EXHIBIT 10.12
LONG BEACH MUNICIPAL AIRPORT
LEASE AGREEMENT
PARCELS 5 & 0
XXXXXX XXXX XXXXX ASSOCIATES
a California Limited Partnership
"DEVELOPER"
CITY OF LONG BEACH
"LANDLORD"
TABLE OF CONTENTS
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Page
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1. SUBJECT OF LEASE........................................................ 2
1.1 Purpose of Lease............................................... 2
1.2 Lease of Premises.............................................. 3
1.3 The Project Area............................................... 3
1.4 The Premises................................................... 3
1.4.1 Adjacent Properties................................... 3
1.5 Parties to the Lease Agreement................................. 4
1.5.1 Landlord.............................................. 4
1.5.2 Developer............................................. 4
1.5.3 Association by Developer.............................. 5
2. TERM.................................................................... 5
2.1 Basic Term..................................................... 5
2.2 Options for Extensions......................................... 6
3. RENT.................................................................... 6
3.1 Minimum Ground Rent............................................ 6
3.1.1 Amount of Ground Rent................................. 6
3.1.2 Allocation of Ground Rent............................. 6
3.1.3 Payment of Ground Rent................................ 7
3.1.4 Initial Ground Rent................................... 7
3.1.5 Inapplicable Provision................................ 8
3.1.6 Inapplicable Provision................................ 8
3.1.7 Due Dates and Place of Payment........................ 8
3.2 Ground Rent Adjustments........................................ 8
3.2.1 Adjustment Dates...................................... 8
3.2.2 Ground Rent Adjustments by
Appraisal........................................... 9
3.2.2.1 Adjustment for Predevelopment
and Infrastructure Costs......................... 10
3.2.3 Appraisal............................................. 10
3.2.4 Maximum Rent Increase................................. 12
3.2.4.1 Allocation to Parcels.............................. 12
3.2.4.2 Base Sublease Rental............................... 13
3.2.4.3 Sublease Rental Percentage
Change........................................... 13
3.2.4.4 Adjusted Ground Rent............................... 13
3.2.4.5 Sale or Assignment of Lease-
hold Interest.................................... 14
3.3 Ground Rent Adjustments Following Reconstruction............... 14
3.3.1 Ground Rent Adjustments............................... 15
3.3.1.1 Adjustment Date.................................... 15
3.3.1.2 Alternate Adjustment Date.......................... 15
3.3.2 No Adjustment At Next Scheduled
Adjustment Date..................................... 16
3.3.3 Maximum Ground Rent Adjustment........................ 16
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3.4 Adjustments to Ground Rent During Option
Term......................................................... 16
3.5 Maximum Ground Rent Increase................................... 16
3.6 Definition of Predevelopment and Infra-
structure Costs.............................................. 17
3.7 Approval of Improvement Plans.................................. 17
3.8 Determination of Predevelopment and
Infrastructure Costs......................................... 18
3.9 Inapplicable Provision......................................... 18
3.10 Inapplicable Provision......................................... 18
3.11 Inapplicable Provision......................................... 18
4. LEASEHOLD MORTGAGES..................................................... 18
4.1 Leasehold Mortgage Authorized.................................. 18
4.2 Notice to Landlord............................................. 19
4.2.1 Leasehold Mortgage Requirements....................... 19
4.2.2 Assignment of Leasehold Mortgage...................... 19
4.2.3 Landlord's Acknowledgment of
Notice............................................. 19
4.2.4 Developer to Provide Copies........................... 20
4.3 Definitions.................................................... 20
4.3.1 Institutional Lender.................................. 20
4.3.2 Leasehold Mortgage.................................... 21
4.3.3 Leasehold Mortgagee................................... 21
4.4 Consent of Leasehold Mortgagee Required........................ 21
4.5 Default Notice................................................. 21
4.6 Notice to Leasehold Mortgagee.................................. 22
4.6.1 Landlord's Termination Notice......................... 22
4.6.1.1.................................................... 23
4.6.1.2.................................................... 23
4.6.1.3.................................................... 23
4.6.2 Proper Address of Leasehold
Mortgagee.......................................... 24
4.7 Procedure on Default........................................... 24
4.7.1 Extension of Termination Notice
Period.............................................. 24
4.7.1.1 Payment of Monetary
Obligations..................................... 24
4.7.1.2 Foreclosure of Leasehold
Mortgage........................................ 25
4.7.2 Cure of Default....................................... 25
4.7.3 Compliance of Leasehold Mortgagee..................... 26
4.7.4 Leasehold Mortgage Not an
Assignment.......................................... 26
4.7.5 Obligation of Leasehold Mortgagee
to Repair or Reconstruct............................ 27
4.7.6 Leasehold Mortgagee's Right to
Transfer............................................ 28
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4.7.7 Leasehold Mortgagee Transfer a
Permitted Sale...................................... 28
4.8 New Lease...................................................... 29
4.8.1 Terms of New Lease.................................... 29
4.8.1.1 Written Request to Landlord....................... 29
4.8.1.2 Payment of Obligations............................ 29
4.8.1.3 Remedy of Developer's Defaults.................... 30
4.8.1.4 New Lease to Have First
Priority........................................ 31
4.8.1.5 Developer's Obligations Under
New Lease....................................... 31
4.9 New Lease Priorities........................................... 31
4.10 Eminent Domain................................................. 32
4.11 Notice of Arbitration.......................................... 32
4.12 Amendment to Facilitate Leasehold Financing.................... 32
4.13 Security Deposit............................................... 32
4.14 Estoppel Certificate........................................... 33
4.15 Notices........................................................ 34
4.16 Erroneous Payments............................................. 34
4.17 Request for Notice for Benefit of Landlord..................... 34
4.18 Release or Forebearance........................................ 35
4.19 Notice......................................................... 35
4.20 No Merger...................................................... 35
4.21 No Payment by Landlord......................................... 35
4.22 Self Liquidating Mortgage...................................... 36
4.23 Leasehold Mortgagee Need Not Cure Specified
Defaults..................................................... 36
4.24 Casualty Loss.................................................. 36
5. ASSIGNMENT AND SUBLETTING............................................... 36
5.1 Prohibition Against Change in Ownership,
Management and Control....................................... 36
5.1.1 Name and Address for Notices.......................... 37
5.1.2 Type of Entity........................................ 37
5.1.3 Other Transfers....................................... 37
5.1.4 Buildings or Land..................................... 38
5.2 Assignments Not Subject to Approval............................ 38
5.2.1 Death or Incapacity................................... 38
5.2.2 Family Transfer....................................... 38
5.2.3 Affiliated Corporation................................ 38
5.2.4 IRS Transfer.......................................... 39
5.2.5 Public Entity......................................... 39
5.2.6 Partner............................................... 39
5.2.7 Comprising Entity..................................... 40
5.3 Assignment Invalid............................................. 40
5.4 Approval of Assignments........................................ 40
5.4.1 Name.................................................. 40
5.4.2 Description........................................... 40
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5.4.3 Nature of Business.................................... 40
5.4.4 Financial Information................................. 41
5.4.5 Officers.............................................. 41
5.4.6 Additional Information................................ 41
5.4.6.1.................................................... 41
5.4.6.2.................................................... 41
5.4.6.3.................................................... 41
5.4.7 Informational Purposes................................ 41
5.4.7.1.................................................... 41
5.4.7.2.................................................... 42
5.4.7.3.................................................... 42
5.4.8 Confidentiality....................................... 42
5.4.9 Disapproval by Landlord............................... 42
5.5 No Release..................................................... 43
5.6 Unauthorized Change............................................ 43
5.7 Subletting..................................................... 44
5.7.1 Minor Subleases....................................... 46
5.7.2 Consent to Sublease................................... 46
5.7.2.1 Description....................................... 46
5.7.2.2 Name.............................................. 47
5.7.2.3 Nature of Business................................ 47
5.7.2.4 Financial Information............................. 47
5.7.2.5 Officers.......................................... 47
5.7.2.6 Additional Information............................ 47
5.7.2.6.1................................................ 47
5.7.2.6.2................................................ 47
5.7.2.6.3................................................ 48
5.7.2.7 Informational Purposes............................ 48
5.7.2.7.1................................................ 48
5.7.2.7.2................................................ 48
5.7.2.7.3................................................ 48
5.7.2.7.4................................................ 48
5.7.3 Confidentiality....................................... 48
5.7.4 Disapproval by Landlord............................... 48
5.8 Sale of Buildings.............................................. 49
6. INDEMNITY, INSURANCE, CASUALTY DAMAGE................................... 49
6.1 Indemnification and Hold Harmless.............................. 49
6.2 Insurance...................................................... 50
6.2.1 Liability Insurance................................... 50
6.2.2 Fire and Extended Coverage............................ 52
6.2.3 Aviation Facilities................................... 54
6.2.4 Miscellaneous......................................... 55
6.2.5 Blanket Policies...................................... 56
6.2.6 Self-Insurance........................................ 57
6.2.7 Insurance Adjustments................................. 57
6.3 Damage or Destruction.......................................... 57
6.3.1 Restoration of Premises............................... 57
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6.3.2 Right to Terminate.................................... 58
6.3.3 No Reduction in Rent.................................. 59
7. DEVELOPMENT OF THE PROJECT............................................. 59
7.1 Scope of Development........................................... 59
7.2 Developer's Obligation to Develop Premises..................... 60
7.2.1 Best Efforts to Sublease.............................. 61
7.3 Architectural Approval......................................... 61
7.3.1 Restriction........................................... 61
7.3.2 Basic Concept Documents............................... 61
7.3.3 Landscaping........................................... 62
7.3.4 Exterior Elevations................................... 63
7.3.5 Security and Security Plans........................... 63
7.3.6 Amendments............................................ 64
7.3.7 Landlord Approval..................................... 64
7.3.8 Communication and Consultation........................ 65
7.3.9 Requirements of Institutional
Lender or Major Occupant............................ 66
7.3.10 Interior Improvements................................. 67
7.3.11 Modification of Plans................................. 67
7.4 Performance and Payment Bonds.................................. 67
7.4.1 Agreement to Provide.................................. 67
7.4.2 Term of the Bond...................................... 68
7.4.3 Penal Sum............................................. 69
7.4.4 Alternative Performance............................... 69
7.5 Construction................................................... 69
7.5.1 Costs of Construction................................. 69
7.5.2 Right to Improve...................................... 70
7.5.3 Governmental Permits.................................. 71
7.5.4 Rights of Access...................................... 71
7.5.5 Local, State and Federal Laws......................... 72
7.5.6 Antidiscrimination During
Construction........................................ 72
7.5.7 Responsibilities of Landlord.......................... 72
7.5.7.1 Governmental Approvals............................ 72
7.5.7.2 Easements......................................... 73
7.5.7.3 Off-Site Improvements............................. 73
7.5.7.4 Bond Financing.................................... 74
7.5.8 Responsibilities of Developer......................... 74
7.5.9 Maintenance........................................... 75
7.5.10 Acceptance of Premises................................ 75
7.6 Subdivided Leases.............................................. 76
7.6.1 Same Parties.......................................... 76
7.6.2 Obligations of Subdivided Leases...................... 77
7.6.3 Terms, Covenants...................................... 77
7.6.3.1 Ground Rent....................................... 77
7.6.3.2 Improvements...................................... 78
7.6.3.3 Easements and CC & R's............................ 78
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7.6.3.4 Description of Property........................... 78
7.6.3.5 Excluded Matters.................................. 78
7.7 Combining Leases.............................................. 79
7.7.1 Ground Rent........................................... 79
7.7.2 Easements and CC & R's................................ 79
8. USE..................................................................... 79
8.1 Permitted Development.......................................... 79
8.2 Aviation Related Uses.......................................... 80
8.3 Inapplicable Provision......................................... 80
8.4 Vehicle Parking................................................ 80
8.5 Federal Aviation Administration................................ 80
8.6 Inspection..................................................... 81
9. LIENS................................................................... 81
9.1 Developer's Responsibility..................................... 81
9.2 Notice of Work................................................. 82
9.3 Discharge of Liens............................................. 82
9.4 Landlord's Right to Pay........................................ 82
9.5 Reimbursement of Landlord...................................... 83
10. CONDEMNATION............................................................ 83
10.1 Definition of Terms............................................ 83
10.1.1 Total Taking...................................... 83
10.1.2 Partial Taking.................................... 84
10.1.3 Voluntary Conveyance............................. 84
10.1.4 Date of Taking................................... 84
10.1.5 Leased Land....................................... 84
10.2 Effect of Taking............................................... 85
10.3 Allocation of Award............................................ 85
10.4 Reduction of Ground Rent on Partial Taking..................... 85
10.5 Temporary Taking............................................... 86
11. ALTERATIONS BY DEVELOPER................................................ 86
12. TAXES AND ASSESSMENTS................................................... 87
12.1 Payment by Developer........................................... 87
12.2 Installment Payments........................................... 87
12.3 Proration...................................................... 88
12.4 Right to Contest............................................... 88
13. CERTIFICATES BY DEVELOPER AND LANDLORD.................................. 89
13.1 Developer to Provide........................................... 89
13.2 Landlord to Provide............................................ 90
14. QUIET ENJOYMENT......................................................... 90
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TABLE OF CONTENTS
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(continued)
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15. TERMINATION AND FURTHER LEASING......................................... 91
15.1 Termination.................................................... 91
15.2 Termination by Developer....................................... 91
15.3 Termination by Landlord........................................ 91
15.3.1....................................................... 91
15.3.2....................................................... 91
15.3.3....................................................... 91
15.3.4....................................................... 91
15.3.5....................................................... 91
16. SECURITY DEPOSIT........................................................ 92
16.1 Good Faith Deposit............................................. 92
16.1.1 Receipt by Landlord................................. 92
16.1.2 Form of Deposit..................................... 92
16.1.3 Interest............................................ 93
16.1.4 If Bond is Posted................................... 94
16.2 Construction Security Deposits................................. 94
16.2.1 Form of Construction Deposit........................ 95
16.2.2 Interest............................................ 95
16.2.3 Incorporation by Reference.......................... 96
16.2.4 Return of Deposit................................... 96
16.2.5 Retention of Deposit by Landlord.................... 96
17. GENERAL PROVISIONS...................................................... 97
17.1 Notices, Demands and Communication between
the Parties.................................................. 97
17.2 Conflict of Interest........................................... 98
17.3 Enforced Delay: Extension of Time of
Performance.................................................. 98
17.4 Inspection of Books and Records................................ 99
17.5 Defaults and Remedies.......................................... 99
17.5.1 Defaults - General.................................... 99
17.5.2 Institution of Legal Actions.......................... 99
17.5.3 Applicable Law........................................ 100
17.5.4 Service of Process.................................... 100
17.5.5 Rights and Remedies Are
Cumulative.......................................... 100
17.5.6 Inaction Not a Waiver of Default...................... 101
17.5.7 Remedies.............................................. 101
17.5.7.1................................................... 101
17.5.7.2................................................... 101
17.5.7.3................................................... 102
17.5.7.4................................................... 102
17.5.8 Developer's Rights ................................... 102
17.5.9 Lease Termination..................................... 102
17.5.10 Landlord's Exercise of Remedies...................... 103
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17.5.11 Payment to Developer.............................. 104
17.5.11.1 Reimbursement to Landlord.................... 104
17.5.11.2 Reimbursement to Developer................... 105
17.5.11.3 Ground Rent.................................. 106
17.5.11.4 Remaining Balance............................ 106
17.5.12 Delivery of Plans................................. 106
17.6 Right to Contest Laws.......................................... 106
17.7 Trade Fixtures................................................. 107
17.8 Continued Possession of Developer.............................. 108
17.9 Utilities...................................................... 108
17.10 Surrender...................................................... 108
17.11 Partial Invalidity............................................. 109
17.12 Section Headings............................................... 109
17.13 Short Form Lease............................................... 109
17.14 Exhibits Incorporated.......................................... 109
17.15 Entire Agreement, Waivers and Amendments....................... 110
17.16 Waivers........................................................ 110
17.17 Approvals...................................................... 110
17.18 Successors in Interest......................................... 110
17.19 "And/Or"....................................................... 110
17.20 "Including" Defined............................................ 111
17.21 Right of First Refusal to Purchase............................. 111
17.22 If Developer is a Trustee...................................... 112
17.23 Limitation of Liability of Partners............................ 112
17.24 Approvals...................................................... 113
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DEFINED WORDS
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Defined Word Paragraph Page
------------ --------- ----
"Adjacent Properties" 1.4.1 3
"Adjusted Fair Market Land Value" 3.2.2.1 9
"Adjusted Ground Rent" 3.2.4.4 13
"adjustment dates" 3.2.1 8
"Affiliated Corporation" 5.2.3 38
"Agreement Establishing Developer" 1.5.2 4
"and/or" 17.19 110
"Approved Plans" 3.8 18
"as-is" 7.5.10 75
"Basic Concept Documents" 7.3.2 62
"Commencement of Construction" 3.1.3 6
"Completion Date" 5.5 43
"date of taking" 10.1.4 84
"Developer" Intro 1
"Developer's Long Beach Airport 7.1 60
Center Submittal"
"FAA" 8.5 81
"Ground Rent" 3.1 6
"Ground Sublease" 5.7 45
"include" 17.20 111
"including" 17.20 111
"Institutional Lender" 4.3.1 20
"Landlord" Intro 1
"Lease" Intro 1
"leased land" 10.1.5 84
x
LIST OF EXHIBITS
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First Appearing at
Ltr. Description Paragraph Page
---- ----------- --------- ----
A Legal Description of Premises 1.2 3
B Site Map of Project Area and 1.4 3
Adjacent Properties
C Parcel Map 3.1.2 6
D Categories of Predevelopment 3.6 17
and Infrastructure Costs
E Form of Nondisturbance 5.7 44
Agreement
F Off-Site Improvements 7.5.7.3 73
G Landscaping Plans 7.3.3 62
H Exterior Elevations 7.3.4 63
I Form of Performance Bond and 7.4.1 68
Labor and Material Bond
K Master FBO Lease 8.2 80
L FAA Conditions 8.5 81
M Form of Short Form Lease 17.13 109
ix
DEFINED WORDS
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(continued)
Defined Word Paragraph Page
------------ --------- ----
"Leasehold Mortgage" 4.3.2 21
"Leasehold Mortgagee" 4.3.3 21
"manage" 1.5.3 5
"Master FBO Lease" 8.2 80
"Net Square Footage" 3.1.1 7
"New Lease" 4.8.1 29
"nondisturbance agreement" 5.7 44
"partial taking" 10.1.2 84
"Predevelopment and Infrastructure 3.2.2.1 10
Costs"
"Premises" 1.2 3
"Project" 1.1 2
"Single Lease" 7.7 79
"Subdivided Lease" 7.6 76
"sublease" 5.7 44
"sublessee" 5.7 45
"Supplement to Xxxxxx Industries 7.1 60
December 7, 1983, Proposal"
"Termination Notice" 4.6.1 23
"Termination Notice Period" 4.6.1 23
"total taking" 10.1.1 83
xi
LEASE AGREEMENT
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THIS LEASE AGREEMENT (the "Lease") is made this 30th day of December,
1988, 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".
This Lease is made with reference to the following facts:
A. On or about July 18, 1985, Landlord and Tenant entered into a
lease (the "All-Inclusive Lease") of certain real property described in Exhibit
"A" to the All-Inclusive Lease (the "All-Inclusive Lease Real Property"). The
All-Inclusive Lease Real Property to be developed pursuant to the All Inclusive
Lease is therein and herein referred to as the "Project". A short form of the
All-Inclusive Lease, dated July 17, 1985, was recorded on November 14, 1986 as
Instrument No. 00-0000000 in Official Records in the Office of the County
Recorder of Los Angeles County, California (the "Recorded Short Form All
Inclusive Lease").
B. A Parcel Map has been filed with the County of Los Angeles on July
22, 1988, as Parcel Map No. 16960 in Book 208, pages 92 through 100, of Parcel
Maps in the Office of the County Recorder of said County (the "Parcel Map").
This Parcel Map includes the real property demised by the All-Inclusive Lease,
and other real property.
C. The All-Inclusive Lease provides in paragraph 7.6 thereof that the
said All-Inclusive Lease may be subdivided into
1
separate new leases upon notice from Developer to Landlord. Developer gave
written notice to Landlord on August 22, 1988 requesting that the All-Inclusive
Lease by subdivided into three separate leases covering the All-Inclusive Lease
Real Property as follows:
1. Parcels 5 and 6 of the Parcel Map (the "Parcel 5 and 6 Lease").
2. Parcels 1 and 2 of the Parcel Map (the "Parcel 1 and 2 Lease").
3. The All-Inclusive Lease would be reduced in scope and coverage to
include all of the remainder of the All-Inclusive Lease Real Property
consisting of Parcels 3 and 4, and an additional Parcel 8 of the Parcel Map.
D. This Lease is intended to be the subdivided lease hereinabove
described as the Parcel 5 and 6 Lease, and it shall hereinafter be referred to
as the "Lease".
NOW THEREFORE 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
----------------
the lease and improvement of certain Premises, hereinafter described, as a part
of the Project. This Lease is entered into pursuant to the provisions of Section
7.6 of the All-Inclusive Lease and in order to develop Parcels 5 and 6 of the
Project and not for speculation in land holding. The development of Parcels 5
and 6 of the Project pursuant to and as
2
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 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 the City of Long Beach is the area generally described as the area
bounded by Spring Street on the northwest, 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 are included in the Project area
------------
illustrated and designated on the site map attached hereto as Exhibit "B" and
the revised Parcel Map No. 16960 attached hereto as Exhibit "C", and forming a
part of this Lease and are legally described in the attached Exhibit "A".
1.4.1 Adjacent Properties. Developer has entered into a
-------------------
separate Lease, dated April 21, 1988, with the Board of Water
Commissioners of the City of Long Beach (the "Water Department
Lease"), for the development of certain adjacent properties ("Adjacent
Properties") identified in Exhibit "B", into the Project for creation
of an integrated development. The fair market value and fair market
Ground Rent and
3
periodic adjustments thereof of said Adjacent 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
the Water Department Lease (and Landlord, as to its property).
1.5 Parties to the Lease Agreement.
------------------------------
1.5.1 Landlord. Landlord is a municipal corporation
--------
organized 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 suc-
4
cessor to Developer under this Lease or any other lease which may be
established pursuant hereto covering the Premises.
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
approximately forty-six (46) years, expiring on July 17, 2035.
5
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)(1) of the 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:
----
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 Two Hundred Ninety Five Thousand, Four Hundred
Twenty-Eight and 97/100 ($295,428.97) per year, which is stated by the
parties to be pro rata share for this lease of ten percent (10%) of
initial stated value of the land included in the Premises, which in
turn is agreed by the parties to be Two Million Nine Hundred Fifty-
Four Thousand, Two Hundred Eighty-Nine and 70/100 Dollars
($2,954,289.70).
3.1.2 Allocation of Ground Rent. Developer initially
-------------------------
intends to develop the Premises as two (2) distinct parcels, which are
designated as Parcel 5 and
6
Parcel 6 of Parcel Map No. 16960 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 between Parcel 5 and Parcel 6 in the proportion that the net
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 Initial
----------------------
Ground Rent is acknowledged to have commenced on Parcel 5 on July 21,
1988 and on Parcel 6 on July 27, 1988, pursuant to the provisions of
the All-Inclusive Lease. Such Initial Ground Rent for Parcel 5 and
Parcel 6 shall be prorated and paid under the All-Inclusive Lease
until the date of this Lease, and thereafter shall be paid pursuant to
the provisions of this Lease.
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.
7
3.1.5 Inapplicable Provision.
----------------------
3.1.6 Inapplicable Provision.
----------------------
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 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, the fair market
8
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 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 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,
9
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 of the Premises (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 Two Million, Nine Hundred Fifty-Four Thousand, Two
Hundred Eighty-Nine and 70/100 Dollars ($2,954,289.70) bears to the
original stated land value of the Premises of Two Million, Nine
Hundred Fifty-Four Thousand, Two Hundred Eighty-Nine and 70/100
Dollars ($2,954,289.70), plus the pro rata portion of the actual
onsite and off-site "Predevelopment and Infrastructure Costs",
applicable to the Premises, 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
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
10
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 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
11
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 both 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 shall be allocated between the
parcels within the Premises 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
12
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 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
13
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 developed 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
14
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 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.
15
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 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
16
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
the pro rata portion applicable to the Premises of 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 submitted to Landlord engineering plans
and costs estimates for 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
17
specifications of the City of Long Beach for such improvements. Landlord
reviewed said plans for conformity with the Basic Concept Documents and approved
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.
--------------------------------------------------------
Predevelopment and Infrastructure Costs for the entire Project shall be
determined in the manner described in Sections 3.6 through 3.11, inclusive, of
the All-Inclusive Lease as if the All-Inclusive Lease had not been subdivided.
At such time as such Predevelopment and Infrastructure Costs have been so
determined pursuant to the All-Inclusive Lease, a portion of such Predevelopment
and Infrastructure Costs shall be allocated to this Lease in the ratio as the
square footage of the area of the Premises included in this Lease bears to the
entire square footage of the area of the All-Inclusive Lease prior to the
subdivision of the All-Inclusive Lease, excluding for such purposes any of the
areas included in Parcel 8 of the Parcel Map, as said Parcel 8 has a different
rental calculation procedure from the balance of the real property included
within the Project.
3.9 Inapplicable Provision.
----------------------
3.10 Inapplicable Provision.
----------------------
3.11 Inapplicable Provision.
----------------------
4. LEASEHOLD MORTGAGES:
-------------------
4.1 Leasehold Mortgage Authorized. On one or more occasions
-----------------------------
Developer may take back a Purchase Money Leasehold Mortgage 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 de-
18
fined), 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 Acknowledgment 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 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
19
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 nonrecorded 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 respect to such instruments as
have been recorded.
4.3 Definitions.
-----------
4.3.1 Institutional Lender. The term "Insti-
--------------------
20
tutional 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/l00 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.
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
21
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 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
22
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 Lease then in default and reasonably
susceptible of being complied with by such Leasehold Mortgagee;
provided however, that such Leasehold Mortgagee
23
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:
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
24
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 require a Leasehold Mortgagee
to continue such foreclosure proceedings after the default has been
cured. If the default shall be cured and the Leasehold Mortga-
25
gee 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 Leasehold Estate
hereby created under any instrument of assignment or transfer
26
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 become 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 designee choose not to
fully reconstruct the
27
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 created in
lieu of the foreclosure of any Leasehold Mortgage shall be deemed to
28
be a permitted sale, 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
----------------------
29
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 3.1.6, 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.
30
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
31
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
32
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.
33
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
General 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
34
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-
35
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
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
36
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
---------------
37
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
38
"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.
39
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 5.1, 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
40
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.
41
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.
42
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.
43
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
44
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 Sublease 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
45
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 encumbrancer
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
-----------
46
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
office 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.
47
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 Information 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
48
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
49
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
50
Landlord and its officers, agents and employees as co-insureds 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
51
have the right to enter upon the Premises for any purpose whatsoever
until such certificate has been filed with Landlord.
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.
52
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
53
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
54
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
55
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-
56
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 than 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
57
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
58
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 a 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
59
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.
Pursuant to the provisions of Section 7.1 of the All-Inclusive
Lease, three (3) acres within the entire Project 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 Project and can change in configuration and location depending on
the needs of the remainder of the parcel and changes in subtenant requirements.
Also pursuant to the provisions of Section 7.1 of the All-Inclusive Lease, 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 has
------------------------------------------
commenced the construction of
60
improvements upon both Parcel 5 and Parcel 6 of the Premises as a part
of the development contemplated in the Basic Concept Documents or its
alternative as approved by Landlord pursuant to subsection 7.3.7.
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 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 sub-
61
section 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 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
62
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 submit 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
63
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 to Landlord by Developer
pursuant to subsections 7.7.3 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
64
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 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
65
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 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
66
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 Landlord'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
67
($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 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
68
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 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 pro-
---------------------
69
vided in subsections 3.8 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
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
70
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
71
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.
7.5.6 Antidiscrimination During Construction. Developer
--------------------------------------
for itself and its successors and assigns 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,
72
variances and any other govenmental 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 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.
73
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 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
74
requirements of this Lease on or before each semiannual 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
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
75
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 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 has
heretofore paid to Landlord as a separate charge apart from rents a one time
charge 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.
76
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 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
77
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, 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
----------------
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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 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
---------------------
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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, 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 Inapplicable Provision.
-----------------------
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
80
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 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 ox materials supplied or claimed to have been supplied to
Developer
81
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 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
Land lord securing Developer against payment of such lien and against any and
all loss or damage whatsoever in any way arising from failure of Developer to
discharge such lien.
9.4 Landlord's Right to Pay. In the event Devel-
-----------------------
82
oper 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
litigation, 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
83
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 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
84
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 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.
------------------------------------------
85
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
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.
l0.5 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 a 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
86
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
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 attainment 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
87
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 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
88
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 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
89
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 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
90
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.
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 by 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 ad-
91
judication 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 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. SECURITY DEPOSIT:
----------------
16.1 Good Faith Deposit.
------------------
16.1.1 Receipt by Landlord. Developer has, concurrently
-------------------
with the execution and delivery of the All-Inclusive Lease, delivered
to Landlord a good faith deposit in the amount of One Million and
No/100 Dollars ($1,000,000.00) as security for the performance of the
obligations of Developer to be performed in accordance with the
provisions of the All-Inclusive Lease. The receipt of the deposit is
hereby acknowledged by Landlord. The parties acknowledge that Two
Hundred Ninety-Five Thousand Four Hundred Twenty-Eight and 97/100
Dollars ($295,428.97) of such good faith deposit shall be allocated to
and be held by Landlord pursuant to this Lease.
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
92
(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 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
93
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 posted 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/100 Dollars ($l,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. The parties acknowledge that Two Hundred
Ninety-Five Thousand Four Hundred Twenty-Eight and 97/100
94
Dollars ($295,428.97) of such construction security deposit shall be allocated
to and held by Landlord pursuant to this Lease.
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 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
95
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 building 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 396~058 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 Land-
96
lord 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 an
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 between 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
97
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
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 in-
98
cluding 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 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
----------------------------
99
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.
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
100
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
proceedings 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
101
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.
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
102
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.
17.5.10 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 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.
103
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 reasonably 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
104
taxes, assessments and water and sewer charges paid with respect
to thePremises, 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 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.
105
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 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
106
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 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
107
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 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
108
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 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
109
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.
17.17 Approvals. Except where specific criteria are set forth as a
---------
condition to approving or disapproving or a matter of 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
110
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 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
111
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 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
-----------------------------------
112
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.
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
December 30 , 1988 By: [Signature appears here]
----------------- ------------------------------
City Manager
LANDLORD
/ /
/ /
/ /
/ /
000
XXXXXX XXXX XXXXX ASSOCIATES, a
California limited partnership
By: XXXXXX INDUSTRIES,
General Partner
December 21, 1988 By: /s/ Xxxxxxxx X. XxXxxxxx
------------ -------------------------------
Xxxxxxxx X. XxXxxxxx
Senior Vice President and
Secretary
DEVELOPER
This Lease Agreement is approved as to form this 22 day of December, 1988.
-- --------
XXXX X. XXXXXXX, City Attorney
By: [SIGNATURE APPEARS HERE]
------------------------
Deputy
114
DEVELOPER'S ACKNOWLEDGMENT
--------------------------
STATE OF CALIFORNIA )
) SS.
COUNTY OF LOS ANGELES )
On December 21, 1988, before me, the undersigned, a Notary Public in and
for said State, personally appeared Xxxxxxxx X. XxXxxxxx, personally known to me
or proved to me on the basis of satisfactory evidence to be the person that
executed this instrument as Senior Vice President of Xxxxxx Industries, 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
------------------------------------
Notary Public in and for said State
LEGAL DESCRIPTION
-----------------
Parcels 5 and 6 in the City of Long Beach, County of Los Angeles, State of
California, as shown on Parcel Map No. 16960, filed in Book 208, pages 92
through 100, of Parcel Maps in the Office of the County Recorder of said County.
EXHIBIT "A"
Page 1 of 1 Page
MAP OF PROJECT AREA
ADJACENT PROPERTIES
EXHIBIT B
[MAP APPEARS HERE]
[LOGO OF XXXXXX AIRPORT CENTER APPEARS HERE]
[GRAPHIC SCALE APPEARS HERE]
MAP OF
PARCELS 1 THROUGH 10
PARCEL MAP NO. 16960
P.M.B. 208 - 92/100
IN THE CITY OF LONG BEACH
COUNTY OF LOS ANGELES
STATE OF CALIFORNIA
FOR LEASE PURPOSES
EXHIBIT "C"
[MAP OF PARCELS 1 THROUGH 10 APPEARS HERE]
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 18" 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
PRE DEVELOPMENT &
-----------------
INFRASTRUCTURE LANDSCAPE AREA
-----------------------------
EXHIBIT D
---------
[MAP OF LONG BEACH AIRPORT APPEARS HERE]
PRE DEVELOPMENT &
-----------------
INFRASTRUCTURE LANDSCAPE AREA
-----------------------------
EXHIBIT D
---------
[MAP OF LONG BEACH AIRPORT 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 C30)
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, far 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 MINUTES 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
PAGE 2 OF EXHIBIT "A"
IS UNAVAILABLE
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 l2 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
OFF SITE IMPROVEMENTS
---------------------
EXHIBIT F
[MAP OF XXXXXX AIRPORT CENTER LONG BEACH APPEARS HERE]
OFF SITE IMPROVEMENTS
---------------------
EXHIBIT F
[MAP OF XXXXXX AIRPORT CENTER LONG BEACH APPEARS HERE]
EXHIBIT G
[MAP OF BUILDING LANDSCAPE INDICATING PHASES OF WORK APPEARS HERE]
THIS PLAN IS REPRESENTATIVE OF THE QUALITY OF LANDSCAPING TO BE INSTALLED;
HOWEVER, THE DESIGN, PLACEMENT AND PLANT SELECTIONS ARE SUBJECT TO CHANGE
DEPENDING UPON ULTIMATE DESIGN CRITERIA AND SUBTENANT REQUIREMENTS.
EXHIBIT H
[ARTWORK INDICATING BUILDING ELEVATIONS APPEARS HERE]
THESE ELEVATIONS ARE REPRESENTATIVE OF THE BUILDINGS PRESENTLY PLANNED TO BE
CONSTRUCTED; HOWEVER, THE DESIGN, DIMENSIONS AND MATERIALS ARE SUBJECT TO CHANGE
DEPENDING
EXTERIOR ELEVATIONS
-------------------
EXHIBIT H
[ARTWORK INDICATING BUILDING ELEVATIONS APPEARS HERE]
THESE ELEVATIONS ARE REPRESENTATIVE OF THE BUILDINGS PRESENTLY PLANNED TO BE
CONSTRUCTED; HOWEVER, THE DESIGN, DIMENSIONS AND MATERIALS ARE SUBJECT TO CHANGE
DEPENDING
EXTERIOR ELEVATIONS
-------------------
EXHIBIT H
[ARTWORK INDICATING BUILDING ELEVATIONS 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
EXHIBIT "J" INTENTIONALLY OMITTED
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 on the Premises. Developer may, however, construct more than
one fuel facility and one wash rack for each such FBO facility on the
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-
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
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 reasonable wear and tear. City's
Airport except 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 Hangers" is hereby deleted and shall not be
applicable to the Premises.
18. Paragraph C of the requirement entitled "Storage"
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 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
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.
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.
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 Manager;
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
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;
O. 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;
S. 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;
W. Aircraft stripping and painting;
X. Any such other aviation related uses as may be approved in writing
by LANDLORD's Airport Manager.
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 Sub-tenant for financial
gain are prohibited. Said prohibition shall be enforced by TENANT.
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
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.
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.
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 lessee(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 with:
(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 sub-tenant where delivery
subsequent to sale occurs within thirty (30) calendar days.
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.
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.
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 tie-down 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
parking of aircraft or ground vehicles on property contigious 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 car 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
such notice in writing as is possible under the existing circumstances.
D. 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 efforts 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.
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 means 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.
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 sub-tenant 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"
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.
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.
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 this 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
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 Countil 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.
AVIGATION 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
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.
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.
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 oft 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 thereform.
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.
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.
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.
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 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, but 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 1 of 5 Pages
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
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
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/5.28.6sr
LANDLORD'S ACKNOWLEDGEMENT
--------------------------
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 ACKNOWLEDGEMENT
---------------------------
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 MINUTES 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 8 DEGREES 14 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 DEC
EXHIBIT "A"
Page 2 of 2 Pages
