Erroneous Payments............................................. 38
4.17 Request for Notice for Benefit of Landlord..................... 38
4.18 Release or Forebearance........................................ 39
4.19 Notice......................................................... 39
4.20 No Merger...................................................... 39
4.21 No Payment by Landlord......................................... 39
4.22 Self Liquidating Mortgage...................................... 40
4.23 Leasehold Mortgagee Need Not Cure Specified Defaults........... 40
4.24 Casualty Loss.................................................. 40
5. ASSIGNMENT AND SUBLETTING.............................................. 40
5.1 Prohibition Against Change in Ownership, Management and
Control................................................... 40
5.1.1 Name and Address for Notices........................ 41
5.1.2 Type of Entity...................................... 41
5.1.3 Other Transfers .................................... 41
5.1.4 Buildings or Land................................... 42
5.2 Assignments Not Subject to Approval............................. 42
5.2.1 Death or Incapacity................................. 42
5.2.2 Family Transfer..................................... 42
5.2.3 Affiliated Corporation.............................. 42
5.2.4 IRS Transfer ....................................... 43
5.2.5 Public Entity....................................... 43
5.2.6 Partner............................................. 43
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5.2.7 Comprising Entity.................................. 44
5.3 Assignment Invalid.............................................. 44
5.4 Approval of Assignments ........................................ 44
5.4.1 Name............................................... 44
5.4.2 Description........................................ 44
5.4.3 Nature of Business................................. 44
5.4.4 Financial Information.............................. 45
5.4.5 Officers .......................................... 45
5.4.6 Additional Information............................. 45
5.4.7 Informational Purposes............................. 45
5.4.8 Confidentiality.................................... 46
5.4.9 Disapproval by Landlord............................ 46
5.5 No Release..................................................... 47
5.6 Unauthorized Change ........................................... 47
5.7 Subletting..................................................... 48
5.7.1 Minor Subleases.................................... 50
5.7.2 Consent to Sublease................................ 50
5.7.2.1 Description................................. 50
5.7.2.2 Name........................................ 51
5.7.2.3 Nature of Business.......................... 51
5.7.2.4 Financial Information....................... 51
5.7.2.5 Officers ................................... 51
5.7.2.6 Additional Information...................... 51
5.7.2.7 Informational Purposes...................... 52
5.7.3 Confidentiality..................................... 52
5.7.4 Disapproval by Landlord............................. 52
5.8 Sale of Buildings.............................................. 53
6. INDEMNITY, INSURANCE, CASUALTY DAMAGE ................................ 53
6.1 Indemnification and Hold Harmless.............................. 53
6.2 Insurance...................................................... 54
6.2.1 Liability Insurance................................ 54
6.2.2 Fire and Extended Coverage......................... 56
6.2.3 Aviation Facilities................................ 58
6.2.4 Miscellaneous...................................... 59
6.2.5 Blanket policies................................... 60
6.2.6 Self-Insurance..................................... 61
6.2.7 Insurance Adjustments.............................. 61
6.3 Damage or Destruction.......................................... 61
6.3.1 Restoration of Premises............................ 61
6.3.2 Right to Terminate................................. 62
6.3.3 No Reduction in Rent............................... 63
7. DEVELOPMENT OF THE PROJECT............................................ 63
7.1 Scope of Development........................................... 63
7.2 Developer's Obligation to Develop Premises..................... 64
7.2.1 Best Efforts to Sublease .......................... 65
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7.3 Architectural Approval ......................................... 65
7.3.1 Restriction ........................................ 65
7.3.2 Basic Concept Documents............................. 66
7.3.3 Landscaping......................................... 66
7.3.4 Exterior Elevations................................. 67
7.3.5 Security and Security Plans......................... 67
7.3.6 Amendments.......................................... 68
7.3.7 Landlord Approval .................................. 68
7.3.8 Communication and Consultation...................... 70
7.3.9 Requirements of Institutional
Lender or Major Occupant............................ 70
7.3.10 Interior Improvements............................... 71
7.3.11 Modification of Plans............................... 71
7.4 Performance and Payment Bonds................................... 72
7.4.1 Agreement to Provide................................ 72
7.4.2 Term of the Bond.................................... 73
7.4.3 Penal Sum........................................... 73
7.4.4 Alternative Performance............................. 73
7.5 Construction.................................................... 74
7.5.1 Costs of Construction............................... 74
7.5.2 Right to Improve.................................... 74
7.5.3 Governmental Permits................................ 75
7.5.4 Rights of Access.................................... 76
7.5.5 Local, State and Federal Laws....................... 76
7.5.6 Antidiscrimination During Construction ............. 77
7.5.7 Responsibilities of Landlord........................ 77
7.5.7.1 Governmental Approvals....................... 77
7.5.7.2 Easements.................................... 77
7.5.7.3 Off-Site Improvements........................ 78
7.5.7.4 Bond Financing .............................. 78
7.5.8 Responsibilities of Developer....................... 79
7.5.9 Maintenance......................................... 79
7.5.10 Acceptance of Premises.............................. 80
7.6 Subdivided Leases............................................... 80
7.6.1 Same Parties........................................ 81
7.6.2 Obligations of Subdivided Leases.................... 81
7.6.3 Terms, Covenants.................................... 81
7.6.3.1 Ground Rent.................................. 82
7.6.3.2 Improvements ................................ 82
7.6.3.3 Easements and CC & R's....................... 82
7.6.3.4 Description of Property...................... 83
7.6.3.5 Excluded Matters............................. 83
7.7 Combining Leases................................................ 83
7.7.1 Ground Rent......................................... 83
7.7.2 Easements and CC & R's.............................. 84
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8. USE................................................................. 84
8.1 Permitted Development........................................ 84
8.2 Aviation Related Uses........................................ 84
8.3 Access Taxiway............................................... 85
8.4 Vehicle Parking ............................................. 85
8.5 Federal Aviation Administration.............................. 85
8.6 Inspection................................................... 86
9. LIENS............................................................... 86
9.1 Developer's Responsibility................................... 86
9.2 Notice of Work .............................................. 86
9.3 Discharge of Liens .......................................... 87
9.4 Landlord's Right to Pay ..................................... 87
9.5 Reimbursement of Landlord.................................... 88
10. CONDEMNATION....................................................... 88
10.1 Definition of Terms ........................................ 88
10.1.1 Total Taking ................................... 88
10.1.2 Partial Taking ................................. 88
10.1.3 Voluntary Conveyance ........................... 89
10.1.4 Date of Taking ................................. 89
10.1.5 Leased Land .................................... 89
10.2 Effect of Taking ........................................... 89
10.3 Allocation of Award......................................... 90
10.4 Reduction of Ground Rent on Partial Taking.................. 90
10.5 Temporary Taking ........................................... 91
11. ALTERATIONS BY DEVELOPER........................................... 91
12. TAXES AND ASSESSMENTS.............................................. 92
12.1 Payment by Developer........................................ 92
12.2 Installment Payments........................................ 92
12.3 Proration................................................... 93
12.4 Right to Contest............................................ 93
13. CERTIFICATES BY DEVELOPER AND LANDLORD............................. 94
13.1 Developer to Provide........................................ 94
13.2 Landlord to Provide......................................... 95
14. QUIET ENJOYMENT.................................................... 95
15. TERMINATION AND FURTHER LEASING.................................... 96
15.1 Termination ................................................ 96
15.2 Termination by Developer.................................... 96
15.3 Termination by Landlord..................................... 96
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16. BONDS AND SECURITY DEPOSITS......................................... 97
16.1 Good Faith Deposit ......................................... 97
16.1.1 Receipt by Landlord............................. 97
16.1.2 Form of Deposit ................................ 97
16.1.3 Interest........................................ 98
16.1.4 If Bond is Posted............................... 98
16.2 Construction Security Deposits.............................. 98
16.2.1 Form of Construction Deposit.................... 99
16.2.2 Interest........................................ 100
16.2.3 Incorporation by Reference...................... 100
16.2.4 Return of Deposit............................... 100
16.2.5 Retention of Deposit by Landlord................ 101
17. GENERAL PROVISIONS................................................. 101
17.1 Notices, Demands and Communication between the Parties...... 101
17.2 Conflict of Interest ....................................... 102
17.3 Enforced Delay: Extension of Time of Performance............ 103
17.4 Inspection of Books and Records............................. 103
17.5 Defaults and Remedies....................................... 104
17.5.1 Defaults - General.............................. 104
17.5.2 Institution of Legal Actions.................... 104
17.5.3 Applicable Law ................................. 105
17.5.4 Service of Process.............................. 105
17.5.5 Rights and Remedies Are Cumulative.............. 105
17.5.6 Inaction Not a Waiver of Default................ 105
17.5.7 Remedies ....................................... 106
17.5.8 Developer's Rights.............................. 107
17.5.9 Lease Termination............................... 107
17.5.10 Landlord's Exercise of Remedies................. 107
17.5.11 Payment to Developer ........................... 108
17.5.11.1 Reimbursement to Landlord............... 109
17.5.11.2 Reimbursement to Developer.............. 110
17.5.11.3 Ground Rent ............................ 110
17.5.11.4 Remaining Balance....................... 110
17.5.12 Delivery of Plans............................... 111
17.6 Right to Contest Laws....................................... 111
17.7 Trade Fixtures.............................................. 111
17.8 Continued Possession of Developer........................... 112
17.9 Utilities................................................... 112
17.10 Surrender................................................... 113
17.11 Partial Invalidity.......................................... 113
17.12 Section Headings............................................ 114
17.13 Short Form Lease............................................ 114
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17.14 Exhibits Incorporated...................................... 114
17.15 Entire Agreement, Waivers and Amendments................... 114
17.16 Waivers.................................................... 114
17.17 Approvals.................................................. 115
17.18 Successors in Interest..................................... 115
17.19 "And/Or"................................................... 115
17.20 "Including" Defined........................................ 115
17.21 Right of First Refusal to Purchase......................... 115
17.22 If Developer is a Trustee.................................. 116
17.23 Limitation of Liability of Partners........................ 117
17.24 Approvals.................................................. 118
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LIST OF EXHIBITS
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First Appearing at
Ltr. Description Paragraph Page
---- ----------- --------- ----
A Legal Description of Premises 1.2 1
B Site Map of Project Area and 1.4 2
Adjacent Properties
C Parcel Map 3.1.2 6
D Categories of Predevelopment 3.6 18
and Infrastructure Costs
E Form of Nondisturbance 5.7 49
Agreement
F Off-Site Improvements 7.3 78
G Landscaping Plans 7.3.3 67
H Exterior Elevations 7.3.4 67
I Form of Performance Bond and 7.4.1 72
Labor and Material Bond
J Construction Schedule 7.2 64
K Master FBO Lease 8.2 84
L FAA Conditions 8.5 85
M Form of Short Form Lease 17.13 114
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DEFINED WORDS
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Defined Word Paragraph Page
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"Adjacent Properties" 1.4.1 2
"Adjusted Fair Market Land Value" 3.2.2 11
"Adjusted Ground Rent" 3.2.4.4 14
"adjustment dates" 3.2.1 10
"Affiliated Corporation" 5.2.3 43
"Agreement Establishing Developer" 1.5.2 3
"and/or" 17.19 115
"Approved Plans" 3.8 19
"as-is" 7.5.10 79
"Basic Concept Documents" 7.3.2 66
"Commencement of Construction" 3.1.3 6
"Completion Date" 5.5 47
"date of taking" 10.1.4 89
"Developer" Intro (P) 1
"Developer's Long Beach Airport 7.1 63
Center Submittal"
"FAA" 8.5 85
"Ground Rent" 3.1 5
"Ground Sublease" 5.7 48
"include" 17.20 115
"including" 17.20 115
"Institutional Lender" 4.3.1 25
"Landlord" Intro (P) 1
"Lease" Intro (P) 1
"leased land" 10.1.5 89
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DEFINED WORDS
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(continued)
Defined Word Paragraph Page
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"Leasehold Mortgage" 4.3.2 25
"Leasehold Mortgagee" 4.3.3 25
"manage" 1.5.3 4
"Master FBO Lease" 8.2 84
"Net Square Footage" 3.1.2 6
"New Lease" 4.8.1 33
"nondisturbance agreement" 5.7 48
"partial taking" 10.1.2 88
"Predevelopment and Infrastructure 3.2.2 11
Costs"
"Premises" 1.2 1
"Project" 1.1 1
"Single Lease" 7.7 83
"Subdivided Lease" 7.6 80
"sublease" 5.7 48
"sublessee" 5.7 48
"Supplement to Xxxxxx Industries 7.1 63
December 7, 1983, Proposal"
"Termination Notice" 4.6.1 27
"Termination Notice Period" 4.6.1 27
"total taking" 10.1.1 88
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LEASE AGREEMENT
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THIS LEASE AGREEMENT (the "Lease") is made this 17th day of July,
1985, by and between XXXXXX LONG BEACH ASSOCIATES, a California Limited
Partnership, hereinafter referred to as "Developer", and the CITY OF LONG BEACH,
a municipal corporation, hereinafter referred to as "Landlord". Landlord and
Developer hereby agree as follows:
1. SUBJECT OF LEASE:
1.1 Purpose of Lease. The purpose of this Lease is to provide for
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the lease and improvement of certain Premises, hereinafter described, as
("Project"). This Lease is entered into in order to develop the Project and not
for speculation in land holding. The development of the Project pursuant to and
as contemplated by this Lease is in the best interests of Landlord and in accord
with the public purposes and provisions of applicable State and local laws and
requirements under which the Project is to be undertaken.
1.2 Lease of Premises. Subject to the terms, covenants and conditions
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of this Lease, Landlord hereby leases to Developer and Developer hereby takes
and hires from Landlord that certain real property (the "Premises") legally
described on Exhibit "A" attached hereto and made a part hereof, upon the terms
and conditions hereinafter set forth.
1.3 The Project Area. The area within which the Project is located in
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the City of Long Beach is the area generally described as the area bounded by
Spring Street on the northwest,
1
Taxiway D on the northeast, the San Diego Freeway on the south and southeast,
and the National Guard facility on the west.
1.4 The Premises. The Premises include those portions of the Project
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area illustrated and designated on the site map attached hereto as Exhibit "B"
and forming a part of this Lease and are legally described in the attached
Exhibit "A".
1.4.1 Adjacent Properties. Subject to approval of the Board
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of Water Commissioners of the City of Long Beach, and of Landlord, as
to that portion under jurisdiction of Landlord, Developer shall have
the first opportunity to include the adjacent properties ("Adjacent
Properties") identified in Exhibit "B", into the Premises for creation
of an integrated development. The fair market value and fair market
Ground Rent and periodic adjustments thereof of said properties shall
be as mutually agreed by said Board of Water Commissioners and
Developer, and by Landlord, as to that portion under jurisdiction of
Landlord.
Development of the Adjacent Properties shall be governed by
separate leases entered into between Developer and the Board of Water
Commissioners of the City of Long Beach (and Landlord, as to its
property). Developer may terminate this Lease in the event Developer
is unable to enter into option agreements covering the Adjacent
Properties with the Board of Water Commissioners, and Landlord, on
terms and conditions mutually satisfactory to the parties thereto,
within ninety (90) days following execution of this Lease. Developer
may give Landlord
2
sixty (60) days notice of its intention to terminate any time within
said ninety (90) day period. However, the Lease shall not terminate if
during said sixty (60) day period the Board of Water Commissioners and
Landlord authorize option agreements as described herein.
1.5 Parties to the Lease Agreement.
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1.5.1 Landlord. Landlord is a municipal corporation organized
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and existing under the laws of the State of California acting in its
proprietary capacity. The principal office of Landlord is located at
City Hall, 000 Xxxx Xxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxxxxx 00000. The
term "Landlord" as used in this Lease includes the City of Long Beach,
California, and any assignee of or successor to its rights, powers and
responsibilities.
1.5.2 Developer. Developer is a California limited
---------
partnership having a principal place of business at 0000 Xxxx Xxxxxxxx
Xxxxxxx, Xxxxx 0000, Xx Xxxxxxx, Xxxxxxxxxx 00000. A written agreement
has been executed creating Developer ("Agreement Establishing
Developer") an executed copy of which has been delivered to Landlord.
Developer agrees, upon request of Landlord, to provide Landlord with
any amendments to the Agreement Establishing Developer, so long as
Xxxxxx Long Beach Associates, a California Limited Partnership, is the
party acting as Developer under this Lease. The provisions of the
foregoing sentence shall apply to any entity becoming a successor to
Developer under this Lease or any other lease which may be established
pursuant hereto covering the
3
Premises or one or more of the Adjacent Properties.
1.5.3 Association by Developer. Notwithstanding any other
------------------------
provisions hereof, Developer reserves the right, at its discretion, to
join and associate with other entities in joint ventures, partnerships
or otherwise for the purpose of leasing and developing the Premises
and the Adjacent Properties, and Developer may assign this Lease to
any such entity, provided that Developer, or any partner of
Developer having a controlling interest in Developer, continues to
manage and retain policy control over the development and operation of
the Premises, until such time as Developer's interests under this
Lease are assigned as permitted under subsection 5.1, below. As used
herein, "manage" shall mean to direct or supervise the operation and
execution of the development of the Premises and to have authority to
act for and bind the entity in all dealings with Landlord under this
Lease. This definition shall be deemed to require Developer to retain
policymaking authority.
2. TERM.
----
2.1 Basic Term. The term of this Lease shall commence on the date
----------
of execution of this Lease and shall continue thereafter for a period of fifty
(50) years.
2.2 Options for Extensions. Subject to approval by the Long Beach
----------------------
City Council and subject to the review by Landlord of Lease provisions pursuant
to Section 37380(b)(l) of the
4
Government Code, Developer shall have an option for four (4) Lease extensions of
ten (10) years each and a final Lease extension of nine (9) years, so that the
total possible duration of this Lease will be ninety-nine (99) years. Developer
may request at any time after six (6) months following the effective date of
this Lease that Landlord formally consider the granting of such Lease
extensions, and Landlord shall act upon such request within ninety (90) days
after receipt thereof.
3. RENT:
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3.1 Minimum Ground Rent. From commencement of the term of this
-------------------
Lease, the Ground Rent ("Ground Rent") payments shall be as follows:
3.1.1 Amount of Ground Rent. Developer shall pay as initial
---------------------
Ground Rent, the sum of One Million and No/100 Dollars ($1,000,000.00)
per year, which is stated by the parties to be ten percent (10%) of
the initial stated value of the land included in the Premises, which,
in turn is agreed by the parties to be Ten Million and No/100 Dollars
($10,000,000.00).
3.1.2 Allocation of Ground Rent. Developer initially intends
-------------------------
to develop the Premises as six (6) distinct parcels, which are
tentatively identified on the preliminary Parcel Map attached hereto
and marked Exhibit "C" for reference, with one or more buildings per
parcel. The initial Ground Rent obligation described in this
subsection 3.1.1 shall be allocated among those parcels in the
proportion that the net
5
square footage of land contained in each parcel bears to the net
square footage of the land in the entire Premises. "Net square
footage" of land means that portion of the land not subject to
dedication for public streets and sidewalks.
3.1.3 Payment of Ground Rent. The obligation to pay Ground
----------------------
Rent shall commence as to the first parcel on the date that
construction commences on that parcel. Construction on the first
parcel shall commence on or before September 1, 1985, subject to
granting of all required governmental approvals. The obligation to pay
Ground Rent shall commence as to the second through sixth parcels on
the earlier of (a) the date that construction commences on each
parcel, or (b) one parcel every twelve (12) months following
commencement of construction on the first parcel. Construction shall
be deemed to have commenced upon the date of issuance of a foundation
permit for the first building intended to produce revenue on any given
parcel ("Commencement of Construction"). Commencement of the initial
Ground Rent upon all subsequent parcels shall occur, one parcel at a
time, in the sequence of the numbers of the parcels on the parcel map
of the Project. However, if Ground Rent is commenced on a parcel in a
sequence other than the order of numbering of parcels as a result of
the commencement of construction on such parcel, Developer shall not
also be required to commence payment of fifty percent (50%) of Ground
6
Rent on the next numbered parcel. At the next date when payment of
initial Ground Rent is to be commenced, such rent shall be commenced
as to the lowest numbered remaining parcel. The shift of sequence of
required payments resulting from construction on parcels in different
order than their numbers may delay, but shall not permanently
terminate the obligation to pay rent as to such parcel.
3.1.4 Initial Ground Rent. The initial Ground Rent due for
-------------------
each parcel shall be a sum equal to fifty percent (50%) of the Ground
Rent attributable to such parcel. Payment of Ground Rent shall
continue at that rate until either six (6) months after issuance of an
Initial Temporary Certificate of Occupancy on the building shell or
commencement of subtenant rent, whichever occurs earlier, at which
time the full Ground Rent attributable to that parcel shall become
payable. In the event initial rental payment at the fifty percent
(50%) level commences on any parcel prior to the commencement of
construction of that parcel, then payment of full Ground Rent on said
parcel shall commence not later than sixteen (16) months after the
commencement of initial rental payments.
3.1.4.1 The commencement of a building or buildings on
more than one parcel in any year shall satisfy Developer's
obligation to commence payment of rent on parcels in sequence for
a number of years equal to the number of parcels on
7
which buildings shall have commenced. Thus, for example, if
Developer commences construction of buildings as provided for in
this Lease on four (4) parcels in the first year, no automatic
annual rent commencement shall occur until the fifth (5th) year,
in which case initial Ground Rent shall commence as to the lowest
numbered parcel on which construction has not begun on the fifth
(5th) anniversary of the date rent first became due on the first
parcel, unless, in the intervening years, construction shall have
also commenced on one or more other parcels.
3.1.4.2 If initial Ground Rent shall have commenced
during any lease year on a parcel because construction of
buildings on a requisite number of parcels has not begun, but
thereafter, within the same lease year construction of a building
is begun on another parcel, the initial rent on the vacant parcel
shall cease upon commencement of construction on the other parcel
and the obligation to pay rent as described in this Lease shall
simultaneously shift to the parcel upon which construction has
begun so that to the greatest extent possible rental obligations
shall be related to parcels on which construction has commenced
rather than vacant parcels.
3.1.5 Change in Scope of Development. Should the scope of
------------------------------
development of a building or buildings on
8
the Premises be substantially changed from the concept of one or more
buildings on six (6) different parcels, with Landlord's consent as
provided in subsection 7.6, as for example one large building to be
constructed upon two or more parcels, Ground Rent shall commence
simultaneously with respect to all parcels upon which the foundation
of any such building shall be located.
3.1.6 Delays in Commencement of Ground Rent. Developer shall
-------------------------------------
not delay the commencement of payment of Ground Rent for a parcel
except to the extent of delays incurred for reasons set out in
subsection 17.3 which render impossible or impractical the
construction upon said parcel. In such case, a delay in the
commencement of payment of Ground Rent for a specific parcel shall not
delay the commencement of payment of Ground Rent for any other parcel,
except to the extent that the reason for delay in subsection 17.3
applies directly to such other parcel and renders impossible or
impractical the construction upon said parcel.
3.1.7 Due Dates and Place of Payment. Ground Rents described
------------------------------
herein shall be payable in installments due the first day of each
month. Payment shall be made to the City of Long Beach at the office
of the Airport Manager, 0000 Xxxxxx Xxxxxxx Xxxxx, Xxxx Xxxxx,
Xxxxxxxxxx 00000. Ground Rent installments will be deemed late on the
tenth (10th) day of the month and shall bear interest until the
installment is paid at the rate received by the City of Long Beach on
its investment
9
portfolio during the preceding quarter, provided said interest rate
shall not exceed twenty percent (20%) per year.
3.2 Ground Rent Adjustments.
-----------------------
3.2.1 Adjustment Dates. In order to adjust the annual Ground
----------------
Rent for each parcel (or the entire Premises, if not divided into
parcels), the fair market land value of each parcel and the prevailing
rate of return shall be determined in the tenth (10th) year after
commencement of payment of the full Ground Rent for such parcel, and
adjusted Ground Rent payments shall take effect on the first (1st) day
of the eleventh (11th) year. The fair market land value and prevailing
rate of return for each parcel shall also be determined in the year
2000, with respect to Ground Rent payable commencing January 1, 2001,
and every five (5) years thereafter, and the Ground Rent shall be
adjusted accordingly on the first (1st) day of each sixth (6th) year.
Said dates of adjustment of Ground Rent shall be referred to for
convenience as "adjustment dates".
3.2.2 Ground Rent Adjustments by Appraisal. With respect to
------------------------------------
each Ground Rent adjustment date, the fair market land value and
prevailing rate of return shall be determined by agreement between
Landlord and Developer, but should they not be able to agree at least
two hundred ten (210) days prior to an adjustment date, then such fair
market land value and prevailing rate of return shall be determined by
appraisal by an
10
analysis of comparable land transactions committed to the same usage
and either zoned for or improved with facilities of similar density
and height considerations, and/or such other appraisal method(s)
recognized by the appraisal profession as are appropriate for fair
market land value appraisals and mutually agreed to by the appraisers
at time of reevaluation as being appropriate, recognizing market
conditions that prevail as of the date of value.
3.2.2.1 Adjustment for Predevelopment and
---------------------------------
Infrastructure Costs. The fair market land value (as agreed upon
--------------------
by Landlord and Developer or as determined by appraisal) shall be
adjusted (the "Adjusted Fair Market Land Value") in the
proportion that Ten Million and No/100 Dollars ($10,000,000.00)
bears to the original stated land value of the Premises of Ten
Million and No/100 Dollars ($10,000,000.00), plus the actual
onsite and off-site "Predevelopment and Infrastructure Costs",
determined according to subsection 3.8. The Adjusted Fair Market
Land Value shall be converted into an annual Ground Rent
obligation based on the prevailing rate of return as determined
pursuant to subsection 3.2.2.
3.2.3 Appraisal. In the event the parties are unable to
---------
agree upon the fair market rental value or the prevailing rate of
return or the method of appraisal of the Premises at any adjustment
date, the
11
fair rental value of the subject land and/or the prevailing rate of
return shall be determined by appraisals prepared by two appraisers,
one appointed by the Landlord at its expense and one appointed by the
Developer at its expense, both of whom shall be MAI members of the
American Institute of Real Estate Appraisers or a successor
organization in the event the American Institute of Real Estate
Appraisers ceases to exist. Said appraisers shall be appointed not
more than six (6) months prior to the commencement of the rental
adjustment period but, in any event, within thirty (30) days after
either party has given notice in writing of inability to agree. Both
appraisals must be completed and submitted to the Landlord and
Developer respectively within sixty (60) days after the appointment of
the appraisers. The two appraisals shall be averaged unless the higher
of the two appraisals exceeds the lesser by ten percent (10%) or more,
in which case the two appraisers shall appoint a third appraiser, also
an MAI member of the American Institute. In order to select such third
appraiser, if the two appraisers do not agree, the appraisers shall
obtain a list of five appraisers from the President of the American
Institute of Real Estate Appraisers and shall alternately strike names
from such list until one remains to become the third appraiser. The
third appraiser shall be appointed by the first two appraisers within
fourteen (14) days after notice from either of the parties to this
Lease
12
that the appointment of a third appraiser is necessary. The cost of
such third appraiser shall be shared equally by the parties to this
Lease. The third appraiser shall complete and submit the required
appraisal to both parties within sixty (60) days after appointment.
All appraisals shall be in the form of written reports supported by
facts and analysis. The two of the three appraisers arriving at values
closest to each other shall attempt to concur on a value. If they are
unable to do so within thirty (30) days, the two closest appraisals
shall be averaged and that value shall be the fair market value of the
land or the prevailing rate of return, as appropriate. The total
appraised value of all parcels shall not exceed the appraised value of
the Premises. The Adjusted Fair Market Land Value shall be converted
into an annual Ground Rent obligation based on the prevailing rate of
return on similar ground leases then current in the market.
Disagreements between the two appraisers as to the method of appraisal
shall be resolved by a third appraiser, appointed in the manner
described in this subsection.
3.2.4 Maximum Rent Increase. The increase, if any, in Ground
---------------------
Rent at the time of any adjustment date shall be limited for parcels
upon which one or more buildings have been constructed by the increase
in subtenant rents as described in this section:
3.2.4.1 Allocation to Parcels. At the time of execution
---------------------
of the Lease, the Ground Rent
13
shall be allocated among the parcels within the project in the
manner set out in subsection 3.1.2. The percentage of rent
attributable to each parcel shall remain in effect during the
term of the Lease unless parcel areas change.
3.2.4.2. Base Sublease Rental. The base sublease rental
--------------------
for each parcel shall be the total annualized rent, stabilized to
exclude free rent, reduced rent or excess tenant improvement
amortization or other similar concessions or considerations
measured in the first year in which more than eighty percent
(80%) of the rentable space on a given parcel is rented, prorated
to full occupancy.
3.2.4.3 Sublease Rental Percentage Change. The sublease
---------------------------------
rental percentage change shall be determined by calculating the
percentage changes in sublease rental between the base sublease
rental for a parcel described in subsection 3.2.4.2 above and the
actual sublease rental due to Developer for the same parcel in
the full year preceding a Ground Rent Adjustment date, stabilized
to exclude any free rent, reduced rent or excess tenant
improvement amortization or other similar concessions or
considerations.
3.2.4.4 Adjusted Ground Rent. The "Adjusted Ground
--------------------
Rent" for each parcel at any given adjustment period shall be the
lesser of the Adjusted Fair Market Rental Value for such parcel
14
as determined in subsection 3.2.2 above or the initial Ground Rent
for such parcel plus the product of the Sublease Rental Percentage
Change determined in 3.2.4.3 above times the initial Ground Rent
for such parcel. To the extent that the Adjusted Fair Market
Rental Value is greater than the Adjusted Ground Rent, the
difference may be carried forward into the next five (5) year
adjusted rental period but not into any subsequent five (5) year
adjusted rental periods, and thereby recovered by Landlord. The
amount of Ground Rent during a five (5) year adjusted rental
period where there has been such a carry forward shall not exceed
one hundred ten percent (110%) of the fair market Ground Rent as
determined for that period.
3.2.4.5 Sale or Assignment of Leasehold Interest. Should
----------------------------------------
Developer sell, assign or otherwise transfer its leasehold
interest to an owner-user such that sublease rental is not paid to
Developer, the fair market sublease rental for such building,
using the criteria and methods set out in subsection 3.2.2, shall
become the basis for calculating the maximum rental adjustment
using the process described in 3.2.4.3 above.
3.3 Ground Rent Adjustments Following Reconstruction. Developer
------------------------------------------------
contemplates, pursuant to Section 11 hereof, that during the term of this Lease,
any or all of the buildings devel-
15
oped on the Premises may be demolished and new buildings constructed in their
place in order to meet the then current market demand, subject to Landlord
approval pursuant to Section 7. In the event of such demolition and new
construction on a particular parcel, the provisions of subsection 3.2 shall be
modified with respect to such parcel as set forth below in subsections 3.3.1 and
3.3.2. This subsection 3.3 shall not apply to demolition and new construction
which is due to damage or destruction, as described in subsection 6.3, where
said new construction is limited to one for one replacement of useable or
rentable floor area in the same general building configuration as that which
previously existed.
3.3.1 Ground Rent Adjustments. Ground Rent for such parcel
-----------------------
shall be adjusted according to the process set out in subsections
3.2.2 and 3.2.3 but the limitations in subsection 3.2.4 shall not
apply to such adjustment.
3.3.1.1 Adjustment Date. The adjustment shall be
---------------
effective either six (6) months after issuance of an Initial
Temporary Certificate of Occupancy of the building shell or
commencement of subtenant rent, whichever occurs earlier; or
3.3.1.2 Alternate Adjustment Date. In the event a regular
-------------------------
five (5) year Ground Rent adjustment date for the parcel, as
established in subsection 3.2.1, occurs after commencement of
demolition of a building on said parcel and prior to completion of
construction of a new building in
16
its place, said adjustment shall take place on schedule and shall
be based upon the assumption that construction of the planned new
building has been completed.
3.3.2 No Adjustment At Next Scheduled Adjustment Date. There
-----------------------------------------------
shall be no Ground Rent adjustment for such parcel at the next
scheduled adjustment date, but all subsequent Ground Rent adjustments
shall occur on the schedule set out in subsection 3.2.1.
3.3.3 Maximum Ground Rent Adjustment. For purposes of
------------------------------
determining the maximum Ground Rent increase under subsection 3.2.4
at the time of the next Ground Rent adjustment and thereafter, the
base sublease rental described in subsection 3.2.4 shall be
established with respect to the new building or buildings constructed
on the parcel.
3.4 Adjustments to Ground Rent During Option Term. At the
---------------------------------------------
commencement of each option term, and at the end of each five (5) years of each
option term, the Ground Rent shall be determined as provided in subsection
3.2.2, but with no adjustment thereto as is provided in said subsection 3.2.2.1.
The fair market land value shall be converted into an annual Ground Rent
obligation based on the rate of return then current in the market for parcels
which are currently and fairly appraised.
3.5 Maximum Ground Rent Increase. However, the increase in Ground
----------------------------
Rent at the end of five (5) years of each option term shall be subject to the
provisions of subsection 3.2.4, with the first year of the option term as the
base period
17
for determining sublease rental and the fifth (5th) year of the option term
being the adjustment year for determining actual rental received, both to be
stabilized to exclude any free rent, reduced rent, excess tenant improvement
amortization or other similar concessions or considerations. The Ground Rent
commencing the sixth (6th) year of any option term cannot increase at a
percentage rate greater than the percentage increase in sublease rentals from
the base year to the adjustment year.
3.6 Definition of Predevelopment and Infrastructure Costs. For
-----------------------------------------------------
purposes of this Lease, Predevelopment and Infrastructure Costs shall include
all costs actually incurred by Developer for those items identified in Exhibit
"D", subject to the limitations of this subsection, which costs are necessary to
initially render the Premises suitable for development according to Developer's
Basic Concept Documents as described in Section 7. Predevelopment and
Infrastructure Costs shall include all off-site and on-site improvements
required to create six (6) buildable parcels, but shall not include any costs
directly associated with the construction of buildings or parking upon such
parcels. It is understood and agreed by Landlord that certain improvements,
particularly landscaping, may exceed the standards normally used by the City of
Long Beach, and that such improvements shall be included in Predevelopment and
Infrastructure Costs to the extent they are consistent with Developer's Basic
Concept Documents and landscape plans described in Section 7.
3.7 Approval of Improvement Plans. Prior to commencement of any
-----------------------------
construction on the Premises, Developer shall submit to Landlord engineering
plans and costs estimates for
18
those items identified in Exhibit "D" which are included in Predevelopment and
Infrastructure Costs. Specifications for all improvements shall meet or, at
Developer's election, exceed the standard specifications of the City of Long
Beach for such improvements. Landlord shall review said plans for conformity
with the Basic Concept Documents and approve or disapprove them as to such
conformity in accordance with the procedures and criteria set out in subsection
7.3.7.
3.8 Determination of Predevelopment and Infrastructure Costs.
--------------------------------------------------------
Following receipts of bids, and prior to the award of a contract for
construction of items shown on the plans approved pursuant to subsections 3.7
and 7.5.3 ("Approved Plans") and identified in Exhibit "D", Developer shall
submit to Landlord all bids received and a statement indicating which bid
Developer intends to accept. The bid shall identify each item of cost in the
same manner as the estimate of costs submitted pursuant to subsection 3.7.
Landlord shall have the right to assert that any such item of cost is excessive
on the basis of Landlord's experience with comparable construction, taking into
consideration the total cost of the work, and Developer and Landlord shall
attempt to arrive at an agreed cost for said item. In the event Developer and
Landlord are unable to arrive at an agreed cost, then Developer and Landlord
shall accept the decision of a jointly appointed independent registered civil
engineer with experience in similar matters, who shall be directed to consider
the positions of both Developer and Landlord and to establish within five
(5) days, or such longer time as may be mutually agreed by Developer and
Landlord, the agreed cost for any contested items,
19
again taking into consideration the total cost of the work.
The actual bid cost, or the agreed cost, where the bid cost is
disputed, shall be deemed to be the actual cost of construction for each cost
item to the extent that such costs are actually incurred as a result of the
installation or construction of items or quantities of materials. Landlord shall
have the right to monitor the construction of all items included in the Approved
Plans to ensure that such construction is in accordance with the Approved Plans
and the approved costs. During the period of construction, Landlord, through its
Director of Public Works, and Developer may agree upon modifications to the
Approved Plans and to the bid costs or agreed costs as may be required by
unforseen conditions.
Upon completion of construction, the aggregate of all costs which
have been approved by the operation of this subsection, and which are actually
incurred, including costs under paragraph 18 of Exhibit "D", less any costs paid
by Landlord, shall become the amount of "Predevelopment and Infrastructure
Costs" referred to in subsection 3.2.2.1, provided that such amount shall not
exceed Nine Million and No/100 Dollars ($9,000,000.00), less any costs paid by
Landlord. Landlord shall have the right to audit and review all contracts,
invoices, payments, and other pertinent materials as may be necessary to confirm
the actual costs incurred.
3.9 Construction by Landlord. Landlord shall design and install all
------------------------
traffic signals and modifications thereto included in the plans approved
pursuant to subsection 3.7. Such installation shall be paid for by Landlord or
Developer, at Land-
20
lord's option. In addition, Landlord, prior to September 1, 1985, and at its
sole option, may elect to construct and pay for all Predevelopment and
Infrastructure Costs, except landscaping and appurtenant structures. All
Predevelopment and Infrastructure Costs not paid by Landlord shall be paid by
Developer. Construction done by Landlord shall be in accordance with Developer's
plans approved pursuant to subsection 3.7 and in accordance with Developer's
construction schedule, which shall be reasonably achievable by industry
standards.
3.10 Phasing of Improvements. Developer shall have the right to
-----------------------
design and construct improvements in phases, in accordance with a phasing plan
which shall be approved by Landlord. Plans, estimates of costs, and bids for
phases of work shall be treated in the same manner as set out in subsections 3.7
through 3.9, provided that the total cost of all phased improvements shall not
exceed the Nine Million and No/100 Dollars ($9,000,000.00) limit on the total of
all Predevelopment and Infrastructure Costs.
3.11 Exceptions to Maximum Predevelopment and Infrastructure Costs.
-------------------------------------------------------------
Landlord agrees that, due to the uncertain nature of the following costs which
are beyond the control of Developer, the Nine Million and No/100 Dollars
($9,000,000.00) limit on "Predevelopment and Infrastructure Costs," as reduced
by any amounts paid or carried out by Landlord, may be exceeded to the extent
that these costs, when added to other Predevelopment and Infrastructure Costs
paid by Developer, actually exceeds Nine Million and No/100 Dollars
($9,000,000.00):
3.11.1 Rights-of-Way. Costs of right-of-way
-------------
21
acquisition and of the acquisition of leasehold interest as may be
necessary in order to acquire needed rights-of-way.
3.11.2 Sewer and Storm Drain. Construction of sewer and
---------------------
storm drain lines from the ultimate downstream point of connection to
the Premises.
3.11.3 Traffic Mitigation. Off-site street improvements and
------------------
traffic mitigation measures required by City, other than those
indicated on the attached Exhibit "F".
In the event that the costs of items in subsections 3.11.1, 3.11.2
and 3.11.3, which are paid by Developer, exceed Two Million Dollars
($2,000,000.00), then Developer shall receive credit against future increases in
Ground Rent over the base rent of One Million Dollars ($1,000,000.00) per year,
for the actual amount that said costs paid by Developer exceed Two Million
Dollars ($2,000,000.00), plus interest. Interest shall commence as costs of
items in subsections 3.11.1, 3.11.2 and 3.11.3 are incurred, and shall be
charged on the declining balance of the amount of rent credit due to Developer
until the full rent credit has been given. Said interest shall be at the average
of the prime interest rates quoted monthly by Security Pacific National Bank
during the term that said interest is accrued to the date credited.
4. LEASEHOLD MORTGAGES:
-------------------
4.1 Leasehold Mortgage Authorized. On one or more occasions
-----------------------------
Developer may take back a Purchase Money Leasehold Mort-
22
gage upon a sale and assignment of the Leasehold Estate created by this Lease or
may mortgage or otherwise encumber Developer's Leasehold Estate to an
Institutional Lender (as hereinafter defined), under one or more Leasehold
Mortgages and assign this Lease as security for such Mortgage or Mortgages.
4.2 Notice to Landlord.
------------------
4.2.1 Leasehold Mortgage Requirements. If Developer shall,
-------------------------------
on one or more occasions, take back a Purchase Money Leasehold
Mortgage upon a sale and assignment of the Leasehold Estate or shall
mortgage Developer's Leasehold Estate to an Institutional Lender, and
if the Holder of such Leasehold Mortgage shall provide Landlord with
notice of such Leasehold Mortgage together with a true copy of such
Leasehold Mortgage and the name and address of the Mortgagee, Landlord
and Developer agree that, following receipt of such notice by
Landlord, the provisions of this Section 4 shall apply in respect to
each such Leasehold Mortgage.
4.2.2 Assignment of Leasehold Mortgage. In the event of any
--------------------------------
assignment of a Leasehold Mortgage or in the event of a change of
address of a Leasehold Mortgagee or of an assignee of such Mortgage,
notice of the new name and address shall be provided to Landlord
within ten (10) days after completion of such assignment.
4.2.3 Landlord's Acknowledgement of Notice. Landlord shall
------------------------------------
promptly upon receipt of a communication purporting to constitute the
notice provided for by subsections 4.2.1 or 4.2.2, above, acknowledge
by an
23
instrument in recordable form receipt of such communication as
constituting the notice provided for by subsections 4.2.1 or 4.2.2,
or, in the alternative, notify Developer and the Leasehold Mortgagee
of the rejection of such communication as not conforming with the
provisions of subsections 4.2.1 or 4.2.2, and specify the specific
basis of such rejection.
4.2.4 Developer to Provide Copies. After Landlord has received
---------------------------
the notice provided for by subsections 4.2.1 or 4.2.2 above,
Developer, upon being requested to do so by Landlord, shall within ten
(10) days provide Landlord with copies of the note or other obligation
secured by such Leasehold Mortgage and of any other documents
pertinent to the Leasehold Mortgage as specified by Landlord. If
requested to do so by Landlord, Developer shall thereafter also
provide Landlord from time to time with a copy of each amendment or
other modification or supplement to such instruments. All recorded
documents shall be accompanied by the appropriate certification of the
Custodian of the Recording Office as to their authenticity as true and
correct copies of the official records and all non-recorded documents
shall be accompanied by a certification by Developer that such
documents are true and correct copies of the originals. From time to
time upon being requested to do so by Landlord, Developer shall also
notify Landlord of the date and place of recording and other pertinent
recording data with
24
respect to such instruments as have been recorded.
4.3 Definitions.
-----------
4.3.1 Institutional Lender. The term "Institutional Lender"
--------------------
as used in this Section 4 shall refer to a savings bank, savings and
loan association, commercial bank, trust company, credit union,
insurance company, college, university, real estate investment trust
or pension fund. The term "Institutional Lender" shall also include
other lenders of substance which have assets in excess of Fifty
Million and No/100 Dollars ($50,000,000.00) at the time the Leasehold
Mortgage is made.
4.3.2 Leasehold Mortgage. The term "Leasehold Mortgage" as
------------------
used in this Section 4 shall include a mortgage, a deed of trust, a
deed to secure debt, or other security instrument by which Developer's
Leasehold Estate is mortgaged, conveyed, assigned or otherwise
transferred, to secure a debt or other obligation.
4.3.3 Leasehold Mortgagee. The term "Leasehold Mortgagee" as
-------------------
used in this Section 4 shall refer to a holder of a Leasehold Mortgage
in respect to which the notice provided for by subsection 4.2 has been
given and received and as to which the provisions of this Section 4
are applicable.
4.4 Consent of Leasehold Mortgagee Required. No cancellation,
---------------------------------------
surrender or modification of this Lease shall be effective as to any Leasehold
Mortgagee unless consented to in writing by such Leasehold Mortgagee.
25
4.5 Default Notice. Landlord upon providing Developer any notice
--------------
of: (i) default under this Lease, (ii) a termination of this Lease, or (iii) a
matter of which Landlord may predicate or claim a default, shall at the same
time provide a copy of such notice to every Leasehold Mortgagee. No such notice
by Landlord to Developer shall be deemed to have been duly given unless and
until a copy thereof has been so provided to every Leasehold Mortgagee having a
lien upon the Premises. From and after the date such notice has been given to a
Leasehold Mortgagee, such Leasehold Mortgagee shall have the same period, after
giving of such notice upon it, for remedying any default or acts or omissions
which are the subject matter of such notice or causing the same to be remedied,
as is given Developer after the giving of such notice to Developer, plus in each
instance, the additional periods of time specified in subsections 4.6 and 4.7 to
remedy, commence remedying or cause to be remedied the defaults or acts or
omissions which are the subject matter of such notice specified in any such
notice. Landlord shall accept such performance by or at the instigation of such
Leasehold Mortgagee as if the same had been done by Developer. Developer
authorizes each Leasehold Mortgagee to take any such action at such Leasehold
Mortgagee's option and does hereby authorize entry upon the Premises by the
Leasehold Mortgagee for such purpose.
4.6 Notice to Leasehold Mortgagee.
-----------------------------
4.6.1 Landlord's Termination Notice. Anything contained in
-----------------------------
this Lease to the contrary notwithstanding, if any default shall occur
which entitles Landlord to
26
terminate this Lease, Landlord shall have no right to terminate this
Lease unless, following the expiration of the period of time given
Developer to cure such default or the act or omission which gave rise
to such default, Landlord shall notify every Leasehold Mortgagee of
Landlord's intent to so terminate ("Termination Notice") at least
thirty (30) days in advance of the proposed effective date of such
termination if such default is capable of being cured by the payment
of money ("Termination Notice Period"), and at least sixty (60) days
in advance of the proposed effective date of such termination if such
default is not capable of being cured by the payment of money (also a
"Termination Notice Period"). The provisions of subsection 4.7, shall
apply if, during such thirty (30) or sixty (60) day Termination Notice
Period, any Leasehold Mortgagee shall:
4.6.1.1 Notify Landlord of such Leasehold Mortgagee's desire
to nullify such notice; and
4.6.1.2 Pay or cause to be paid all Ground Rent, additional
rent and other payments then due and in arrears as specified in the
Termination Notice to such Leasehold Mortgagee and which may become
due during such thirty (30) or sixty (60) day Termination Notice
Period; and
4.6.1.3 Comply or in good faith, with reasonable diligence
and continuity, commence to comply with all nonmonetary
requirements of this
27
Lease then in default and reasonably susceptible of being complied
with by such Leasehold Mortgagee; provided however, that such
Leasehold Mortgagee shall not be required during such sixty (60)
day Termination Notice Period to cure or commence to cure any
default consisting of Developer's failure to satisfy and discharge
any lien, charge or encumbrance against the Developer's interest in
this Lease or the Premises junior in priority to the lien of the
mortgage held by such Leasehold Mortgagee.
4.6.2 Proper Address of Leasehold Mortgagee. Any notice to be
-------------------------------------
given by Landlord to a Leasehold Mortgagee pursuant to any provision
of this Section 4 shall be deemed properly addressed if sent to the
Leasehold Mortgagee who served the notice referred to in subsection
4.2.1 unless notice of a change of Mortgage ownership has been given
to Landlord pursuant to subsection 4.2.2.
4.7 Procedure on Default.
--------------------
4.7.1 Extension of Termination Notice Period. If Landlord
--------------------------------------
shall elect to terminate this Lease by reason of any default of
Developer, and a Leasehold Mortgagee shall have proceeded in the
manner provided for by subsection 4.6, the specified date for the
termination of this Lease as fixed by Landlord in its Termination
Notice shall be extended for a period of six (6) months, provided that
such Leasehold Mortgagee shall during such six (6) month period:
28
4.7.1.1 Payment of Monetary Obligations. Pay or cause to be
-------------------------------
paid the Ground Rent, additional rent and other monetary obligations
of Developer under this Lease as the same become due, and continue its
good faith efforts to perform all of Developer's other obligations
under this Lease.
4.7.1.2 Foreclosure of Leasehold Mortgage. If not
---------------------------------
enjoined or stayed, take steps to acquire or sell Developer's
interest in this Lease by foreclosure of the Leasehold Mortgage
or other appropriate means and prosecute the same to completion
with due diligence.
4.7.2 Cure of Default. If at the end of such six (6)
---------------
month period such Leasehold Mortgagee is complying with
subsections 4.7.1.1 and 4.7.1.2, this Lease shall not then
terminate, and the time for completion by Leasehold Mortgagee of
its proceedings shall continue so long as such Leasehold
Mortgagee is enjoined or stayed and thereafter for so long as
such Leasehold Mortgagee proceeds to complete steps to acquire or
sell Developer's interest in this Lease by foreclosure of the
Leasehold Mortgage or by other appropriate means with reasonable
diligence and continuity. Nothing in this subsection 4.7,
however, shall be construed to extend this Lease beyond the
original term thereof as extended by any options to extend the
term of this Lease properly exercised by Developer or a Leasehold
Mortgagee in accordance with subsection 2.1, nor to
29
require a Leasehold Mortgagee to continue such foreclosure
proceedings after the default has been cured. If the default
shall be cured and the Leasehold Mortgagee shall discontinue such
foreclosure proceedings, this Lease shall continue in full force
and effect as if Developer had not defaulted under this Lease.
4.7.3 Compliance of Leasehold Mortgagee. If a Leasehold
---------------------------------
Mortgagee is complying with subsection 4.7.1, upon the
acquisition of Developer's Leasehold Estate herein by such
Leasehold Mortgagee or its designee or any other purchaser at a
foreclosure sale or otherwise this Lease shall continue in full
force and effect as if Developer had not defaulted under this
Lease.
4.7.4 Leasehold Mortgage Not an Assignment. For the
------------------------------------
purposes of this Section 4, the making of a Leasehold Mortgage
issued by an institutional lender shall not be deemed to
constitute an assignment or transfer of this Lease or of the
Leasehold Estate hereby created, nor shall any Leasehold
Mortgagee, as such, be deemed to be an assignee or transferee of
this Lease or of the Leasehold Estate hereby created so as to
require such Leasehold Mortgagee, as such, to assume the
performance of any of the terms, covenants or conditions on the
part of Developer to be performed hereunder, but the purchaser at
any sale of this Lease and of the Leasehold Estate hereby created
in any proceedings for the foreclosure of any Leasehold Mortgage,
or the assignee or transferee of this Lease and of the
30
Leasehold Estate hereby created under any instrument of
assignment or transfer in lieu of the foreclosure of any
Leasehold Mortgage shall be deemed to be an assignee or
transferee within the meaning of this Section 4, and shall be
deemed to have agreed to perform all of the terms, covenants and
conditions on the part of Developer to be performed hereunder
from and after the date of such purchase and assignment, but only
for so long as such purchaser or assignee is the owner of the
Leasehold Estate. Provided, however, that Developer shall, as to
such Leasehold Mortgagee, provide to Landlord the same
information which Developer must supply pursuant to this Lease as
assignee.
4.7.5 Obligation of Leasehold Mortgagee to Repair or
----------------------------------------------
Reconstruct. If the Leasehold Mortgagee or its designee shall
-----------
become holder of the Leasehold Estate, and if the buildings and
improvements on the Premises shall have been or be come
materially damaged on, before or after the date of such purchase
and assignment, the Leasehold Mortgagee or its designee shall be
obligated to repair, replace or reconstruct the building or other
improvements only to the extent of the net insurance proceeds
received by the Leasehold Mortgagee or its designee by reason of
such damage. However, should such net insurance proceeds be
insufficient to repair, replace or reconstruct the building or
other improvements to the extent required by subsection 6.3, and
should the Leasehold Mortgagee or its
31
designee choose not to fully reconstruct the building or other
improvements to the extent required by subsection 6.3, such
failure shall constitute an event of default under this Lease
which shall entitle Landlord to commence proceedings to terminate
the Lease.
4.7.6 Leasehold Mortgagee's Right to Transfer. Any
---------------------------------------
Leasehold Mortgagee or other acquirer of the Leasehold Estate of
Developer pursuant to foreclosure, assignment in lieu of
foreclosure or other proceedings may, upon acquiring Developer's
Leasehold Estate, without further consent of Landlord, assign
the Leasehold Estate one time on such terms and to such persons
and organizations as are acceptable to such Mortgagee or acquirer
and thereafter be relieved of all obligations under this Lease;
provided that such assignee has delivered to Landlord its written
agreement to be bound by all of the provisions of this Lease. Any
further attempts by the Leasehold Mortgagee to assign shall
comply with the provisions of this Lease relating to Assignment.
4.7.7 Leasehold Mortgagee Transfer a Permitted Sale.
---------------------------------------------
Notwithstanding any other provisions of this Lease, any sale of
this Lease and of the Leasehold Estate hereby created in any
proceedings for the foreclosure of any Leasehold Mortgage, or the
assignment or transfer of this Lease and of the Leasehold Estate
hereby create in lieu of the foreclosure of any Leasehold
Mortgage shall be deemed to be a permitted sale,
32
transfer or assignment of this Lease and of the Leasehold Estate
hereby created.
4.8 New Lease.
---------
4.8.1 Terms of New Lease. In the event of the termination
------------------
of this Lease as a result of Developer's default Landlord shall,
in addition to providing the notices of default and termination
as required by subsections 4.5 and 4.6, provide each Leasehold
Mortgagee with written notice that the Lease has been terminated,
together with a statement of all sums which would at that time be
due under this Lease but for such termination, and of all other
defaults, if any, then known to Landlord. Landlord agrees to
enter into a new lease ("New Lease") of the Premises with such
Leasehold Mortgagee, or its designee for the remainder of the
term of this Lease, effective as of the date of termination, at
the Ground Rent and additional rent, and upon the terms,
covenants and conditions, including all first rights of refusal
and options to renew or purchase, but excluding requirements
which are not applicable or which have already been fulfilled of
this Lease, provided:
4.8.1.1 Written Request to Landlord. Such Leasehold
---------------------------
Mortgagee shall make written request upon Landlord for such
New Lease within thirty (30) days after the date such
Leasehold Mortgagee receives Landlord's Notice of Termination
of this Lease given pursuant to this subsection 4.8.
4.8.1.2 Payment of Obligations. Such
----------------------
33
Leasehold Mortgagee or its designee shall pay or cause to be paid to
Landlord at the time of execution and delivery of such New Lease, any
and all sums which would at the time of execution and delivery
thereof be due pursuant to this Lease but for such termination and,
in addition thereto, all reasonable expenses, including reasonable
attorney's fees, which Landlord shall have incurred by reason of such
termination and the execution and delivery of the New Lease and which
would not otherwise have been received by Landlord from Developer or
other party in interest under Developer. In the event of a
controversy as to the amount to be paid to Landlord pursuant to this
subsection 4.8.1.2, the payment obligation shall be satisfied if
Landlord shall be paid the amount not in controversy, and the
Leasehold Mortgagee or its designee shall agree to pay any additional
sum ultimately determined to be due plus interest at the rate set
forth in subsection 3.1.7, and such obligation shall be adequately
secured.
4.8.1.3 Remedy of Developer's Defaults. Such Leasehold
------------------------------
Mortgagee or its designee shall agree to remedy any of Developer's
defaults of which said Leasehold Mortgagee is or may be notified by
Landlord's Notice of Termination and which are reasonably susceptible
of being so cured by Leasehold Mortgagee or its designee.
34
4.8.1.4 New Lease to Have First Priority. Any New Lease made
--------------------------------
pursuant to this subsection 4.8 and any Subdivided Lease entered into
pursuant to subsection 7.6 and any Single Lease entered into pursuant
to subsection 7.7, shall be prior to any mortgage or other lien,
charge or encumbrance on the fee of the Premises and the Developer
under such New Lease, Single Lease or Subdivided Lease, as the case
may be, shall have the same right, title and interest in and to the
Premises and the buildings and improvements thereon as Developer had
under this Lease.
4.8.1.5 Developer's Obligations Under New Lease. The Developer
---------------------------------------
under any such New Lease, Single Lease or Subdivided Lease shall be
liable to perform the obligations imposed on the Developer by such
New Lease, Single Lease or Subdivided Lease only during the period
such person or entity has ownership of such Leasehold Estate.
4.9 New Lease Priorities. If more than one Leasehold Mortgagee
--------------------
shall request a New Lease pursuant to subsection 4.8.1, Landlord shall enter
into such New Lease with the Leasehold Mortgagee whose mortgage is prior in lien
or with the designee of such Leasehold Mortgagee. Landlord, without liability to
Developer or any Leasehold Mortgagee with an adverse claim, may rely upon a
mortgagee title insurance policy issued by a responsible title insurance company
doing business within the State of California as the basis for determining the
appropriate Leasehold Mortgagee
35
who is entitled to such New Lease.
4.10 Eminent Domain. Developer's share, as provided by
--------------
subsection 10.3, of the proceeds arising from an exercise of the power of
Eminent Domain shall, subject to the provisions of such subsection 10.3, be
disposed of as provided for by any Leasehold Mortgagee.
4.11 Notice of Arbitration. Landlord shall give each
---------------------
Leasehold Mortgagee prompt notice of any appraisal, arbitration or legal
proceedings between Landlord and Developer involving obligations under this
Lease. Landlord shall give the Leasehold Mortgagee notice of, and a copy of any
award or decision made in any such proceedings, which shall be binding on all
Leasehold Mortgagees.
4.12 Amendment to Facilitate Leasehold Financing. Landlord
-------------------------------------------
hereby agrees that if any Institutional Lender to whom Developer proposes to
make a Leasehold Mortgage on Developer's Leasehold Estate shall require as a
condition to making any loan secured by such mortgage that Landlord agree to
modifications of this Lease, then Landlord agrees that it will enter into an
agreement with Developer in recordable form making the modifications that are
requested by such lender, provided that such changes do not adversely affect any
right of Landlord under this Lease.
4.13 Security Deposit. If any Leasehold Mortgagee, its
----------------
designee or other purchaser has acquired the Leasehold Estate of Developer
pursuant to foreclosure, conveyance in lieu of foreclosure or other proceedings,
or has entered into a New Lease with Landlord in accordance with subsection 4.8,
such Leasehold
36
Mortgagee, its designee or other purchaser shall succeed to the rights of
Developer, if any, in and to the security deposits paid by Developer to Landlord
pursuant to subsections 16.1 and 16.2. In such event, Developer shall no longer
have any rights to such security deposits, and Landlord shall hold such security
deposits for and on behalf of such Leasehold Mortgagee, its designee or other
purchaser.
4.14 Estoppel Certificate. Landlord shall at any time and
--------------------
from time to time hereafter, but not more frequently than twice in any one-year
period (or more frequently if such request is made in connection with any sale
or mortgaging of Developer's Leasehold Interest or permitted subletting by
Developer), within ten (10) days after written request of Developer to do so,
certify by written instrument duly executed and acknowledged to any Mortgagee or
purchaser, or proposed Mortgagee or proposed purchaser, or any other person,
firm or corporation specified in such request: (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 validity and force and effect of this
Lease, in accordance with its tenor; (iii) as to the existence of any default
hereunder; (iv) as to the existence of any offsets, counter claims or defenses
hereto on the part of Developer; (v) as to the commencement and expiration dates
of the term of this Lease; and (vi) as to any other matters as may be reasonably
so requested. Any such certificate may be relied upon by Developer and any other
person, firm or corporation to whom the same may be exhibited or delivered, and
the contents of such certificate shall be binding on Landlord.
37
Any party requesting such estoppel certificate shall reimburse Landlord for its
costs and expenses incurred in issuing such certificate.
4.15 Notices. Notices from Landlord to the Leasehold
-------
Mortgagee shall be mailed to the address furnished Landlord pursuant to
subsection 4.2 , and those from the Leasehold Mortgagee to Landlord shall be
mailed to the address designated pursuant to the provisions of subsection 1.5.1
hereof, attention the City Manager. Such notices, demands and requests shall be
given in the manner described in subsection 17.1 and shall in all respects be
governed by the provisions of that subsection.
4.16 Erroneous Payments. No payment made to Landlord by a
------------------
Leasehold Mortgagee shall constitute agreement that such payment was, in fact,
due under the terms of this Lease; and a Leasehold Mortgagee having made any
payment to Landlord pursuant to Landlord's wrongful, improper or mistaken notice
or demand shall be entitled to the return of any such payment or portion thereof
provided such Leasehold Mortgagee shall have made demand therefor not later than
ninety (90) days after the date of its payment.
4.17 Request for Notice for Benefit of Landlord. Immediately
------------------------------------------
after recording any Leasehold Mortgage encumbering Developer's Leasehold Estate,
Developer, at Developer's expense, shall cause to be recorded in the Office of
the Recorder of Los Angeles County, California, a written request of notice
under Section 2924(b) of the California Civil Code providing that a copy of any
notice of default and a copy of any notice of sale under such Leasehold Mortgage
shall be delivered to Landlord as
38
provided for under said Section 2924(b) of the California Civil Code. Such
request shall be executed by Landlord. Concurrently, with Developer's forwarding
such notice for recordation, Developer shall furnish to Landlord a complete copy
of the Leasehold Mortgage and the note secured thereby, together with the name
and address of the holder thereof. Said note and mortgage are to be kept by
Landlord on a confidential basis to the extent permitted by law.
4.18 Release or Forebearance. If any such lender shall fail
-----------------------
or refuse to comply with any and all of the conditions of this section, then and
thereupon Landlord shall be released from its covenant of forebearance with such
lender herein contained.
4.19 Notice. Landlord's obligation to observe its covenants
------
of forebearance in this section for the benefit of any lender on the security of
the Leasehold Estate, except as may be otherwise provided by law, shall be
conditioned upon there having been first delivered to the Airport Manager of the
City of Long Beach, a written notice of such encumbrance which shall state the
name and address of such lender for the purpose of enabling notices to be given
under subsection 4.2 above.
4.20 No Merger. No merger of Developer's Leasehold Estate
---------
into Landlord's fee title shall result by reason of the ownership of Landlord's
or Developer's estates by the same party or by reason of any other
circumstances, without the prior consent of any and all lenders on the security
of the Leasehold Estate.
4.21 No Payment by Landlord. Landlord shall not be required
----------------------
to execute any instrument which would obligate Land-
39
lord to the payment of any loan or any part thereof.
4.22 Self Liquidating Mortgage. The Leasehold Mortgage shall
-------------------------
be a self liquidating mortgage, to be paid over a period not longer than elapses
up to three (3) years prior to the end of the term of this Lease, or any option
term if such option has been exercised.
4.23 Leasehold Mortgagee Need Not Cure Specified Defaults.
----------------------------------------------------
Nothing herein contained shall require any Leasehold Mortgagee or its designee
as a condition to its exercise of right hereunder to cure any default of
Developer which cannot be cured by such Leasehold Mortgagee or its designee, in
order to comply with the provisions of subsections 4.6 or 4.7 or as a condition
of entering into the New Lease provided for by subsection 4.8.
4.24 Casualty Loss. A Standard Mortgagee Clause naming each
-------------
Leasehold Mortgagee may be added to any and all insurance policies required to
be carried by Developer hereunder on condition that the insurance proceeds are
to be applied in the manner specified in this Lease and the Leasehold Mortgage
age shall so provide, except that the Leasehold Mortgage may provide a manner
for the disposition of such proceeds, if any, otherwise payable directly to
Developer.
5. ASSIGNMENT AND SUBLETTING:
-------------------------
5.1 Prohibition Against Change in Ownership, Management and
-------------------------------------------------------
Control. The qualifications and identities of Developer are of particular
-------
concern to Landlord. It is because of those qualifications and identities that
Landlord has entered into this Lease with Developer. No voluntary or involuntary
40
successor in interest shall acquire any rights or powers under this Lease
except as expressly provided for in this Lease.
Except as otherwise permitted by this Section 5 and subsection
1.5.3, Developer shall not permit any significant change (voluntary or
involuntary) in the ownership, management or control of Developer to occur
unless such change is approved by Landlord, subject to the requirements of this
section and reasonable conditions imposed by Landlord.
Except as otherwise permitted by this Section 5 and subsection
1.5.3, Developer may not assign this Lease or any interest herein without first
obtaining the written consent of Landlord, pursuant to subsection 5.4 of this
Lease. Any assignee shall assume and agree to perform the obligations of
Developer under this Lease. Promptly following any permitted assignment,
Developer shall deliver to Landlord a copy of such assignment, together with a
statement setting forth the following information:
5.1.1 Name and Address for Notices. The name and address
----------------------------
of the assignee for the purpose of enabling notices to be given.
5.1.2 Type of Entity. Whether the assignee is an
--------------
individual, a corporation, a partnership or a joint venture, and if
such assignee is a corporation, the names of such corporation's
principal officers and of its directors and State of incorporation,
and if such assignee is a partnership or joint venture, the names and
addresses of the general partners of such partnership or venture.
5.1.3 Other Transfers. In the event that
---------------
41
Developer is a partnership, joint venture or corporation, any
assignment of twenty-five percent (25%) or more of the partnership or
joint venture interest or outstanding capital stock of such an
entity shall constitute an assignment by Developer of this Lease for
the purposes of this Section 5 and shall not be permitted to occur
without first obtaining the written consent of Landlord, which
consent shall not unreasonably be withheld, delayed or conditioned.
5.1.4 Buildings or Land. In addition to all other
-----------------
assignments, which must be approved in advance by Landlord, any
assignment of 50,000 square feet of land or office space must be
approved in advance by Landlord.
5.2 Assignments Not Subject to Approval. The provisions of
-----------------------------------
this Section 5 shall not be applicable to the following types of assignments and
transfers, which shall be permitted without the prior consent of Landlord.
5.2.1 Death or Incapacity. Assignments resulting from
-------------------
the death or mental or physical incapacity of an individual,
provided, however, that any person replacing an individual who
departs because of physical or mental disability shall have education
and experience comparable to that of the person replaced.
5.2.2 Family Transfer. A transfer or assignment for the
---------------
benefit of a spouse, children, grandchildren or other family members.
5.2.3 Affiliated Corporation. A transfer to an
----------------------
"Affiliated Corporation" as hereinafter defined. An
42
"Affiliated Corporation" shall be (i) any corporation which owns
fifty-one percent (51%) or more of the outstanding capital stock of
the assigning corporation; or (ii) any corporation, fifty-one percent
(51%) or more of the outstanding capital stock of which is owned by
the assigning corporation; or (iii) any corporation, fifty-one
percent (51%) or more of the outstanding capital stock of which is
owned by a shareholder or group of shareholders who also owns at
least fifty-one percent (51%) of the outstanding capital stock of the
assigning corporation.
5.2.4 IRS Transfer. A transfer of stock resulting from
------------
or in connection with a reorganization as contemplated by the
provisions of the Internal Revenue Code of 1954, as amended, or
otherwise, in which the ownership interests of a corporation are
assigned directly or by operation of law to a person or persons, firm
or corporation which acquires the control of the voting capital stock
of such corporation or all or substantially all of the assets of such
corporation.
5.2.5 Public Entity. A transfer of stock in a publicly
-------------
held corporation or of the beneficial interest in any publicly held
partnership or real estate investment trust.
5.2.6 Partner. A transfer by a limited partner or joint
-------
venturer to a partnership or joint venture in which the assignor is
a partner or venturer.
43
5.2.7 Comprising Entity. A transfer or assignment from
-----------------
one partner or joint venturer comprising Developer to another; or if
Developer is a corporation, from one shareholder to another.
5.3 Assignment Invalid. Any transfer or assignment to which
------------------
Landlord's consent is required by subsection 5.1 shall be void and shall confer
no right to occupancy upon the assignee unless and until such consent of
Landlord is obtained. Such approval may be conditioned or refused in response to
the matters specified herein.
5.4 Approval of Assignments. Landlord agrees that it shall
-----------------------
consent to an assignment to a subtenant and to an assignee which, at the time of
such assignment, is of such financial standing and responsibility as to give
reasonable assurance that the payment of all Ground Rent and other amounts
reserved in this Lease will be made in compliance with all the terms, covenants,
provisions and conditions of this Lease. In requesting an approval by Landlord
of assignment pursuant to subsection 5.l, Developer shall provide the following
information to Landlord with respect to proposed assignments of 50,000 square
feet of rentable building area or land area, or more, of sublease space, with
respect to any Ground Sublease and with respect to assignments of a parcel or an
interest in this Ground Lease.
5.4.1 Name. Name and address of the assignee.
----
5.4.2 Description. Description of the Premises to be
-----------
assigned.
5.4.3 Nature of Business. The nature of the business
------------------
conducted by assignee on the Premises to be
44
assigned.
5.4.4 Financial Information. Financial strength of the
---------------------
subtenant or assignee (if the subtenant is a publicly held company, a
copy of its most recent annual report; if the subtenant or assignee
will not disclose financial information, a report from recognized
credit rating agency, such as Dun & Bradstreet).
5.4.5 Officers. The identity, background and experience
--------
of all officers and directors of assignee, at executive vice
president level and above and senior operational officer relating to
the Premises, if a corporation or general partners of a partnership
or sole proprietor of a proprietorship (Principals).
5.4.6 Additional Information. To the extent known by
----------------------
Developer, the following information:
5.4.6.1 Criminal record of the subtenant, assignee
or any of the Principals.
5.4.6.2 Nature and extent of litigation to which the
subtenant, assignee or any Principal is a party.
5.4.6.3 Any course of conduct which a prudent person
would deem materially detrimental to the Project or to the
intended use of the Premises by the subtenant or assignee.
5.4.7 Informational Purposes. For informational
----------------------
purposes only:
5.4.7.1 Number of anticipated employees of the
assignee.
45
5.4.7.2 At the time of submission of the request,
the terms and conditions of the assignment.
5.4.7.3 With respect to all assignments a copy
thereof after execution by all parties thereto.
5.4.8 Confidentiality. If requested by Developer at the
---------------
time of submission of the information described above, Landlord shall
keep such information and the identity of the proposed sublessee or
assignee confidential and Landlord shall execute a confidentiality
statement so providing to the extent Landlord is permitted by law to
do so.
5.4.9 Disapproval by Landlord. Landlord reserves the
-----------------------
right to reject any proposed assignee where the matters specified in
5.4.3, 5.4.4, 5.4.5 or 5.4.6 above indicate that the presence of
assignee would not be in the public interest or would adversely
affect the financial viability of the Project. Landlord shall either
approve or disapprove any proposed assignee within fifteen (15) days
after receipt by Landlord of a request to do so. Failure of Landlord
to act within said fifteen (15) days shall constitute approval. If
Landlord does not approve any proposed assignee, Landlord shall state
in writing the reasons for such disapproval. Developer shall have the
right to challenge the validity of such disapproval. No damages shall
be payable to Developer in any action arising from such disapproval
unless Landlord shall have acted unreasonably or in bad faith or with
actual malice.
46
5.5 No Release. Notwithstanding any assignment by Developer
----------
permitted by subsection 5.1 with Landlord's consent, and notwithstanding any
assignment by a partner or joint venturer of Developer permitted by subsection
5.1.3 with Landlord's consent or made without Landlord's consent pursuant to
subsection 5.2, the assigning party shall remain fully liable for the
performance of all of the covenants to be performed by Developer under this
Lease prior to the effective date of such assignment or the "Completion Date",
as defined below, whichever last occurs, but shall be released from liability
with respect to the performance of such covenants to be performed after the last
to occur of such dates, Landlord's approval of or consent to any such assignment
or transfer shall not be a waiver of any right to object to further or future
assignments, and Landlord's consent to each such successive assignment must be
first obtained in writing from Landlord unless otherwise permitted by this Lease
without Landlord's prior consent. The term "Completion Date", as used herein,
shall mean the date that Developer completes the construction of the initial
building described in subsection 7.2 and a certificate of occupancy with respect
to such building has been obtained.
5.6 Unauthorized Change. This Lease may be terminated by the
-------------------
Landlord if there is any significant change (voluntary or involuntary) other
than those authorized in Section 5 or subsection 1.5.3 hereof, or not requiring
Landlord's approval of ownership, management or control of the Developer prior
to the completion of the development of the site, unless such changes have been
approved by the Landlord.
47
5.7 Subletting. Developer shall be entitled, with the prior written
----------
consent of Landlord, to sublet the whole or any portion of the Premises or the
improvements constructed thereon by or under Developer and, without limiting the
foregoing, may establish a leasehold condominium regime on the Premises, or
portions thereof, in accordance with the provisions of California law, including
California Civil Code Sections 783 and 1350-1360. Developer shall, at all times,
remain liable for the performance of all of the covenants on its part to be so
performed, notwithstanding any subletting. Each sublease shall be subject and
subordinate not only to this Lease, but also to any New Lease made by Landlord
as provided in Section 4.8 above. If the term of this Lease shall end while any
such sublease is in effect, Landlord may, at its option, for a period of ninety
(90) days thereafter, either terminate the said sublease or succeed to all of
the rights of Developer thereunder. Where any sublease which is consistent with
this Lease is approved, Landlord may grant to the subtenant, under such an
approved sublease entered into in good faith and for reasonable consideration, a
right of quiet enjoyment in recordable from (a "nondisturbance agreement")
during the term of the sublease, notwithstanding the expiration, termination or
cancellation of this Lease; provided that (i) the term of the sublease, plus
extension or renewal options, does not extend beyond the term of this Lease,
plus extension options; (ii) such subtenant agrees that in the event this Lease
expires, terminates or is cancelled during the term of the sublease, the
sublease shall be deemed a direct lease between Landlord and such subtenant and
the subtenant shall attorn to Landlord. In the
48
event that Landlord objects to any proposed nondisturbance agreement or
sublease, Landlord agrees to notify Developer in writing of such objection and
of its reasons for such objection within twenty (20) days of its receipt of the
proposed nondisturbance agreement and sublease. Subject to the foregoing
provisions of this subsection 5.7, Landlord hereby approves generally of the
form of nondisturbance agreement attached hereto as Exhibit "E". Any approvals
or grants of quiet enjoyment given or made by Landlord pursuant to this
subsection 5.7 shall be binding upon Landlord, its successors or assigns,
including without limitation any person or entity succeeding to the interest of
Landlord by way of judicial foreclosure or trustee sale proceedings pursuant to
any mortgage or deed of trust, the lien or charge of which is subject and
subordinate to this Lease.
Any sublease, with respect to which Landlord agrees to execute a
nondisturbance agreement pursuant to this subsection 5.7, may be a sublease
pursuant to which the subtenant is responsible for the construction of the
building improvements upon the subleased premises (a "Ground Sublease" herein).
Any Ground Sub-lease may contain a hypothecation provision similar to Section 4
of this Lease for the benefit of the holder of any mortgage or deed of trust
constituting a lien on the subleasehold estate created by virtue of the Ground
Sublease. Any nondisturbance agreement executed and delivered by Landlord for
the benefit of the sublessee under a Ground Sublease shall specifically recite
that it is for the benefit of any such holder of a deed of trust or mortgage
constituting a lien on the subleasehold estate created by such Ground Sublease;
that the term "sublease" as used in
49
the nondisturbance agreement shall be deemed to include any new sublease
executed and delivered to any such holder of a first deed of trust or first
mortgage following a termination of the sublease pursuant to a provision in the
sublease similar to subsection 4.8 of this Lease, and that the term "sublessee"
under the nondisturbance agreement shall be deemed to include any encumbrances
or other party succeeding to the sublessee under the Ground Sublease by virtue
of judicial or private power of sale foreclosure proceedings or by delivery of
an assignment in lieu of foreclosure, or otherwise. Where Landlord agrees to
execute a nondisturbance agreement for the benefit of the sublessee under any
Ground Sublease, such agreement shall be subject to the obligations of the
sublessee thereunder being no less than the obligations of the Developer
hereunder with respect to the subleased premises.
5.7.1 Minor Subleases. Consent of Landlord shall not be
---------------
required to a sublease of any unit of space smaller than 50,000
square feet, not including parking areas; however, notice of any such
sublease shall be sent to Landlord's Airport Manager within ten (10)
days of the execution of the sublease.
5.7.2 Consent to Sublease. Prior to review of any proposed
-------------------
sublease, the following information and assurances shall be provided
to Landlord as part of the request for consent to proposed subleases
of 50,000 square feet of rentable building area, or more, of sublease
space, with respect to any Ground Sublease:
5.7.2.1 Description. Description of
-----------
50
the sublease Premises.
5.7.2.2 Name. The name and address of the sublessee for
----
the purpose of enabling notices to be given under subsection
17.1 hereof.
5.7.2.3 Nature of Business. The nature of the business
------------------
conducted on the sublease Premises.
5.7.2.4 Financial Information. Financial strength of
---------------------
the subtenant or assignee (if the subtenant is a publicly held
company, a copy of its most recent annual report; if the
subtenant or assignee will not disclose financial information,
a report from a recognized credit rating agency, such as Dun &
Bradstreet).
5.7.2.5 Officers. The identity, background and
--------
experience of all officers and directors of sublessee, at
executive vice president level and above and senior operational
officer relating to the Premises, if sublessee is a
corporation, general partners of a partnership or sole
proprietor of a proprietorship (Principals).
5.7.2.6 Additional Information. To the extent known by
----------------------
Developer, the following information:
5.7.2.6.1 Criminal record of the subtenant, assignee or
any of the Principals.
5.7.2.6.2 Nature and extent of litigation to which the
subtenant, assignee or any Principal is a party.
51
5.7.2.6.3 Any course of conduct which a prudent person
would deem materially detrimental to the Project or to the
intended use of the Premises by the subtenant or assignee.
5.7.2.7 Informational Purposes. For informational
----------------------
purposes only:
5.7.2.7.1 Number of anticipated employees of the
subtenant or assignee.
5.7.2.7.2 At the time of submission of the request, the
terms and conditions of the sublease or assignment.
5.7.2.7.3 With respect to all subleases and assignments
a copy thereof after execution by all parties thereto.
5.7.2.7.4 Any proposed nondisturbance or attornment
agreements.
5.7.3 Confidentiality. If requested by Developer at the time
---------------
of submission of the information described above, Landlord shall keep
such information and the identity of the proposed sublessee or
assignee confidential and Landlord shall execute a confidentiality
statement so providing, to the extent Landlord is permitted by law to
do so.
5.7.4 Disapproval by Landlord. Landlord reserves the right
-----------------------
to reject any proposed sublessee where the matters specified in
5.7.2.3, 5.7.2.4, 5.7.2.5 or 5.7.2.6 above indicate that the presence
of sublessee would not be in the public interest or would adversely
52
affect the financial viability of the Project. Landlord shall either
approve or disapprove any proposed sublessee within fifteen (15) days
after receipt by Landlord of a request to do so. Failure of Landlord
to act within said fifteen (15) days shall constitute approval. If
Landlord does not approve any proposed sublessee, it shall state in
writing the reasons for such disapproval. Developer shall have the
right to contest such disapproval. No damages shall be payable to
Developer in any action challenging such disapproval unless Landlord
shall have acted unreasonably, in bad faith or with actual malice.
5.8 Sale of Buildings. Developer shall have the right to sell
-----------------
buildings constructed pursuant to the terms of this Lease, provided, however,
that such buildings shall be and remain subject to the terms and conditions of
this Lease. No sale of such buildings shall be valid unless this requirement is
expressly included in the deed as a covenant running with the land.
6. INDEMNITY, INSURANCE, CASUALTY DAMAGE:
-------------------------------------
6.1 Indemnification and Hold Harmless. Developer expressly
---------------------------------
agrees to defend, protect, indemnify and hold harmless the Landlord, its
officers, agents and employees free and harmless from and against any and all
claims, demands, damages, expenses, losses or liability of any kind or nature
whatsoever which Landlord, its officers, agents or employees may sustain or
incur or which may be imposed upon them or any of them for injury to or death of
persons or damage to property arising out of or
53
resulting from the alleged acts or omissions of Developer, its officers, agents
or employees or in any manner connected with this Lease or with the occupancy,
use or misuse of the Premises by Developer, its officers, agents, employees,
subtenants, licensees, patrons or visitors. Developer also agrees to defend at
its own cost, expense and risk all claims or legal actions that may be
instituted against Developer or Landlord with respect to the Premises, and the
design and construction of off-site improvements except traffic signals, and
Developer agrees to pay settlements and to satisfy any judgment that may be
rendered against either Developer or Landlord as a result of any injuries or
damages which are alleged to have resulted from or be connected with this Lease
or the occupancy or use of the Premises by Developer or its officers, agents,
employees, subtenants, licensees, patrons or visitors. Nothing herein shall be
deemed to require Developer to indemnify Landlord for liability determined by a
court of law to have arisen from negligence of Landlord, provided, however, that
as between the parties to this Lease, in any matter in which the doctrine of
joint and several liability applies, Landlord shall not be required to pay any
larger share of such judgment than its actual contribution as determined by the
Court.
6.2 Insurance.
---------
6.2.1 Liability Insurance. At all times during the term
-------------------
of this Lease, Developer shall obtain and maintain or cause to be
obtained and maintained bodily injury and property damage insurance
by a combined single limit policy in an amount of at least Ten
Million Dollars and No/l00 ($10,000,000.00) naming the
54
Landlord and its officers, agents and employees as coinsureds with
Developer and others designated by Developer. Developer shall also
maintain workers' compensation insurance in the amount required by
statute.
Prior to entry upon the Premises, and upon each insurance
renewal, Developer shall deliver the policies of insurance required
by this subsection 6.2, or certified photostatic copies thereof, to
the City of Long Beach Airport Manager for approval as to sufficiency
and for approval as to form by the City Attorney. When said policies
of insurance have been so approved, Developer shall substitute a
certificate of insurance issued by the insurance company or companies
issuing such policies certifying that said insurance coverage is in
full force and effect and upon the filing of said certificate, the
policies will be returned by Landlord to Developer, if Developer has
deposited the original policies with Landlord. Said liability and
property damage insurance policy shall contain a provision or
endorsement substantially as follows:
"The inclusion hereof of any person or entity as an insured shall
not affect any right such person or entity would have as a
claimant hereunder if not so included. This insurance shall be
primary and not contributing with any other insurance maintained
by Landlord."
Notwithstanding any other provision to the contrary contained
in this Lease, Developer shall not
55
have the right to enter upon the Premises for any purpose whatsoever
until such certificate has been filed with the Landlord's Airport
Manager.
6.2.2 Fire and Extended Coverage. Developer shall, at no
--------------------------
cost or expense to Landlord, keep insured for the benefit of
Developer and Landlord, and such other parties, having an insurable
interest, as Developer may designate, the improvements constructed by
or under Developer upon the Premises against loss or damage by fire
and lightning and risks customarily covered by extended coverage
endorsement, in amounts not less than one hundred percent (100%) of
the actual replacement cost of said improvements, except that
Developer, at Developer's option may exclude the cost of excavations,
foundations and footings. Landlord shall be named as an insured under
any such policy. Such fire and extended coverages shall also be
required to be furnished by Developer during the construction of
improvements on the Premises as contemplated by Section 7 below. Any
loss payable under such insurance shall be payable to Developer,
Landlord and such other parties having an insurable interest in the
property as Developer may designate and may be endorsed with a
standard mortgagee's loss payable endorsement in favor of the holder
of any Leasehold Mortgagee holding a Leasehold Mortgage. Landlord
will release the entire sum of the proceeds to Developer or to a
lender for purposes of reconstruction, replacement or repair of any
damaged improvement.
56
The proceeds of such insurance shall be paid to Developer to the
extent the amount of the recovery is for damages to interior,
non-structural or subtenant improvements, equipment, fixtures,
personal property or for rental value insurance to the extent such
recoveries are separate identifiable items. If Developer shall within
five (5) years after such damage or destruction commence construction
of the damaged or destroyed building, or a new building in accordance
with Section 7 hereof, the proceeds of any insurance payable by
reason of such damage or destruction shall be paid to Developer. If
Developer shall fail to commence such construction within such five
(5) year period Landlord reserves the right to receive such portion
of the insurance proceeds so that Landlord may, if appropriate, carry
out such reconstruction of the destroyed building, with all excess
amounts to Developer. If at any time during the last five (5) years
of the term of the Lease whether the original term or any extension
thereof, a building then on the Premises shall be so damaged by fire
or other casualty that the cost of restoration shall exceed fifty
percent (50%) of the replacement value thereof, exclusive of
foundations, immediately prior to such damage, either party hereto
may, within sixty (60) days of such damage, give notice of its
election to terminate this Lease with respect to the parcel upon
which the building is located and, subject to further provisions of
this subsection this
57
Lease shall cease and come to an end on the date of the expiration of
ten (10) days from the delivery of such notice with the same force
and effect as if such date were the date herein fixed for the
expiration of the term hereof, and the Ground Rent shall be
apportioned and paid to the date of such termination. In such event
Developer shall remove all debris and level the land, and Developer
shall have no obligation to repair or rebuild or restore. The
insurance proceeds shall then be divided as follows:
If five (5) years remain before the end of the Lease or any
extension thereof, Developer shall receive seventy-five percent (75%)
of the proceeds, and Landlord shall receive twenty-five percent
(25%); if four (4) years remain before the end of the Lease,
Developer shall receive fifty percent (50%) of the proceeds, and
Landlord shall receive fifty percent (50%); if three (3) years remain
before the end of the Lease, Developer shall receive twenty-five
percent (25%) of the proceeds, and Landlord shall receive
seventy-five percent (75%); if two (2) years remain before the end of
the Lease, Developer shall receive ten percent (10%) of the proceeds,
and Landlord shall receive ninety percent (90%); if one (1) year
remains before the end of the Lease, Landlord shall receive the
entire proceeds.
6.2.3 Aviation Facilities. Insurance for any aviation
-------------------
facility developed pursuant to this Lease shall include all of the
types and amounts specified
58
herein to the extent such coverages are applicable to operations
performed. Depending upon the nature of the physical improvements
made upon and the use of the Premises, aviation insurance coverages
shall be maintained, to the extent such coverages are applicable, as
follows: Hangar Liability, Hangar Keeper's Legal Liability; Airport
Legal Liability, Hangar Material Damage Coverage. To the extent any
of the above liability coverages are required, said policies shall be
maintained with a combined single limit in the amount of at least Ten
Million and No/l00 Dollars ($10,000,000.00).
6.2.4 Miscellaneous. The insurance policies to be secured by
-------------
Developer pursuant to this subsection 6.2 shall be obtained from
insurers having a rating in Best's Insurance Guide of A-10, or better
(or a comparable rating in any similar Guide, if Best's Guide is no
longer published or if Best's rating system changes), and shall
require that the insurer give Landlord notice of any modification,
termination or cancellation of any policy of insurance no less than
thirty (30) days prior to the effective date of such modification,
termination or cancellation. In addition, Developer shall notify
Landlord of any modification, termination or cancellation of any
policy of insurance secured by Developer pursuant to this subsection
6.2 as soon as Developer learns of any such modification, termination
or cancellation. The policy of public liability and
59
property damage insurance to be obtained under subsection 6.2.1 above
shall stipulate that said policy provides primary coverage and is not
subordinate to nor contributing with any other insurance coverage
held or maintained by Landlord. The procuring of any such policy of
insurance shall not be construed to be a limitation upon Developer's
liability or its full performance on Developer's part of the
indemnification and hold harmless provisions of this Lease; and
Developer understands and agrees that notwithstanding any such policy
of insurance, Developer's obligation to protect, indemnify and hold
harmless Landlord under this Lease is for the full and total amount
of any damage, injuries, loss, expense, costs or liabilities caused
by or in any manner connected with or attributed to the acts or
omission of Developer, its officers, agents, employees, licensees,
patrons or visitors, or the operations conducted by Developer, or
Developer's use or misuse of the Premises, except to the extent
resulting from the negligent or willful acts of Landlord or any such
indemnitee.
6.2.5 Blanket Policies. Nothing contained in this section
----------------
shall prevent Developer from requiring its subtenants, or any of
them, or any other third party, to provide the insurance required by
this Section 6, nor prevent Developer, or any of its subtenants, or
any such third party from taking out insurance of the kind provided
for under this section under a blanket insur-
60
ance policy or policies which cover other personal and real property
owned or operated by Developer or any subtenant provided that the
protection afforded Landlord and Developer under any policy of
blanket insurance hereunder shall be no less than that which would
have been afforded under a separate policy or policies relating only
to the Premises.
6.2.6 Self-Insurance. If a subtenant is self-insured as a
--------------
matter of such subtenant's usual and customary business policy and
such self-insurance is accepted by institutional lenders, Developer
may request Landlord to waive the insurance requirement and to
consent and permit such subtenant to self-insure. Such request shall
be accompanied by information deemed necessary by Landlord to review
the request. Consent to self-insure shall not be unreasonably
withheld if the conditions specified in this section have been met.
6.2.7 Insurance Adjustments. The amounts of insurance
---------------------
specified in subsections 6.2.1 and 6.2.3 may be adjusted in the year
2000 and not more often then every third year thereafter for the
duration of the Lease to take into account circumstances at the time
of such adjustments.
6.3 Damage or Destruction.
---------------------
6.3.1 Restoration of Premises. If any building or
-----------------------
improvement on the Premises is totally or partially destroyed or
damaged as a result of any casualty, Developer shall promptly repair,
replace or rebuild
61
such building or other improvement at least to the extent of its
value immediately prior to such occurrence, subject, however, to
delays resulting from force majeure, the cancellation of existing
leases due to such casualty, settling with insurers and/or
negotiating new financing if necessary. If less than twenty (20)
years remain of the term of this Lease or any extension thereof,
Developer may remove all damaged or destroyed improvements and place
the portions of the Premises from which improvements are removed in a
clean and level condition following which all insurance proceeds
attributable to such destruction or damage shall be the property of
Developer. After the commencement of such repair, replacement or
rebuilding, Developer shall continue such work with reasonable
diligence until completion. Developer may cause any such work to be
performed by or under its subtenants. In no event shall Landlord be
liable to Developer for any damages resulting to Developer from the
happening of any such fire or other casualty or from the repair or
reconstruction of the Premises or from the termination of this Lease
as provided in subsection 6.3.2 below.
6.3.2 Right to Terminate. Notwithstanding the provisions of
------------------
subsection 6.3.1 above, if the buildings and improvements on the
Premises shall be damaged or destroyed as a result of a hazard
against which Developer is not required to carry insurance to an
extent in excess of fifty percent (50%), or more, of
62
their then insurable value, or if such damage or destruction shall
occur during the last ten (10) years of the term of this Lease or
during the last ten (10) years of any extended term of this Lease,
then Developer shall have the right to elect not to repair, replace
or rebuild such casualty damage and to cancel this Lease by giving
written notice thereof to Landlord within three hundred sixty-five
(365) days after the date of any such damage or destruction. Upon
such termination, it will be the obligation of Developer to remove
all damaged or destroyed improvements and to place the portions of
the Premises from which improvements are removed in a clean and level
condition.
6.3.3. No Reduction in Rent. In case of destruction, there
--------------------
shall be no abatement or reduction of rent.
7. DEVELOPMENT OF THE PROJECT:
--------------------------
7.1 Scope of Development. The Project will be an aviation
--------------------
oriented business, office, research and development and industrial park. It is
agreed by the parties that the Project will be built to include when fully
developed, at least 665,500 square feet of building area in one (1) or more
buildings per parcel, no one of which shall exceed the height limits established
by Federal Aviation Regulations (FAR). However, it is recognized that the scope
of development may be changed, enlarged or redistributed to meet a subtenant's
or user's needs or changed conditions. The facade treatment, landscaping and
character of the
63
development will be substantially as proposed in the Long Beach Airport Center
submittal of December 7, 1983, as supplemented by a spiral bound document
entitled "Supplement to Xxxxxx Industries' December 7, 1983, Proposal", and
included therein is a transmittal letter from Xxxxxx Industries to the City of
Long Beach, dated January 12, 1984, ("Developer's Long Beach Airport Center
Submittal") on file in the offices of Landlord's Director of Community
Development, or the equivalent of the submitted proposal if approved by Landlord
pursuant to subsection 7.3 hereof.
Three (3) acres of the site must be made available for aircraft
use if a reasonable demand for same is expressed by the subtenants of the site.
The three (3) acre allocation need not be restricted to any designated section
of the site and can change in configuration and location depending on the needs
of the remainder of the parcel and changes in subtenant requirements. The three
(3) acres at any time designated for aircraft use may be used for other purposes
consistent with the Lease and the PD-2 zoning, such as motor vehicle parking and
trucking, as approved by Landlord's Airport Manager, prior to any actual demand
from tenants of the site for aircraft storage. The precise amount up to three
(3) acres, configuration and location of improvements shall be based on and
consistent with the PD-2 zoning ordinance to be adopted, and any amendment or
replacement thereof.
7.2 Developer's Obligation to Develop Premises. Developer
------------------------------------------
agrees to commence the construction of improvements upon the Premises,
including the first building, on or before September 1, 1985, subject to
granting of all required governmental approvals and subject to subsection 17.3.
After completion of
64
the initial building, Developer shall use its best efforts to undertake as
expeditiously and fully as is reasonably possible in the exercise of sound
business judgment, the planning and construction of improvements upon Premises
and to further the interest thereof to the end that there will be ultimately
constructed on the Premises the development contemplated in the Basic Concept
Documents or its alternative as approved by Landlord pursuant to subsection
7.3.7. Developer intends to conform to the construction schedule attached as
Exhibit "J" entitled "Construction Schedule" but is not required to do so,
except as provided in this subsection.
In the event Developer has not commenced construction on the last
parcel by January 1, 1993, then the fair market rental value of said parcel
shall be adjusted in the manner set forth in subsection 3.2, as of January,
1993, upon the assumption that the building or buildings planned for
construction upon said parcel had, in fact, been completed.
7.2.1 Best Efforts to Sublease. Developer shall at all
------------------------
times use its best efforts to expedite to the fullest extent
consistent with the exercise of sound business the making and
entering into of subleases with subtenants upon terms and conditions
satisfactory to subtenants and not inconsistent with any of the
requirements of this Lease.
7.3 Architectural Approval.
----------------------
7.3.1 Restriction. No buildings or other improvements,
-----------
including without limitation, grading, street, landscaping and
parking area improvements shall
65
be constructed or maintained upon the Premises unless the same
conform to and are consistent with the zoning for the site, building
code requirements and other adopted construction standards for public
improvements of the City of Long Beach and the scope of the Project,
as defined in subsection 7.1 above, and are approved by Landlord as
provided in subsection 7.3.7 below.
7.3.2 Basic Concept Documents. Landlord has heretofore
-----------------------
approved certain documents, including a site development plan, which
documents are more particularly described in subsection 7.1. Said
documents, as the same may from time to time be modified and/or
supplemented with the approval of Landlord pursuant to subsection
7.3.7 below are herein referred to as the "Basic Concept Documents".
To the extent that said documents refer to land included in the
Adjacent Properties shown on Exhibit "B", additional approval is
required as provided in subsection 1.4.1.
7.3.3 Landscaping. Prior to the construction of any
-----------
landscaping upon the Premises, Developer shall prepare and submit
to Landlord for Landlord's approval pursuant to subsection 7.3.7
below preliminary landscape plans for such work. Following Landlord's
approval of Developer's preliminary landscape plans for such work
and prior to the commencement of such work, Developer shall prepare
and submit to Landlord for Landlord's approval pursuant to subsection
7.3.7 below final landscape plans for such work. Said landscape
plans need
66
not include landscaping between building walls and adjacent curbs
and/or parking areas, it being understood that preliminary and final
plans for such landscaping may be submitted separately by Developer
to Landlord for Landlord's approval under subsection 7.3.7 below when
the requirements of building occupants have been ascertained. Said
landscape plans shall be consistent with the Basic Concept Documents
and/or modifications or amendments thereto from time to time approved
by Landlord. The landscaping plans, if any, itemized on the attached
Exhibit "G" have been approved in concept by Landlord for purposes of
this Lease and for no other purposes. In general, Developer shall be
permitted freedom of selection of landscaping plants, trees and other
materials consistent with the Basic Concept Documents and the
provisions of subsection 3.6.
7.3.4 Exterior Elevations. Prior to the construction of
-------------------
any building improvements upon the Premises, Developer shall prepare
and submit to Landlord for Landlord's approval pursuant to subsection
7.3.7 below exterior elevations for such building improvements. Such
exterior elevations need not include exterior building signs. The
exterior elevations, if any, itemized on the attached Exhibit "H"
have been approved in concept by Landlord for purposes of this Lease
and for no other purposes.
7.3.5 Security and Security Plans. Prior to taking
---------------------------
possession of the Premises, Developer shall sub-
67
mit to the Landlord for approval a site security plan both for the
construction period and for the Project as partially and fully
developed which shall comply with applicable Federal Aviation
Regulations and the requirements of the Airport Manager. During
construction, Developer shall maintain in place at all times a site
security fence. Developer shall comply with FAR Part 107 regarding
Airport Security and FAR Part 77 regarding height limitations. It is
particularly important that Developer notify the Airport Manager and
such other persons as he may direct twenty-four (24) hours in advance
of erecting cranes on the Premises for any purpose. Developer shall
pay any fine or penalty imposed on Landlord as a result of security
violations on the Premises. Developer shall have the right to contest
such fine or penalty.
7.3.6 Amendments. Developer may from time to time submit
----------
to Landlord for Landlord's approval pursuant to subsection 7.3.7
below modifications and/or amendments to any of the items described
in subsections 7.3.3 through 7.3.5 above theretofore approved by
Landlord.
7.3.7 Landlord Approval. Developer shall submit all
-----------------
plans required by subsections 7.3 and 3.7 to Landlord, attention
Director of Community Development, who shall coordinate the review
and approval of such plans with the Airport Manager. Landlord shall
either approve or disapprove of any item submitted for approval
68
to Landlord by Developer pursuant to subsections 7.3.3 through 7.3.6
above and subsection 3.7 within fifteen (15) days of Landlord's
receipt thereof by giving written notice of such approval or
disapproval to Developer. Any such disapproval shall state in writing
the reasons for disapproval. Failure by Landlord to expressly so
disapprove of any such item within such fifteen (15) day period shall
constitute Landlord's approval of such item.
The criteria to be used by Landlord in approving or
disapproving any such item shall be (i) compliance with the Basic
Concept Documents and PD-2 zoning, (ii) exterior aesthetics, (iii)
consistency with prior improvement on the Premises, (iv) relationship
of improvements to adjacent land, including public rights-of-way,
(v) the general function of the spaces within the Project between
building areas and adjacent public rights-of-way, consistent with
overall project design. In general, Developer shall be permitted
freedom of design of all exteriors.
In the event Landlord disapproves of any such item, Developer
may cause such item to be appropriately revised and resubmit the same
to Landlord for approval pursuant to this subsection 7.3.7. Landlord
and Developer agree to cooperate reasonably each with the other in
resolving any objections of the other to such item and/or requested
modifications by the other party.
The provisions of this section with respect
69
to notice, time for and method of approval shall apply to any such
revised item resubmitted to Landlord for approval. Upon the approval
of any such item, Landlord shall execute and return a copy of such
item to Developer marked approved by Landlord with the date of such
approval.
Any item to be approved or disapproved by Landlord shall be
deemed to have been submitted to and received by Landlord on the date
such item is delivered to or received at the office of the Director
of Community Development of Landlord.
7.3.8 Communication and Consultation. Landlord and Developer
------------------------------
agree to communicate and consult informally as frequently as is
necessary to insure that the formal submittal of any item pursuant to
this section can receive prompt and speedy consideration. In
addition, during the period that Developer is preparing drawings and
specifications for buildings and other improvements to the Premises,
Landlord agrees, upon request of Developer, to schedule and hold
regular progress meetings in order to coordinate the compliance of
such drawings and specifications with the construction requirements
of this Lease.
7.3.9 Requirements of Institutional Lender or Major Occupant.
------------------------------------------------------
If any revisions or corrections of drawings and specifications,
landscape and grading plans and/or site plans consistent with the
items heretofore approved by Landlord or approved by Landlord
pursuant
70
to this section are required by any institutional lender providing or
proposing to provide financing to Developer or major occupant or
proposed major occupant for a building, Developer and Landlord shall
cooperate with each other in efforts to obtain the waiver of such
requirements or to develop a mutually acceptable alternative. A major
occupant shall be deemed a person or entity occupying or proposed to
occupy all of a freestanding building or in excess of 50,000 square
feet of building floor area upon initial occupancy. If no such waiver
is obtained and no such alternative is developed, Landlord shall
amend the items so approved by Landlord pursuant to this section as
may reasonably be required for consistency with such revisions or
corrections. Any amendment of items approved by the Landlord does not
constitute a waiver of other legal, governmental approvals.
7.3.10 Interior Improvements. During the term hereof,
---------------------
Developer shall have the right to make, at no expense to Landlord,
interior improvements to any building, and thereafter to make
changes, alterations, further improvements and additions in and to
the interior of any building as Developer may desire, subject to all
applicable codes, ordinances and statutes.
7.3.11 Modification of Plans. Developer may make changes and
---------------------
modifications to plans and specifications for buildings which are not
material or to resolve an inconsistency or ambiguity without
obtaining Land-
71
lord's prior approval. Landlord agrees that Developer may cause the
plans for any building to be modified to the extent required to adapt
the same to soil or other conditions found on the Premises and to the
extent modification thereof is required by any governmental agencies
or authorities having jurisdiction to approve such plans, all without
resubmitting the same to Landlord for Landlord's reapproval.
7.4 Performance and Payment Bonds.
-----------------------------
7.4.1 Agreement to Provide. On or before the date of
--------------------
commencement of construction of any building, structure or other
improvements on the Premises having an estimated cost of One Million
and No/l00 Dollars ($1,000,000.00) or greater, Developer shall file
or cause to be filed with Landlord a performance-bond and labor
and material payment bond executed by Developer or Developer's
contractor or subtenant, as principal, and by a surety authorized
to do business in the State of California, as surety, conditioned
upon the contractor's performance of its construction contract with
Developer and payment to all claimants for labor and materials used
or reasonably required for use in the performance of such contract,
in a form and with a surety reasonably acceptable to Landlord. Forms
of bond which generally are acceptable hereunder are attached
hereto and marked Exhibit "I". Said bond shall name or be endorsed
to name Landlord as a joint obligee with Developer and/or Developer
and Developer's
72
lender. Landlord agrees to either approve or disapprove of any such
proposed bond submitted to Landlord for approval within ten (10) days
of Landlord's receipt thereof. Any notice of disapproval shall
specify the reasons for disapproval and the modifications required to
secure Landlord's approval. Landlord's failure to expressly so
disapprove of any such bond within said ten (10) day period shall
constitute Landlord's approval of the form of such bond and of the
surety issuing such bond.
7.4.2 Term of the Bond. The term of both bonds shall
----------------
commence on or before the date of filing with Landlord. The
Performance Bond shall remain in effect until the date of completion
of the work to the reasonable satisfaction of Landlord's City Manager
or his designee. The Payment Bond shall remain in effect until the
expiration of the period of filing a claim of lien as provided in
Title 15 of Part 4 of the California Civil Code, and as hereafter
amended, or if a claim of lien is filed, the expiration of the period
for filing an action to foreclose such lien, or until the Premises
are freed from the effect of such claim of lien and any action
brought to foreclose such lien pursuant to the provisions of said
Title 15 of Part 4 or the lien is otherwise discharged.
7.4.3 Penal Sum. The Performance Bond shall be in the
---------
amount and provide a penalty of one hundred percent (100%) of the
cost of the improvements to be
73
constructed as such cost shall be determined by the Developer. The
Payment Bond shall be in the amount and provide a penalty of one
hundred percent (100%) of the valuation of the improvements to be
constructed.
7.4.4 Alternative Performance. In lieu of the
-----------------------
Performance Bond and Payment Bond required by this subsection 7.4,
Developer may furnish cash, assignment of account, or a time
certificate of deposit or irrevocable letter of credit conditioned
only on the terms of this Lease or such other form of security as may
be agreed upon by the parties.
7.5 Construction.
------------
7.5.1 Costs of Construction. Except as provided in
---------------------
subsections 3.8, 3.9, 3.11 and 7.5.10, the entire cost and expense of
constructing any and all improvements on the Premises, including
without limitation any and all on and off-site improvements required
by applicable governmental authorities under applicable zoning
ordinances or as a condition to parcel or final map approvals, shall
be borne and paid by Developer, or its subtenants, and Developer
shall hold and save Landlord and the Premises harmless from any
liability whatsoever on account thereof.
7.5.2 Right to Improve. Developer shall have the right
----------------
to construct buildings and other improvements upon the Premises and
shall have the right to change the grade of the Premises and to
perform all off-site work included within the scope and intent of the
Basic
74
Concept Documents and/or to demolish and remove any and all
structures, foliage and trees situated upon the Premises as of the
date of this Lease as may reasonably be required for the purpose of
improving the same incidental to Developer's or a subtenant's use of
the Premises; provided, that such work shall be performed in
accordance with the applicable requirements of this Section 7, and
such laws of any governmental entity as may be applicable thereto and
that arrangements for access to adjacent leaseholds are completed
prior to commencement of work on those areas. Any and all
improvements, constructed by or for the Developer, except off-site
improvements, shall be owned by Developer and its successors or
assigns during the term of this Lease and, unless removed by
Developer upon the expiration of the term of this Lease as permitted
by subsection 17.10 below, shall become a part of the realty and the
absolute property of Landlord upon the expiration or earlier
termination of the term of this Lease.
7.5.3 Governmental Permits. Before commencement of
--------------------
construction or development of any buildings, structures, or other
work or improvements upon the Premises or within the Project area,
Developer shall, at its own expense with the cooperation of Landlord,
secure or cause to be secured any and all permits which may be
required by the City of Long Beach or any other governmental agency
having authority over such construction, development or work.
Developer shall provide a
copy of each such permit to the Landlord prior to commencing the
subject work or activity.
7.5.4 Rights of Access. For the purposes of assuring
----------------
compliance with this Lease, representatives of Landlord in addition
to those conducting inspections required by Landlord, shall have the
right of access to the Premises without charges or fees, at normal
construction hours, during the period of construction for the
purposes of this Lease, including but not limited to the inspection
of the work being performed in constructing the improvements required
by this Lease. Such representatives of Landlord shall be those who
are so identified in writing by the Director of Community Development
of Landlord, except that those employees of the City of Long Beach
conducting inspections required by law need not be so identified.
7.5.5 Local, State and Federal Laws. Developer shall
-----------------------------
carry out or cause to be carried out the construction of any
buildings, structures or other work or improvements upon the Premises
in conformity with all applicable laws. Any buildings, structures or
other improvements constructed or placed upon the Premises by or
under Developer, shall be constructed or placed in accordance with
the laws and regulations of the State of California and of the City
of Long Beach applicable to the Premises. Any applicable Federal
Aviation Regulation (FAR) shall also be complied with.
76
7.5.6 Antidiscrimination During Construction. Developer
--------------------------------------
for itself and its successors and assigns agrees agrees that in the
construction of any improvements provided for in this Lease, that
Developer will not discriminate against any employee, or applicant
for employment because of age, sex, marital status, race, handicaps,
color, religion, creed, ancestry or national origin.
7.5.7 Responsibilities of Landlord.
----------------------------
7.5.7.1 Governmental Approvals. Landlord will
----------------------
assist and cooperate with Developer in connection with requests
by Developer for lot line adjustments, tentative or final,
parcel, tract or subdivision map approval, condominium plan
approval, variances and any other governmental approvals
necessary for or which will facilitate the development of the
Premises, pursuant to this Lease including, without limitation,
the execution of documents required to dedicate or offer for
dedication or restrict or otherwise encumber or subdivide by
parcel or final maps or condominium plans portions of the
Premises as may be required by applicable governmental
authorities.
7.5.7.2 Easements. Landlord agrees to join in
---------
granting or dedicating such public or private utility company
easements as may be required for the development of the
Premises, for which no consideration is given. With the
exception of
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landscaping and appurtenant structures as provided in
subsection 7.5.9, Developer shall have no responsibility for
maintaining public rights-of-way, sewers, storm drains and
other facilities after dedication of same to Landlord by
Developer, and Landlord agrees to accept the same for
maintenance purposes.
7.5.7.3 Off-Site Improvements. Subject to any
---------------------
limitation of law, Landlord shall take all such action as is
necessary and prudent in order to permit Developer to install
and construct the off-site improvements which are necessary to
initially make the Premises suitable for development according
to Developer's Basic Concept Documents. The nature of such
actions by Landlord and the nature and extent of such off-site
improvements are defined in the attached Exhibit "F" ("Off-site
Improvements"). The costs of all rights-of-way and improvements
described in Exhibit "F" shall be included in Predevelopment
and Infrastructure Costs in the manner set out in subsections
3.6 through 3.11.
7.5.7.4 Bond Financing. Landlord further agrees to
--------------
assist with Developer's financing of the development of the
Premises by cooperating reasonably with Developer and using
reasonable efforts to sell or to cause any appropriate agency
of the City of Long Beach to sell industrial
78
development bonds as a source for such financing, if such action is
legally permissible; by granting to or for the benefit of the holders
of any special assessment or district bonds constituting a first lien
on Developer's Leasehold Estate, or their trustee, rights and
remedies of a similar nature afforded Leasehold Mortgagees under
Section 4 hereof.
7.5.8 Responsibilities of Developer. Developer, without expense
-----------------------------
to Landlord, shall perform all work specified of Developer in this Lease.
In addition, Developer shall furnish Landlord's Director of Community
Development with semi-annual progress reports demonstrating good faith
compliance with the construction requirements of this Lease on or before
each semi-annual period commencing with the sixth month anniversary of the
date of this Lease, through the occurrence of the completion date of such
construction.
7.5.9 Maintenance. In addition to the responsibilities
-----------
mentioned herein, Developer shall have sole and exclusive responsibility
for maintaining the Premises and all building structures and improvements
which may be constructed upon the Premises in good condition and repair, at
no cost or expense to Landlord, reasonable wear and tear excepted.
Developer shall also maintain all landscaping and appurtenant structures
installed in accordance with plans approved pursuant to Section 7. Landlord
will consider a request
79
to maintain landscaping in public rights-of-way.
7.5.10 Acceptance of Premises. Developer accepts the
----------------------
Premises in an "as-is" condition, except for subsurface hazardous
materials and munitions, which are the responsibility of Landlord to remove
at Landlord's expense, and also except for subsurface conditions under
existing leased premises demised to Xxxxxx X. Xxxxxxxxxx dba Stripbright
Company, and acknowledges that Developer has not received and Landlord has
not made any warranty, express or implied, as to the condition of the
Premises. Developer agrees to bear all expenses incurred in the
development, operation and maintenance of the Premises, except for
improvements and facilities dedicated for public use to Landlord or other
governmental authority, and except for removal and disposition of
subsurface hazardous materials and munitions.
7.6 Subdivided Leases. For the purpose of facilitating the
-----------------
development of the Project and obtaining financing and refinancing of
improvements to be constructed thereon, at any time and from time to time during
the term, within thirty (30) days after notice of demand from Developer,
Landlord shall enter into separate new leases ("Subdivided Lease") so that there
shall be one lease for each developable parcel in the Premises. The Subdivided
Leases described herein shall be for the sole purpose of lease, sale or
financing of the development. In all matters affecting the relationship, rights
or obligations of the parties hereto, or in the case of any inconsistency
between
80
the language of the documents, this Lease as undivided and unmodified shall
govern except that as to the individual subdivided lease parcels, rents,
security deposits, legal descriptions and requirements governing amount and
level of construction may be varied to conform to the specifics of such parcel,
as long as the totals in all such categories for all subdivided leases added
together correspond to the totals expressed in this document. Developer shall
pay to Landlord as a separate charge apart from rents a one time charge, payable
in advance to reimburse Landlord's costs and expenses in separating the leases
and reviewing and administering all the leases as separated in the sum of Five
Thousand Dollars ($5,000.00). Each Subdivided Lease shall:
7.6.1 Same Parties. Have the same parties as the parties to
------------
this Lease.
7.6.2 Obligations of Subdivided Leases. Be released from the
--------------------------------
overall obligations expressed in this Lease to pay rent and to carry
out specific levels of construction within specific periods,
provided, however that each such parcel shall be subject to an
appropriate proportionate share of such obligations such that the
total of such obligations divided among separated leases is not less
than the total of such obligations expressed in this Lease. All other
obligations imposed by this Lease shall apply to each such separate
parcel as an undivided shared obligation. As to any conflict between
the Subdivided Leases or all of them and this Lease, the terms of
this Lease shall govern.
7.6.3 Terms, Covenants. Contain the same
----------------
81
terms, covenants, provisions, conditions and agreements as those
contained in this Lease except that:
7.6.3.1 Ground Rent. The Ground Rent and other periodic
-----------
payments to be made by Developer as part of Developer's obligation
under this Lease and the security deposit under subsection 16.1
shall, under the Subdivided Lease, bear substantially the same
proportion to amounts provided in this Lease as the area of the
Premises in the Subdivided Lease bears to the area of the Premises in
this Lease. Provided, however, that if the fair market value of any
land included in a Subdivided Lease is substantially greater or less
than the balance of the land included in this Lease, then the Ground
Rent may be appropriately varied between the Subdivided Lease and
this Lease in order to take into account such variance in the fair
market land value.
7.6.3.2 Improvements. Any improvements constructed upon the
------------
Premises demised by a Subdivided Lease shall satisfy Developer's
obligations imposed by this Lease. The right of Developer to make
improvements shall be apportioned around the Subdivided Leases
substantially as is provided in subsection 7.6.3.1.
7.6.3.3 Easements and CC & R's. Each Subdivided Lease shall
----------------------
contain all cross-easements, covenants, conditions, restrictions and
agreements requested by Developer, and approved by Landlord,
82
provided they reasonably facilitate separating this Lease into
individual Subdivided Leases within the overall intent of this Lease.
7.6.3.4 Description of Property. Each Subdivided Lease shall
-----------------------
cover only that portion of the Premises specified by Developer in
Developer's notice of demand, provided that Developer shall accompany
each notice of demand with an accurate survey and metes and bounds
description of the portion of the Premises to be covered by the
Subdivided Lease; or if the Premises have been divided into separate
parcels, with the appropriate parcel map description of such
Premises.
7.6.3.5 Excluded Matters. Obligations under this Lease which
----------------
have been satisfied or which are not applicable shall be excluded
from a Subdivided Lease.
7.7 Combining Leases. At any time and from time to time after the
----------------
execution of any such Subdivided Lease, within thirty (30) days after notice of
demand from Developer, Landlord shall enter into a single lease ("Single Lease")
combining any two or more of the Subdivided Leases, covering all the portions of
the Premises covered by the component Subdivided Leases, and containing the same
terms, covenants, provisions, conditions and agreements as those contained in
the component Subdivided Leases, except that:
7.7.1 Ground Rent. The Ground Rent and other periodic payments to
-----------
be made by Developer as part of
83
Developer's obligation under the Single Lease shall be the sum of the
Ground Rent and other periodic payments payable under the component
Subdivided Leases;
7.7.2 Easements and CC & R's. The Single Lease shall
----------------------
contain all cross easements, covenants, conditions, restrictions and
agreements requested by Developer and approved by Landlord provided they
reasonably facilitate combining the component Subdivided Leases and
integrating the operation of the Single Lease with that of any Subdivided
Leases still outstanding within the overall intent of this Lease.
8. USE:
---
8.1 Permitted Development. The Project shall be an aviation oriented
---------------------
business, office, research and development and industrial park, with offices and
facilities and space for sublease to subtenants, including tenant-required
aviation and other ancillary and related uses.
8.2 Aviation Related Uses. Any aviation and/or aircraft related uses
---------------------
shall be subject to the terms and conditions of this Lease and to the terms and
conditions governing Fixed Base Operations on the Long Beach Municipal Airport,
"Master FBO Lease", which terms and conditions are incorporated in the Master
FBO Lease attached hereto, marked Exhibit "K" and made a part hereof and shall
be binding upon Developer, its tenants, subtenants and assigns, provided,
however, as to Developer only in case of any conflict between this Lease and the
Fixed Base Operation Lease, the business terms of this Lease shall prevail,
84
and the aviation operation requirements of the Fixed Base Operation Lease shall
prevail as to aviation uses. Access to the Airport operating areas shall be
made available for any aircraft based on the Premises. All non-aviation areas
shall be separated from the Airport operating areas by security fencing approved
by the Airport Manager.
8.3 Access Taxiway. To service aircraft use or development of the
--------------
Premises, Developer shall construct an access taxiway connecting the Premises to
existing Taxiway D concurrent with such aviation aircraft development of the
Premises, and additional taxiways if needed by Developer's subtenants. Said
access taxiway shall be constructed to conform to federal standards and to the
standards of the Airport Manager for construction at the Airport. After
construction, Developer shall maintain said taxiway or any apron area
constructed to a distance of twenty-five (25) feet from Taxiway D.
8.4 Vehicle Parking. No vehicle not related to or used in the
---------------
business of Developer or its subtenants or their respective employees, agents,
guests or invitees shall be parked on the Premises for any period greater than
twenty-four (24) hours.
8.5 Federal Aviation Administration. Use of the Premises shall
-------------------------------
conform to and be limited by applicable zoning regulations, any conditions
lawfully imposed by duly empowered governmental authority having jurisdiction
over the Premises, the terms, covenants, conditions and restrictions imposed by
this Lease and such lawful rules and regulations of the Federal Aviation
Administration ("FAA") as may be applicable from time to time to the Premises.
The conditions imposed by the FAA as of
85
the date of this Lease are attached hereto, marked Exhibit "L" and made a part
hereof. The conditions set out in Exhibit "L" are applicable only to those
portions of the Premises used for aviation or aircraft purposes. Landlord shall
cooperate fully with Developer in obtaining all required FAA approvals.
Landlord understands that FAA has been made aware of the nature of the
development proposed for the Premises and as of the date of this Lease, Landlord
has not received communication from FAA indicating that the type of development
proposed would not be permitted if it complied with all applicable regulations.
8.6 Inspection. At all times during the term of this Lease, Landlord
----------
shall retain the right of access to and ingress and egress over the Premises to
inspect aviation related operations and to enforce codes or ordinances and
provisions of this Lease, subject to governmental and reasonable subtenant
security requirements.
9. LIENS:
-----
9.1 Developer's Responsibility. Developer shall not permit any liens
--------------------------
to be enforced against Landlord's interests in and to the land comprising the
Premises, nor against Developer's leasehold interest therein by reason of work,
labor, services or materials supplied or claimed to have been supplied to
Developer or anyone holding the Premises, or any part thereof, through or under
Developer, and Developer agrees to indemnify Landlord against such liens.
9.2 Notice of Work. Before any buildings, structures or other
--------------
improvements or additions thereto, having a cost
86
in excess of One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) are
constructed or reconstructed upon the Premises, Developer shall serve written
notice upon the Landlord in the manner specified in this Lease of Developer's
intention to perform such work for the purpose of enabling Landlord to post
notices on non-responsibility under the provisions of Section 3094 of the Civil
Code of the State of California, or any other similar notices which may be
required by law.
9.3 Discharge of Liens. If any mechanics liens or other liens shall
------------------
be filed by reason of work, labor, services or materials supplied or claimed to
have been supplied to Developer or anyone holding the Premises, or any part
thereof, through or under Developer, Developer shall cause the same to be
discharged of record within sixty (60) days after notice to Developer of the
filing thereof, or otherwise free the Premises from the effect of such claim of
lien and any action brought to foreclose such lien within such sixty (60) day
period, or Developer, within such sixty (60) day period, shall promptly furnish
to Landlord a bond in an amount and issued by a surety company satisfactory to
Landlord securing Developer against payment of such lien and against any and all
loss or damage whatsoever in any way arising from the failure of Developer to
discharge such lien.
9.4 Landlord's Right to Pay. In the event Developer fails to perform
-----------------------
its obligations under subsection 9.3 above with respect to any lien within the
sixty (60) day period specified in subsection 9.3 above, Landlord may, but shall
not be obligated to pay the amount thereof, inclusive of any interest thereon,
and any costs assessed against Developer in said litiga-
87
tion, or may discharge such lien by contesting its validity or by any other
lawful means.
9.5 Reimbursement of Landlord. Any amount paid by Landlord for any of
-------------------------
the expenses described in subsection 9.4 above, and all reasonable legal and
other expense of Landlord, including reasonable counsel fees, and costs of suit,
in defending any such action or in connection with procuring the discharge of
such lien, with all necessary disbursements in connection therewith, together
with interest thereon at the rate provided by law from the date of payment shall
be repaid by Developer to Landlord on demand.
10. CONDEMNATION:
------------
10.1 Definition of Terms. The following definitions shall govern
-------------------
interpretation of this subsection.
10.1.1 Total Taking. The term "total taking" as used in this
------------
Section 10 means the taking of the entire Premises under the power of
eminent domain or the taking of so much thereof as the parties
mutually agree will prevent or substantially impair the use of the
Premises of the uses and purposes than being made or proposed to be
made by Developer of the Premises. If the parties do not agree as to
whether prevention or substantial impairment has occurred, that issue
may be arbitrated as provided in the rules for arbitration published
by the American Arbitration Association. Each party shall pay half of
the cost of such arbitration.
10.1.2 Partial Taking. The term "partial
--------------
88
taking" means the taking of a portion only of the Premises which does
not constitute a total taking as defined above.
10.1.3 Voluntary Conveyance. Neither party to this Lease
--------------------
will voluntary convey any interest related to this Lease to any
agency, authority or public utility under threat of a taking under
the power of eminent domain in lieu of formal proceedings without
first providing written notice to the other of any request or
intention to do so.
10.1.4 Date of Taking. The term "date of taking" shall be
--------------
the date title to the Premises or portion thereof passes and vests in
the condemnor or the date of entry of an order for immediate
possession with any judicial proceeding in eminent domain or the date
physical possession of the Premises is taken or interfered with,
whichever first occurs.
10.1.5 Leased Land. The term "leased land" means the real
-----------
property demised hereby, but exclusive of any and all improvements
situated upon the Premises at the commencement of the Lease term and
also exclusive of all improvements constructed or placed thereon by
or under Developer and exclusive of any grading and other site work
performed by or under Developer.
10.2 Effect of Taking. If during the term hereof there shall be a
----------------
total or partial taking under the power of eminent domain, then the Leasehold
Estate of Developer in and to the Premises, in the event of a total taking, or
the portion
89
thereof taken, in the event of a partial taking, shall cease and terminate, as
of the date of taking thereof. If this Lease is so terminated in whole or in
part, all Ground Rent and other charges payable by Developer to Landlord
hereunder attributable to the Premises, or portion thereof taken, shall be paid
by Developer up to and prorated through the date of taking by the condemnor. Any
portion of the security deposit provided for in subsection 16.1.1 fairly
attributable to the terminated portion of the Leasehold Estate shall be repaid
to Developer and the parties shall thereupon be released from all further
liability in relation thereto.
10.3 Allocation of Award. All compensation and damages awarded in
-------------------
connection with any taking, total or partial, of the Premises including any
improvements thereon shall be allocated so that Developer shall receive that
portion of the award attributable to the value determined for improvements then
existing on the Premises, the value of Developer's leasehold interest in the
Premises and severance or other damages to buildings or the Leasehold Estate.
The remainder of the award, including all portions of the award attributable to
the value of the land as affected by the leasehold, and any severance or other
damages to the land, shall be payable to Landlord.
10.4 Reduction of Ground Rent on Partial Taking. In the event of a
------------------------------------------
partial taking, the Ground Rent payable by Developer shall be adjusted from the
date of taking to the next adjustment date (see subsection 3.2.1). Such Ground
Rent adjustment caused by the partial taking shall be made by reducing the
Ground Rent payable by Developer based on the ratio between the
90
fair market value of the leased land at the date of taking and the fair market
value of the leased land remaining immediately thereafter, valued for the use
being made of the leased land by Developer prior to such taking.
10.5 Temporary Taking. If all or any portion of the Premises shall
----------------
be taken by any competent authority for temporary use or occupancy, this Lease,
at the option of Developer, shall continue in full force and effect without
reduction or abatement of rent, notwithstanding any other provision of this
Lease, statute or rule of law to the contrary, and Developer shall, in such
event, be entitled to the entire award for such taking to the extent that the
same shall be applicable to the period of such temporary use or occupancy
included in the term of this Lease and Landlord shall be entitled to the
remainder thereof.
11. ALTERATIONS BY DEVELOPER:
------------------------
Developer shall have the right at any time and from time to time
during the Lease term to make, at its sole cost and expense, such changes and
alterations, structural or otherwise, in or to the improvements, other than
dedicated public improvements, constructed upon the Premises as Developer shall
deem necessary or desirable, including without limitation, the right to remove
and/or demolish buildings and other improvements provided that other buildings
or improvements are constructed in their place if such demolition occurs when
twenty (20) or more years are remaining in the term of this Lease, including any
extensions hereof. The rights granted by this section shall be
91
limited to and their exercise shall comply with the terms of Section 7 and
subsection 3.3 hereof.
12. TAXES AND ASSESSMENTS:
---------------------
12.1 Payment by Developer. Developer recognizes and understands
--------------------
that this Lease may create a possessory interest subject to property taxation
and that Landlord may be subject to the payment of property taxes on such
interest. Developer shall pay prior to delinquency all real estate taxes and
assessments on the Premises and/or Developer's possessory interests therein
levied during the term of this Lease. Developer shall not place or allow to be
placed on the Premises, or any part thereof, any mortgage, trust deed,
encumbrance or lien unauthorized by this Lease. Developer shall remove or have
removed any levy or attachment made on any of the Premises, or any part thereof,
or assure the satisfaction thereof within a reasonable time, but in any event
prior to a sale thereof. Nothing herein contained shall be deemed to prohibit
Developer from contesting the validity or amounts of any tax, assessment,
encumbrance or lien, nor to limit the remedies available to Developer in respect
thereto.
12.2 Installment Payments. If any real estate, special tax or
--------------------
assessments are at any time during the term of this Lease, levied or assessed
against the Premises or Developer's Leasehold Estate hereunder, which, upon
exercise of any option permitted by the assessing authority, may be paid in
installments or converted to an installment payment basis (irrespective of
whether interest shall accrue on unpaid installments), Developer may elect to
pay such taxes or assessments in installments with
92
accrued interest thereon. In the event of such election, Developer shall be
liable only for those installments of such taxes or assessments which become
payable during the term of this Lease, and Developer shall not be required to
pay any such installment which becomes due and payable after the expiration of
the term of this Lease. Landlord shall execute whatever documents may be
necessary to convert any such taxes or assessments to such an installment
payment basis if requested so to do by Developer and if such action is
authorized by law then in effect.
12.3 Proration. Any real estate taxes and assessments which are
---------
payable by Developer hereunder shall be prorated between Landlord and Developer
at the commencement and expiration or earlier termination of the term of this
Lease if such real estate taxes and assessments relate to a fiscal period of the
levying authority which arose before the term commenced or extends beyond the
expiration or earlier termination of the term hereof.
12.4 Right to Contest. Developer and any subtenant, with
----------------
Developer's consent, shall have the right to contest the amount or validity of
any real estate taxes and assessments, in whole or in part, by appropriate
administrative and legal proceedings, without any cost or expense to Landlord,
and Developer may postpone payment of any such contested real estate taxes and
assessments pending the prosecution of such proceedings and any appeals so long
as such proceedings shall operate to prevent the collection of such real estate
taxes and the sale of the Premises to satisfy any lien arising out of the
nonpayment of the same, provided, however that if at any time payment of the
whole
93
or any part thereof shall become necessary in order to prevent the termination
of the right of redemption of any property affected thereby, or if there is to
be an eviction of Developer because of nonpayment thereof, Developer shall pay
the same in order to prevent such termination of the right of redemption or such
eviction. Landlord shall execute and deliver to Developer whatever documents
may be within Landlord's legal authority necessary or proper to permit Developer
or any subtenants, with Developer's consent, to so contest any real estate taxes
or which may be necessary to obtain payment of any refund which may result from
any such proceedings. Any such contest shall be at no cost or expense to
Landlord. Each refund of any tax or assessment so contested shall be paid to
Developer.
13. CERTIFICATES BY DEVELOPER AND LANDLORD:
--------------------------------------
13.1 Developer to Provide. Developer agrees upon not less than
--------------------
twenty (20) days' notice by Landlord to execute, acknowledge and deliver to
Landlord a statement in writing certifying (i) that this Lease is unmodified and
in full force and effect (or if there have been modifications that the same is
in full force and effect as modified and stating the modifications); (ii)
whether or not to the best knowledge of Developer there are then existing any
offsets or defenses against the enforcement of any of the terms, covenants or
conditions hereof upon the part of Developer to be performed and, if so,
specifying the same; and (iii) the dates to which the Ground Rent and other
charges have been paid, it being intended that any such statement delivered
pursuant to this subsection may be relied upon by any prospective
94
purchaser of the fee of the real property comprising the Premises.
13.2 Landlord to Provide. Landlord agrees upon not less than twenty
-------------------
(20) days' prior notice by Developer, to execute, acknowledge and deliver to
Developer a statement in writing certifying (i) that this Lease is unmodified
and in full force and effect (or if there have been modifications, that the same
is in full force and effect as modified and stating the modifications); (ii) the
dates to which the Ground Rent and other charges have been paid; (iii) stating
whether or not to the best knowledge of Landlord, Developer is in default in
performance of any covenant, agreement or condition contained in this Lease and,
if so, specifying each such default of which Landlord may have knowledge; and
(iv) whether or not there are to Landlord's best knowledge any offsets or
defenses claimed by and/or available to Developer to the payment or rental, it
being intended that any such statement delivered pursuant to this subsection may
be relied upon by any prospective assignee or subtenant of the whole or any
portion of the Premises, or by any lender extending credit on the security of
Developer's Leasehold Estate.
14. QUIET ENJOYMENT:
---------------
Landlord covenants that Developer, upon the performance of the
covenants and agreements herein contained on Developer's part to be performed,
shall and may at all times, for itself and its subtenants, peaceably and quietly
have, hold and enjoy the Premises during the term of this Lease.
95
15. TERMINATION AND FURTHER LEASING:
-------------------------------
15.1 Termination. Subject to the provisions of Section 4, this
-----------
Lease may be terminated at any time by mutual agreement of the parties.
15.2 Termination by Developer. Developer may terminate this
------------------------
Lease in the event Developer is unable to secure an extended coverage leasehold
policy of title insurance, within ninety (90) days following execution of this
Lease containing only those exceptions approved be Developer, provided, however,
that Developer shall have first given Landlord sixty (60) days notice of its
intention to terminate during which time Landlord shall have an opportunity to
cure the deficiency.
15.3 Termination by Landlord. Subject to the provision of
-----------------------
Section 4 of this Lease, Landlord may terminate this Lease under the following
circumstances:
15.3.1 Developer fails to pay rent or any other charge
required by this Lease.
15.3.2 Developer assigns this Lease in violation of
subsection 5.1.
15.3.3 Failure of Developer to submit drawings or related
documents required by this Lease.
15.3.4 Failure of Developer to provide the good faith
deposit required by this Lease.
15.3.5 Bankruptcy of Developer. Final adjudication or
filing of a voluntary petition for bankruptcy by Developer.
Provided, however, that in all cases, Landlord shall give
Developer sixty (60) days prior written notice of its
96
intention to terminate, during which time Developer shall have an opportunity to
cure the default. However, if the default is of a nature such that it cannot be
cured within sixty (60) days, Developer shall not be in default if Developer
shall commence such use and diligently prosecute it to completion.
16. BONDS AND SECURITY DEPOSITS:
---------------------------
16.1 Good Faith Deposit.
------------------
16.1.1 Receipt by Landlord. Developer has, concurrently
-------------------
with the execution and delivery of this Lease, delivered to Landlord
a good faith deposit in the amount of One Million and No/l00 Dollars
($1,000,000.00) as security for the performance of the obligations of
Developer to be performed in accordance with the provisions of this
Lease. The receipt of the deposit is hereby acknowledged by Landlord.
16.1.2 Form of Deposit. The good faith deposit, at the
---------------
option of Developer, may be in the form of (i) cash; or (ii)
cashier's or certified check; or (iii) negotiable certificate or
certificates of deposit issued by a federal or state bank or savings
and loan association; or (iv) an irrevocable letter of credit in
favor of Landlord issued by an established bank or other institution
satisfactory to Landlord; or (v) a bond in a form and with a surety
reasonably satisfactory to Landlord providing for payment to Landlord
of amounts that may become payable to Landlord under this Lease from
time to time; or (vi) such other form of
97
security or deposit as may be mutually acceptable. Developer may
change the form of the deposit from time to time, at its option, to
any other of the permitted forms of deposit. The deposit, if in cash
or certified or cashier's check shall be deposited in an interest
bearing account of Landlord in a bank, savings and loan association
or trust company selected by Developer and approved by Landlord,
which approval shall not unreasonably be withheld. Developer shall
have the right to specify the type of account in which such funds
are, from time to time, to be deposited. Provided that no default has
occurred during the term of the Lease which has resulted in a
forfeiture by Developer of all or a part of the good faith or
security deposit, such deposit, or any portion thereof which has not
been forfeited, shall be returned to Developer upon expiration of
this Lease.
16.1.3 Interest. Landlord shall be under no obligation to pay
--------
or earn interest on the deposit, but if interest shall accrue or be payable
thereon such interest, when received by Landlord, shall be promptly paid to
Developer. Landlord agrees, but not more often than quarterly, upon receipt of a
request from Developer, to cause any such interest so accrued on such deposit to
be paid to Developer by the bank, savings and loan association or trust company
with which said sums have been deposited.
16.1.4 If Bond is Posted. If a bond is post-
-----------------
98
ed to satisfy the requirements of this Lease with a fixed term and if
such bond expires prior to the date Developer is entitled to have the
security deposit returned, Developer shall provide Landlord with
either (i) evidence of the renewal of such bond for an additional
period, or (ii) a new security deposit satisfying the requirements of
subsection 16.1 in one of the forms authorized by such subsection,
including, without limitation, a new bond, not less than twenty (20)
days prior to the expiration of the bond posted to satisfy the
requirements in subsection 16.1 above.
16.2 Construction Security Deposits. Developer has, prior to the
------------------------------
execution and delivery of this Lease, delivered to Landlord a construction
deposit in the amount of One Million and No/l00 Dollars ($1,000,000.00) as
security for the performance of the obligations of Developer to be performed
in accordance with the provisions of this Lease. The receipt of the deposit is
hereby acknowledged by Landlord.
16.2.1 Form of Construction Deposit. The construction
----------------------------
deposit, at the option of Developer, may be in the form of (i) cash;
or (ii) cashier's or certified check; or (iii) negotiable
certificates of deposit issued by a federal or state bank or savings
and loan association; or (iv) an irrevocable letter of credit in
favor of Landlord issued by an established lending institution
approved by Landlord; or (v) other form of security or deposit as may
be mutually acceptable. Developer may change the form of the deposit
from time
99
to time, at its option, to any other of the permitted forms of
deposit. The deposit, in cash or certified or cashier's check shall
be deposited in an interest bearing account of Landlord in a bank,
savings and loan association or trust company selected by Developer
and approved by Landlord, which approval shall not unreasonably be
withheld. Developer shall have the right to specify the type of
account in which such funds are, from time to time, to be deposited.
16.2.2 Interest. Landlord shall be under no obligation to pay or
--------
earn interest on the deposit, but if interest shall accrue or be payable thereon
such interest, when received by Landlord, shall be promptly paid to Developer.
Landlord agrees, but not more often than quarterly, upon receipt of a request
from Developer, to cause any such interest so accrued on such deposit to be paid
to Landlord by the bank, savings and loan association or trust company with
which said sums have been deposited.
16.2.3 Incorporation by Reference. Any bond obtained by Developer
--------------------------
shall incorporate by reference this Lease and all of its terms and conditions.
For purposes of such bonds, no requirement of this Lease may be deemed waived.
Waiver may be accomplished only by Landlord and only in writing by the City
Manager or his duly authorized representative.
16.2.4 Return of Deposit. Promptly upon Developer's completion of
-----------------
the construction of any build-
100
ing improvements upon the Premises and the issuance of a Certificate
of Occupancy for such improvements, Landlord shall release and return
to Developer a portion of the deposit described in subsection 16.2
based upon the proportion of the number of square feet of building
area (as measured from the exterior of exterior building walls) within
such completed building improvements and to 665,500 square feet of
building area. If Developer is not in default under this Lease, the
balance of such deposit, if any, with accrued interest shall be
returned to Developer upon the occurrence of the Completion Date as
specified in this Lease.
16.2.5 Retention of Deposit by Landlord. In the event that
--------------------------------
this Lease is terminated by Developer, in whole or in part, under
subsection 17.5 below, or in the event that Developer elects not to
permit Landlord to terminate this Lease by reason of Developer's
failure to commence and complete the construction of building
improvements upon the Premises as required by this Lease, said
deposit, less interest accrued thereon through the date of such
termination and also less any portion of such deposit to be returned
to Developer under subsection 16.2.4 above, shall be retained by
Landlord as provided in subsection 17.5 below.
17. GENERAL PROVISIONS:
------------------
17.1 Notices, Demands and Communications between the Parties. Written
-------------------------------------------------------
notices, demands, and communications be-
101
tween Landlord and Developer shall be in writing and shall be sufficiently given
if personally served or if mailed by registered or certified mail, postage
prepaid, return receipt requested, to the principal offices of Landlord or
Developer, set forth in subsection 1.5 of this Lease. Any such notice, demand or
communication so given by mailing to Landlord shall be mailed to the attention
of the City Manager. Copies of any such notice, demand or communication to be
given to Developer pursuant to this Lease shall be given to Xxxxxx Long Beach
Associates, Attention, President, such other entity, person or persons as he may
designate, by personal service or by mailing the same, as required by this
subsection, to such party, at the address set forth in subsection 1.5 above or
such other address as may be designated. Either Landlord or Developer may from
time to time by written notice to the other designate a different address or
addresses or party or parties to whom copies of notices, demands and
communications are to be delivered or to whose attention notices, demands and
communications are to be addressed which shall be substituted for the addresses
and/or names above specified. Notices shall be deemed served effective
immediately if personally served and effective as of the date received and set
forth on the return receipt if served by registered or certified mail.
17.2 Conflict of Interest. No member, official or employee of
--------------------
Landlord shall have any personal interest, direct or indirect, in this Lease,
nor shall any such member, official or employee participate in any decision
relating to this Lease which affects his personal interest or the interest of
any corporation, partnership or association in which he is, directly or
102
indirectly, interested. No member, official or employee of Landlord shall be
personally liable to Developer, or any successor in interest, in the event of
any default or breach by Landlord or for any amount which may become due to
Developer or successor or on any obligations under the terms of this Lease.
17.3 Enforced Delay: Extension of Time of Performance. In addition
-------------- --------------------------------
to other provisions of this Lease, performance by either party hereunder, shall
not be deemed to be in default where delays or defaults are unavoidable or
performance is rendered impracticable, due to war; enemy action; insurrection;
civil disturbance; strikes; lock-outs; riots; floods; earthquakes; fires;
casualties; acts of God; acts of the public enemy; epidemics; quarantine
restrictions; freight embargoes; lack of transportation; governmental
restrictions or moratoria; failure or inability to secure materials or labor by
reason of regulations or order of any governmental entity; litigation including
eminent domain proceedings or related legal proceedings; acts or failure to act
of the other party; acts or failure to act of any public or governmental agency
or entity; and the time for such performance shall be extended for a period
equal in length to such delay(s).
17.4 Inspection of Books and Records. Landlord has the right at all
-------------------------------
reasonable times during regular business hours to inspect the books and records
of the Developer pertaining to the Premises as pertinent to the purposes of this
Lease. Developer also has the right at all reasonable times during regular
business hours to inspect the books and records of the Landlord pertaining to
the Premises as pertinent to the purpose
103
of this Lease.
17.5 Defaults and Remedies.
---------------------
17.5.1 Defaults - General. Subject to the extensions of
------------------
time set forth in subsection 17.3 above, failure by either party to
perform any term or provision of this Lease constitutes a default
under this Lease, if not cured within thirty (30) days from the date
of receipt of a written notice from the other party specifying the
claimed default provided that if such default cannot reasonably be
cured within such thirty (30) day period, the party receiving such
notice of default shall not be in default under this Lease if such
party commences the cure of such default within such thirty (30) day
period and thereafter diligently prosecutes the steps to cure such
default to completion.
17.5.2 Institution of Legal Actions. In addition to any
----------------------------
other rights or remedies, either party may institute legal action to
cure, correct, or remedy any default, to recover damages for any
default, or to obtain any other remedy consistent with the purpose of
this Lease. Such legal actions must be instituted in the South Branch
of the Superior Court of the County of Los Angeles, State of
California, in an appropriate municipal court in that county, or in
the Federal District Court in the Central District of California. The
prevailing party in any action commenced pursuant to this Lease shall
be entitled to recover reasonable costs, expenses and attorneys'
fees.
104
17.5.3 Applicable Law. The laws of the State of California
--------------
shall govern the interpretation and enforcement of this Lease.
17.5.4 Service of Process. In the event any legal action is
------------------
commenced by Developer against Landlord, service of process on
Landlord shall be made by personal service upon the City Clerk of the
Landlord, or in such other manner as may be provided by law.
In the event that any legal action is commenced by Landlord
against Developer, service of process on Developer shall be made as
provided by law and shall be valid whether made within or without the
State of California, or in such manner as may be provided by law.
17.5.5 Rights and Remedies Are Cumulative. Except as otherwise
----------------------------------
expressly stated in this Lease, the rights and remedies of the
parties are cumulative, and the exercise by either party of one or
more of such rights or remedies shall not preclude the exercise by
it, at the same or different times, of any other rights or remedies
for the same default or any other default by the other party.
17.5.6 Inaction Not a Waiver of Default. Any failures or
--------------------------------
delays by either party in asserting any of its rights and remedies as
to any default shall not operate as a waiver of any default or of any
such rights or remedies or deprive either such party of its right to
institute and maintain any actions or proceed-
105
ings which it may deem necessary to protect, assert or enforce any
such rights or remedies.
17.5.7 Remedies. In the event of a default by Developer, which
--------
is not cured by Developer within the times specified in this Lease,
Landlord, without further notice to Developer, may declare this Lease
and/or Developer's right of possession at an end and may reenter the
Premises by process of law, in which event, Landlord shall have the
right to recover from Developer:
17.5.7.1 The worth at the time of award of the unpaid
Ground Rent which has been earned at the time of termination,
plus interest;
17.5.7.2 The worth at the time of award of the amount by
which the unpaid Ground Rent which would have been earned after
termination until the time of award exceeds the amount of such
rental loss that Developer proves could have been reasonably
avoided, plus interest;
17.5.7.3 The worth at the time of award of the amount by
which the unpaid Ground Rent for the balance of the term after
the time of award exceeds the amount of such rental loss for
the same period that Developer proves could be reasonably
avoided, plus interest thereon; and
17.5.7.4 The remedies of Landlord as hereinabove
provided are subject to the other provisions of this Lease,
including Section 4 hereof.
106
17.5.8 Developer's Rights. Developer shall have the right to
------------------
challenge the correctness of any determination of default made by
Landlord, and Landlord shall carefully review and consider
Developer's challenge.
17.5.9 Lease Termination. Should governmental action or failure
-----------------
to act preventing construction in accordance with this Lease or
rendering it impossible, occur prior to the time that Developer has
constructed any building upon the Premises, then Developer shall have
the right, at its option, with the prior written approval of any
lender which has a security interest in the Leasehold Estate, to
cancel and terminate this Lease by giving written notice of such
termination to Landlord, at any time prior to the construction of a
building upon the Premises. Upon any such termination of this Lease,
Developer and Landlord shall execute and record a quitclaim deed
sufficient to remove the cloud of this Lease and the short form of
this Lease from record title to the Premises and the deposits
described in subsections 16.1 and 16.2, plus any interest accrued on
such deposits, shall be paid to Developer by Landlord.
17.5.l0 Landlord's Exercise of Remedies. In the event of an
-------------------------------
uncured default by Developer in the performance of any of its
obligations to commence and complete the construction of the initial
building within the times required by Section 7 of this Lease and in
the further event that Landlord elects to exercise
107
its remedy to terminate this Lease by reason of such default by
Developer, Developer may, for a period of thirty (30) days following
its receipt of written notice from Landlord of Landlord's election to
terminate this Lease by reason of such default, elect to prevent such
termination from becoming effective by releasing and paying to
Landlord a portion of the good faith deposit held by Landlord under
subsection 16.1, which portion shall be equal to the lesser of (i)
the amount of such deposit so held by Landlord; or (ii) an amount
equal to the product of One and One-half Dollar ($1.50) per square
foot times the number of square feet of building area the failure to
commence or complete the construction of which has caused the subject
default or the adjusted rent per square foot if this provision
becomes operative after any rental adjustment.
17.5.11 Payment to Developer. In the event that this Lease is
--------------------
terminated as a result of an uncured default by Landlord and in the
further event that Developer has constructed streets, utilities
and/or other off-site improvements or grading improvements upon or in
relation to the Project prior to such termination of this Lease,
Landlord shall, pursuant to its responsibilities under State law, use
its best efforts to resell or relet the Premises, or any portion
thereof, as soon and in such manner as Landlord shall find feasible
and consistent with the objectives of such law to a qualified and
responsible party or parties (as rea-
108
sonably determined by Landlord) who will assume the obligation of
making or completing the improvements required of Developer under
this Lease, or such other improvements in their stead as shall be
satisfactory to Landlord and in accordance with the uses specified
for the Premises in this Lease. Upon such resale or reletting of the
Premises, or any portion thereof, the proceeds thereof shall be
applied:
17.5.11.1 Reimbursement to Landlord. First, to reimburse
-------------------------
Landlord for all costs and expenses incurred, including, but
not limited to, salaries to personnel in connection with the
recapture, management, and resale or reletting of the Premises,
or part thereof (but less any income derived by Landlord from
the Premises, or part thereof, in connection with such
management); all taxes, assessments and water and sewer charges
paid with respect to the Premises, or part thereof; any
payments made or which are necessary to be made to discharge
any encumbrances or liens existing on the Premises, or part
thereof, at the time or revesting of title thereto in Landlord
or to discharge or prevent from attaching any subsequent
encumbrances or liens due to obligations, defaults or acts of
Developer, its successors or transferees; any expenditures made
or obligations incurred with respect to the making or
completion of the improvements or any part thereof on the
Premises, or part
109
thereof; and any amounts otherwise owing Landlord by Developer
and its successor or transferee;
17.5.11.2 Reimbursement to Developer. Second, to
--------------------------
reimburse Developer, its successors or transferees, a sum up to
the amount equal to the sum of (i) the costs incurred for the
development of the Project, prorated to the Premises, if the
Premises are less than all of the Project, on a square foot
basis, and for the improvements existing on the Premises at the
time of the re-entry and repossession by Developer, less (ii)
any gains or income withdrawn or made by Developer from the
Premises or the improvements thereon; provided however, that no
payment shall be made to Developer if this Lease is terminated
as a result of an uncured default by Developer.
17.5.11.3 Ground Rent. Third, in the case of a reletting,
-----------
to pay to Landlord an amount equal to the Ground Rent and other
payments payable to Landlord hereunder that Landlord would have
received if this Lease had not been terminated;
17.5.11.4 Remaining Balance. Any balance remaining after
-----------------
such reimbursement shall be retained by Landlord as its
property. In the event that such street, utility and/or other
off-site improvements have been constructed by or the costs of
such construction were paid or reimbursed by an improvement or
special assessments district, the provisions
110
of this subsection shall be applicable to the costs for such
improvements if payment of the bonds issued by such district
have been guaranteed by Developer or are secured by security,
in addition to the Leasehold Estate created hereby, or paid by
Developer, but only to the extent of such payment by Developer
or of payment from the proceeds of such guarantee or security.
17.5.12 Delivery of Plans. In the event that this Lease is
-----------------
terminated, for any reason whatsoever, Developer shall deliver to
Landlord one set of all plans and data in its possession concerning
the Premises.
17.6 Right to Contest Laws. Developer shall have the right,
---------------------
after notice to Landlord to contest or to permit its subtenants to contest by
appropriate legal proceedings, without costs or expense to Landlord, the
validity of any law, ordinance, order, rule, regulation or requirement to be
complied with by Developer under this Lease and to postpone compliance with the
same except such laws as may be adopted by Landlord, provided such contest shall
be promptly and diligently prosecuted at no expense to Landlord and so long as
Landlord shall not thereby suffer any civil penalties, sanction or be subjected
to any criminal penalties or sanctions, and Developer shall protect and save
harmless Landlord against any liability and claims for any such noncompliance or
postponement of compliance.
17.7 Trade Fixtures. All trade fixtures, furnishings, equipment
--------------
and signs installed by or under Developer or subtenants shall be and remain the
property of the person, firm
111
or corporation installing the same and shall be removable at any time during the
term of this Lease. The removal of any such trade fixtures, furnishings,
equipment and signs shall be at the expense of the person, firm or corporation
removing the same, who shall repair any damage or injury to the Premises and all
improvements thereto occasioned by the removal thereof. In the event that any
subtenant acquires any furniture, trade fixtures, signs and/or equipment to be
used in connection with its subleased premises from an equipment lessor or from
an equipment seller under a security agreement, Landlord agrees to execute such
documents as may reasonably be required by the equipment lessor or creditor in
order to assure such party of its prior rights in and to any such equipment,
furniture, signs and/or trade fixtures and of its right to remove any such
equipment, furniture, signs and/or trade fixtures from the subleased premises
for a period of not to exceed forty-five (45) days from and after notice to such
party of the termination or expiration of the sublease of the subject subtenant-
lessee or subtenant-debtor.
17.8 Continued Possession of Developer. If Developer shall hold
---------------------------------
over the Premises after the expiration of the term hereof with the consent of
Landlord, either express or implied, such holding over shall be construed to be
only a tenancy from month-to-month, subject to all the covenants, Ground Rent
conditions and obligations hereof and terminable by either party as provided by
law.
17.9 Utilities. Developer shall pay or cause to be paid all
---------
charges for gas, electricity, water and other utilities furnished to the
Premises during the term of this Lease and
112
all sewer use charges or similar charges or assessments for utilities levied
against the Premises for any period included within the term of this Lease.
17.10 Surrender. Upon the expiration of the term of this Lease,
---------
as provided herein, or sooner termination of this Lease, Developer, subject to
subsection 17.5.11 shall surrender to Landlord, all and singular, the Premises,
including any buildings and all improvements constructed by or under Developer
then situated upon the Premises, and Developer shall execute, acknowledge and
deliver to Landlord within ten (10) days after written request from Landlord to
Developer, a Quitclaim Deed or other document required by any reputable title
company to remove the cloud of this Lease from the Premises. Notwithstanding the
foregoing provisions of this section to the contrary, Developer shall have the
right, at any time not less than six (6) months prior to the expiration of the
term of this Lease and for a period of sixty (60) days following the expiration
of the term to remove all or any portion of the buildings and other improvements
constructed by or under Developer upon the Premises, without obligation to
replace the same with new buildings and/or other improvements as required by
subsection 6.3 above.
17.11 Partial Invalidity. If any term or provision of this
------------------
Lease or the application thereof to any party or circumstances shall, to any
extent, be held invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision, to persons or circumstances other than
those as to whom or which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of this
113
Lease shall be valid and enforceable to the fullest extent permitted by law.
17.12 Section Headings. The section and subsection headings of
----------------
this Lease are inserted as a matter of convenience and reference only and in no
way define, limit or describe the scope or intent of this Lease or in any way
affect the terms and provisions hereof.
17.13 Short Form Lease. Concurrently with the execution and
----------------
delivery of this Lease, Landlord and Developer have executed, acknowledged and
caused to be recorded a short form of this Lease in the form attached hereto as
Exhibit "M".
17.14 Exhibits Incorporated. Exhibit "A" is hereby incorporated
---------------------
in this Lease. No other exhibit is incorporated in the Lease and all exhibits,
other than Exhibit "A", may be changed or modified by agreement between Landlord
and Developer at any time and from time to time without amending this Lease.
17.15 Entire Agreement, Waivers and Amendments. This Lease is
----------------------------------------
executed in three (3) triplicate originals, each of which is deemed to be an
original. It constitutes the entire understanding and agreement of the parties.
This Lease integrates all the terms and conditions mentioned herein or
incidental hereto, and supersedes all negotiations or previous agreements
between the parties with respect to all or any part of the subject matter
hereof.
17.16 Waivers. All waivers of the provisions of this Lease must
-------
be in writing by the appropriate authorities of Landlord or Developer, and all
amendments hereto must be in writing by the appropriate authorities of Landlord
and Developer.
114
17.17 Approvals. Except where specific criteria are set forth
---------
as a condition to approving or disapproving a matter or course of action,
including but not limited to assignment (subsection 5.4), and subletting
(subsection 5.7.2), in all circumstances where under this Lease either party is
required to approve or disapprove any matter, such approval shall not be
unreasonably withheld.
17.18 Successors in Interest. The provisions of this Lease
----------------------
shall be binding upon and shall inure to the benefit of the heirs, executors,
assigns and successors in interest of the parties hereto.
17.19 "And/Or". Whenever the words and symbols "and/or" are
-------
used in this Lease, it is intended that this Lease be interpreted and the
sentence, phrase or other part be considered in both its conjunctive and
disjunctive sense, and as having been written twice, once with the word "and"
inserted, and once with the word "or" inserted, in the place of said words
and symbol "and/or".
17.20 "Including" Defined. The use of the word "including", or
-------------------
"include", when followed by any general statement, term or matter, will not be
construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such work or to similar items, terms or
matters, but rather will be deemed to refer to all other items, terms or matters
that could reasonably fall within the broadest possible scope of such general
statement, term, item or matter.
17.21 Right of First Refusal to Purchase. If Landlord shall
----------------------------------
determine during the term of this Lease that it is
115
lawful and in the public interest to sell the Premises, or any portion thereof,
Landlord shall, prior to making the Premises or part thereof available for sale
to any other party, provide Developer with the opportunity to purchase said
property at its fair market value, as determined by an appraisal obtained by
Landlord. If Developer has not entered into an agreement to purchase said
property within sixty (60) days of the date it is first offered for sale to
Developer at the price theretofore determined by Landlord to be the fair market
value, Landlord may offer the property for sale on the open market. Provided,
however, that if Landlord should reduce the fair market value of the Premises or
part thereof to be sold by seven and one-half percent (7.5%) or more,
Developer's first refusal rights shall be reinstated. Developer shall respond
to any such re-offer within five (5) business days, and if Developer fails to
respond within that time period Developer's first refusal rights shall
terminate. The determination whether such property shall be made available for
sale is and shall be within the sole and exclusive discretion of Landlord.
Landlord shall determine the legality of such action prior to making a
determination to sell on the basis of the law then in effect.
17.22 If Developer is a Trustee. If Developer is a Trustee,
-------------------------
this Lease is executed by the undersigned Trustee, not personally, but solely as
Trustee, and it is expressly understood and agreed by the parties hereto,
anything contained herein to the contrary notwithstanding, that each and all of
the covenants, undertakings, representations and agreements herein made are
intended, not as personal covenants, undertakings, representations
116
and agreements of the Trustee, individually, or for the purpose of binding the
Trustee personally, but this Lease is executed and delivered by the Trustee
solely in the exercise of the powers conferred upon the Trustee as such Trustee
under the trust agreement and no personal liability or personal responsibility
is assumed by, nor shall at any time be asserted or enforced against said
Trustee on account hereof, or on account of any covenant, undertaking,
representation, warranty or agreement herein contained, either expressed or
implied, and all such personal liability, if any, being hereby expressly waived
and released by the parties hereto, and by all persons claiming by or under said
parties. The provisions of this subsection 17.22 shall apply to any Trustee
succeeding in whole or in part to the interests of Developer hereunder.
17.23 Limitation of Liability of Partners. From and after the
-----------------------------------
completion of the construction of the improvements described in this Lease, if
Developer at any such time shall be a partnership or joint venture, Landlord
shall look solely to the assets of such partnership or joint venture for the
collection or satisfaction of any money judgment which Landlord may recover
against Developer, and Landlord shall not look for the collection or
satisfaction of any such judgment to the personal assets of any person who shall
at any time be a partner, joint venturer or participant in or under any such
partnership or joint venture. The provisions of the subsection shall be binding
upon Landlord and each and every future owner of Landlord's interest under this
Lease and shall insure to the benefit of each and every such partner, joint
venturer and participant.
117
17.24 Approvals. Except as otherwise specifically provided in
---------
this Lease, all approvals to be done by Landlord may be done by Landlord's City
Manager or his designee.
IN WITNESS WHEREOF, Landlord and Developer have signed this Lease as
of the date opposite their signature.
CITY OF LONG BEACH, a municipal corporation
July 17, 1985 By: /s/ [SIGNATURE APPEARS HERE]
-----------------------------------------
City Manager
LANDLORD
XXXXXX LONG BEACH ASSOCIATES, a
California limited partnership
By: XXXXXX LONG BEACH DEVELOPMENT CORPORATION,
General Partner
July 10, 1985 By: /s/ Xxxx X. Xxxxxx, Xx.
------------------------------------
XXXX X. XXXXXX, XX.
President
DEVELOPER
This Lease Agreement is approved as to form this 17th day of
July, 1985.
XXXXXX X. XXXXXX, City Attorney
By: [SIGNATURE APPEARS HERE]
Deputy
118
17.24 Approvals. Except as otherwise specifically provided in
---------
this Lease, all approvals to be done by Landlord may be done by Landlord's City
Manager or his designee.
IN WITNESS WHEREOF, Landlord and Developer have signed this Lease as
of the date opposite my seal.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On July 17, 1985 , before me, the undersigned a Notary Public and for said
-----------------
State, personally appeared XXXX X. XXXXX personally known to me to be the person
who executed this instrument as CITY MANAGER of the City of Long Beach, a
municipal corporation, and acknowledged to me that the municipal corporation
executed it.
WITNESS My hand and official seal.
SIGNATURE: /s/ Jo Xxx Xxxxx
-------------------- [SEAL APPEARS HERE]
JO XXX XXXXX
JULY 10 , 1985 By: /s/ Xxxx X. Xxxxxx, Xx.
--------------- ------------------------
XXXX X. XXXXXX, XX.
President
DEVELOPER
This Lease Agreement is approved as to form this 17 day of July, 1985.
XXXXXX X XXXXXX, City Attorney
By: [SIGNATURE APPEARS HERE]
Deputy
118
DEVELOPER'S ACKNOWLEDGMENT
---------------------------
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On July 10, 1985, before me, the undersigned, a Notary Public in and for
said State, personally appeared Xxxx X. Xxxxxx, Xx., personally known to me or
proved to me on the basis of satisfactory evidence to be the person that
executed this instrument as President of Xxxxxx Long Beach Development
Corporation, the corporation that executed this instrument as the general
partner of Xxxxxx Long Beach Associates, a California Limited Partnership, the
partnership that executed the within instrument, and acknowledged to me that
such corporation executed the same as such partner and that said partnership
executed the same.
WITNESS my hand and official seal.
( SEAL )
/s/ Xxxxxx X. Xxxx
[SEAL APPEARS HERE] --------------------------
Notary Public in and for
said State
LEGAL DESCRIPTION
-----------------
THAT PORTION OF PARCEL 1, IN THE CITY OF LONG BEACH, IN THE COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS SHOWN ON A RECORD OF SURVEY, FILED IN BOOK 85,
PAGE 19, OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, TOGETHER WITH THOSE PORTIONS OF XXXX 0 XXX 0, XXXXX XX. 00000, XX SAID
CITY, COUNTY OF STATE, AS PER MAP RECORDED IN BOOK 174, PAGES 15 TO 23,
INCLUSIVE OF MAPS, IN SAID RECORDER'S OFFICE, AND TOGETHER WITH THAT PORTION OF
LAKEWOOD BOULEVARD (FORMERLY KNOWN AS CERRITOS AVENUE, 80 FEET WIDE) AS SHOWN ON
SAID MAP OF TRACT NO. 10548, NOW VACATED BY THE STATE OF CALIFORNIA HIGHWAY
COMMISSION, A CERTIFIED COPY OF WHICH WAS RECORDED MAY 19, 1959, AS INSTRUMENT
NO. 3601, OF OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY RECORDER, DESCRIBED
AS A WHOLE AS FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 1, SAID RECORD OF SURVEY;
THENCE NORTH 00 DEGREES 00 MINUTES 46 SECONDS EAST 324.60 FEET, ALONG THE
WESTERLY LINE OF SAID PARCEL 1, TO THE NORTHWESTERLY CORNER OF SAID PARCEL 1,
SAID NORTHWESTERLY CORNER BEING A POINT IN A NON-TANGENT CURVE CONCAVE NORTHERLY
AND HAVING A RADIUS OF 1,050.00 FEET, A RADIAL LINE THAT BEARS SOUTH 2 DEGREES
06 MINUTES 54 SECONDS WEST TO SAID POINT, SAID CURVE ALSO BEING THE NORTHERLY
LINE OF SAID PARCEL 1; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE
OF 27 DEGREES 32 MINUTES 10 SECONDS AN ARC DISTANCE OF 504.63 FEET TO A POINT,
SAID LAST MENTIONED POINT BEING A RADIAL LINE THAT BEARS SOUTH 25 DEGREES 25
MINUTES 16 SECONDS EAST, TO SAID LAST MENTIONED POINT; THENCE SOUTH 45 DEGREES
22 MINUTES 59 SECONDS EAST 1,403.34 FEET TO A POINT IN THAT CERTAIN COURSE AS
DESCRIBED AS HAVING A BEARING AND LENGTH OF "SOUTH 34 DEGREES 15 MINUTES 50
SECONDS WEST 225.46 FEET" IN THE NORTHWESTERLY BOUNDARY OF THAT PARCEL OF LAND
DESCRIBED AS PARCEL 1 IN DEED TO STATE OF CALIFORNIA, RECORDED MARCH 18, 1959,
AS INSTRUMENT NO. 1904, OF OFFICIAL RECORDS, OF SAID COUNTY, SAID LAST MENTIONED
POINT BEING NORTH 34 DEGREES 16 MINUTES 23 SECONDS EAST 40.81 FEET, ALONG SAID
COURSE, FROM THE SOUTHWESTERLY TERMINUS THEREOF; THENCE SOUTH 34 DEGREES 16
MINUTES 23 SECONDS WEST 40.81 FEET, ALONG SAID COURSE, TO THE NORTHEASTERLY
TERMINUS OF THAT CERTAIN COURSE IN SAID NORTHWESTERLY BOUNDARY, AS DESCRIBED IN
SAID LAST MENTIONED PARCEL 1, AS HAVING A BEARING AND LENGTH OF "SOUTH 62
DEGREES 04 MINUTES 30 SECONDS WEST, 51.05 FEET, MORE OR LESS,"; THENCE SOUTH 62
DEGREES O5 MINUTES 03 SECONDS WEST ALONG SAID LAST MENTIONED CERTAIN COURSE, TO
THE NORTHEASTERLY TERMINUS OF THAT CERTAIN COURSE AS DESCRIBED AS HAVING A
BEARING AND LENGTH OF "SOUTH 62
EXHIBIT "A"
Page 1 of 2 Pages
DEGREES 04 MINUTES 30 SECONDS WEST, 113.28 FEET" IN SAID LAKEWOOD BOULEVARD, NOW
VACATED BY THE CALIFORNIA HIGHWAY COMMISSION; THENCE SOUTH 62 DEGREES O5 MINUTES
03 SECONDS WEST ALONG SAID LAST MENTIONED CERTAIN COURSE TO THE NORTHEASTERLY
TERMINUS OF THAT COURSE AS DESCRIBED AS HAVING A BEARING AND LENGTH OF "SOUTH 62
DEGREES 04 MINUTES 30 SECONDS WEST 704.56 FEET" IN THE NORTHERLY BOUNDARY OF
THAT PARCEL OF LAND DESCRIBED AS PARCEL 1 IN DEED TO THE STATE OF CALIFORNIA,
RECORDED MAY 11, 1959, AS INSTRUMENT XX. 0000, XX XXXXXXXX XXXXXXX, XX XXXX
XXXXXX; THENCE ALONG SAID LAST MENTIONED NORTHERLY BOUNDARY SOUTH 62 DEGREES O5
MINUTES 03 SECONDS WEST 704.56 FEET, SOUTH 80 DEGREES O5 MINUTES 43 SECONDS WEST
105.00 FEET AND NORTH 80 DEGREES 14 MINUTES 59 SECONDS WEST 676.33 FEET; THENCE
NORTH 9 DEGREES 45 MINUTES 01 SECONDS EAST 570.00 FEET; THENCE NORTH 25 DEGREES
20 MINUTES 00 SECONDS EAST 15.00 FEET; THENCE NORTH 8 DEGREES 44 MINUTES 49
SECONDS WEST 248.97 FEET TO THE SOUTHERLY PROLONGATION OF SAID WESTERLY LINE OF
PARCEL 1, AS SHOWN ON SAID RECORD OF SURVEY; THENCE NORTH 0 DEGREES 00 MINUTES
46 SECONDS EAST 72.14 FEET ALONG SAID PROLONGATION, TO THE POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS IN AND UNDER, OR
WHICH MAY BE PRODUCED OR SAVED FROM SAID LAND; TOGETHER WITH ALL RIGHTS OF EVERY
KIND AND DESCRIPTION WHATSOEVER TO DRILL FOR, DEVELOP, TAKE, REMOVE, AND SEVER
THE SAME, OR ANY PART THEREOF, FROM SAID LAND, WITHOUT, HOWEVER, THE RIGHT TO
THE USE OF THE SURFACE OF SAID LAND IN CONNECTION WITH THE DEVELOPMENT OR
REMOVAL OF SAID OIL, GAS OR OTHER HYDROCARBONS, ALL DRILLING AND BORING FOR SAID
PURPOSES TO BE DONE BENEATH THE SURFACE OF SAID LAND AT ANY LEVEL, OR LEVELS,
100 FEET, OR MORE, BELOW THE SURFACE THEREOF, THE SURFACE OPENING OF THE WELL
HOLE TO BE LOCATED ON LAND OTHER THAN THE LAND ABOVE DESCRIBED, AS RESERVED IN
THE DEED FROM XXXXX LAND COMPANY, A CORPORATION, RECORDED AUGUST 25, 1948 IN
BOOK 28072 PAGE 204, OFFICIAL RECORDS, AND RECORDED FEBRUARY 10, 1950 IN BOOK
32238 PAGE 67 OFFICIAL RECORDS AND RECORDED DECEMBER 28, 1950 IN BOOK 35179 PAGE
303, OFFICIAL RECORDS AND RECORDED DECEMBER 28, 1950 IN BOOK 35179 PAGE 310,
OFFICIAL RECORDS.
EXHIBIT "A"
Page 2 of 2 Pages
[MAP APPEARS HERE]
EXHIBIT "B"
[MAP APPEARS HERE}
EXHIBIT "C"
XXXXXX AIRPORT CENTER LONG BEACH
CATEGORIES OF PRE DEVELOPMENT AND
INFRASTRUCTURE COSTS
(DURING AND RELATED TO INITIAL CONSTRUCTION
WHICH MAY BE ACCOMPLISHED IN PHASES)
Note: Exhibit "D" consists of a map and the following text.
1. FEES
1.1 Filing Fees
1.2 Inspection Fees
1.3 Plan Check & Permits
1.4 Sewer Area Fees
1.5 Flood Control Fees
1.6 Recording Fees
1.7 Other Fees
2. GENERAL
2.1 Legal & Audit Fees
2.2 Bonds
2.3 Insurance
2.4 Taxes & Assessments During Construction
2.5 Laboratory Testing
2.6 Unusual or Temporary Security
2.7 Utilities During Construction
2.8 Prints and Other Direct Costs
3. SITE INVESTIGATION
3.1 Survey and Parcel Map
3.2 Title Report
3.3 Borings
3.4 Soil Tests
4. ARCHITECTURE AND ENGINEERING
4.1 Site Planning
4.2 Civil Engineering
4.3 Electrical Engineering
4.4 Mechanical Engineering
4.5 Traffic Study
4.6 Signal Engineering
4.7 Landscape Architecture
4.8 Structural Engineering
4.9 Water Department Specifications
5. DEMOLITION
5.1 Utilities
5.2 Temporary Service to Adjacent Sites
5.3 NIKE Bunkers
5.4 Surface Buildings
5.5 Asphalt Paving
5.6 Concrete Slabs
5.7 Fencing
5.8 Allowance for Underground Items
EXHIBIT "D"
Page 1 of 4 Pages
6. SITE PREPARATION
6.1 Relocate Existing Signs
6.2 Temporary Construction Fences
6.3 Testing for Hazardous Materials
6.4 Allowance for Unforseen Site Conditions
6.5 National Guard Accesses
7. EXCAVATION AND GRADING
7.1 Grub and Rough Grade
7.2 Remove and Recompact
7.3 Scarify and Recompact
7.4 Import Fill, Compact and Grade
7.5 Fine Grade Street Easement
8. SEWERS
8.1 Sewer Mains, Approximate Sizes
8.1.1 l8" Main
8.1.2 8" Main
8.2 Lateral Stub Outs to Interior Edge of Sidewalk Easement
8.3 Manholes
8.4 Join Existing Sewer
9. STORM DRAINS
9.1 Main Storm Drains, Approximate Sizes
9.1.1 33" Main
9.1.2 30" Main
9.1.3 27" Main
9.1.4 24" Main
9.1.5 18" Main
9.2 Catch Basins
9.3 Lateral Stub Outs to Interior Edge of Sidewalk Easement
9.4 Manholes
9.5 Erosion Control on Parcels
10. WATER, APPROXIMATE SIZES
10.1 12" Water Main
10.2 Vaults and Lateral Stubs Outs to Interior Edge of Sidewalk Easement
10.3 Hot Taps
10.4 12" Valves
10.5 Blow off Valve
10.6 Air Evacuation Assembly
10.7 Fire Hydrants
10.8 Irrigation Backflow Preventers
10.9 Service Connections
10.10 Relocate Surge Tank
10.11 Relocate Existing Meters
EXHIBIT "D"
Page 2 of 4 Pages
11. ELECTRICAL
11.1 Six Main Conduits, Approximately 5"
11.2 Lateral Stub Outs to Interior Edge of Sidewalk Easement
11.3 Irrigation Transformer Vaults
11.4 Manholes
12. GAS
12.1 Gas Main
12.2 Lateral Stub Outs to Interior Edge of Sidewalk Easement
12.3 Valves
12.4 Engineering
13. TELEPHONE
13.1 Ten Main Conduits, Approximately 4"
13.2 Lateral Stub Outs to Interior Edge of Sidewalk Easement
13.3 Manholes
14. PERIMETER WALLS & FENCES
14.1 8' 4" Screen Wall
14.2 Remove Temporary Fences
14.3 Chain Link Security Fence
15. STREET IMPROVEMENTS
15.1 Intersection at Spring and KAC Drive
15.1.1 Curb Demolition
15.1.2 Asphalt Paving Demolition
15.1.3 Excavation
15.1.4 Retaining Wall
15.1.5 Back Fill
15.1.6 Curb and Gutter
15.1.7 Asphalt Paving
15.1.8 Traffic Signal
15.1.9 Restriping
15.2 Intersection at Redondo and KAC Drive
15.2.1 Curb Demolition
15.2.2 Asphalt Paving Demolition
15.2.3 Curb and Gutter
15.2.4 Asphalt Paving
15.2.5 Traffic Signal
15.3 Intersection at Spring and Redondo
15.3.1 Modify Traffic Signal
15.4 Xxxxxx Airport Center Drive
15.4.1 Curb and Gutter
15.4.2 Asphalt Street Paving
15.4.3 Crosswalk Pavers
15.4.4 Concrete Sidewalks
15.4.5 Curb
15.4.6 Street Lights
EXHIBIT "D"
Page 3 of 4 Pages
16. SIGNS
16.1 Street Name Signs
16.2 Stop Signs
17. LANDSCAPE IN THE AREAS SHOWN ON THE ATTACHED DRAWING
17.1 Soil Preparation & Fine Grading
17.2 Finish Grading
17.3 Irrigation
17.4 Trees, Approximate Size
17.4.1 72" Box
17.4.2 60" Box
17.4.3 48" Box
17.4.4 36" Box
17.5 Xxxxxx/Shrubs, Approximate Size
17.5.1 15 Gallon
17.5.2 5 Gallon
17.5.3 1 Gallon
17.6 Sodded Turf/Ground Cover
17.7 Landscape Curb or Similar Separation Between Landscaped Areas and
Undeveloped Portions of parcels at Perimeter of Site
18. MISCELLANEOUS
18.1 Developer Overhead and Supervision (6%)
18.2 Burden
18.3 Contingency
NOTE: Specific sizes referenced above are estimates only as of the date of
the Ground Lease and are subject to change based upon final
engineering.
NOTE: Specialty contractor and subcontractor overhead and supervision shall
be included in each individual line item cost.
NOTE: Developer's Overhead & Supervision (item 18.1) applies whether
Developer is the developer or is the Construction Manager (if the
City of Long Beach causes the work to be performed).
EXHIBIT "D"
Page 4 of 4 Pages
[MAP APPEARS HERE]
[MAP APPEARS HERE]
AGREEMENT OF NON-DISTURBANCE
THIS AGREEMENT is made as of the _________ day of ___________,
198___, by and among the CITY OF LONG BEACH, a Municipal
Corporation (hereinafter called "Landlord"); XXXXXX LONG BEACH
ASSOCIATES, a California Limited Partnership, (hereinafter called
"Developer"); and ________________________________________________
(hereinafter called "Subtenant").
PRELIMINARY
A. Landlord and Developer have entered into a Lease
Agreement dated ______________________ (hereinafter referred to as
the "Ground Lease") pursuant to which Landlord has demised and
leased to Developer certain real property located in the City of
Long Beach, County of Los Angeles, State of California, including the real
property described in Exhibit "A" attached hereto and incorporated herein.
A short form of the Ground Lease was recorded _____________, 198__ in the
Official Records of said County.
B. Developer, as Sublandlord, and Subtenant, as subtenant, have entered
into a Sublease dated _______________________, 198__, (hereinafter referred to
as the "Sublease") which Sublease demises to Subtenant a portion of the premises
demised by the Ground Lease (and grants to Subtenant certain rights with respect
EXHIBIT "E"
Page 1 of 7 Pages
to other portions of the premises demised by the Ground Lease). A short form of
the Sublease is being recorded concurrently herewith in the Official Records of
said County, which short form of Sublease describes the premises demised thereby
(and the other rights and obligations of Subtenant with respect to the real
property described in the attached Exhibit "A").
C. The parties hereto now desire to enter into this Agreement so as to
clarify their rights, duties and obligations under the Ground Lease and the
Sublease and to further provide for various contingencies as hereinafter set
forth.
NOW THEREFORE, in consideration of the foregoing and of the mutual agreement
of the parties hereto to the terms and conditions hereinafter contained, the
parties hereto agree as follows:
1. In the event Developer shall default in the payment of any sum or in the
performance of any covenant or condition of the Ground Lease, all as provided
therein, or in the event of any termination or expiration of the Ground Lease
for any reason whatsoever prior to the expiration of the term of the Sublease as
provided in the Sublease (other than a termination of the Ground Lease only as
to portions of the premises demised thereby not described in the attached
Exhibit "A"), then Landlord, Developer and Subtenant do hereby agree that the
Sublease, and all terms, provisions, covenants and agreements thereof shall
survive any
EXHIBIT "E"
Page 2 of 7 Pages
such default or defaults in, or termination or expiration of the Ground Lease,
whether such termination occurs as a result of, or arising out of, any such
default or defaults, or otherwise, and the Sublease (subject to the rights of
any Leasehold Mortgagee, as defined in the Ground Lease, to enter into a New
Lease with Landlord upon the same terms and conditions and having the same
priority as the Ground Lease, pursuant to subsection 4.8 of the Ground Lease)
shall continue in force and effect in accordance with and subject to all of its
terms, provisions, agreements and covenants as a direct lease with Landlord, as
landlord, and Subtenant, as lessee. Subtenant agrees, in such event, to attorn
to Landlord and to recognize Landlord as the landlord under the Sublease.
Landlord shall, in such event, exercise and undertake all of the rights,
obligations and duties of Developer in and under said Sublease and thereafter
shall be entitled to collect all rents and payments due and payable under said
Sublease, including the right to collect any sums being due and payable
thereunder prior to the termination or expiration of the Ground Lease which are
accrued and unpaid by Subtenant on the date of termination of the Ground Lease.
Subtenant agrees not to prepay rentals under the Sublease beyond the amounts
provided in the Sublease without the prior written consent of Landlord.
2. Landlord agrees that, prior to terminating the Ground Lease or taking
any proceedings to enforce any such termination thereof for any reason other
than the expiration of the term of
EXHIBIT "E"
Page 3 of 7 Pages
the Ground Lease as provided therein, Landlord shall give Subtenant thirty (30)
days' notice in writing prior to the effective date of such termination,
specifying the reason for such termination. Such notice shall be given to
Subtenant at the address provided in the Sublease for notices to Subtenant.
Subtenant may change such address by written notice to Landlord.
3. Landlord hereby approves of the Sublease and of the rights and
privileges granted to Subtenant thereunder and agrees that, for and during the
term of the Sublease and any extensions thereof, Landlord shall not take any
action, directly or indirectly, to disturb or otherwise affect Subtenant's
occupancy of and/or rights and privileges with respect to the premises demised
by the Ground Lease and described on the attached Exhibit "A" so long as
Subtenant is not in default under the Sublease, nor shall Subtenant's exercise
of any such rights or privileges constitute a default under the Ground Lease,
notwithstanding any provisions to the contrary contained in the Ground Lease.
4. No provision contained herein shall be deemed an amendment or
modification of any provision contained in the Sublease, including, without
limiting the generality of the foregoing, any rights given thereunder to
Developer to terminate the Sublease.
5. In the event that the Ground Lease is divided, in accordance with its
terms, into two (2) or more New Leases or
EXHIBIT "E"
Page 4 of 7 Pages
Separate Leases, the term "Ground Lease", as used herein, shall be deemed to
refer to the said New Lease or Separate Lease leasing and demising the subleased
premises.
6. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their successors, transferees and assigns.
EXHIBIT "E"
Page 5 of 7 Pages
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first hereinabove set forth.
CITY OF LONG BEACH,
A Municipal Corporation
By:_______________________________________
Title:____________________________________
XXXXXX LONG BEACH ASSOCIATES,
A California Limited Partnership
By: XXXXXX INDUSTRIES, a California Corporation,
General Partner
By:__________________________________
Title:_______________________________
By:_______________________________________
By:_______________________________________
"Developer"
------------------------------------------
------------------------------------------
"Subtenant"
EXHIBIT "E"
Page 6 of 7 Pages
This Agreement is hereby approved as to form this _________
day of_________________, 198___.
XXXXXX X. XXXXXX, City Attorney
BY:________________________________
"Deputy"
EXHIBIT "E"
Page 7 of 7 Pages
LEGAL DESCRIPTION
THAT PORTION OF PARCEL 1, IN THE CITY OF LONG BEACH, IN THE COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS SHOWN ON A RECORD OF SURVEY, FILED IN BOOK 85,
PAGE 19, OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, TOGETHER WITH THOSE PORTIONS OF XXXX 0 XXX 0, XXXXX XX. 00000, XX SAID
CITY, COUNTY OF STATE, AS PER MAP RECORDED IN BOOK 174, PAGES 15 TO 23,
INCLUSIVE OF MAPS, IN SAID RECORDER'S OFFICE, AND TOGETHER WITH THAT PORTION OF
LAKEWOOD BOULEVARD (FORMERLY KNOWN AS CERRITOS AVENUE, 80 FEET WIDE) AS SHOWN ON
SAID MAP OF TRACT NO. 10548, NOW VACATED BY THE STATE OF CALIFORNIA HIGHWAY
COMMISSION, A CERTIFIED COPY OF WHICH WAS RECORDED MAY 19, 1959, AS INSTRUMENT
NO. 3601, OF OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY RECORDER, DESCRIBED
AS A WHOLE AS FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 1, SAID RECORD OF SURVEY;
THENCE NORTH 00 DEGREES 00 MINUTES 46 SECONDS EAST 324.60 FEET, ALONG THE
WESTERLY LINE OF SAID PARCEL 1, TO THE NORTHWESTERLY CORNER OF SAID PARCEL 1,
SAID NORTHWESTERLY CORNER BEING A POINT IN A NON-TANGENT CURVE CONCAVE NORTHERLY
AND HAVING A RADIUS OF 1,050.00 FEET, A RADIAL LINE THAT BEARS SOUTH 2 DEGREES
06 MINUTES 54 SECONDS WEST TO SAID POINT, SAID CURVE ALSO BEING THE NORTHERLY
LINE OF SAID PARCEL 1; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE
OF 27 DEGREES 32 MINUTES 10 SECONDS AN ARC DISTANCE OF 504.63 FEET TO A POINT,
SAID LAST MENTIONED POINT BEING A RADIAL LINE THAT BEARS SOUTH 25 DEGREES 25
MINUTES 16 SECONDS EAST, TO SAID LAST MENTIONED POINT; THENCE SOUTH 45 DEGREES
22 MINUTES 59 SECONDS EAST 1,403.34 FEET TO A POINT IN THAT CERTAIN COURSE AS
DESCRIBED AS HAVING A BEARING AND LENGTH OF "SOUTH 34 DEGREES 15 MINUTES 50
SECONDS WEST 225.46 FEET" IN THE NORTHWESTERLY BOUNDARY OF THAT PARCEL OF LAND
DESCRIBED AS PARCEL 1 IN DEED TO STATE OF CALIFORNIA, RECORDED MARCH 18, 1959,
AS INSTRUMENT NO. 1904, OF OFFICIAL RECORDS, OF SAID COUNTY, SAID LAST MENTIONED
POINT BEING NORTH 34 DEGREES 16 MINUTES 23 SECONDS EAST 40.81 FEET, ALONG SAID
COURSE, FROM THE SOUTHWESTERLY TERMINUS THEREOF; THENCE SOUTH 34 DEGREES 16
MINUTES 23 SECONDS WEST 40.81 FEET, ALONG SAID COURSE, TO THE NORTHEASTERLY
TERMINUS OF THAT CERTAIN COURSE IN SAID NORTHWESTERLY BOUNDARY, AS DESCRIBED IN
SAID LAST MENTIONED PARCEL 1, AS HAVING A BEARING AND LENGTH OF "SOUTH 62
DEGREES 04 MINUTES 30 SECONDS WEST, 51.05 FEET, MORE OR LESS,"; THENCE SOUTH 62
DEGREES 05 MINUTES 03 SECONDS WEST ALONG SAID LAST MENTIONED CERTAIN COURSE, TO
THE NORTHEASTERLY TERMINUS OF THAT CERTAIN COURSE AS DESCRIBED AS HAVING A
BEARING AND LENGTH OF "SOUTH 62
EXHIBIT "A"
Page 1 of 2 Pages
DEGREES 04 MINUTES 30 SECONDS WEST, 113.28 FEET" IN SAID LAKEWOOD BOULEVARD, NOW
VACATED BY THE CALIFORNIA HIGHWAY COMMISSION; THENCE SOUTH 62 DEGREES 05 MINUTES
03 SECONDS WEST ALONG SAID LAST MENTIONED CERTAIN COURSE TO THE NORTHEASTERLY
TERMINUS OF THAT COURSE AS DESCRIBED AS HAVING A BEARING AND LENGTH OF "SOUTH 62
DEGREES 04 MINUTES 30 SECONDS WEST 704.56 FEET" IN THE NORTHERLY BOUNDARY OF
THAT PARCEL OF LAND DESCRIBED AS PARCEL 1 IN DEED TO THE STATE OF CALIFORNIA,
RECORDED MAY 11, 1959, AS INSTRUMENT XX. 0000, XX XXXXXXXX XXXXXXX, XX XXXX
XXXXXX; THENCE ALONG SAID LAST MENTIONED NORTHERLY BOUNDARY SOUTH 62 DEGREES 05
MINUTES 03 SECONDS WEST 704.56 FEET, SOUTH 80 DEGREES 05 MINUTES 43 SECONDS WEST
105.00 FEET AND NORTH 80 DEGREES 14 MINUTES 59 SECONDS WEST 676.33 FEET; THENCE
NORTH 9 DEGREES 45 MINUTES 01 SECONDS EAST 570.00 FEET; THENCE NORTH 25 DEGREES
20 MINUTES 00 SECONDS EAST 15.00 FEET; THENCE NORTH 8 DEGREES 44 MINUTES 49
SECONDS WEST 248.97 FEET TO THE SOUTHERLY PROLONGATION OF SAID WESTERLY LINE OF
PARCEL 1, AS SHOWN ON SAID RECORD OF SURVEY; THENCE NORTH 0 DEGREES 00 MINUTES
46 SECONDS EAST 72.14 FEET ALONG SAID PROLONGATION, TO THE POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS IN AND UNDER, OR
WHICH MAY BE PRODUCED OR SAVED FROM SAID LAND; TOGETHER WITH ALL RIGHTS OF EVERY
KIND AND DESCRIPTION WHATSOEVER TO DRILL FOR, DEVELOP, TAKE, REMOVE, AND SEVER
THE SAME, OR ANY PART THEREOF, FROM SAID LAND, WITHOUT, HOWEVER, THE RIGHT TO
THE USE OF THE SURFACE OF SAID LAND IN CONNECTION WITH THE DEVELOPMENT OR
REMOVAL OF SAID OIL, GAS OR OTHER HYDROCARBONS, ALL DRILLING AND BORING FOR SAID
PURPOSES TO BE DONE BENEATH THE SURFACE OF SAID LAND AT ANY LEVEL, OR LEVELS,
100 FEET, OR MORE, BELOW THE SURFACE THEREOF, THE SURFACE OPENING OF THE WELL
HOLE TO BE LOCATED ON LAND OTHER THAN THE LAND ABOVE DESCRIBED, AS RESERVED IN
THE DEED FROM XXXXX LAND COMPANY, A CORPORATION, RECORDED AUGUST 25, 1948 IN
BOOK 28072 PAGE 204, OFFICIAL RECORDS, AND RECORDED FEBRUARY 10, 1950 IN BOOK
32238 PAGE 67 OFFICIAL RECORDS AND RECORDED DECEMBER 28, 1950 IN BOOK 35179
PAGE 303, OFFICIAL RECORDS AND RECORDED DECEMBER 28, 1950 IN BOOK 35179 PAGE
310, OFFICIAL RECORDS.
EXHIBIT "A"
Page 2 of 2 Pages
XXXXXX AIRPORT CENTER
LONG BEACH
OFF-SITE IMPROVEMENTS
Note: Exhibit "F" consists of a map and the following text. The numbers
preceding each paragraph in this text refer to numbers on the map which identify
the location of the improvement.
1. STREET DEDICATION
-----------------
Landlord shall obtain and provide to Developer, for street improvements,
utilities, and landscaping, to be constructed by Developer to meet or exceed
City of Long Beach standards and subsequent dedication as public streets, the
easements necessary to provide access to the entire Premises on property other
than Parcel G for construction of the street tentatively identified on the map
as Xxxxxx Airport Center Drive, including: (i) an area south of Spring Street
and west of Parcel G approximately 75 feet wide and approximately 420 feet long;
and (ii) an area between Parcel G and Redondo Avenue abutting the San Diego
Freeway approximately 72 feet wide and approximately 1200 feet long. Developer
shall have the right to install a landscaped divider on Xxxxxx Xxxxxxx Xxxxxx
Xxxxx near the Spring Street intersection and to relocate existing signs and
utilities as necessary. Developer shall dedicate the land and street as
necessary on Parcel G to connect the remainder of Xxxxxx Xxxxxxx Xxxxxx Xxxxx.
EXHIBIT "F"
Page 1 of 7 Pages
2. INTERSECTION OF SPRING STREET AND XXXXXX AIRPORT CENTER DRIVE
-------------------------------------------------------------
Landlord shall obtain and provide to Developer the required approvals and
easements for access and installation by Developer the following:
2.1 Widen Spring Street
-------------------
Widening of Spring Street to the north approximately 12 feet along a length of
approximately 600 feet, including restriping, construction of a retaining wall
and landscaping as appropriate to accommodate a second left turn lane.
2.2 Second Left Turn Lane
---------------------
Restriping on Spring Street on the westbound approach to provide a second
exclusive left turn lane to Xxxxxx Xxxxxxx Xxxxxx Xxxxx.
2.3 Acceleration Lane/Bus Pull Out Lane
-----------------------------------
A lane on the south side of South Street east of Xxxxxx Airport Center Drive,
approximately 12 feet wide and approximately 200 feet long.
2.4 Deceleration Lane
-----------------
A deceleration lane on the south side of Spring Street west of Xxxxxx Airport
Center Drive, approximately 12 feet wide and approximately 220 feet long.
EXHIBIT "F"
Page 2 of 7 Pages
2.5 Traffic Signal
--------------
A three-phase traffic signal including a left turn phase for westbound Spring
Street Traffic turning from the two left turn lanes on Spring Street left onto
Xxxxxx Airport Center Drive.
3. INTERSECTION OF REDONDO AVENUE AND XXXXXX AIRPORT CENTER DRIVE
--------------------------------------------------------------
Landlord shall obtain and provide to Developer the required approvals and
easements for access and installation by Developer of the following:
3.1 Deceleration Lane
-----------------
A deceleration lane on the east side of Redondo Avenue south of Xxxxxx Airport
Center Drive approximately 12 feet wide and approximately 100 feet long.
3.2 Regrade Embankment
------------------
Regrade the embankment adjoining the abuttment wall on the east side of Redondo
Avenue north of the San Diego Freeway overpass or install a retaining wall as
necessary to accommodate the deceleration lane.
EXHIBIT "F"
Page 3 of 7 Pages
3.3 Traffic Signal
--------------
A traffic signal, to be contracted for when permits are issued for that building
which will result in an aggregate of 350,000 square feet, or more, so that the
signal will be operational approximately concurrently with expected traffic
demand.
3.4 Monument Sign
-------------
A monument sign (at Developer's cost) similar to that depicted in the Basic
Concept Documents at the northeast corner of the intersection.
4. INTERSECTION XX XXXXXX XXXXXX XXX XXXXXXX XXXXXX
------------------------------------------------
Landlord shall obtain and provide to Developer the required approvals and
easements for access and installation by Developer of the following:
4.1 Second Left Turn Lane
---------------------
Restriping of Spring Street on the westbound approach to provide a second
exclusive left turn lane, when and if determined necessary by Landlord.
EXHIBIT "F"
Page 4 of 7 Pages
4.2 Traffic Signal Rephasing
------------------------
Modification of the existing traffic signal to add a left turn phase for
westbound Spring Street traffic turning from the two left turn lanes left onto
Redondo Avenue, when and if determined necessary by Landlord.
5. SCREEN WALL
-----------
Landlord shall obtain and provide to Developer the required easements for access
and installation by Developer of approximately 3,060 lineal feet of screen wall
starting approximately 160 feet south of the south curb line of Spring Street
between the Long Beach Water Department property and the Water Department Lease
#40 property; running north replacing the existing fence to approximately 15
feet south of the curb line; then running east approximately 200 feet parallel
to and approximately 15 feet south of the curb line; then bending to the south
approximately 12 feet; then continuing east parallel to and approximately 15
feet south of the south curb line of the new deceleration lane; then running
south replacing the existing fence along the east border of Water Department
Lease #40 property and continuing south along the east border of the Water
Department Lease #38-#39 property to the north border of the California National
Guard property; then running east approximately 110 feet with an opening in the
middle at the entrance to the California National Guard property; then running
south along the east border of the
EXHIBIT "F"
Page 5 of 7 Pages
California National Guard property replacing the existing fence to approximately
12 feet north of the north curb line of Xxxxxx Xxxxxxx Xxxxxx Xxxxx; then
running west parallel to and approximately 12 feet north of the curb line; and
terminating approximately 20 feet east of the east curb line of Redondo Avenue.
6. TEMPORARY SECURITY FENCE
------------------------
Landlord shall provide the required access for construction by Developer of a
temporary security fence on Airport Property approximately 25 feet east of the
east boundary of Parcel G approximately 1400 feet long from Spring Street
southeast to the existing security fence at the intersection of the San Diego
Freeway and Lakewood Boulevard.
7. LANDSCAPE AREAS
---------------
Landlord shall obtain and provide to Developer the required easements for access
and installation by Developer of landscaping at the following locations:
7.1 Landscape Spring Street
-----------------------
Approximately 20 feet wide and approximately 1100 feet long on the south side of
Spring Street from the west tunnel entrance proceeding west to the northwest
corner of Water Department Lease #40 property.
EXHIBIT "F"
Page 6 of 7 Pages
7.2 Landscape Redondo Avenue
------------------------
Approximately 40 feet deep and approximately 100 feet long at the northeast
corner of the intersection of Redondo Avenue and Xxxxxx Airport Center Drive.
7.3 Landscape Redondo Avenue
------------------------
Approximately 250 feet deep and approximately 120 feet long at the southeast
corner of the intersection of Redondo Avenue and Xxxxxx Xxxxxxx Xxxxxx Xxxxx
between the San Diego Freeway property and Xxxxxx Airport Center Drive,
including the right by Developer to install landscape screening around the
existing surge tank and other equipment.
7.4 Landscape California National Guard Entry
-----------------------------------------
Two roughly triangular parcels abutting the screen wall at the entry to the
California National Guard property, one west of the entry with an area of
approximately 2,000 square feet and the other east of the entry between the east
border of the California National Guard property and Parcel G including a radius
curb border at the north end adjacent to the California National Guard entry
with an area of approximately 7,500 square feet.
EXHIBIT "F"
Page 7 of 7 Pages
[MAP APPEARS HERE]
[MAP APPEARS HERE]
[MAP APPEARS HERE]
[MAP APPEARS HERE]
[MAP APPEARS HERE]
BOND NO.:______
PERFORMANCE BOND PREMIUM :______
----------------
KNOW ALL MEN BY THESE PRESENTS, That we __________________________
______________________________, as Principal, and _________________
_______________________________________________, as Surety, are
held and firmly bound unto City of Long Beach, a Municipal Corporation (Land
Lessor) and Xxxxxx Long Beach Associates, a California Limited Partnership (Land
Lessee), as Obligees, in the penal sum of ____________________________________
_____________________________________ DOLLARS ($ ) lawful money of the United
States, for the payment of which sum truly to be made, we bind ourselves, our
heirs, executors, administrators, successors and assigns, jointly and severally,
firmly by these presents.
THE CONDITION OF THE OBLIGATION IS SUCH, That Whereas, the
Principal entered into a certain agreement which is hereto
attached and made a part hereof, with Xxxxxx Long Beach
Associates, a California Limited Partnership, dated __________________
__________________________________________, for ______________________
which contract and the specifications and general conditions thereof are hereby
incorporated herein and shall be deemed a part hereof as fully as if set out
herein.
NOW, THEREFORE, if the said Principal shall fully indemnify and save harmless
the Obligees from all loss, liability, costs, damages, penalty, attorney's fees
or expenses which Obligees may incur by reason of failure to well and truly keep
and perform each, every and all of the terms and conditions of said agreement on
the part of the said Principal to be kept and performed, including but not
limited to completion within the time specified of all work covered by said
agreement, performance of all obligation and guarantees of Xxxxxx Long Beach
Associates, a California Limited Partnership, relating to such work under the
contract with Xxxxxx Long Beach Associates, a California Limited Partnership;
then this obligation shall be of no effect, but otherwise it shall remain in
full force and effect.
It is a condition hereof that any change, alteration, modification or amendment
of any nature whatsoever that may be made in the terms of said agreement, any
change in the character or scope of the work to be performed, or the method of
performance, under said agreement or modification of said agreement or in the
time for completion thereof, any change in the manner, time or amount of payment
as provided therein, any change of any nature whatsoever that may be made in the
terms of the contract
EXHIBIT "I"
Page 1 of 6 Pages
with Xxxxxx Long Beach Associates, a California Limited Partnership, or any
change that may be made in the performance of the work under said agreement by
the Principal, assented to by Xxxxxx Long Beach Associates, a California Limited
Partnership, whether made under express agreement or not, may be made without
notice to the Surety and without affecting the obligations of the Surety on this
bond and without requiring the consent of the Surety, and no such change or
changes shall release the Surety from any of its obligations hereunder, the
Surety hereby consenting to and waiving notice of any such change, alteration,
modification or amendment.
It is a further condition hereof that no one other than the named
Obligees and the successors, administrators or assigns of the
Obligees shall have any right of action under this bond.
IN WITNESS WHEREOF, the said Principal and Surety have hereunto
set their hands and seals this _________ day of ______________,
19___.
______________________________________________
(Principal)
BY:___________________________________________
______________________________________________
(Surety)
BY:___________________________________________
Note: The name "Xxxxxx Long Beach Associates, a California Limited
Partnership" would change to the name of any successor Land Lessee.
EXHIBIT "I"-
Page 2 of 6 Pages
PAYMENT BOND BOND NO.:_________
------------ PREMIUM :_________
KNOW ALL MEN BY THESE PRESENTS, That we ________________________
__________________________ as Principal, and ___________________
________________________________, as Surety, are held and
firmly bound unto City of Long Beach, a Municipal Corporation (Land Lessor) and
Xxxxxx Long Beach Associates, a California Limited Partnership (Land Lessee), as
Obligees, in the penal sum of _________________________________________________
____________________________________ DOLLARS ($ ), lawful money of the United
States, for the payment of which sum well and truly to be made, we bind
ourselves, our heirs, executors, administrators, successors and assigns, jointly
and severally, firmly by these presents.
THE CONDITION OF THE OBLIGATION IS SUCH, That Whereas, the
Principal entered into a certain agreement which is hereto
attached and made a part hereof, with Xxxxxx Long Beach
Associates, a California Limited Partnership, dated ___________________________
_____________________________________, for ___________________________________
which contract and the specifications and general conditions thereof are hereby
incorporated herein and shall be deemed a part hereof as fully as if set out
herein.
NOW, THEREFORE, if the said Principal shall pay promptly and in full the claims
of all persons, firms or corporations, performing labor or furnishing equipment,
materials, or supplies incurred in connection with the contract to be performed
under said agreement and shall indemnify and save harmless of Obligees from all
loss liability, costs, damages, penalty, attorney's fees or expenses for all
taxes, insurance premiums, any and all applicable contributions, allowances or
other payments or deductions, however harmed, required by statute or union labor
agreement, including voluntary payment thereof by the Obligees necessary to
insure orderly prosecution of work or other items or services used in, upon or
for or incurred in connection with the contract to be performed under said
agreement, then this obligation shall be of no effect, but otherwise it shall
remain in full force and effect.
It is a condition hereof that any change, alteration, modification or amendment
of any nature whatsoever that may be made in the terms of said agreement, any
change in the character or scope of the work to be performed, or the method of
performance, under said agreement or any change in manner, time
EXHIBIT "I"
Page 3 of 6 Pages
or amount of payment as provided therein, any change of any nature whatsoever
that may be made in the terms of the contract between Xxxxxx Long Beach
Associates, a California Limited Partnership, or any change that may be made in
the performance of the work under said agreement by the Principal, assented to
by Xxxxxx Long Beach Associates, a California Limited Partnership, whether made
under express agreement or not, may be made without notice to the Surety and
without affecting the obligations of the Surety on this bond and without
requiring the consent of the Surety and no such change or changes shall release
the Surety from any of its obligations hereunder, the Surety hereby consenting
to and waiving notice of any such change, alteration, modification or amendment.
Subject to the priority of the named Obligees with respect to recovery up to the
penal sum of this bond, persons who have supplied or furnished labor, material,
machinery, equipment or supplies to the Principal for use in the prosecution of
the work provided for in said contract shall have a direct right of action
against said Principal and Surety under this bond.
IN WITNESS WHEREOF, the said Principal and Surety have hereunto set their hands
and seals, this __________ day of ____________________________________________,
19___.
_______________________________________
(Principal)
BY:___________________________________
_______________________________________
(Surety)
BY:____________________________________
Note: The name "Xxxxxx Long Beach Associates, a California. " Limited
Partnership would change to the name of any successor Land Lessee.
EXHIBIT "I"
Page 4 of 6 Pages
LENDER'S OBLIGEE RIDER TO PERFORMANCE BOND
------------------------------------------
WHEREAS, heretofore, on or about the ________________ day of ___________,
19___, __________________________________________________________________,
as Contractor, entered into a written agreement with Xxxxxx Long Beach
Associates, a California Limited Partnership, as Owner of leasehold
improvements, for the construction of ____________________________________
__________________________________________________________________________,
and
WHEREAS, the Contractor and ____________________________________________
__________, a California corporation, as Surety, executed and delivered to
Xxxxxx Long Beach Associates, a California Limited Partnership, their joint and
several Performance Bond, and
WHEREAS, Xxxxxx Long Beach Associates, a California Limited Partnership, has
arranged for a loan for the exclusive purpose of payment for the performance of
said contract and has requested the Contractor and Surety to join with Xxxxxx
Long Beach Associates, a California Limited Partnership, in the execution and
delivery of this Rider, and the Contractor and Surety have agreed so to do upon
the condition herein stated.
NOW, THEREFORE, in consideration of one dollar and other good and valuable
consideration receipt of which is acknowledged, the undersigned agree that the
said Performance Bond shall be, and is, amended as follows:
1. The name of _______________________________________________________,
as shall be added to said bond as a named Obligee.
2. The rights of the Lender as a named Obligee shall be subject to the
condition precedent that Xxxxxx Long Beach Associates, a California
Limited Partnership, obligations to the Contractor be performed.
3. The aggregate liability of the Surety under said bond to Xxxxxx Long
Beach Associates, a California Limited Partnership, and the Lender, as
their interests may appear, is limited to the penal sum of the said
bond.
4. The Surety may, at its option, make any payment under said bond by
check issued jointly to Xxxxxx Long Beach Associates, a California
Limited Partnership, and the Lender.
5. Except as herein modified, said Performance Bond shall be and remain in
full force and effect.
EXHIBIT "I"
Page 5 of 6 Pages
Signed, sealed and dated this _________ day of ________________,
19___.
XXXXXX LONG BEACH ASSOCIATES, A
California Limited Partnership
ATTEST:_______________________ BY: XXXXXX INDUSTRIES, a
California Corporation,
General Partner
By: ___________________________
Title: ________________________
By: _______________________________
By: _______________________________
(Owner)
ATTEST:_______________________ BY:________________________________
(Surety)
ATTEST:_______________________ BY:_________________________________
____________________________________
(Contractor)
EXHIBIT "I"
Page 6 of 6 Pages
XXXXXX AIRPORT CENTER LONG BEACH
CONSTRUCTION SCHEDULE
Estimated Date Estimated
of Commencement Substantial
Building of Construction Completion Date
-------- --------------- ---------------
First Building 9/1/85 7/31/86
Second Building 9/1/86 7/31/87
Third Building 9/1/87 7/31/88
Fourth Building 9/1/88 7/31/89
Fifth Building 9/1/89 2/28/91
Sixth Building 9/1/90 2/28/92
EXHIBIT "J"
Page 1 of 1 Page
FIXED BASE OPERATIONS
---------------------
This Exhibit specifies the standard responsibilities of a Fixed Base
Operation (FBO) at the Long Beach Municipal Airport. It is the intention of the
parties that the execution of these terms shall be the responsibility of
Developer. Nothing herein shall be deemed to prevent Developer from imposing
these requirements as a duty on its subtenants so long as Developer shall remain
primarily responsible to City therefor in case of failure of Developer and FBO
subtenants to fulfill their obligations hereunder. Said requirements shall be
subject to the following exceptions:
1. Nothing herein shall be deemed to require Developer to operate any
FBO facility except through subtenants. If the FBO premises are not subleased by
Developer, Developer's sole obligation shall be to use reasonable efforts to
sublet the same upon terms and conditions reasonably satisfactory to Developer.
The temporary cessation of business operations by reason of casualty,
remodeling, holidays and other business reasons consistent with the continued
operation of such business from the FBO premises shall not constitute a
violation of such requirements.
2. Developer may franchise the various elements of the FBO
operation, however, the performance requirements shall be construed to cause
construction of at least, but not more than, one fuel facility and one wash rack
on the FBO premises for each complete FBO facility, but in no event less than
one such facility or the Premises. Developer may, however, construct more than
one fuel facility and one wash rack for each such FBO facility on the Premises.
EXHIBIT K
-1-
3. City and Developer shall deal directly with each other as to the
matters governed by this Exhibit, except as expressly provided to the contrary.
4. As used in this Exhibit, the term "Lessee" or "Tenant" shall mean
Developer and the term "Lessor" or "Landlord" shall mean City.
5. The provisions of this Exhibit shall be applicable only to those
portions of the Premises from time to time improved and used by or under
Developer for FBO uses, which portions are hereinafter referred to as the "FBO
Premises". Portions of the Premises initially improved and used for FBO uses may
be redeveloped and used for other purposes and portions of the Premises
initially improved and used for non-FBO uses may be redeveloped and used for FBO
uses, provided that the improved areas for aircraft tie-downs and/or hangar
space, usable for such purposes under applicable laws, in the Project are not
reduced by reason thereof. Any portion of the Premises used for non-FBO uses or
redeveloped for use other than FBO uses shall be physically segregated from the
Long Beach Municipal Airport by fencing or other barriers meeting FAA security
requirements.
6. References to Developer's subtenants in this Exhibit shall be
deemed references to Developer during any period of time that Developer conducts
and operates a business on or from the FBO Premises directly, and not through or
under a subtenant.
7. Any subtenant of Developer or transferee by sublease by or under
such a sublessee shall be deemed to be a subtenant for purposes of this Exhibit
"G". Where any such sub-
-2-
tenant performs any act or obligation required herein, Developer shall be
relieved of all obligation therefor.
8. Except as to matters specifically related to the operation of the
Airport or of the FBO facilities, the terms of the Lease between Developer and
City to which this Exhibit "G" is attached shall prevail in the case of any
conflict between such terms and the terms of this Exhibit "G".
9. Nothing in this Exhibit shall be deemed to apply to any portion of
the Project other than the FBO uses.
10. Nothing herein shall be deemed to require construction or
improvement of the Premises except in the manner authorized by applicable land
and airport rules. Metal buildings, such as "Xxxxxx Buildings" shall be
permitted.
11. City shall endeavor in making airport improvements to minimize
interference with the operation of business on or from the Premises and shall
give reasonable notice to Developer of any duty thereon except in case of
emergency when such duty is necessary to prevent damage or injury to persons or
property.
12. Developer shall require its subtenants affected thereby to pay
the fuel flowage fee provided for herein for the benefit of City as a third
party beneficiary to enable City to directly enforce such requirements against
subtenants. Developer shall not be liable for payment of such fuel flowage fees
unless Developer shall refuse upon request by City to cooperate in the
collection thereof from Developer's subtenant. Such cooperation shall not be
construed as obligating Developer to terminate the sublease or the subtenant's
right to possession.
13. Sales permitted by the "use" restrictions may be
-3-
wholesale or retail.
14. Assignments or other transfers of the type described in
subparagraphs (i) through (vi) of Section 5.1.3 of this Lease or of the type
permitted by Section 1.3.3 of this Lease by subtenants shall be permitted
without the approval of City's City Manager of the assignee or transferee.
City's City Manager shall, however, be promptly notified of any such assignment
or other transfer and provided with the information described in subparagraphs
(i) and (ii) of Section 5.1.2 of this Lease.
15. Paragraph E of the "Operation of Business" restrictions shall not
be applicable to the rents charged and/or other services provided by or under
Developer as a sublessor.
16. The maintenance obligations set forth in the "Maintenance"
requirement shall be subject to and shall except reasonable wear and tear.
City's Airport Manager may not cure Developer's failures under said
"Maintenance" requirement if Developer commences such maintenance within thirty
(30) days of its receipt of written notice of such failure and thereafter
diligently prosecutes the same to completion. Developer shall have thirty (30)
days following its receipt of written request for payments under said
"Maintenance" requirement, together with reasonable supportive evidence of the
costs incurred, to reimburse City such costs.
17. The last sentence in Paragraph C of the requirement entitled
"Aircraft Parking, Storage and Hangars" is hereby deleted and shall not be
applicable to the Premises.
18. Paragraph C of the requirement entitled "Storage"
-4-
is hereby deleted and shall not be applicable to the Premises. City's remedies
under this Lease for a default by Developer, however, shall be applicable to
breaches of the requirements of the requirement entitled "Storage", not cured
within the time provided in Section 17.6.1 following Developer's receipt of
notice of such breach.
19. Developer shall conclusively be deemed to have satisfied the
"Automobile Parking" requirements if Developer improves the FBO Premises in a
manner consistent with all applicable parking code requirements of the City of
Long Beach at the time of such construction.
20. Developer may satisfy the requirement in Paragraph B of the
requirement entitled "Fuel Flowage Fees" by having its subtenant enter into the
supplier agreement, in which event all references to Developer in Paragraph B
shall be deemed references to Developer's subtenant. If Developer has required
its subtenants to make the reports required by Paragraph D of the requirement
entitled "Fuel Flowage Fees", Developer shall not be liable for a failure by its
subtenants to make such reports unless Developer shall refuse upon request by
City to cooperate in enforcing such reporting requirements, which cooperation
shall not be construed as obligating Developer to terminate the sublease.
21. The requirement entitled "Utilities" shall be enforced only
insofar as is practical.
22. Notwithstanding the provisions of Paragraph B of the requirement
entitled "FAA Security and Safety Regulations" to the contrary, if any sublease
includes a covenant by the sublessee to indemnify and hold City harmless for the
full amount
-5-
of any fine, penalty or other financial loss resulting from any violation of
Part 107 or Part 139 occurring on the subleased premises, or by or under such
sublessee, Developer shall not be liable to indemnify or to reimburse City for
the amount of any such fine, penalty or other financial loss covered by such
subtenant's indemnify.
23. Whenever the consent, approval, specification or authorization of
City, City's City Manager or the Airport Manager is required by this Exhibit,
such consent, approval, specification or authorization shall not unreasonably be
withheld.
24. Developer shall not be deemed to have failed to perform its
obligations under this Exhibit "G" if such failure is the result of a breach by
a subtenant under a sublease of the FBO Premises, or any portion thereof, unless
Developer fails to take reasonable action to cause such breach to be cured or to
terminate such sublease or the subtenant's right to possession within forty-five
(45) days of Developer's receipt of written notice from City of the occurrence
of such breach.
-6-
CONSTRUCTION, ALTERATION AND CHANGES
LESSEE shall not place upon the Leased Premises any portable
buildings, trailers, or other like portable structures without prior written
approval of LANDLORD's Airport Manager.
-7-
USE
---
The Leased Premises and any and all improvements located or erected
thereupon shall be used solely for the purpose of conducting a fixed base
operation and no other purpose. The fixed base operation is limited to the
following aeronautical and support uses which are inclusive.
A. Sale of new and used aircraft (both retail and wholesale);
B. Sale of aircraft parts and accessories (both retail and
wholesale);
C. Sale of aircraft parts, components and allied equipment;
D. Sale of new and used avionics and electronic equipment;
E. Sale of new and used aircraft instruments;
F. Storage, sale and dispensing of petroleum products on the Leased
Premises.
G. Sale of pilot supplies and accessories;
H. Leasing and rental of aircraft;
I. Sale of aircraft insurance;
J. Financing of aircraft;
K. Operation of air cargo and air freight activities (subject to
prior written approval of LANDLORD's Airport Manger;
L. Flight operations, including ground school, flight
training/proficiency, demonstration of aircraft for sale, charter and air taxi.
Charter/Air Taxi operations are subject to prior written approval of LANDLORD'S
Airport Manager. The conduct of
-8-
scheduled commercial service is expressly prohibited;
M. Maintenance, repair, overhaul and modification of aircraft,
aircraft engines, airframes, flight systems, instruments, avionics, electronics
equipment, propellers and related aircraft components;
N. Rental of aircraft storage hangars and open tie-down facilities;
0. Operation of a UNICOM radio transmitter and receiver (subject to
written approval of LANDLORD's Airport Manager);
P. Washing, detailing and waxing of aircraft;
Q. Providing upholstery, cabinetry and interior services;
R. Parachute, fire extinguisher and oxygen services;
8. Line Services for the purpose of meeting the needs of transient
aircraft;
T. Operation of food vending equipment and/or a coffee bar for the
purpose of serving TENANT's employees and customers;
U. Rent-a-car service (subject to a prior written agreement between
LANDLORD and rent-a-car company or TENANT in the event of TENANT operated
service);
V. Maintenance and servicing of TENANT-owned and operated automotive
ramp equipment;
We Aircraft stripping and painting;
X. Any such other aviation related uses as may be approved in writing
by LANDLORD's Airport Manager.
-9-
UNAUTHORIZED USES
Only the uses specified in the use clause hereof are authorized uses,
and such uses are authorized only when conducted by TENANT or a Subtenant
approved in advance by LANDLORD's City Manager All other business activities
engaged in on or from the Leasehold premises for involving provision of services
or products to parties other than TENANT or an approved Subtenant for financial
gain are prohibited. Said prohibition shall be enforced by TENANT.
-10-
OPERATION OF BUSINESS
---------------------
A. TENANT shall continuously use and operate the premises, during all
usual business hours and on all such days as comparable business of like nature
in the area are open for business in accordance with the provisions of this
Lease relating to use. If the premises are destroyed or partially condemned and
this Lease remains in full force and effect, TENANT shall continue operation of
its business at the premises to the extent reasonably practical as determined by
good business judgment during any period of reconstruction.
B. TENANT shall appoint in writing an authorized local agent duly
empowered to make decisions on behalf of TENANT in all routine administrative
and operational matters relating to the Leased Premises who shall be available
during normal business hours. TENANT shall notify LANDLORD's Airport Manager in
writing of the name, address and telephone number of the said agent and shall
supply therewith a copy of the writing appointing the agent.
C. All businesses operating on or from the Leased Premises shall
maintain a suitable office which is staffed during normal business hours.
D. Rotary winged aircraft may not be parked, repaired or operated
from the Leased Premises without the prior written approval of the Airport
Manager and such approval, if granted, is subject to Airport Rules and
Regulations and may be terminated
-11-
by the Airport Manager on thirty (30) days notice unless otherwise specified in
writing at the time of said written approval.
E. Aviation services are supplied for the benefit of the aviation
public and shall be carried out in a reasonable manner and at appropriate
prices. The Airport Manager may investigate reports of unfair prices or
service.
-12-
COMPLIANCE WITH LAW
-------------------
No improvements or structures either permanent, temporary or portable,
shall be erected, placed upon, operated or maintained on the Leased Premises,
nor shall business or any other activity be conducted or carried on, in, onto,
or from the Leased Premises in violation of the terms of this Lease or any duly
adopted rules, regulations, orders, law, statute, by-law, or ordinance of any
governmental agency having jurisdiction thereover.
17. PERFORMANCE
-----------
1. All fixed base operation facilities shall have the capacity to
store and dispense fuel.
2. All fixed base operation facilities shall provide an aircraft wash
rack.
-13-
MONTHLY REPORT
--------------
Within fifteen (15) days after execution of this Lease, TENANT shall
submit a written report to LANDLORD's Airport Manager listing all based aircraft
located on the Leased Premises. Said report shall be prepared on a form supplied
by LANDLORD, and shall include for each based aircraft located on the Leased
Premises: the make, model, registration number, color, space or hangar number,
registered owner(s) name(s), address(es) and telephone number(s). Should
aircraft be on lease, the same information required for owner shall be provided
for any or all lesee(s) of said aircraft.
For purposes of this section, a based aircraft is any aircraft which
makes arrangements to park at Long Beach Airport for any purpose other than
those specified herein, to wit:
(a) Visiting or transient aircraft who utilize parking facilities for
less than fifteen (15) days in any thirty (30) day period.
(b) Aircraft maintaining tiedown or storage space at another airport
that are undergoing maintenance, service or repair by a tenant or subtenant.
(c) New aircraft awaiting sale and/or delivery by a tenant or
subtenant where delivery subsequent to sale occurs within thirty (30) calendar
days.
(d) Used aircraft for sale by a tenant or subtenant where delivery
subsequent to sale occurs within thirty (30) calendar days.
-14-
RESERVATIONS TO LANDLORD
------------------------
LANDLORD reserves the right to enter and have access to the property
in order to make, construct or carry out airport improvements.
USE OF AIRPORT FACILITIES
-------------------------
TENANT shall have, in conjunction with the general public and other
airport users, a non-exclusive right to the use of the public airport facilities
provided and developed by LANDLORD for public aviation use on such terms and
conditions as such facilities may be made available by LANDLORD either now or in
the future and subject to all applicable laws and rules of the United States,
the State of California or the City of Long Beach governing aviation air
navigation or the use of the airport.
-15-
MAINTENANCE
-----------
TENANT agrees, at TENANT's sole cost and expense, to repair and
maintain the Leased Premises and all improvements or landscaping existing or
constructed thereon in good order and repair and to keep said premises and
facilities in a neat, clean, attractive and orderly condition. Failure of the
TENANT to properly maintain and repair the Leased Premises shall constitute a
breach of the terms of this Lease.
If, in the opinion of LANDLORD's Airport Manager, the Leased Premises
are not being properly maintained, LANDLORD's Airport Manager may, after giving
thirty (30) days written notice to TENANT to remedy discrepancies, cause such
repair and maintenance to be made. The cost of such maintenance or repair shall
be added to the rent. If said costs are not paid promptly by TENANT, this Lease
shall be deemed to be in default, and LANDLORD shall be entitled to all legal
remedies provided hereunder.
-16-
AIRCRAFT PARKING, STORAGE AND HANGARS
-------------------------------------
A. TENANT shall provide open aircraft parking aprons which shall be
so designed, marked and maintained, as to provide for safe and functional
parking of aircraft, including sufficient distance between all structural
elements (including, but not limited to, body, wings and tail) of parked
aircraft to permit safe movement of aircraft to and from aircraft parking
spaces. Aircraft tiedown equipment or apparatus shall be of a type approved by
the Airport Manager for use at the airport and all aircraft designed and
equipped to be tied down shall be properly secured to such tiedown apparatus
when left unattended. All tiedown spaces shall be clearly marked on the pavement
with an identification number in such manner that each individual parking space
can be easily identified.
B. TENANT will provide and maintain taxi lanes and aircraft parking
spaces clear of obstacles, vehicles and improperly parked aircraft in a manner
which will permit safe and convenient movement of aircraft throughout all open
parking areas.
C. TENANT will provide adequate aircraft parking spaces on the Leased
Premises to accommodate transient or visiting aircraft or aircraft present at
TENANT's facility for the purpose of maintenance or other work. Parking is
permitted only in designated spaces on FBO leases and TENANT expressly covenants
and agrees to make every reasonable and prudent effort to prevent
-17-
parking of aircraft or ground vehicles on property contiguous to the Leased
Premises, but not a part thereof. The Airport Manager may require creation of
additional parking spaces if he finds that aircraft using TENANT'S facilities
are parking in areas other than authorized tie downs or hangar spaces.
D. Maintenance and repair of aircraft on the based and transient
aircraft parking area shall be limited to that permitted by Federal Aviation
Regulations Part 43(h) and Appendix A(c), unless otherwise specifically
authorized in writing by the Airport Manager. Said parking areas shall be kept
free from partially dismantled or derelict aircraft.
E. Aircraft storage hangars shall be used for storage of aircraft
only and no maintenance shall be done therein, except as specifically authorized
by Federal Aviation Regulations Part 43(h) and Appendix A(c) if such maintenance
and repair can be done in compliance with such fire, building and safety codes,
rules and/or regulations as may be applicable to such hangar or activity from
time to time.
F. Maintenance, repair and other activities may be conducted in
hangars heretofore or hereafter constructed in such manner that such maintenance
repair and other activities can be carried out in such hangar in compliance with
such fire, building and safety codes, rules and/or regulations, as may be
applicable from time to time to such activities, if authorized in writing by the
Airport Manager
-18-
such notice in writing as is possible under the existing circumstances.
C. LANDLORD will cause the surface of the Leased Premises to be
restored to its original condition upon the completion of any construction done
pursuant to this paragraph.
E. LANDLORD shall exercise its best effort to avoid unreasonable
interference with TENANT's operations or enjoyment of the premises or impairment
of the security of any secured creditor in its exercise of rights pursuant to
this paragraph.
F. Should any exercise of the rights described in this paragraph
result in a significant interference with TENANT's use of the Leased Premises,
LANDLORD shall provide compensation to TENANT by means of a reduction in rent
proportionate to the amount of the interference which shall continue for not
more than two months or until TENANT has been adequately compensated, whichever
comes first.
-19-
G. All aircraft service, maintenance, repair, inspection and building
activities conducted for financial gain within or from aircraft storage hangars
shall be done by fixed based operators, tenants or sub-tenants located on the
Long Beach Municipal Airport or their duly authorized personnel. No other
persons may perform such work.
H. Parking spaces in storage hangars shall be marked, numbered and
designed in the manner specified in subparagraph A of this paragraph for tie
down spaces.
I. The aircraft identification number of each aircraft parked in a
hangar shall be affixed to the outside of such hangar in a convenient and
plainly visible manner and said information shall be revised from time to time
so that it shall be current and visible at all times.
J. Aircraft hangars constructed after the date of execution of this
Lease shall be so designed and constructed by mean of a method approved by the
Airport Manager as to permit verification for identification, safety and
security purposes of all aircraft parked therein at all times without
compromising the security of such aircraft.
-20-
AIRCRAFT TIEDOWN AND STORAGE HANGAR AGREEMENTS
----------------------------------------------
TENANT is authorized to enter into sublease agreements to permit
aircraft tiedown and storage on the Leased Premises without approval of
LANDLORD, provided that TENANT shall enter into and maintain current a written
Aircraft Tiedown or Aircraft Storage Hangar Agreement with the owner or lessee
or operator of each aircraft renting space on the Leased Premises. Such
agreements shall be in writing and shall specify all terms, conditions and
restrictions relating to the rental of space for the tiedown or storage of
TENANT's aircraft and indicating that said owner, operator or lessee of an
aircraft to be tied down or stored is a subtenant of LANDLORD as well as TENANT
by virtue of the creation of this sublease. Such agreement shall also require
that the information which TENANT must provide to LANDLORD to the terms of
Paragraph *_____ of this Lease shall be supplied to TENANT by any parties with
whom TENANT has entered such agreements. LANDLORD's Airport Manager or his
designated representative may inspect TENANT's file of Aircraft Tiedown and
Storage Hangar Rental Agreements at any reasonable time during TENANT's regular
business hours.
*Page 14 of this Exhibit "G"
-21-
STORAGE
-------
A. TENANT may store aircraft components, equipment, parts, bulk
liquids, scrap lumber, metal, machinery or other materials related to the
conduct of its business on the Leased Premises, provided, however, that such
storage may be one only within a fully enclosed permanent structure. No storage
may be done on any apron, ramp or taxiway, without prior written approval of
Airport Manager.
B. Derelict aircraft, inoperative grounded vehicles, unused ramp
equipment, scaffolding, hoists and related items not regularly and routinely in
use as part of TENANT's business, may not be kept on the Leased Premises unless
such materials are maintained within a fully enclosed permanent structure.
C. Violation of the requirements of this Paragraph shall be deemed in
default if the condition has not been cured to the satisfaction of the Airport
Manager within thirty (30) days of posting of the property or service of TENANT
with a notice thereof.
-22-
AUTOMOBILE PARKING
------------------
TENANT agrees to provide sufficient automobile parking on the Leased
Premises to accommodate the parking needs of patrons, visitors and employees,
provided, however, that Airport streets and access roadways may not be utilized
to comply with this requirement.
-23-
FUEL FLOWAGE FEES
-----------------
A. REQUIREMENT TO PAY
------------------
TENANT agrees to pay such fuel flowage fees at such rates as may be
regularly established from time to time by LANDLORD's City Council for aircraft
fuels delivered at the airport. Such fees shall be due and payable on the tenth
(10th) day of the month succeeding that in which the aircraft fees are received
by TENANT. The fees shall be calculated and administered as provided herein.
B. SUPPLIER AGREEMENT.
------------------
TENANT shall enter into a written agreement with its fuel supplier
which recognizes the existence of the provisions of this agreement. A copy of
said agreement shall be delivered to LANDLORD's Airport Manager prior to the
commencement of fuel delivery. Said agreement shall provide that either TENANT
or TENANT's supplier shall indemnify, hold harmless and provide insurance
coverage to the City for all uses arising from the delivery, storage, sale and
supplying of such fuel. Such agreement shall further provide that the supplier
shall make available to the City at reasonable times, its records of
transactions involving delivery of fuel to TENANT for purposes of auditing
TENANT's performance under this agreement.
C. UNDERGROUND STORAGE AND DELIVERY.
--------------------------------
All fuel delivered to TENANT by its supplier or suppliers shall be
placed into underground storage facilities, the
-24-
location and design of which shall have been approved by LANDLORD's Airport
Manager and all fuel delivered by any supplier or suppliers shall be placed
directly into said approved underground storage facilities.
D. REPORTING, PAYMENT AND STATEMENTS.
---------------------------------
Deliveries of fuel shall be reported and fees therefor paid by TENANT
to LANDLORD each calendar month as provided herein. The fees to be paid shall be
computed on the basis of the oil company's meter tickets supplied by the tanker
truck holding the delivery from, or from refinery meter tickets provided to the
carrier at the time the tanker truck is loaded. The amount shown on such
tickets to have been delivered in agreement shall be multiplied by the rate
established by the City Council then in effect. The product of that computation
shall be the fuel flowage fee due for that month. TENANT will provide a year-
end statement showing all deliveries in the previous year. Both monthly reports
and year-end statements shall be on forms supplied by the Airport Manager
-25-
NOISE ABATEMENT
---------------
TENANT expressly covenants to make every reasonable and prudent effort
to ensure that aircraft based on, or operating from, the Leased Premises adhere
to duly adopted present and future Noise Abatement Programs and Rules and
Regulations relating thereto.
NAVIGATION EASEMENT
-------------------
There is hereby excepted and reserved to the City of Long Beach, its
successors and assigns, 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
herein leased. This public right of flight shall include the right to cause in
said airspace any noise inherent in the operation of any aircraft used for
navigation or flight through said airspace or landing at, taking off from or
operation on the Long Beach Municipal Airport. The easement hereby excepted
and reserved shall not limit any improvements and other structures heretofore or
hereafter constructed or placed upon the premises in a manner consistent with
the applicable PD-2 zoning ordinance of the City of Long Beach and FAR Part 77
-26-
BULLETIN BOARD
--------------
TENANT will install and continuously maintain a bulletin board in a
location on the Leased Premises which will be convenient to and easily seen by
patrons, users and visitors and will post and display notices, bulletins and
other information supplied by the Airport Manager in a prominent place where
such will be easily visible to TENANT's employees, patrons, users and visitors,
or will authorize the Airport Manager to post such notices which shall remain
continuously on display for such period of time as the same may continue in
effect.
UTILITIES
---------
All utilities added from or after the date of this Lease shall be
underground.
-27-
WASTE DISPOSAL
--------------
TENANT shall construct all facilities necessary to prevent any water
or industrial waste from the operations of TENANT on the Leased Premises from
flowing into adjacent property. TENANT shall dispose of all sewage and
industrial waste in accordance with all applicable regulations and laws of those
governmental agencies having jurisdiction or authority thereover.
TENANT shall insure that all solid waste materials are placed in
appropriate covered containers designed for use with the type of waste involved,
which shall remain covered, and that said containers are maintained within
enclosures located on said Leased Premises and designated to keep said trash
containers out of the flow of traffic and obscured from view.
-28-
FAA SECURITY AND SAFETY REGULATIONS
-----------------------------------
A. This Lease is subject to Federal Aviation Regulations Part 107 and
Part 139 relating to Safety and Security. LANDLORD shall provide copies thereof
to TENANT who shall provide copies thereof to all sub-tenants.
B. If any violation of Part 107 or Part 139 occurs on the Leased
Premises, TENANT or its sub-tenants shall be strictly liable to reimburse
LANDLORD for the full amount of any fine, penalty or other financial loss
resulting therefrom.
BILLBOARDS AND SIGNS
--------------------
TENANT agrees not to construct, install or maintain, nor to allow upon
the Leased Premises any billboards, signs, banners or like displays which may be
placed in or upon any building or structure in such manner as to be visible from
the outside thereof, except those approved in writing by LANDLORD's Airport
Manager.
-29-
AUDIT
-----
The LANDLORD, City Auditor and City Manager, or their designated
representatives, shall be permitted to examine and review TENANT's records at
all reasonable times, with or without prior notification, for the purpose of
determining compliance with all terms, covenants and conditions of this Lease.
Such examinations and reviews shall be conducted during TENANT's regular
business hours in a manner causing as little inconvenience as possible to
TENANT.
-30-
POSSESSORY INTEREST
-------------------
TENANT recognizes and understands that this Lease may create a
possessory interest subject to property taxation and that TENANT may be subject
to the payment of property taxes on such interest.
FEDERAL AVIATION ADMINISTRATION ASSURANCES
------------------------------------------
This Lease is subject to certain assurances mandated by the Federal
Aviation Administration for inclusion in airport leases. These assurances are
set out in full in Exhibit "H" attached hereto and made a part hereof.
-31-
FAA REQUIRED LEASE PROVISIONS
-----------------------------
LEASE PROVISIONS:
----------------
1. The Lessee, for himself, his heirs, personal representatives, successors in
interest, and assigns, as a part of the consideration hereof, does hereby
covenant and agree "as a covenant running with the land") that in the event
facilities are constructed, maintained, or otherwise operated on the said
property described in this Lease, for a purpose for which a DOT program or
activity is (Pounds) extended or for another purpose involving the provision of
similar services or benefits, the Lessee shall maintain and operate such
facilities and services in compliance with all other requirements imposed
pursuant to Title 49, Code of Federal Regulations, DOT, Subtitle A, Office of
the Secretary, Part 21, Nondiscrimination in Federally-Assisted Programs of the
Department of Transportation-Effectuation of Title VI of the Civil Rights Act of
1964, and as said Regulations may be amended.
2. The Lessee for himself, his personal representatives, successors in
interest, and assigns, as a part of the consideration hereof, does hereby
covenant and agree "as a covenant running with the land" that: (a) no person on
the grounds of race, color or national origin shall be excluded from
participation in, denied the benefits of, or be otherwise subjected to
discrimination in the use of said facilities; (b) that in the construction of
any improvements on, over, or under such land and the furnishing of services
thereon, no person on the grounds of race, color or national origin shall be
excluded from participation in, denied the benefits of, or otherwise be subject
to discrimination; (c) that the Lessee shall use the premises in compliance with
all other requirements imposed by or pursuant to Title 49, Code of Federal
Regulations, Department of Transportation, Subtitle A, Office of the Secretary,
Part 21, Nondiscrimination in Federally-Assisted Programs of the Department of
Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as
said Regulations may be amended.
3. Lessee shall furnish its accommodations and/or services on a fair, equal and
not unjustly discriminatory basis to all users thereof and it shall charge fair,
reasonable and not unjustly discriminatory prices for each unit or service;
PROVIDED, THAT the Lessee may be allowed to make reasonable and
nondiscriminatory discounts, rebates or other similar type of price reductions
to volume purchasers.
4. Non-compliance with Provision 3 above shall constitute a material breach
thereof and in the event of such non-compliance and Lessor shall have the right
to terminate this Lease Agreement and the estate hereby created without
liability therefore or at the election of
-1-
EXHIBIT L
the Lessor or the United States either or both said Governments shall have the
right to judicially enforce Provisions.
5. Lessee agrees that it shall insert the above four Provisions in any Lease
Agreement by which said Lessee grants a right or privilege to any person, firm
or corporation to render accommodations and/or services to the public on the
premises herein leased.
6. The Lessee assures that it will undertake an affirmative action program as
required by 14 CFR Part 152, Subpart E, to insure that no person shall on the
grounds of race, creed, color, national origin, or sex be excluded from
participating in any employment activities covered in 14 CFR Part 152, Subpart
E. The Lessee assures that no person shall be excluded on these grounds from
participating in or receiving the services or benefits of any program or
activity covered by this subpart. The Lessee assures that it will require that
its covered suborganizations provide assurances to the Lessee that they
similarly will undertake affirmative action programs and that they will require
assurances from their suborganizations, as required by 14 CFR Part 152, Subpart
E, to the same effect.
7. The 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 the Lessee,
and without interference or hinderance.
8. The Lessor reserves the right, abut shall not be obligated to the 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 the Lessee in this regard.
9. This Lease shall be subordinate to the provisions and requirements of any
existing or future agreement between the Lessor and the United States, relative
to the development, operation or maintenance of the airport.
10. Lessee agrees to comply with the notification and review requirements
covered in Part 77 of the Federal Aviation Regulations in the event of future
construction of a building is planned for the leased premises, or in the event
of any planned modification or alteration of any present or future building or
structures situated on the leased premises.
11. It is understood and agreed that nothing herein contained shall be
construed to grant or authorize the granting of an exclusive right within the
meaning of Section 308 of the Federal Aviation Act.
12. The Lessee by accepting this Lease agrees for itself, its successors and
assigns that it will not make use of the leased premises in any manner which
might interfere with the landing and
-2-
taking off of aircraft from Long Beach Municipal Airport or otherwise constitute
a hazard. In the event the aforesaid covenant is breached, the owner reserves
the right to enter upon the premises hereby leased, and cause the abatement of
such interference at the expense of the Lessee.
13. This Lease and all 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 said airport.
-3-
Recording Requested By:
When Recorded Mail To:
SHORT FORM GROUND LEASE
-----------------------
THIS SHORT FORM GROUND LEASE is made and entered into as of this ______ day
of ________________, 198__, by and between the CITY OF LONG BEACH, a municipal
corporation ("Landlord"), and XXXXXX LONG BEACH ASSOCIATES, a California Limited
Partnership ("Developer").
R E C I T A L S
- - - - - - - -
Landlord does hereby lease and demise to Developer that certain real
property in the City of Long Beach, County of Los Angeles, State of California,
more particularly described in Exhibit "A" attached hereto and all rights,
privileges and easements appurtenant thereto ("Premises" herein) pursuant to and
upon all of the terms, covenants and provisions set forth in that certain
unrecorded Ground Lease dated ____________________________________, ("Ground
Lease" herein), the terms, covenants and provisions of which are hereby
incorporated herein and made a part hereof by reference.
EXHIBIT "M"
Page l of 5 Pages
LBAC-3A/0.00.0.xx
Landlord and Developer do further agree as follows:
1. The commencement date of the Ground Lease term is the date first written
above.
2. The term of the Ground Lease shall continue for fifty (50) years
following the date of execution of the Ground Lease, subject to earlier
termination as provided in the Ground Lease and subject to four (4) successive
ten (10) year options and one (1) nine (9) year option to further extend the
term of the Ground Lease.
3. Developer shall have the right to subdivide the Ground Lease into one or
more separate Ground Leases pursuant to Section 7.6 of the Ground Lease and to
recombine one or more separate Ground Lease into a single Ground Lease pursuant
to Section 7.7 of the Ground Lease. Developer also shall have the right to
encumber its leasehold interest in the Ground Lease (and in each separate Ground
Lease into which the Ground Lease may be subdivided) with one or more Leasehold
Mortgages (as defined in section 4.3.2 of the Ground Lease) in favor of one or
more Leasehold Mortgagees (as defined in section 4.3.3 of the Ground Lease).
4. Developer shall pay the real property taxes and assessments against the
Premises during the term hereof, as more specifically provided in the Ground
Lease.
5. Notwithstanding that the ownership of Landlord's and Developer's estates
in and to the Premises may become vested in
EXHIBIT "M"
Page 2 of 5 Pages
LBAC-3A/0.00.0.xx
the same party for any reason, no merger of Developer's leasehold estate into
Landlord's fee title shall result or be deemed to result thereby, as provided in
Section 4.20 of the Ground Lease, provided that this provision shall not be
deemed applicable to a termination of Developer's leasehold estate by reason of
Developer's default or a taking under the power of eminent domain.
6. The Ground Lease grants to Developer the right to enter upon the
Premises demised thereby for a period of sixty (60) days following the
expiration of the term of the Ground Lease in order to remove any or all of the
buildings and other improvements constructed upon said Premises by or under
Developer.
7. The Ground Lease grants to Developer the right to sell any buildings
from time to time constructed upon the Premises, provided that such buildings
shall be and remain subject to the terms and conditions of the Lease and shall
be used and developed only in accordance with the Ground Lease for so long as
such buildings remain upon the Premises.
[THIS AREA INTENTIONALLY LEFT BLANK]
EXHIBIT "M"
Page 3 of 5 Pages
LBAC-3A/0.00.0.xx
IN WITNESS WHEREOF, the parties have executed this Short Form Ground Lease
as of the day and year first above written.
CITY OF LONG BEACH,
A Municipal Corporation
By:__________________________
Title:_______________________
"Landlord"
XXXXXX LONG BEACH ASSOCIATES,
a California Limited Partnership,
By: XXXXXX INDUSTRIES, a
California Corporation,
General Partner
By:________________________
Title:___________________
By:________________________
By:________________________
"Developer"
EXHIBIT "M"
Page 4 of 5 Pages
LBAC-3A/0.00.0.xx
This Short Form Ground Lease is hereby approved as to form
this ______________ day of ______________, 198__.
XXXXXX X. XXXXXX, City Attorney
By:____________________________
Deputy
EXHIBIT "M"
Page 5 of 5 Pages
LBAC-3A/0.00.0.xx
LANDLORD'S ACKNOWLEDGMENT
-------------------------
Corporation
-----------
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On June ___, 1985, before me, the undersigned, a Notary Public in and for
said State, personally appeared _______________________________ personally known
to me or proved to me on the basis of satisfactory evidence to be the person who
executed the within instrument as the ________________________ , on behalf of
the City of Long Beach, the Municipal corporation that executed the within
instrument and acknowledged to me that said Municipal corporation executed the
within instrument pursuant to a resolution of its City Council.
WITNESS my hand and official seal.
------------------------------------
Notary Public in and for said State
SEAL
DEVELOPER'S ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On June ____, 1985, before me, the undersigned, a Notary Public in and for
said State, personally appeared ________________________________ and
_____________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the persons who executed this instrument as
__________________ and _________________________________, respectively, of
Xxxxxx Industries, the corporation that executed this instrument as one of the
general partners of Xxxxxx Long Beach Associates, a California Limited
Partnership, the partnership that executed the within instrument, and
acknowledged to me that such corporation executed the same as such partner and
that said partnership executed the same.
WITNESS my hand and official seal.
------------------------------------
Notary Public in and for said State
SEAL
LEGAL DESCRIPTION
-----------------
THAT PORTION OF PARCEL 1, IN THE CITY OF LONG BEACH, IN THE COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS SHOWN ON A RECORD OF SURVEY, FILED IN BOOK 85,
PAGE 19, OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, TOGETHER WITH THOSE PORTIONS OF XXXX 0 XXX 0, XXXXX XX. 00000, XX SAID
CITY, COUNTY OF STATE, AS PER MAP RECORDED IN BOOK 174, PAGES 15 TO 23,
INCLUSIVE OF MAPS, IN SAID RECORDER'S OFFICE, AND TOGETHER WITH THAT PORTION OF
LAKEWOOD BOULEVARD (FORMERLY KNOWN AS CERRITOS AVENUE, 80 FEET WIDE) AS SHOWN ON
SAID MAP OF TRACT NO. 10548, NOW VACATED BY THE STATE OF CALIFORNIA HIGHWAY
COMMISSION, A CERTIFIED COPY OF WHICH WAS RECORDED MAY 19, 1959, AS INSTRUMENT
NO. 3601, OF OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY RECORDER, DESCRIBED
AS A WHOLE AS FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 1, SAID RECORD OF SURVEY;
THENCE NORTH 00 DEGREES 00 MINUTES 46 SECONDS EAST 324.60 FEET, ALONG THE
WESTERLY LINE OF SAID PARCEL 1, TO THE NORTHWESTERLY CORNER OF SAID PARCEL 1,
SAID NORTHWESTERLY CORNER BEING A POINT IN A NON-TANGENT CURVE CONCAVE NORTHERLY
AND HAVING A RADIUS OF 1,050.00 FEET, A RADIAL LINE THAT BEARS SOUTH 2 DEGREES
06 MINUTES 54 SECONDS WEST TO SAID POINT, SAID CURVE ALSO BEING THE NORTHERLY
LINE OF SAID PARCEL 1; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE
OF 27 DEGREES 32 MINUTES 10 SECONDS AN ARC DISTANCE OF 504.63 FEET TO A POINT,
SAID LAST MENTIONED POINT BEING A RADIAL LINE THAT BEARS SOUTH 25 DEGREES 25
MINUTES 16 SECONDS EAST, TO SAID LAST MENTIONED POINT; THENCE SOUTH 45 DEGREES
22 MINUTES 59 SECONDS EAST 1,403.34 FEET TO A POINT IN THAT CERTAIN COURSE AS
DESCRIBED AS HAVING A BEARING AND LENGTH OF "SOUTH 34 DEGREES 15 MINUTES 50
SECONDS WEST 225.46 FEET" IN THE NORTHWESTERLY BOUNDARY OF THAT PARCEL OF LAND
DESCRIBED AS PARCEL l IN DEED TO STATE OF CALIFORNIA, RECORDED MARCH 18, 1959,
AS INSTRUMENT NO. 1904, OF OFFICIAL RECORDS, OF SAID COUNTY, SAID LAST MENTIONED
POINT BEING NORTH 34 DEGREES 16 MINUTES 23 SECONDS EAST 40.81 FEET, ALONG SAID
COURSE, FROM THE SOUTHWESTERLY TERMINUS THEREOF; THENCE SOUTH 34 DEGREES 16
MINUTES 23 SECONDS WEST 40.81 FEET, ALONG SAID COURSE, TO THE NORTHEASTERLY
TERMINUS OF THAT CERTAIN COURSE IN SAID NORTHWESTERLY BOUNDARY, AS DESCRIBED IN
SAID LAST MENTIONED PARCEL 1, AS HAVING A BEARING AND LENGTH OF "SOUTH 62
DEGREES 04 MINUTES 30 SECONDS WEST, 51.05 FEET, MORE OR LESS,"; THENCE SOUTH 62
DEGREES 05 MINUTES 03 SECONDS WEST ALONG SAID LAST MENTIONED CERTAIN COURSE, TO
THE NORTHEASTERLY TERMINUS OF THAT CERTAIN COURSE AS DESCRIBED AS HAVING A
BEARING AND LENGTH OF "SOUTH 62
EXHIBIT "A"
Page l of 2 Pages
LBAC-3A/5 .24. 7/sr
DEGREES 04 MINUTES 30 SECONDS WEST, 113.28 FEET" IN SAID LAKEWOOD BOULEVARD, NOW
VACATED BY THE CALIFORNIA HIGHWAY COMMISSION; THENCE SOUTH 62 DEGREES 05 MINUTES
03 SECONDS WEST ALONG SAID LAST MENTIONED CERTAIN COURSE TO THE NORTHEASTERLY
TERMINUS OF THAT COURSE AS DESCRIBED AS HAVING A BEARING AND LENGTH OF "SOUTH 62
DEGREES 04 MINUTES 30 SECONDS WEST 704.56 FEET" IN THE NORTHERLY BOUNDARY OF
THAT PARCEL OF LAND DESCRIBED AS PARCEL l IN DEED TO THE STATE OF CALIFORNIA,
RECORDED MAY 11, 1959, AS INSTRUMENT XX. 0000, XX XXXXXXXX XXXXXXX, XX XXXX
XXXXXX; THENCE ALONG SAID LAST MENTIONED NORTHERLY BOUNDARY SOUTH 62 DEGREES 05
MINUTES 03 SECONDS WEST 704.56 FEET, SOUTH 80 DEGREES 05 MINUTES 43 SECONDS WEST
105.00 FEET AND NORTH 80 DEGREES 14 MINUTES 59 SECONDS WEST 676.33 FEET; THENCE
NORTH 9 DEGREES 45 MINUTES 0l SECONDS EAST 570.00 FEET; THENCE NORTH 25 DEGREES
20 MINUTES 00 SECONDS EAST 15.00 FEET; THENCE NORTH 8 DEGREES 44 MINUTES 49
SECONDS WEST 248.97 FEET TO THE SOUTHERLY PROLONGATION OF SAID WESTERLY LINE OF
PARCEL 1, AS SHOWN ON SAID RECORD OF SURVEY; THENCE NORTH 0 DEGREES 00 MINUTES
46 SECONDS EAST 72.14 FEET ALONG SAID PROLONGATION, TO THE POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS IN AND UNDER, OR
WHICH MAY BE PRODUCED OR SAVED FROM SAID LAND; TOGETHER WITH ALL RIGHTS OF EVERY
KIND AND DESCRIPTION WHATSOEVER TO DRILL FOR, DEVELOP, TAKE, REMOVE, AND SEVER
THE SAME, OR ANY PART THEREOF, FROM SAID LAND, WITHOUT, HOWEVER, THE RIGHT TO
THE USE OF THE SURFACE OF SAID LAND IN CONNECTION WITH THE DEVELOPMENT OR
REMOVAL OF SAID OIL, GAS OR OTHER HYDROCARBONS, ALL DRILLING AND BORING FOR SAID
PURPOSES TO BE DONE BENEATH THE SURFACE OF SAID LAND AT ANY LEVEL, OR LEVELS,
100 FEET, OR MORE, BELOW THE SURFACE THEREOF, THE SURFACE OPENING OF THE WELL
HOLE TO BE LOCATED ON LAND OTHER THAN THE LAND ABOVE DESCRIBED, AS RESERVED IN
THE DEED FROM XXXXX LAND COMPANY, A CORPORATION, RECORDED AUGUST 25, 1948 IN
BOOK 28072 PAGE 204, OFFICIAL RECORDS, AND RECORDED FEBRUARY 10, 1950 IN BOOK
32238 PAGE 67 OFFICIAL RECORDS AND RECORDED DECEMBER 28, 1950 IN BOOK 35179 PAGE
303, OFFICIAL RECORDS AND RECORDED DECEMBER 28, 1950 IN BOOK 35179 PAGE 310,
OFFICIAL RECORDS.
EXHIBIT "A"
Page 2 of 2 Pages
LBAC-3A/5.24.7/sr
