HomeMy WebLinkAboutResolution No. 12-7313RESOLUTION NO. 12 -7313
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNEY APPROVING
AN AMENDMENT TO THE GROUND LEASE BETWEEN THE CITY OF DOWNEY
AND INDUSTRIAL REALTY GROUP, LLC, DATED DECEMBER 4, 2003 TO
ESTABLISH A REVISED TERMINATION DATE FOR THE LEASE AND MAKE
OTHER CLARIFYING AMENDMENTS
WHEREAS, the City of Downey has considered applications from Mr. Robert A.
Manarino, who is the authorized representative for the Industrial Realty Group, the Applicant, for
approval of an amendment to the Downey Landing Specific Plan, Tentative Parcel Map No.
71543 and Tentative Tract Map No. 71544; and a statutory development agreement, all of which
are related to the proposed development of an approximately 1,516,000 square foot mixed -use
development, known as Tierra Luna Marketplace, on the 77 -acre site at 12214 Lakewood
Boulevard; and
WHEREAS, the City holds certain lease rights with regard to a portion of the 77 acre site
at 12214 Lakewood Boulevard pursuant to that certain Real Property Ground Lease Between
The City Of Downey and Industrial Realty Group, LLC, a Nevada Limited Liability Company
dated December 4, 2003 ( "Ground Lease "); and
WHEREAS, PCCP /IRG DOWNEY, LLC, a Delaware limited liability company
( "PCCP /IRG ") is a successor -in interest to the applicant's rights under the Ground Lease; and
WHEREAS, As set forth in that certain "Amendment to Agreements in Ground Lease"
( "Ground Lease Amendment ") attached hereto Attachment 1, PCCP /IRG has requested
amendments to the Ground Lease to reflect (i) PCCP /IRG's status as successor in interest to
the applicant, (ii) an extension of the term of the Ground Lease, (iii) clarification concerning the
circumstances pursuant to which the rent may be increased under the Ground Lease, and (iv)
other technical revisions to the Ground Lease recitals to conform to change circumstances; and
WHEREAS, , the City Council does hereby desire to approve an amendment to the
Ground Lease pursuant to the terms and conditions as set forth in the Ground Lease
Amendment
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF DOWNEY DOES
HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The City Council finds and determines that the activities contemplated in
the Ground Lease Amendment have no likelihood of causing any environmental impact and are,
in any event, subsumed within the activities studied in the Final Environmental Impact Report for
the proposed development of the Tierra Luna Marketplace at 12214 Lakewood Boulevard
pursuant to the Amended Downey Landing Specific Plan
SECTION 2. The City Council DOES HEREBY APPROVE the Ground Lease
Amendment, substantially in the form attached as Attachment 1.
SECTION 3. The City Manager and his authorized designees are hereby authorized to
execute the Ground Lease Amendment.
RESOLUTION NO. 12 -7313
PAGE TWO
SECTION 4. If any one of more sections or parts of this Resolution shall be adjudged
unenforceable or invalid, such judgment shall not effect, impair or invalidate the remaining
provisions of this Resolution, it being the intention that the various provisions hereof are
severable.
SECTION 5. Except as expressly provided in this approval, nothing in the Ground
Lease Amendment shall be deemed to waive or modify any other provisions of the Ground
Lease.
ATTEST:
SECTION 6. The City Clerk shall certify to the adoption of this Resolution.
APPROVED AND ADOPTED this 10 day of January, 2012.
ADRIA M. JIME EZ, CMC
City Clerk
C. BgOSSMER, Mayor
I HEREBY CERTIFY that the foregoing Resolution was adopted by the City Council of
the City of Downey at a regular meeting held on the 10 day of January, 2012, by the following
votes, to wit:
AYES: Council Members: Guerra, Marquez, Vasquez, Gafin, Mayor Brossmer
NOES: Council Member: None
ABSENT: Council Member: None
ABSTAIN: Council Member: None
,' -<` I f ...
ADRIA M. JIMENEZ, CMC
City Clerk
AMENDMENT TO AGREEMENTS IN GROUND LEASE
This Amendme t to Agreements in Ground Lease (this "Lease Amendment ") is
made as of this to I t day of s , 201/ r by and between THE CITY OF DOWNEY, a
municipal corporation of the State of Cali ornia ( "Landlord ") and PCCP IRG DOWNEY, LLC,
a Delaware limited liability company, as to an undivided 90% interest, and IRG DOWNEY,
LLC, a California limited liability company, as to an undivided 10% interest ( collectively
"Tenant ").
RECITALS
A. Landlord and Industrial Realty Group, LLC, a Nevada limited liability
company ( "Original Tenant ") (as landlord and tenant, respectively) entered into a Ground
Lease, dated on or about December 4, 2003 (the "Existing Ground Lease "), pursuant to which
Landlord leased to Original Tenant certain real property described therein (the "Property ") that
was formerly a part of the NASA Industrial Plant in Downey, California. A true and correct
copy of the Existing Ground Lease is attached hereto as Exhibit "A" and incorporated herein by
reference.
obligations.
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B. The Existing Ground Lease contains various ongoing rights and
C. Tenant has succeeded to Original Tenant's interest in the Property and the
Existing Ground Lease.
D. All capitalized terms used herein but not herein defined shall have the
meanings ascribed to such terms in the Existing Ground Lease.
E. Landlord and Tenant now desire to enter into this Lease Amendment to
amend some of the rights and obligations specified in the Existing Ground Lease, all subject and
pursuant to the terms and conditions set forth in this Lease Amendment below. The Existing
Ground Lease, as amended by this Lease Amendment, is hereinafter referred to as the "Lease ".
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Landlord and Tenant hereby agree to amend,
modify and/or supplement the Existing Ground Lease as of the Amendment Effective Date as
follows:
1. Effective Date. The effective date of this Amendment shall be the date
upon which Landlord and Tenant have each executed and delivered an executed counterpart of
this Amendment to the other party (the "Amendment Effective Date "). The Amendment
Effective Date will be reflected in an Amended Memorandum of Lease to be recorded in the
office of the County Recorder of Los Angeles County pursuant to Section 16.13 of the Existing
Ground Lease.
2/28/2012
2. Term. Notwithstanding Section 2.02 of the Existing Ground Lease, unless
earlier terminated in accordance with the provisions of this Lease, the term of this Lease shall
expire at 11:59 p.m. on the day preceding the fifty -fifth (55th) anniversary of the Amendment
Effective Date (the "Initial Expiration Date ").
3. Existing Ground Lease, Recital H. Recital H to the Existing Ground
Lease is amended to read in full as follows:
"H. Tenant's proposed future development of the Property involves the demolition of
some of the existing improvements located thereon and the construction of retail
buildings, office buildings, medical office buildings, parking structures and any other
uses permitted pursuant to the "Entitlements" (as hereinafter defined) (the "Project").
Developer has, is or will be processing all discretionary governmental planning, land
use, zoning, development and environmental permits, plans, and approvals which are
required for the development, use and operation of the Property (the "Entitlements").
The Entitlements include (but are not limited to) the following non - exhaustive list of
discretionary government approvals for the development of the Ground Lease Property
that do or may exist (the "City Entitlements"):
(i) Amending the Downey Landing Specific Plan, dated January 10, 2012,
which includes design guidelines (the "Specific Plan"); and
(ii) All required demolition and building permits and related approvals, if
any, for the reconfiguration of buildings or improvements in order to provide
additional area which may be included within the Property area (the
"Construction Approvals").
Tenant acknowledges that the Entitlements may include (and the Ground Lease Property is
subject to) required regulatory approvals and permits from government agencies other than the
City of Downey."
4. Clarification on Converted Base Rent Applicability: If Tenant develops
parking for a large format retail store pursuant to and subject to Section 3.8 of that certain Tierra
Luna Development Agreement by and between the City of Downey and Tenant, then the
development of that parking area shall not constitute a "conversion" of the use of the Ground
Lease Property within the meaning of the first paragraph of Section 3.02 of the Ground Lease;
provided, however, that immediately upon the use of all or any portion of that parking area to
support converted uses on the Ground Lease Property, the parking area shall be deemed
"Converted Property" and subject to corresponding rent adjustments under the Ground Lease.
Nothing in this paragraph 4 shall be construed to limit or delay the deemed conversion of the
Ground Lease Property required by the last paragraph of Section 3.02 of the Ground Lease.
5. Counterparts. This Lease Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which, taken together, shall
constitute one and the same instrument.
6. Governing Law. This Lease Amendment is made under and shall be
construed pursuant to the laws of the State of California.
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2t28/2012
IN WITNESS WHEREOF, the parties hereto have executed this Lease Amendment the
date and year first above written.
62074k1118617v3
"LANDLORD"
CITY OF DOWNEY,
a M al t. of the State of California
By:
Name:
Its:
By:
Name:
Title:
L41
"TENANT"
PCCP IRG DOWNEY, LLC,
a Delaware limited liability company
By: JCCP LB IRG Downey, LLC
Merging Member
/.6t
Greg EZ.. .1
Yice-Rgosident
IRG DOWNEY, LLC,
a Delaware limited liability company
L6 ir, c-"
By: S L Properties, Inc.
By:
Name:
Title:
3
ti
1/9/2012
GROUND LEASE
By and Between
CITY OF DOWNEY
and
INDUSTRIAL REALTY GROUP, LLC
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GROUND LEASE
THIS GROUND LEASE (the "Lease ") is made and entered into as of December 4, 2003,
by and between the CITY OF DOWNEY (hereinafter sometimes referred to as either "City" or
Landlord ") and INDUSTRIAL REALTY GROUP, LLC (hereinafter referred to as
"Tenant "). Landlord and Tenant hereby agree as follows:
Recitals
A. Landlord is the owner and/or lessee of the approximately 160 -acre former
National Aeronautics & Space Administration ( "NASA ") industrial plant site situated in the City
of Downey, California and generally bounded by Lakewood Boulevard, Stewart and Gray Road,
Bellflower Boulevard, Imperial Highway and Clark Avenue (the "NASA Site "). Landlord
acquired its interest in the NASA Site from the United States of America, acting by and through
NASA and/or the Government Services Administration ( "GSA "). The NASA Site has been used
over a 70 -year period for aircraft manufacture, the invention, testing, and patenting of the
chemical milling process, research, production, and assembly of rockets and missiles, and the
design, production, assembly, and testing of the equipment and materials for the Apollo Space
Program and the Space Shuttle Orbiter program. The NASA Site is composed of 6 separate
parcels of land ( "Parcels 1, 2, 3, 4, 5 and 6" respectively) as shown on the diagram attached
hereto as Exhibit "A ".
B. In April 1999, Landlord acquired from the United States of America, acting by
and through the General Services Administration ( "GSA ") and NASA, approximately 66 acres
of the NASA Site, comprised of Parcels 3, 4, 5 and 6 ( "Parcels 3, 4, 5 and 6 "), pursuant to that
certain Quitclaim Deed dated April 19, 1999, recorded in the official records of the County of
Los Angeles as Document No. 99 0690588 (the "1999 NASA Quitclaim Deed "). Parcels 3, 4, 5
and 6 are also subject to various agreements between the Landlord and the United States
(Collectively, the "Existing NASA Restrictions "):
C. Tenant acknowledges that Landlord is in negotiations with the United States of
America, acting by and through GSA and NASA, to acquire the remaining approximately 94-
acre portion of the NASA site, comprised of Parcels 1 and 2 ( "Parcels 1 and 2 "), pursuant to the
California Desert Protection Act. ( "Act ") of 1994, 16 U.S.C. § 410aaa et seq. Tenant
acknowledges that upon the lease of the Ground Lease Property, as further defined in Recital E,
to Tenant from Landlord, Parcels 1 and 2 shall be subject to certain reservations, covenants and
restrictions n;iating to the future use, remediation and development of Parcels 1 and 2, some of
which will run with the land as set forth in each of the documents listed below (which are
collectiviy referred to as the "NASA 2003 Transaction Documents "):
(i) NASA Quitclaim. Deed (the "2003 NASA Deed ");
(ii) Transfer Agreement between Landlord and the United States (the
"Transfer Agreement ");
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(iii) Environmental Liability Assumption Agreement between Landlord and
International Risk Assumption Downey, LLC ( "IRAD "), an environmental risk management
company (the "Assumption Agreement ");
(iv) Escrow Agent Agreement between Landlord, IRAD and an escrow agent
to be determined (the "Escrow Agreement ");
"ESA ");
(v) Environmental Services Agreement between NASA and Landlord (the
(vi) Covenant Deferral Request dated December 20, 2001 (the "CDR ");
(vii) Memorandum of Agreement Among NASA, the GSA, the California State
Historic Preservation Officer and the City of Downey Regarding Disposal of a Portion of the
NASA Industrial Plant (the "MOA "); and
(viii) Revocable License Agreement between NASA and the City of Downey
dated November 26, 2001 attached hereto as Exhibit "B" (the "License Agreement'). This
License Agreement is intended to expire upon transfer of Parcels 1 and 2 to Tenant.
The Existing NASA Restrictions, the NASA 2003 Transaction Documents and the Superior
NASA Documents (defined in Section 6B.04 herein) are sometimes collectively referred to
herein as the "NASA Documents." On September 15, 2003, the Governor of the State .of
California approved the Covenant Deferral Request for the transfer of title to Parcels 1 and 2 of
the NASA Site to Landlord in accordance with 42 U.S.C. Section 9620(h)(3)(C). In addition, the
NASA 2003 Transaction Documents have now been finalized which will effectuate the
remediation of Parcels 1 and 2 and other areas of the NASA Site and Landlord's purchase of
Parcels 1 and 2 from the United States, through the GSA.
D. NASA has described the environmental condition of Parcels 1 and 2 in the NASA
2003 Transaction Documents and the environmental reports and analyses referenced therein.
Landlord has made available to Tenant those certain environmental reports and other documents
described in Exhibit "C" attached hereto (the "Existing Environmental. Documents ") which
further describe the environmental condition of the NASA Site. Trichlorethylene ("TCE "),
Perchloroethylene ( "PCE "), and other volatile organic compounds have been detected in soils
on, and in groundwater beneath, Parcels 1 and 2. Groundwater monitoring wells have been
installed on Parcels 1 and 2 and sampled quarterly. Since June 2000, NASA (and its agents)
have been conducting an investigation and remediation of such soil and groundwater conditions
on the NASA Site, including Parcels 1 and 2, under the supervision of the California Regional
Water Quality Control Board - Los Angeles Regional (the "Regional Board "). The Regional
Board has ordered additional investigation and testing of certain areas of concern on the NASA
Site, and further soil and ground water investigation and remediation activities will be required.
E. Tenant wishes to ground lease from Landlord, and Landlord wishes to ground
lease to Tenant, a portion of the NASA Site, which portion is described in hereto (the "Ground
Lease Property ") comprising approximately 20 acres of Parcel 5 of the NASA Site.
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F. Landlord and Tenant (as Seller and Buyer, respectively) have entered into that
certain purchase and sale agreement ( "Acquisition Parcel Purchase Agreement ") dated on or
about November 30, 2003 for the sale by Landlord to Tenant of that certain fee interest in a
portion of Parcel 1 of the NASA Site, adjacent to the Ground Lease Property, consisting of
approximately 58 acres more particularly described in Exhibit "F" attached hereto (the
"Acquisition Parcel "). The Acquisition Parcel and the Ground Lease Property are collectively
referred to as the "Studio Property "). Concurrently herewith, Tenant has acquired (or shall
acquire) from Landlord the Acquisition Parcel pursuant to the Acquisition Parcel Purchase
Agreement.
G. Tenant's proposed future development of the Studio Property involves the
demolition of some of the existing improvements located thereon and the construction of a movie
studio /film location production facility (the "Production Facilities "), as well other non-
studio /film commercial uses. Developer has, is or will be processing all discretionary
governmental planning, land use, zoning, development and environmental permits, plans, and
approvals which are required for the development, use and operation of the Studio Property (the
"Entitlements "). The Entitlements include (but are not limited to) the following non - exhaustive
list of discretionary government approvals for the development of the Ground Lease Property
(the "City Entitlements "):
(i) Amending the Downey Landing Specific Plan, dated February 2002,
which includes rezoning and design guidelines) (the "Specific Plan "); and ,
(ii) Any required demolition and building permits and related approvals for
the possible reconfiguration of buildings or improvements in order to provide additional area
which may be included within the Studio Property area (the "Construction Approvals ").
Developer acknowledges that the Entitlements include (and the Ground Lease Property is subject
to) required regulatory approvals and permits from government agencies other than the City of
Downey.
NOW THEREFORE, in consideration of the foregoing recitals and the representations,
warranties, covenants and conditions contained herein and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the parties do hereby
agree as follows:
ARTICLE 1.
LEASE AND CERTAIN DEFINITIONS
1.01. Ground Lease Property and Existing Improvements
Landlord owns certain real property located in the City of Downey, County of Los
Angeles, State of California, as legally described in Exhibit "H" attached hereto and
incorporated herein by reference, and which is hereinafter called the "Ground Lease Property."
The Ground Lease Property is improved with numerous buildings and other structures, fixtures
and improvements (collectively, the "Existing Improvements ").
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1.02. Lease
For and in consideration of the payment of rentals and the performance of all the
covenants and conditions of this Lease, Landlord hereby leases and demises to Tenant, and
Tenant hereby leases and hires from Landlord, the Ground Lease Property and the Existing
Improvements, for the term and upon the covenants and conditions set forth herein.
1.03 Acquisition Parcel Purchase Agreement
Landlord and Tenant have also entered into the Acquisition Parcel Purchase Agreement
which contains, among other things, certain Special Development Provisions relating to the
development of a portion of the Studio Property for use as Production Facilities, as set forth in
Article 11 therein. This Lease is hereby made subject to the applicable provisions of the
Acquisition Parcel Purchase Agreement.
1.04 Certain Definitions
(a) "Occupant(s)" shall mean any person or legal entity having any type of
possessory interest in any portion of the Ground Lease Property other than a Subtenant.
(b) "Subtenant(s)" shall mean one or more subtenants of the Ground Lease Property
pursuant to a sublease entered into by and between Tenant, as landlord, and the subtenant, .as
tenant, and in accordance with the provisions with Article 13 herein.
2.01. Term
ARTICLE 2.
TERM
Unless terminated earlier in accordance with the provisions of this Lease, the term of this
Lease shall be for a period of fifty -five (55) years (the "Term "). The Term shall expire at 11 :59
p.m. on the day preceding the fifty-fifth (55th) anniversary of the Commencement Date (as
defined in Section 2.02) (the "Expiration Date ").
S (j A)
The Term shall commence upon the later of (i) the date Tenant acquires title to the
Acquisition Parcel from Landlord pursuant to the Acquisition Parcel Purchase Agreement, and
(ii) full execution of the Lease by the parties hereto (the "Commencement Date "); provided,
however, that if the Commencement Date has not occurred on or before July 1, 2004 (unless
Landlord and Tenant otherwise agree), this Lease shall be automatically cancelled and the Term
shall not commence. The Commencement Date will be reflected in a Memorandum of Lease to
be recorded in the office of the County Recorder of Los Angeles County pursuant to Section
16.13 of this Lease. Notwithstanding the foregoing, Tenant shall be entitled to terminate this
Lease in the event that it does not acquire the Acquisition Parcel.
2.02. Commencement
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2.03 Early Termination
Notwithstanding Section 2.01 to the contrary, this Lease shall terminate on April 30,
2019, in the event that Tenant fails to convert any portion of the Ground Lease Property from its
present use as a studio production facility/back -lot to any other use permitted by the Specific
Plan, as may be amended (the "Early Termination Date ").
3.01. Rent
ARTICLE 3.
RENT AND OTHER PAYMENTS
Beginning on the Commencement Date as provided in Section 2.02, above, and
continuing for the first five (5) years of the Term, Tenant shall pay to Landlord minimum rent in
the amount of $445,000 per year (the "Base Rent "). The Base Rent shall be paid in monthly
payments, in advance, on the first day of each month during the Term; provided that the first
Base Rent payment shall be payable on the Commencement Date and shall be prorated by
multiplying the Base Rent by a fraction, the numerator of which is the number of days from the
Commencement Date to the end of then current month and the denominator of which is the
actual number of days in such month. For purposes of this Lease, "Rent" or "rent" shall mean
the total of all sums due to Landlord from Tenant hereunder, including but not limited to Base
Rent, Converted Base Rent, Additional Rent (as defined in Article 4 herein) and all other fees
and charges owed to Landlord hereunder.
3.02 Converted Base Rent
In the event that Tenant converts all or any portion of the use of the Ground Lease
Property from that of a studio production facility/back -lot to any other use permitted by the
Specific Plan, as may be amended, the annual Base Rent for that portion of the Ground Lease
Property so converted (the "Converted Property ") shall be increased to an amount equal to the
product of (i) .09, multiplied by, (ii) the land square footage of the Converted Property,
multiplied by (iii) the Agreed Land Value, as defined below (the "Converted Base Rent "). The
Converted Base Rent shall be effective on the date the certificate of occupancy is issued with
respect to the Converted Property (each, a "Conversion Date "). For purposes of this Section
3.02, the "Agreed Land Value" shall be deemed to be: Ten Dollars ($10.00) per square foot for
any Converted Property with a Conversion Date occurring on or before December 31, 2008;
Eleven Dollars ($11.00) per square foot for any Converted Property with a Conversion Date
occurring on or before December 31, 2013; and Twelve Dollars ($12.00) per square foot for any
Converted Property with a Conversion Date occurring after January 1, 2014. For example, (i) if
Tenant amends the Specific Plan to permit the entire Ground Lease Property (915,427 square
feet) to be used as an office park to be constructed in two phases, each phase of which utilizes
one -half of the total square footage of the Ground Lease Property, and (ii) the Conversion Date
for both phases of the project occurs prior to December 31, 2008, then the total annual Rent for
the Ground Lease Property, as fully converted, would be $823,884 (.09 x 915,427 square feet x
$10.00). The Base Rent, however, shall be increased incrementally, effective on the Conversion
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Date for each phase of the project, based on the relationship that the Converted Property in each
phase bears to the total square footage of the Ground Leased Property, i.e. upon the Conversion
Date of the first phase of the project, the annual Rent would equal $634,442 ($445,000 x %2 +
$823,884 x %2).
Tenant may convert the Ground Lease Property in a maximum of four phases anytime
between the Commencement Date and the Early Termination Date. Any portion of the Ground
Lease Property not previously converted on or before April 30, 2019, shall be deemed to be
converted as of that date. Tenant shall promptly give Landlord written notice of upon its
conversion of any portion of the Ground Lease Property to Converted Property, which notice
shall set forth the nature of the conversion and the Conversion Date. Landlord shall reasonably
cooperate with Tenant in obtaining a subdivision parcel map, pursuant to the Subdivision Map
Act, in order to facilitate the redevelopment of the Ground Lease Property.
3.03 Increases in Base Rent
Beginning on the fifth (5 anniversary of the Commencement Date, and continuing
every five (5) years thereafter for the remainder of the Term, the annual Base Rent shall increase
by ten percent (10 %); provided, however, that with respect to any Converted Property, the
Converted Base Rent shall increase by ten percent (10 %) beginning on the fifth (5` anniversary
of each Conversion Date for such Converted Property and shall increase by ten percent (10 %)
every five (5) years thereafter for the remainder of the Term.
3.04. Rent Abatement
In the event that• any portion of the Ground Lease Property is taken for any use, or
reserved, by Landlord, IRAD, any federal agency or by any adjoining landowner in connection
with the development or environmental remediation of the retail site adjacent to the Ground
Lease Property (a "Taken Parcel "), Tenant shall receive an abatement of Rent during the time
that such party has possession or control over the Taken Parcel in an amount equal to the square
footage of the Taken Parcel multiplied by the then effective rent per square foot being paid by
Tenant for the entire Ground Lease Property. For example, if IRAD elects to locate a soil vapor
extraction unit on a 20,000 square foot portion of the Ground Lease Property in connection with
the ongoing remediation activities at the NASA Site, and the total square footage of the Ground
Lease Property is 915,427 square feet (approximately 21 acres) then the rent abatement (based
on an annual rent of $445,000) would be $9,722 per year ($.49 x 20,000), pro -rated for the time
period that unrestricted use of the 20,000 square feet is unavailable to Tenant. In such event,
Tenant shall notify Landlord of the purpose and amount of the Rent reduction.
3.05. In -Lieu Studio License Fee
Tenant and Landlord recognize the unique nature of the business proposed to be
conducted on the Ground Lease Property and that the traditional business license tax would not
fairly measure the extent of the business conducted within the Landlord's boundaries and would
be inconvenient for Tenant's customers to pay. Accordingly, Tenant agrees to pay the Landlord
a one percent (1 %) fee (the "Studio Fee ") based on the gross rental receipts from rental of the
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portion of the Ground Lease Property actually being used for film, television or commercial film
or video production ( "Film Activities "). Payment of the Studio Fee shall not relieve the long-
term tenants or short-term tenants not actually involved in Film Activities at the Ground Lease
Property from their responsibility to pay a regular City Business License tax. By executing this
Agreement, Tenant declares it has voluntarily and willfully agreed to pay the Studio Fee, in lieu
of any and all City business taxes, using this alternative method of tax payment on behalf of
those transient entities conducting Film Activities at the Ground Lease Property. This in -lieu fee
does not apply to permanent occupants of any buildings, management of the Ground Lease
Property, parking and building facilities operators and non - Studio Production Facility uses. It
has no effect on the current license fees paid by Tenant directly to the Landlord. Payment of the
Studio Fee shall be made quarterly on the first day of January, April, July and October of each
year. A ten percent (10 %) penalty shall be applied for payments not received or postmarked by
the due date. Payments shall be made in the form of a corporate check, cashiers check or wire
transfer. Payments shall be submitted to the Director of Finance for City. Landlord reserves the
right to have Tenant's books audited with regard to the income generated from studio /film
location rental. The audits will be performed at Landlord's expense. However, if the audit
detects an underpayment to Landlord in excess of ten percent (10 %), Tenant will be responsible
for the reasonable cost of that year's audit. The Studio Fee due hereunder shall not be
duplicative of the Studio Fee due from Developer to City pursuant to Section 11.5 of the
Acquisition Parcel Purchase Agreement, i.e. the gross receipts from any Film Activities shall be
subject to only one Studio Fee regardless of whether the Film Activities take place on the
Acquisition Parcel or the Ground Lease Property.
3.06 Late Payment
Tenant hereby acknowledges that late payment by Tenant to Landlord of Rent (as defined
in Section 3.1 herein) pursuant to this Lease will cause Landlord to incur costs not contemplated
by this Lease, the exact amount of which will be extremely difficult to ascertain. Accordingly, if
any installment of Rent or other payment under this Lease is not received by Landlord, within
seven (7) days after notice from Landlord that such Rent is delinquent, Tenant shall pay a late
charge equal to five percent (5 %) of such overdue amounts. The payment to and acceptance by
Landlord of such late charge shall in no event constitute a waiver by Landlord of Tenant's default
with respect to such overdue amounts, nor prevent Landlord from exercising any of the other
rights and remedies granted at law or equity or pursuant to this Lease.
ARTICLE 4.
TRIPLE NET LEASE.
This Lease is a triple net lease in which Tenant, in addition to the payment of Base Rent, shall be
directly responsible for the payment of any and all Taxes, as defined in Section 5.01, Insurance,
as defined in Section 11.01 herein, and all operating expenses with respect to the Ground Lease
Property, and Landlord shall have no obligations of any nature with respect to the Ground Lease
Property, except as otherwise specifically provided in this Lease (collectively, "Additional
Rent ").
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ARTICLE 5.
5.01. Taxes
For purposes of this Lease, "Taxes" shall mean all Personal Property Taxes, Real
Property Taxes and Assessments, all as hereinafter defined.
5.02. Personal Property Taxes
Subject to the provisions of Section 5.06, Tenant shall pay before delinquency all taxes,
assessments, license fees and other charges that are levied and assessed against Tenant's personal
property installed or located in or on the Ground Lease Property which become payable during
the term (collectively, "Personal Property Taxes "). On demand by Landlord, Tenant shall
furnish Landlord with satisfactory evidence of these payments.
5.03. Real Property Taxes
TAXES AND ASSESSMENTS
Subject to the provisions of Section 5.06, Tenant shall pay all real property taxes,
possessory interest taxes and general and special taxes levied and assessed against the Ground
Lease Property and all real property taxes levied against Tenant's improvements on or about the
Ground Lease Property (collectively, "Real Property Taxes "). Tenant shall, semi - annually (or
in such other installments as are permitted by law), pay the Real Property Taxes not later than the
taxing authority's delinquency date. If at any time during the term of this Lease any authority
having the power to tax, including, without limitation, any federal, state, county, city government
or any political subdivision thereof (collectively, "taxing authority "), shall alter the methods
and/or standards of taxation and assessment against the legal or equitable interests of Landlord in
the Ground Lease Property or the improvements located or constructed thereon, in whole or in
part, so as to impose a monetary obligation on Landlord in lieu of or in addition to the taxes and
assessments in existence as of the date of this Lease, such taxes or assessments based thereon,
including, without limitation, (i) a tax, assessment, excise, surcharge, fee, levy, penalty, bond or
similar imposition, on Landlord's right to rental or other income from the Ground Lease Property
or as against Landlord's leasing of the Ground Lease Property, (ii) any impositions in substitution
or in lieu, partially or totally, of any impositions assessed upon real property prior to any such
alteration, (iii) any impositions allocable to or measured by the area of the Ground Lease
Property or the rental payable hereunder, including, without limitation, any impositions levied by
any taxing authority with respect to the receipt of such rental or with respect to the possession,
leasing, operation, management, maintenance, alteration, repair, use or occupancy by Tenant or
any subtenant of the Ground Lease Property or any portion thereof, (iv) any impositions upon
this lease transaction or any document to which Tenant is a party which creates or transfers any
interest or estate in or to the Ground Lease Property (other than any transfer tax which may be
due upon recordation of the Memorandum of this Lease described in Section 16.13), or (v) any
special, unforeseen or extraordinary impositions which, although not specifically described
above, can fairly be characterized as a real property tax or a substitute for real property tax, shall
be considered as Real Property Taxes for the purposes of this Lease. Notwithstanding . the
foregoing, Tenant shall not be obligated to pay franchise or other taxes (however denominated)
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levied on Landlord as a condition to its continued existence as an entity or any net income tax of
Landlord, or a value added, gross income, gross receipts or other tax levied generally on income
or receipts.
5.04. New Assessments
If any general or special assessment is levied against the Ground Lease Property
( "Assessment(s) "), Landlord may elect either to pay the Assessment in full or to allow the
Assessment to go to bond. If Landlord allows an Assessment to go to bond, Tenant shall pay
when due any and all Assessments. If Landlord pays the Assessment in full, Tenant shall pay to
Landlord each time a payment of Real Property Taxes is made a sum equal to that which would
have been payable (as both principal and interest) had Landlord allowed the Assessment to go to
bond.
5.05. Tenant's Tax Liability Prorated
Tenant's liability to pay Real Property Taxes and Assessments shall be prorated on the
basis of a 365 -day year to account for any fractional portion of a fiscal tax year included in the
Term at its inception and expiration or earlier termination in accordance with this Lease.
5.06. Tax Contest
Tenant, at its cost, shall have the right at any time to seek a reduction in the assessed
valuation of the Ground Lease Property or to contest any Taxes that are to be paid by Tenant. If
Tenant seeks a reduction or contests any Taxes, the failure on Tenant's part to pay such Taxes
shall not constitute a default as long as Tenant complies with the provisions of this Section.
Landlord shall not be required to join in any proceeding or contest brought by Tenant
unless law or applicable regulations so require in order for Tenant to contest the same. In the
event that Landlord is legally required to participate in such tax contest, Landlord shall be only a
nominal party. (The parties acknowledge that under current law and regulations, Landlord
would not be a necessary party to a tax contest.) Tenant, on final determination of the
proceeding or contest, shall immediately pay or discharge any decision or judgment rendered,
together with all costs, charges, interest and penalties incidental to the decision or judgment.. If
Tenant does not pay the Taxes when due and Tenant seeks a reduction or contests them as
provided in this Section, before the commencement of the proceeding or contest, Tenant shall
furnish to Landlord a security or other evidence reasonably satisfactory to Landlord that
Landlord and the Ground Lease Property will be held harmless from any damage arising out of
the proceeding or contest and assuring the payment of any judgment that may be rendered.
Notwithstanding any provision of this Section 5.06, no Taxes may be delinquent at the
expiration of the Term.
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ARTICLE 6.
USE, CHARACTER, OPERATION AND MAINTENANCE OF IMPROVEMENTS
6.01. General
The Ground Lease Property shall be used for any use permitted by the current zoning or
the Specific Plan, as may be amended from time -to -time (the "Permitted Uses ").
6.02. Use Obligations
There shall be no discrimination against or segregation of any person or group of persons
on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Ground Lease Property
or the improvements thereon, or any part thereof, and the Tenant itself, or any person claiming
under or through it, shall not establish or permit any such practice or practices of discrimination
or segregation with reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees of the Ground Lease Property or the improvements.
Tenant shall refrain from restricting the rental or lease of the Ground Lease Property or
the improvements, or any portion, on the basis of race, color, creed, religion, sex, marital status,
ancestry or national origin of any person. All such deeds, leases or contracts shall contain or be
subject to substantially the following nondiscrimination or nonsegregation clauses:
In leases: "The lessee covenants by and for itself, its heirs, executors, administrators and
assigns, and all persons claiming under or through it, and this lease is made and accepted upon
and subject to the following conditions: That there shall be no discrimination against or
segregation of any person or group of persons on account of race, color, religion, sex, marital
status, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure
or enjoyment of the premises herein leased, nor shall the lessee itself, or any person claiming
under or through it, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees in the premises leased."
In contracts: "There shall be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion, sex, marital status, ancestry or
national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
premises, nor shall the transferee itself, or any person claiming under or through it, establish or
permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the premises."
6.03. Use Prohibitions
Tenant agrees that in connection with the use and operation of the Ground Lease
Property, Tenant will not:
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(a) Cause or permit obnoxious odors to emanate or be dispelled, from any
improvements located thereon;
(b) Permit undue accumulations of garbage, trash, rubbish or any other refuse;
(c) Commit or suffer to be committed any waste in, on or about the Ground Lease
Property;
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(d) Use or allow the Ground Lease Property to be used for any unlawful purpose, or
for any purpose which violates the terms of any recorded instrument affecting the Ground Lease
Property;
(e) Cause or permit any insurance coverage on the Ground Lease Property or the
improvements thereon to become void or voidable to make it impossible to obtain any required
insurance at commercially feasible rates;
(f) Violate any law, ordinance or regulation applicable to the Ground Lease Property
and the improvements thereon; or
(g) Permit the establishment of pornographic or adult sex businesses on the Ground
Lease Property, such as strip clubs, adult bookstores or video shops.
6.04. General Standards of Maintenance
Tenant shall be fully responsible for the operation and maintenance of all of Tenant's
improvements on the Ground Lease Property, and any landscaping, open space and common
areas on the Ground Lease Property, and shall operate and maintain or cause to be operated and
maintained, such improvements, landscaping, open space and common areas in an integrated and
cohesive manner and in good order, condition and repair. In connection therewith, Tenant
acknowledges that the Ground Lease Property is subject to the covenants, conditions and
restrictions recorded against the NASA Site by Landlord as the declarant (the "CC &Rs "), which
shall be binding upon Tenant, subtenants of Tenant and any successors in interest of either,
governing the maintenance and repair of all improvements, landscaping, open space and
common areas. The CC &Rs include provisions entitling Landlord at its election, in the event of
any breach and following reasonable notice to Tenant and a reasonable period of time in which
to cure any breach, to enter upon the Ground Lease Property and perform any maintenance or
repair of such areas and charge the Tenant for the cost of such maintenance or repairs. Without
limiting the generality of the foregoing, Tenant shall observe the following standards:
(a) Provide adequate security lighting and maintain all security and decorative light
fixtures and associated wiring systems;
(b) Maintain all surface and storm lateral drainage systems; and
(c) Maintain all sanitary sewer lateral connections.
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1'` 6.05. Renairs
Tenant shall from time to time make any and all necessary repairs to or replacement of
any equipment, structures or other physical improvements upon the Ground Lease Property, in
order to comply with any and all regulations, laws or ordinances of the State of California,
County of Los Angeles, City of Downey or other governmental body, which may be applicable,
or as required in writing by the City Manager to Tenant incident to the provisions of this Lease.
If Tenant fails to make any such repairs or replacements as required, the City Manager may
notify Tenant of said default in writing, and should Tenant fail to cure said default and make said
repairs or replacements within a reasonable time, Landlord may make such repairs or
replacements and the cost thereof, including, but not limited to, the cost of labor, materials and
equipment, shall be charged against Tenant and shall become a part of the rental for the period
next following the period of default, or the same may be prorated over a period of time to be
determined by the City Manager.
6.06. Governmental Requirements
Tenant shall at all times comply with, and shall pay all costs and expenses which may be
incurred or required to be paid in order to comply with any and all laws, statutes, ordinances,
rules and regulations ( "laws ") which apply to the operation and use of the Ground Lease
Property, including those requiring alterations or additions to be made to, or safety appliances
and devices to be maintained or installed in, on or about the Ground Lease Property under any
laws now or hereafter adopted, enacted or made and applicable to the Ground Lease Property;
provided, however, that Tenant shall not be responsible for compliance with, or the payment of
any fees, charges or assessments relating to the existence of, or the remediation activities related
to, the Existing Contamination, as defined in Section 6B.01 herein.
Without limiting the generality of the foregoing, Tenant shall conform to and abide by all
applicable rules, regulations, resolutions, ordinances and statutes of the City of Downey, County
of Los Angeles, State of California, the federal government, and all other governmental agencies
where applicable, and where permits are required for such operations the same must be first had
and obtained from the regulatory body having jurisdiction thereof before such operation is
undertaken. Notwithstanding the foregoing, Tenant may contest, by appropriate legal
proceedings conducted in good faith and with due diligence, the validity or application of any
such laws and where required by law, Landlord shall join in any such contest (as a nominal party
only), provided Tenant shall indemnify and hold harmless Landlord against all cost or other
expense in connection therewith.
ARTICLE 6A.
HAZARDOUS MATERIALS
6A.01. Hazardous Materials/Environmental Laws
As used in this Lease, the term "Hazardous Materials" means any material or substance
which (i) is defined or listed as a "hazardous waste," "extremely hazardous waste," "restrictive
hazardous waste," "hazardous material" or "hazardous substance" or considered a waste,
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condition of pollution or nuisance under Environmental Laws (defined below), (ii) is petroleum
or a petroleum product or fraction thereof, (iii) contains asbestos or an asbestos containing
material; or (iv) is a substance known by the State of Califomia or the United States to cause
cancer and/or reproductive toxicity. As used in this Lease the term "Environmental Laws"
means any federal, state or local Law or Legal Requirement pertaining to (a) the existence,
release, threatened release, use, storage, handling, generation, remediation and/or transportation
of Hazardous Materials, or (b) health, industrial hygiene or the environmental conditions in, on,
under or about the Property, including without limitation: (i) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ( "CERCLA "), 42 U.S.C. Sections 9601 et
seq.; (ii) the Resource Conservation and Recovery Act of 1976 ( "RCRA "), 42 U.S.C. Sections
6901 et seq.; (iii) California Health and Safety Code Sections 25100 et seq.; (iv) the Safe
Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code Section
25249.5 et seq.; (v) the Federal Water Pollution Control Act, 33 U.S.C. Sections 1317 et seq.;
(vi) California Water Code Section 1300 et seq.; (vii) California Civil Code Section 3479 et seq.;
as such laws are amended and the regulations and administrative codes applicable thereto. It is
the intent of the parties hereto to construe the terms "Hazardous Materials" and "Environmental
Laws" in their broadest sense.
6A.02 Storage Tanks
Tenant shall not install, operate or maintain and shall not permit any Subtenant or
Occupant of the Ground Lease Property (or any of their employees, agents, contractors or
invitees) to install, operate or maintain any below grade tank, sump, pit,. pond, lagoon for the
storage, handling or transportation of Hazardous Material on or about the Ground Lease Property
without the express prior written consent of Landlord (which consent shall be deemed to be a
Hazardous Materials Consent (defined below) and is governed by Section 6A.03).
6A.03 Hazardous Materials Consent/Hazardous Materials Activities
(a) Subject to obtaining Landlord's prior written consent thereto pursuant to this
Section 6A.03 (a "Hazardous Materials Consent"), Tenant or a Subtenant or Occupant may
engage in Hazardous Materials Activities (defined below) in, on, about, to and from the Ground
Lease Property only in accordance with all applicable Laws, Legal Requirements and
Environmental Laws. Neither Tenant, any Tenant Party (defined below), any Subtenant, nor any
other Occupant of the Ground Lease Property or of the Improvements, or any portion thereof,
shall engage in any Hazardous Materials Activity (or knowingly permit any Hazardous Material
Activity to occur in, on, under, about, to or from the Ground Lease Property, or the
Improvements or any portion thereof during the Term without Tenant first obtaining a Hazardous
Materials Consent from Landlord with respect thereto pursuant to this Section 6A.03. Any
change in the amount, sequence, frequency, nature, timing or any other factor relevant to any
Hazardous Material Activity previously consented to by Landlord, which materially increases the
risk that the Ground Lease Property or the Improvements will become contaminated by
Hazardous Materials, or the risk that any Hazardous Materials contamination caused by any
Hazardous Material Activity will be materially more costly to remediate or will be more
injurious to human health, shall require a new written Hazardous Materials Consent from
Landlord, and Tenant shall not implement, nor permit to be implemented, any such change
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(` without having first obtained a Hazardous Materials Consent to such change pursuant to this
Section 6A.03. Notwithstanding any provision of this lease to the contrary, Landlord may grant,
refuse to grant, withhold and/or condition (as determined by Landlord in Landlord's
commercially reasonable discretion) any Hazardous Materials Consent requested by Tenant
hereunder (for the purposes of permitting Tenant or a Subtenant or Occupant to engage in a
Hazardous Materials Activity, to implement a change in any Hazardous Material Activity
requiring such Hazardous Materials Consent or to engage in any other conduct requiring a
Hazardous Materials Consent hereunder).
(b) For purposes of this Lease, "HazMat Permits" means any governmental permit,
consent, entitlement, or approval regulating or required with respect to: (i) any Hazardous
Materials Activity or otherwise required under any Environmental Laws with respect to the
commencement, existence, performance, completion, closure, documentation, disclosure,
monitoring or reporting of any Hazardous Material Activity or (ii) the commencement, closure,
monitoring or reporting of any remediation of Hazardous Materials subject to Landlord's
approval.
(c) For purposes of this Lease, "Hazardous Materials Activity" means any activity
involving generation, use or storage of Hazardous Materials, specifically excluding, however, (i)
commercially reasonable amounts of cleaning chemicals, solvents and lubricants used in
connection with the operations of the Ground Lease Property or by any Subtenant or Occupant
operating in conformance with the Specific Plan then in effect, (ii) petroleum, liquid petroleum
gas and similar fuels used to operate vehicles and equipment on or about the Ground Lease
Property (provided that no underground storage of such fuels shall be permitted except in
compliance with Section ,6A.02 above), and (iii) any materials typically used by television or
motion picture production companies in connection with their use of the Ground Lease Property
as a production facility, including the construction of motion picture and television sets.
6A.04 Submissions Required In Connection With Consent Requests.
In connection with each request (a "HazMat Consent Request ") for a Hazardous
Material Consent under this Section 6A.04, Tenant shall submit to Landlord (i) description of the
Hazardous Materials to be used, generated or stored on the Ground Lease Property, (ii) if
required under applicable law and then available, a true and correct copy of each application
(submitted by Tenant to the appropriate governmental authority) for a HazMat Permit required in
connection with the Hazardous Materials Activity which is the subject of Tenant's request and a
copy of all such HazMat Permit or Permits so required (and if the foregoing is not available, a
detailed listing of all HazMat Permits to be obtained in connection therewith by Tenant), and (iii)
such additional information and/or written materials as shall be required by Landlord in good
faith from time -to -time. Following any submission by Tenant or any Subtenant or Occupant of
any materials or information described in this Section 6A.04, Landlord may require such
additional or back -up information as Landlord shall reasonably determine. Landlord shall use its
good faith reasonable efforts to promptly respond to each HazMat Consent Request, but no later
than forty-five (45) days following submission by Tenant of all submissions and information
required to be submitted by Tenant with respect to such request under this Section 6A.04. Any
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material change in the nature or conditions of any HazMat Permits shall require a new
Hazardous Materials Consent.
6A.05 Illustrative Consent Conditions.
In connection with any Hazardous Materials Consent granted by Landlord pursuant to
Section 6A.04 (which Tenant agrees Landlord may withhold only in its reasonable discretion),
Tenant agrees that Landlord may impose such conditions thereto as Landlord shall deem
appropriate in its commercially reasonable discretion, including without limitation, any or all of
the following:
(a) The installation of such additional improvements in, on, under or about the
Ground Lease Property, the Acquisition Parcel and/or adjacent land as Landlord shall desire to
protect against or mitigate any release of Hazardous Materials potentially occurring in, on, under
or about the Ground Lease Property in connection with the Hazardous Materials Activity for
which the Hazardous Materials Consent is sought by Tenant or any Subtenant or Occupant;
(b) Such new and/or additional insurance coverage with respect to the subject
Hazardous Material Activity as Landlord shall reasonably require; and/or
(c) Such periodic monitoring and reporting with respect to the subject Hazardous
Materials Activity as Landlord shall reasonably require.
6A.06 Landlord's Costs and Expenses In Connection With Requests for Hazardous
Materials Consents
Tenant shall pay to Landlord, within ten (10) days of Landlord's written request therefor,
all of Landlord's reasonable and good faith out of pocket costs and expenses (including, without
limitation, the fees and expenses of such business and environmental consultants and attorneys as
Landlord shall deem necessary) incurred by Landlord in considering any HazMat Consent
Request by Tenant or any Subtenant or Occupant submitted pursuant to this Section 6A.06,
without regard to whether such consent is ultimately granted by Landlord. The reimbursement
described above shall be in addition to, and shall not limit, the cost of performance of Tenant's
other obligations under this Article 6A, including, without limitation, the cost of performance by
Tenant of any conditions to any such Hazardous Materials Consent, all of which shall be
performed at Tenant's sole cost and expense.
6A.07 Governmental Notices
Tenant shall submit (and Tenant shall require each Subtenant and Occupant to submit) to
Landlord, within ten (10) days of receipt by such party of each of the same (or if prepared by
Tenant or any Subtenant or Occupant within ten (10) days of preparation of the same), a full and
complete copy of each of the following:
(a) Any written communication, demand, complaint, pleading, threat, notice or
inquiry received or communicated by Tenant or any Subtenant or Occupant received from or
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h delivered to any governmental agency, any adjacent landowner, or any other third party relating
in any way to (i) any Hazardous Material Activity, any Hazardous Material Consent or any
HazMat permit, (ii) the actual or alleged presence and/or release of any Hazardous Materials or
other adverse environmental condition in, on, under or about the Ground Lease Property, (iii)
any bodily injury or property damage suffered in connection with any Hazardous material
Activity occurring (or environmental condition located) in, on, about or under the Ground Lease
Property, or (iv) any actual or alleged violation of any Environmental Laws relating to, or
occurring in, under, on or about the Ground Lease Property; and
(b) Any environmental or Hazardous Materials assessment, audit or report relating in
any manner to the Ground Lease Property.
6A.08 Notice of Hazardous Material Release.
If at any time Tenant shall become aware, or have reasonable cause to believe, that any
Hazardous Material has been released or otherwise has coIne to be located in, on or beneath or
about the Ground Lease Property, Tenant shall immediately upon discovering the release,
presence or suspected presence of the Hazardous Material, give written notice of that condition
to Landlord. Notwithstanding the foregoing, the notice requirement of this Section 6A.08 shall
not apply to the Existing Contamination, as defined in Section 6B.01 herein, or to the use or
storage any Hazardous Materials for which a HazMat Consent Request is not required pursuant
to Section 6A.04 herein.
6A.09 Retention of Consultant
As of each of the Expiration Date, or any sooner termination of this Lease, or any time
during the Term Landlord reasonably determines in good faith that any material violation of
Environmental Laws or any release of Hazardous Materials shall have occurred in, on, under or
about the Ground Lease Property as a result of the actions of Tenant or any Subtenant or
Occupant, Landlord may require Tenant to retain, at Tenant's sole cost and expense a qualified
environmental consultant (the "Consultant") reasonably satisfactory to Landlord to conduct a
reasonable inspection and investigation (an "Environmental Assessment ") of a nature and
scope reasonably approved in writing in advance by Landlord with respect to the existence of or
any release of, any Hazardous Materials in, on, under or about the Improvements and/or the
Ground Lease Property, or any violation of Environmental Laws then existing in, on, under or
about the Ground Lease Property other than with respect to the Existing Contamination. Each
Environmental Assessment shall be performed in a manner reasonably calculated to discover the
presence of any Hazardous Materials contamination in, on, under or about the Ground Lease
Property, other than the Existing Contamination, and shall be of a scope and intensity reflective
of the general standards of professional environmental consultants who then regularly provide
environmental assessment services in connection with similar commercial types of property as
the Ground Lease Property. The Consultant shall concurrently deliver the written results of its
investigation in writing directly to Landlord and Tenant. If Landlord so requires, Tenant shall
comply, at Tenant's sole cost and expense, with all reasonable recommendations contained in the
Environmental Assessment with respect to any precautions which should be taken with respect to
environmental activities on or about the Ground Lease Property or for additional testing and
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studies to detect the presence of Hazardous Materials. Tenant covenants to reasonably cooperate
with all of the Consultant's efforts contemplated under this Section 6A.09 and to allow the
Consultant full entry and reasonable access to all portions of the Ground Lease Property
reasonably required for Consultant's investigation.
6A.10 Remediation.
(a) Subject to the provisions of this Section 6A.10, in the event that any Hazardous
Materials shall be released into the environment in violation of any Environmental Law in, on,
under or about the Ground Lease Property during the Term of this Lease, Tenant shall promptly
and diligently investigate the scope and nature of the release in question, shall prepare a
Remediation Plan (defined below) with respect to such released Hazardous Materials, and
thereafter shall remediate fully such Hazardous Materials contamination in accordance with the
provisions of this Section 6A.10; provided, however, that the obligations of Tenant under this
Section 6A.10 shall not apply to the extent that any such release into the environment of
Hazardous Materials is caused by the willful misconduct or gross negligence of Landlord or is
caused in connection with the remediation of the Existing Contamination.
(b) Any remediation of Hazardous Materials in, on, under or about the Ground Lease
Property which Tenant elects to remediate, or pursuant to the provisions of this Section 6A.10, is
required to remediate, shall be pursued by Tenant in the following manner:
(i) Promptly following the discovery by Tenant of any release into the
environment of any Hazardous Material in, on, under or about the Ground Lease Property,
Tenant shall engage (or Landlord may require engagement of, pursuant to Section 6A.09) a
consultant to perform an Environmental Assessment in accordance with the requirements of
Section 6A.09. The written report prepared by the Consultant with respect to the Environmental
Assessment shall describe, to the extent reasonably possible to do so, the exact nature, location,
and scope of the released Hazardous Materials in, on, or about the Ground Lease Property; in any
event Landlord shall have the right, without any liability whatsoever to Tenant or its Subtenants
or Occupants, to cause an independent consultant selected by Landlord, at Landlord's cost and
expense, to enter (after reasonable advance written notice is given to Tenant) the Ground Lease
Property to verify all or any portion of the Environmental Assessment.
(ii) Following the parties' scoping of the nature, degree, location and scope of
the release of Hazardous Materials in question, Tenant shall, at its sole cost and expense, cause
the Consultant to prepare a remediation plan (the "Remediation Plan ") for remediation of the
Hazardous Materials in question (and any other remediation which may be required by
governmental agencies having jurisdiction). Landlord shall have the right at all times to fully
participate in (through its representatives and/or its independent consultant) preparation of the
Remediation Plan and negotiation of the same with any or all governmental agencies asserting
jurisdiction with respect thereto, and the Remediation Plan (and any modification thereto
proposed by Tenant to be implemented from time to time during the Term) ,shall be subject to the
prior written approval of Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed. Each Remediation Plan shall (A) in all respects comply with all
Environmental Laws applicable to the release of Hazardous Materials in question, (B) be
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AMP. consistent with the standards, practices and objectives of remediation plans then being developed
for similarly contaminated and situated institutionally owned first -class projects (of a comparable
nature and with comparable relevant characteristics) in California and (C) give due consideration
to all aspects of public health and safety and potentially negative impacts of the Hamdous
Materials contamination 'in question on the continuing value and viability of the surrounding
properties and community. In connection therewith, Tenant shall cause the Consultant to pursue
completion and full governmental approval of the Remediation Plan and all HazMat Permits
required in connection therewith with all due diligence at Tenant's sole cost and expense.
(iii) Following approval by Landlord (and all governmental agencies having
jurisdiction) of the Remediation Plan and issuance of all required HazMat Permits with respect
thereto, Tenant shall cause a qualified environmental contractor, reasonably approved in advance
by Landlord, to commence and thereafter diligently pursue to completion the Remediation Plan.
In connection therewith, upon completion of the Remediation Plan, Tenant shall (A) diligently
pursue and obtain from each appropriate governmental agency asserting jurisdiction, written
confirmation that no further remediation or remedial action shall be required, which shall be
provided to Landlord promptly upon receipt thereof and (B) provide to Landlord a written report
from Tenant's Consultant stating its professional opinion that no further remediation or work is
required under the Remediation Plan, then applicable Environmental Laws and then prevailing
institutional investor commercial remediation standards and practices. All remediation work
contemplated hereunder to be conducted by Tenant shall be conducted (i) in a diligent and timely
fashion by licensed contractors acting under the supervision of a consulting environmental
engineer, and (ii) with such insurance coverage pertaining to liabilities arising out the
remediation work as is then reasonably required by Landlord with respect to such activities. The
selection of the contractors and consulting environmental engineer, the contracts entered into
with such parties, and any disclosures to or agreements with any public or private agencies or
parties related to the remediation work in question each shall be subject to Landlord's prior
written approval, which approval shall not be unreasonably withheld or delayed. In addition,
Tenant shall submit to Landlord, promptly upon receipt or preparation, copies of any and all
reports, studies, analyses, correspondence, governmental comments or approvals, proposed
removal or other remediation contracts, and similar information prepared or received by Tenant
in connection with any remediation work or Hazardous Materials related to the Ground Lease
Property.
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(iv) All costs and expenses with respect to all work contemplated under this
Section 6A.10 shall be paid by Tenant, including without limitation, the charges of the
remediation work contractors, the consulting environmental engineer, all consultants and taxes or
penalties assessed in connection with the remediation work and Landlord's reasonable fees and
costs incurred in connection with investigation of the Hazardous Materials release in question
(and preparation, review and negotiation of the Remediation Plan with respect thereto) and any
monitoring or reviewing of such remediation work.
6A.11 Indemnitv.
Tenant shall indemnify, defend (by counsel reasonably acceptable to Landlord), protect,
and hold harmless Landlord, and each of its affiliates, and each of their respective
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commissioners, council members, trustees, beneficiaries, officers, directors, employees,
attorneys, agents, successors and assigns (each a "Landlord Party" or "Landlord Indemnified
Party") from and against any and all Claims, Damages and Expenses (as defined in Section
10.01(a) herein) relating to or arising out of, or resulting from, in whole or in part, directly or
indirectly, (a) any discharge or release into the environment (or suspected discharge or release)
in, on, under or about the Ground Lease Property (or any Improvements thereon) of any
Hazardous Material which occurs during the Term of this Lease, (b) all Hazardous Material
Activities occurring in, on, under or about the Ground Lease Property during the Term of this
Lease, (c) any violation by any Tenant Party (as defined in Section 10.01(c)) of any
Environmental Laws in or about (or applicable to) the Ground Lease Property (or any
Improvements thereon) occurring during the Term of this Lease or (d) Tenant's failure to comply
with any of its covenants under this Article 6A. The "Claims, Damages and Expenses" subject
to the foregoing indemnification shall include, without limitation, (i) personal injury claims, (ii)
the payment of liens, (iii) diminution in the value of the Ground Lease Property, (iv) damages for
the loss or restriction on use of the Ground Lease Property (v) sums paid in settlement of claims,
(vi) reasonable attorneys' fees, consulting fees and expert fees, (vii) the costs of any
investigation of site conditions, and (viii) the cost of any repair, clean-up, remedial, removal or
restoration work or detoxification if required by any governmental or quasi - governmental agency
or body or deemed necessary in Landlord's reasonable judgment. Landlord shall have the right
(but not the obligation) to join and reasonably participate in, at Landlord's expense, any legal
proceedings or actions initiated in connection with Tenant's or any Tenant Party's Hazardous
Materials Activities in, on or about the Ground Lease Property. Tenant's obligations pursuant to
the foregoing indemnity shall survive the expiration or early termination of this Lease and shall
bind Tenant's successors and assignees and inure to the benefit of Landlord's successors and
assignees. Notwithstanding anything to the contrary in this Section 6A.11, the indemnity
provided for under this Section 6A.11 shall not apply to (y) any Hazardous Materials
contamination to the extent the same is caused by the willful misconduct or the independent
gross negligence of Landlord or any Landlord Party, or to (z) any Claims, Damages and
Expenses arising out of, or related in any way whatsoever, to the Existing Contamination.
6A.12 Surrender of Ground Lease Property.
Prior to the Expiration Date, or any sooner termination of this Lease, Tenant shall (i)
remediate (and complete remediation of) in compliance with the requirements of Section 6A.10,
any Hazardous Materials released into the environment in, on, under or about the Ground Lease
Property or the Improvements during the Term of this Lease, (ii) obtain final closure of any
HazMat Permit applicable to the Ground Lease Property and issued during the Term of this
Lease (which closure shall be without any continuing conditions or obligations) and (iii) remove
any personal Ground Lease Property, equipment, fixture, tank and/or storage device or vessel
placed or installed in, on or about the Ground Lease Property during the Term of this Lease
which is contaminated by or which has previously contained Hazardous Materials.
Notwithstanding the foregoing, Tenant shall have no obligation to take any action with respect to
the remediation of any of the Existing Contamination, or the removal of any equipment, fixture,
tank and/or storage device or vessel placed or installed in, on or about the Ground Lease
Property that was used in connection with the Existing Contamination.
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6A.13 Taxes and Liens.
Tenant shall not permit or suffer any lien to be recorded against the Ground Lease
Property or any portion thereof as a consequence of any Hazardous Materials Activities of
Tenant or any Tenant Party, including any so- called state, federal or local "Super Fund" lien
relating to the clean-up of any Hazardous Materials in or about the Ground Lease Property;
provided, however, that such obligations of Tenant shall not be applicable to the extent any of
the same pertain to any Hazardous Materials contamination existing in, on, under or about the
Ground Lease Property as of the Effective Date. The term "Taxes," as defined in Section
10.1(a), shall also include any levy, assessment, lien or charge by any applicable governmental
authority against the Ground Lease Property, the Improvements or Landlord assessed or imposed
on account of or in connection with any Hazardous Materials located in, on or about the Ground
Lease Property.
6A.14 Right of Entry
Notwithstanding any other term or provision of this Lease, Tenant shall permit Landlord
or the Landlord's agents or employees to enter the Ground Lease Property at any time, upon
reasonable notice, to inspect, monitor and/or when Tenant has failed to do so in a timely and
reasonable manner as expeditiously as is practical given the nature and extent of the
contamination and after receipt of written notice, take emergency or long -term remedial action,
with respect to Hazardous Materials present on, emanating from or affecting the Ground Lease
Property, or to discharge Tenant's obligations hereunder with respect to such Hazardous
Materials, provided, however, that with respect to a situation where the Landlord is entering the
Ground Lease Property to take long -term remedial action or to discharge Tenant's obligations
hereunder with respect to Hazardous Materials, Landlord shall give Tenant at lease forty-five
(45) days' prior written notice, except in the event of an emergency requiring immediate action,
in which case Landlord shall provide such prior notice as may be reasonable under the
circumstances. All costs and expenses incurred by the Landlord in connection with performing
Tenant's obligations hereunder shall be reimbursed by Tenant to the Landlord within thirty (30)
days after Tenant's receipt of written request therefore.
6B.01 Existing Contamination
ARTICE 6B
EXISTING CONTAMINATION
Prior to Landlord's acquisition of the NASA Site, of which the Ground Lease Property is
a part thereof, the NASA Site was owned and operated by NASA. Tenant acknowledges that it
has been informed that, as part of NASA's use and operation of the NASA Site as research and
development space, releases of Hazardous Materials occurred in, on, under or about the NASA
Site (the "Existing Contamination "). In connection therewith, Tenant hereby acknowledges
receipt of the Existing Environmental Documents described on Exhibit "C" attached hereto.
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6B.02 Tenant Investigation.
Tenant acknowledges, represents and warrants to the Landlord, it has inspected,
analyzed, investigated, reviewed and evaluated all aspects and characteristics of the Ground
Lease Property, including, without limitation, the physical nature and environmental condition of
the Ground Lease Property (including reviewing all of the Existing Environmental Documents),
to the full satisfaction of Tenant, and will lease the Ground Lease Property solely on the basis of
such examinations, and not on the basis of any information provided or to be provided by the
Landlord or on the basis of any express or implied, oral or written representations, warranties,
indemnities, or obligations of the Landlord. In connection therewith, Tenant expressly
acknowledges that neither the Landlord nor any agent, attorney, employee, or representative of
the Landlord has made any representation as to the physical nature or environmental condition of
the Ground Lease Property and that Tenant, in executing, delivering and/or performing this
Lease has not relied upon any representation made by or on behalf of the Landlord.
6B.03 "As -Is" Waiver
Tenant hereby expressly acknowledges that is leasing the Ground Lease Property in an
"As Is/Where Is" condition without warranty of any kind, express or limited, including, without
limitation, physical condition or the existence or absence of Hazardous Substances on the
Ground Lease Property, the existence of any violations of any Environmental Laws, and,
hereafter, if the Ground Lease Property is not in all respects entirely suitable for the use or uses
to which the Ground Lease Property or any part thereof will be put, then it is the sole
responsibility and obligation of Tenant to take such action as may be necessary to place the
Ground Lease Property in a condition entirely suitable for such use or uses. IN CONNECTION
WITH THE ABOVE, TENANT HEREBY ACKNOWLEDGES AND REPRESENTS TO
LANDLORD THAT, TENANT HAS HAD AMPLE OPPORTUNITY TO INSPECT AND
EVALUATE THE GROUND LEASE PROPERTY AND THE EXISTING
ENVIRONMENTAL DOCUMENTS AND THE FEASIBILITY OF THE USES AND
ACTIVITIES TENANT IS ENTITLED TO CONDUCT ON THE GROUND LEASE
PROPERTY; THAT TENANT IS EXPERIENCED IN REAL ESTATE DEVELOPMENT;
THAT TENANT MAY RELY ENTIRELY ON TENANT'S EXPERIENCE, EXPERTISE AND
ITS OWN INSPECTION OF THE GROUND LEASE PROPERTY IN ITS CURRENT STATE
IN PROCEEDING WITH THIS LEASE; THAT EXCEPT AS EXPRESSLY PROVIDED IN
THIS LEASE, TEANNT WILL ACCEPT THE GROUND LEASE PROPERTY IN ITS
PRESENT CONDITION; AND THAT, TO THE EXTENT THAT TENANT'S OWN
EXPERTISE WITH RESPECT TO ANY OF THE FOREGOING IS INSUFFICIENT TO
ENABLE TENANT TO REACH AN INFORMED CONCLUSION, TENANT HAS
ENGAGED THE SERVICES OF PERSONS QUALIFIED TO ADVISE TENANT WITH
RESPECT TO SUCH MATTERS. TENANT IS NOT RELYING ON ANY EXPRESS OR
IMPLIED, ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES MADE BY
LANDLORD OR ANY LANDLORD PARTY WITH RESPECT TO THE CONDITION OF
THE GROUND LEASE PROPERTY IN ENTERING INTO THIS LEASE. The foregoing shall
not be deemed to limit or waive any express covenants, warranties, representations or obligations
of Landlord set forth in this Lease.
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..� 6B.04 The Superior NASA Site Documents - Impact of Privatization Remediation and/or
NASA Remediation
(a) Subordination. Tenant hereby agrees that (i) each and all of its rights under this
Lease shall be fully subject and subordinate to (A) the rights of IRAD (and any successor to or
replacement for IRAD, for any reason) under the Assumption Agreement, and any and all
amendments or modifications of an any successor agreements thereto, hereinafter adopted,
created, effected or put into place, (B) the rights of NASA, GSA and/or the United States of
America (collectively, the "US Parties") under the NASA Documents, including, specifically,
the ESA and any and all amendments or modifications of the NASA Documents hereinafter
adopted, created, effected or put into place and (C) the rights of Landlord and the "Coordinating
Party," including, without limitations, the rights of the same when acting on behalf of one or
more of the "Owners," as those terms are defined in the Assumption Agreement, under the ESA
and/or the CC &Rs, and/or the NASA Documents and all amendments or modifications of (and
any successor agreements to) the same hereafter adopted, created, effected or put into place
(collectively, as the same may exist from time to time, the "Superior NASA Documents "), (ii)
Tenant shall not take or permit any action or omission in, on, under or about the Ground Lease
Property which shall breach or violate any of the obligations of an "Owner" (including without
limitation, any ground lessee) of all or any portion of the Ground Lease Property, under any of
the Superior NASA Documents, and (iii) Tenant shall strictly and timely perform each and all of
the obligations applicable to the "Owner", including without limitation, the obligations of each
subtenant of each portion of the Ground Lease Property, under each of the Superior NASA
Documents.
(b) Landlord's Relationship to Parties under the Superior NASA Site Documents.
Tenant acknowledges that Landlord has entered into the various Superior NASA Site Documents
in order to benefit the various owners and ground lessees of the NASA Site, including, without
limitation, Tenant, and to facilitate execution and implementation of the Superior NASA
Documents. Tenant agrees that notwithstanding any provision of this Lease (or any other
document) to the contrary, and notwithstanding the Landlord's designation and/or performance
as the "Coordinating Party" under one or more of the Superior NASA Site Documents, (i) in no
event and in no case shall IRAD (or any successor or replacement thereof) or any of their
respective agents, contractors, subcontractors, employees or representatives (collectively, the
"IRAD Parties ") be considered, characterized, deemed or interpreted to be the agent, contractor,
subcontractor or representative of Landlord or any agency, department or official thereof and in
no .event shall Landlord be legally responsible for any of acts, omissions, negligence or
misconduct of the IRAD Parties under any legal theory whatsoever, (ii) in no event and in no
case shall any of the US Parties or any of their respective agents, contractors, subcontractors,
employees or representatives (collectively, the "US Representative Parties ") be considered,
characterized, deemed or interpreted to be the agent, contractor, subcontractor or representative
of Landlord (or any agency, department or official thereof) and in no event shall Landlord be
legally responsible or liable, in whole or in part, for any of the acts or omissions of any of the US
Representative Parties under any legal theory whatsoever, (iii) in no event shall any of the IRAD
Parties or any US Representative Parties ever be considered a Landlord Party (under any legal
theory) for purposes of the application and interpretation of this Lease and (iv) Tenant shall
indemnify, defend and hold Landlord harmless from any and all Claims, Damages and Expenses,
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as defined in Section 10.01(a), asserted against or incurred by Landlord in •connection with any
claim or action by Tenant which is inconsistent in whole or in part with Tenant's agreements
under clauses (i), (ii) and/or (iii) above.
6B.05 Release.
Tenant hereby waives, releases and discharges forever Landlord and all Landlord Parties
from all present and future claims, demands, suits, legal and administrative proceedings and from
all liability for damages, losses, costs, liabilities, fees and expenses, present and future, arising
out of or in any way connected with the Tenant's use, maintenance, ownership or operation of
the Ground Lease Property, any physical, title or other defects in, of, or related to the Ground
Lease Property, any Hazardous Materials on the Ground Lease Property, or the existence of
Hazardous Materials contamination in any state in, on, under, or adjacent to the Ground Lease
Property, however they came to be placed there, without qualification. Tenant acknowledges
that it is aware of and familiar with the provisions of Section 1542 of the California Civil Code
which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
As such relates to this Section 6B.05, Tenant hereby waives and relinquishes all rights and
benefits which it may have under Section 1542 of the California Civil Code.
Tenant's Initials
Notwithstanding the foregoing, the release set forth in the Section 6B.05 shall not apply to any
claim, liability, obligation, demand or cause of action to the extent the same results from (i) any
default by Landlord in the performance of its obligations under this Lease, or, subject to the
provisions of the CC &Rs, under the CC &Rs or (ii) any Hazardous Materials released into the
environment in violation of Environmental Laws as the result of any act of Landlord following
the Commencement Date constituting gross negligence or willful misconduct.
6B.06. Occupant Release
(a) Release Reauirement. Tenant hereby agrees that it shall require each Subtenant
and Occupant of any portion of the land or improvements constituting the Ground Lease
Property to execute and deliver to Landlord a release of claims in the form attached as
Exhibit "N" (an "Occupant Release ") prior to permitting any such Subtenant or Occupant to
lease, sublease or otherwise obtain any tenancy, license, easement or other possession rights
under any document as to, or otherwise occupy, any portion of the land or improvements
constituting the Ground Lease Property. To the extent permitted under the NASA Documents, in
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lieu of requiring an Occupant Release to be signed by each Subtenant or Occupant as set forth
herein, Tenant, in its discretion, may elect to indemnify and hold Landlord harmless from any
Losses or Liabilities resulting from any action brought or claimed by or through any Subtenant
or Occupant against Landlord which would have been released or barred had such Subtenant or
Occupant signed the Occupant Release.
(b) Bindins on Successors. The obligation to obtain the Occupant Release from each
Subtenant or Occupant shall be binding upon each party that acquires any type of leasehold
interest in all or any portion of the Ground Lease Property at any time following the
Commencement Date, and such obligation shall be covenants running with the land as to the
Ground Lease Property.
ARTICLE 7.
CONSTRUCTION AND LIENS
7.01. Construction of Imnrovements and Maior Improvements
Subject to the terms and conditions contained in this Lease, Tenant, at its sole cost and
expense, shall be entitled to (i) remodel, alter, repair, replace or make additions to any of the
Existing Improvements (defined in Section 1.01), and (ii) to construct, cause to be constructed,
or allow to be constructed by any Subtenant or Occupant, such new improvements on or about
the Ground Lease Property as Tenant deems necessary or appropriate in connection with
Tenant's overall development of the Studio Property (the "New Improvements "). The Existing
Improvements and the New Improvements are each sometimes individually referred to as an
"Improvement" and collectively as the "Improvements." In the event that the total hard
construction costs for any individual Improvement exceeds $1,000,000.00, such Improvement
shall be deemed to be a "Major Improvement."
7.02. Construction Standards
All construction, alteration or repair work permitted herein shall be accomplished
expeditiously and diligently. Tenant shall take all reasonably necessary measures to minimize
any damage, disruption or inconvenience caused by such work and make adequate provision for
the safety and convenience of all persons affected thereby. In addition, Tenant shall pay (or
cause to be paid) all costs and expenses associated therewith and shall indemnify and hold
Landlord harmless from all damages, losses or claims attributable to the performance of such
work. Dust, noise and other effects of such work shall be controlled using the best accepted
methods customarily utilized in order to control such deleterious effects associated with
construction projects in a populated or developed area. Tenant shall also erect and properly
maintain at all times all necessary safeguards for the protection of workers and the public.
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7.03. Utility Work
Any work performed by or on behalf of Tenant or any Occupant or Subtenant to connect
to, repair, relocate, maintain or install any storm drain, sanitary sewer, water line, gas line,
telephone conduit or any other public utility service shall be performed so as to minimize
interference with the provision of such services to occupants and other persons.
7.04. Use of Plans
With respect to any Major Improvement, the contracts with any architect, other design
professional or any general contractor shall provide, in form and substance reasonably
satisfactory to Landlord, for their assignment to Landlord in the event that Lease is terminated
due to Tenant's default hereunder. In such event, Landlord may, at its election, use any plans and
specifications to which Tenant is then entitled pursuant to any such contract upon the payment of
any sums due to any party. Landlord's right to elect to use the plans and specifications as
described above shall be subordinate to and shall not defeat the rights of any lender for
improvements constructed on the Ground Lease Property and Landlord shall execute such
agreements as a lender may reasonably request to confirm such subordination.
7.05. Compliance with Construction Documents and Laws; Issuance of Permits
All New Improvements and refurbishment of existing improvements shall be constructed
in substantial compliance with all applicable local, state and federal laws and regulations.
Tenant shall have the sole responsibility for obtaining all necessary permits and shall make
application for such permits directly to the person or governmental agency having jurisdiction.
7.06. Landlord's Cooperation
Landlord shall cooperate with and assist Tenant as reasonably required in Tenant's efforts
to obtain all governmental consents, approvals, permits or variances which may be required for
the performance of any construction permitted under the terms of this Lease, including
Landlord's joinder in any application for any such consent, approval, permit or variance where
joinder therein by the owner of the Ground Lease Property is required by law, provided that any
such joinder shall be at no cost to Landlord.
7.07. Rights of Access
Provided they shall first present themselves to Tenant's on-the-job supervisor and furnish
reasonable evidence of their identity, representatives of Landlord shall have the right of
reasonable access to the Ground Lease Property and the Improvements without charges or fees,
and at normal construction hours during the period of construction, for the purposes of
ascertaining compliance with the terms of this Lease, including, but not limited to, the inspection
of the construction work being performed. Landlord shall from time to time provide Tenant with
the names of those authorized to perform such inspections. Landlord's access shall be reasonably
calculated to minimize interference with Tenant's construction and/or operations.
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7.08. Notice of Completion
Upon completion of construction of any Major Improvement, Tenant shall file or cause to
be filed in the Official Records of the County of Los Angeles a Notice of Completion (the
"Notice of Completion ") with respect to each Major Improvement, and Tenant shall deliver to
Landlord, at no cost to Landlord, two (2) sets of cronoflex or mylar final as -built plans and
specifications of each Major Improvement.
7.09. Demolition of Improvements
Landlord hereby acknowledges that the Existing Improvements have very little value and
are not part of Tenant's overall development plan for the Studio Property, including the Ground
Lease Property. Accordingly, Tenant may demolish any or all of the Existing Improvements, as
and when Tenant deems appropriate. During the Term, Tenant may also remodel, repair, make
additions to, and demolish any of the New Improvements, as Tenant may deem necessary or
appropriate.
7.10. Protection of Landlord
Nothing in this Lease shall be construed as constituting the consent of Landlord, express
or implied, to the performance of any labor or the furnishing of any materials or any specific
improvements, alterations of or repairs to the Ground Lease Property or any part thereof by any
contractor, subcontractor, laborer or materialman, nor as giving Tenant or any other person any
right, power or authority to act as agent of or to contract for, or permit the rendering of, any
services, or the furnishing of any materials, in such manner as would give rise to the filing of
mechanics' liens or other claims against the fee of the Ground Lease Property or any
Improvements thereon. Landlord shall have the right at all reasonable times to post, and keep
posted, on the Ground Lease Property any notices which Landlord may deem necessary for the
protection of Landlord and of the Ground Lease Property and the improvements from mechanics'
liens or other claims. Tenant shall give Landlord ten (10) days prior written notice of the
commencement of any work to be done on the Ground Lease Property to enable Landlord to post
such notices. In addition, Tenant shall make, or cause to be made, prompt payment of all monies
due and legally owing to all persons doing any work or furnishing any materials or supplies to
Tenant or any of its contractors or subcontractors in connection with the Ground Lease Property
and the Improvements.
Subject to Tenant's right to contest the same prior to payment, Tenant shall keep the
Ground Lease Property and the Improvements free and clear of all mechanics' liens and other
liens on account of work done for Tenant or persons claiming under it. Tenant agrees to and
shall indemnify and save Landlord harmless against liability, loss, damages, costs, attorneys' fees
and all other expenses on account of claims of lien of laborers or materialme or others for work
performed or materials or supplies furnished to Tenant or persons claiming under it.
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In the event any lien is recorded, Tenant shall, upon demand, furnish the bond described
in California Civil Code Section 3143, or successor statute, which results in the removal of such
lien from the Ground Lease Property, or other evidence satisfactory to Landlord that such lien
will be paid, removed or discharged as a claim against the Ground Lease Property.
7.11. Notice
Should any claims of lien be filed against the Ground Lease Property or the
Improvements, or any action affecting the title to the Ground Lease Property or the
Improvements be commenced, the party receiving the notice of such lien or action shall
forthwith give the other party written notice.
ARTICLE 8.
OWNERSHIP OF IMPROVEMENTS AND PERSONAL PROPERTY
8.01. Ownership of New Improvements Durina Term
All New Improvements constructed on the Ground Lease Property by Tenant shall,
during the Term, be and remain the property of Tenant; provided, however, that Tenant's rights
and powers with respect to the New Improvements are subject to the terms and limitations of this
Lease and Tenant's interest in such New Improvements shall terminate upon the expiration or
sooner termination of this Lease. Once constructed, Tenant shall not remove, waste or destroy
any New Improvements from or on the Ground Lease Property, except as specifically permitted
by this Lease.
8.02. Removal of Personal Property and Ownership at Termination
At the expiration or sooner termination of the Term, Landlord may, at Landlord's sole
election, require the removal from the Ground Lease Property, at Tenant's sole cost and expense,
of all personal property (other than fixtures), or of certain personal property (other than fixtures),
as specified in the notice provided for below. A demand to take effect at the normal expiration
of the Term shall be effected by notice given at least thirty (30) days before the expiration date.
A demand to take effect on any other termination of the Term shall be effectuated by notice
given concurrently with notice of such termination or within ten (10) days after such termination.
Tenant shall be liable to Landlord for costs incurred by Landlord in effecting the removal of
personal property which Tenant has failed to remove after demand pursuant to this Section.
Tenant may remove any personal property from time -to -time within forty-five (45) days
after the expiration of the Term. Tenant shall repair all damage (structural or otherwise) caused
by any such removal; provided that damage to Improvements which are obsolete economically
or functionally or which are not material need not be repaired so long as the Improvements are or
are made structurally sound.
Any personal property not removed by Tenant within forty-five (45) days following
expiration of the Term shall be deemed to be abandoned by Tenant and shall, without
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Or►, compensation to Tenant, then become Landlord's property, free and clear of all claims to or
against them by Tenant or any other person.
ARTICLE 9.
UTILITIES
Tenant shall pay when due and shall hold Landlord harmless from any liability for all
charges for water, gas, sewage, electricity, telephone and other utility services supplied to the
Ground Lease Property.
10.01 Definitions
ARTICLE 10.
NONLIABILITY, INDEMNITY AND INSURANCE
(a) "Claims, Damages and Expenses" shall mean any and all claims, demands,
suits, liens, encumbrances, causes of action, liabilities, obligations, damages (including, without
limitation, other direct damages), penalties, fines, judgments, forfeitures, losses, costs, or
expenses (including reasonable attorney's, consultants', and expert fees), but specifically
excluding any form of consequential damages.
(b) "Landlord Indemnified Parties" shall mean Landlord and each of its affiliates,
and each of their respective commissioners, council members, trustees, beneficiaries, officers,
directors, employees, attorneys, agents, successors and assigns.
(c) "Tenant Party" or "Tenant Parties" shall mean one or more of Tenant, any
Subtenant, any Occupant or any of their respective partners, members, employees, officers,
managers, directors, agents, contractors, guests or invitees.
10.02. Landlord's. Nonliabilitv
Except to the extent directly resulting from Landlord's gross negligence or willful
misconduct, Landlord shall not be liable, and Tenant hereby waives on its behalf, and on behalf
of any Tenant Party, all Claims, Damages and Expenses it, or any Tenant Party may now or in
the future have or hold against Landlord or any Landlord Party for any loss, damage or injury of
any kind or character to any person or property (i) arising from any use of the Ground Lease
Property, the Improvements or any part thereof, (ii) caused by any defect in any Improvements
or in any equipment or other facilities located on or about the Ground Lease Property, (iii)
caused by or arising from any act or omission of Tenant or any Tenant Party, (iv) arising from
any accident in, on, or about the Ground Lease Property or any of the Improvements, or (v)
occasioned by the failure of Tenant to maintain the Ground Lease Property or any Improvements
in a safe condition.
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10.03. Indemnity by Tenant
Tenant shall indemnify, defend by counsel selected by Tenant, and•reasonably acceptable
to Landlord, and hold harmless each and all of the Landlord Indemnified Parties from and
against all Claims, Damages and Expenses asserted against or incurred by any of the Landlord
Indemnified Parties arising or resulting from, relating to, or in connection with (i) loss of life,
personal injury and/or damage to goods or property of any Tenant Party arising from or out of
any occurrence, act, cause, event or omission occurring in, on, under, upon, about or at the
Ground Lease Property (or any Improvements thereon, during the Term or any holdover period,
(ii) the occupancy or use by Tenant of the Ground Lease Property (or any Improvements
thereon) or any part thereof, (iii) the negligence or willful misconduct of Tenant or any of its
members, employees, officers, managers, directors, agents, contractors, guests or invitees, (iv)
Tenant's default under, breach or failure to comply with any provision or obligations of Tenant
under this Lease, or (v) any defect in the Ground Lease Property or the Improvements, except to
the extent such Claims, Damages and Expenses are caused by the negligence or willful
misconduct of Landlord (collectively, the "Indemnity Obligations "). Tenant agrees to cause
any sublease for all or any portion of the Ground Lease Property to include an indemnification
provision from such subtenant in favor of Landlord and Landlord Parties. •
In case any of the Landlord Indemnified Parties shall be made a party to any litigation
commenced by or against Tenant with respect to any of the Indemnity Obligations, Tenant shall
accept a tender of the defense and handling of such litigation by Landlord, and Tenant shall,
notwithstanding any allegation of negligence or fault on the part of Landlord, defend the
Landlord Indemnified Parties in the manner set forth herein. In the event Tenant fails to provide,
at its cost, for the defense of such litigation, Tenant shall be liable to Landlord for all costs,
expenses and reasonable attorneys fees thereafter incurred by Landlord in providing its own
defense; provided, however, that to the extent any of the Landlord Indemnified Parties is
ultimately held to be liable for all or part of any Claims, Damages and Expenses, then Landlord
s; < 11 reimburse Tenant its proportionate share of the cost of any Claims, Damage and Expenses
incurred by Tenant and attributable to any of the Landlord Indemnified Parties.
11.01. General Insurance Requirements
ARTICLE 11.
INSURANCE
All policies of insurance Provided for herein (collectively, "Insurance ") shall be written
as primary policies ',:without "contribution" or "solely in excess of coverage carried by Landlord"
provisions (with responsible and solvent insurance companies authorized to do business in
California with a pohcyholder'3 rating of "A -" or better and a financial `rating of "VIII" or better
in Best's Insurance Reports. Prior to the Commencement Date, Tenant shall supply Landlord
(and at all times during the Term of the Lease keep on file with Landlord) a true and correct copy
of all such policies or a certificate of insurance accurately reflecting the coverage required
hereunder, together with satisfactory evidence showing that all premiums thereon have been paid
and, thereafter, as additional premiums become due, upon request, Tenant shall supply Landlord
with satisfactory evidence that said premiums have been paid. Notwithstanding anything to the
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contrary contained within this provision, Tenant's obligations to carry insurance as provided
herein may be brought within the coverage of a so- called "blanket" policy or policies of
insurance carried and maintained by Tenant, so long as such policy or policies segregates the
amount of coverage applicable to the Ground Lease Property. Prior to the expiration of any
insurance policies required of Tenant by this Lease, Tenant shall furnish to Landlord renewals or
binders in a commercially reasonable form satisfactory to Landlord. In the event that Tenant
fails to procure, maintain and/or pay for, at the times and for the duration specified herein, any
insurance required hereunder, or fails to carry insurance required by any Law or Legal
Requirement, Landlord may (but without obligation to do so) at any time or from time to time,
after ten (10) days' written notice, procure such insurance and pay the premiums therefor, in
which event Tenant shall repay to Landlord all sums so paid by Landlord, together with Interest
thereon and any costs or expenses incurred by Landlord in connection therewith, within ten (10)
days following Landlord's written demand to Tenant for such payment.
11.02. Tunes and Limits of Coverage
Tenant, at its sole cost and expense, shall, during the entire Term of this Lease, procure,
pay for and keep in full force and effect:
(a) commercial general liability insurance with respect to the Ground Lease Property
and the operations of, or on behalf of Tenant in, on or about the Ground Lease Property,
including, but not limited to, owned and hired motor vehicle liability, cross - liability and
severability of interests, death and or personal injury, XC &U (during periods when excavating,
trenching, or underground digging is undertaken on the Ground Lease Property), broad form
contractual (insuring all of . Tenant's indemnity obligations under this Lease and naming
Landlord and any other party reasonably designated by Landlord as additional insured), owner's
protective, broad -form property damage, liquor liability, garage keepers legal liability (during
such periods as valet parking services are provided on the Ground Lease Property, if any), and
produ.ct/completed operations liability coverage for not less than Ten Million and No /100 Dollars
($10,000,000.00) (or such greater limits as may be required from time to time by Landlord
consistent with customary and commercially reasonable insurance coverage on properties
similarly constructed, occupied and maintained), combined limit per occurrence for bodily
injury, death and property damage liability;
(b) worker's compensation coverage as required by law, together with employers'
liability coverage with a limit of not less than One Million and No /100 Dollars ($1,000,000.00);
(c) "all -risk" or Special Causes of Loss insurance, in amounts reasonably satisfactory
to landlord which policy shall name include, to the extent available at a commercially reasonable
costs, coverage for loss occasioned by reason of (i) earthquake, (ii) flood (if the Ground Lease
Property shall be situated in an area designated by the United States Government or any political
subdivision thereof, as a "flood area" or by similar designation the result of which is to require
such insurance coverage as a condition to obtaining federally funded mortgage loans or obtaining
a mortgage loan from a federally regulated institution), and (iii) sprinkler leakage, in an amount
equal to the full replacement cost of the Improvements;
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(d) insurance against fire, extended coverage, vandalism, malicious mischief and such
other additional perils as now are or hereafter may be included in the standard Special Form
policy in general use in Los Angeles County, California, insuring the Improvements on the
Ground Lease Property, merchandise, trade fixtures, furnishings, equipments and other items of
personal property of Tenant located on or in the Ground Lease Property, in an amount equal to
not less than eighty percent (80 %) of the actual replacement costs thereof, and shall include
rental loss coverage for a minimum of twelve (12) months;
(e) boiler and pressure vessel insurance in amounts reasonably satisfactory to
Landlord;
(f) at all times when any construction is in progress, builder's risk insurance,
completed value form, covering all physical loss in an amount and in a form reasonably
satisfactory to Landlord; and
(g) such other or further insurance, in such amounts and in such form, as is
customarily obtained by owners of properties similarly constructed, occupied and maintained and
which is available at commercially reasonable rates.
11.03. Specific Insurance Policy Provisions
Each policy evidencing insurance required to be carried by Tenant pursuant to Section
11.02 herein, shall contain the following provisions and/or clauses: (i) a cross- liability clause
applicable to public liability coverage; (ii) a provision that such policy and the coverage
evidenced thereby shall be primary and that any coverage carried by the Landlord shall be
noncontributing with respect to any policies carried by Tenant; (iii) a provision including
Landlord (and Landlord's officers and employees with respect to the commercial general liability
insurance) as an additional insured to the extent of its interest; (iv) a severability clause
(applicable to public liability coverage); (v) a provision that the insurer will not cancel or change
the coverage provided by such policy without first giving Landlord thirty (30) days' prior written
notice; (vi) to the extent obtainable, a provision to the effect that any amounts payable by virtue
of loss of rental income or business interruption, if any, shall be computed and stated separately
in any settlement entered into by the insurer under the policy involved and (vii) an endorsement
to the effect that the act or omission of Tenant or any Tenant Party, any occupancy or use of the
Ground Lease Property for purposes more hazardous than permitted by such policy, any
foreclosure or other proceedings relating to the Ground Lease Property or any change in title to
or ownership of the Ground Lease Property will not invalidate the policy as to Landlord. Tenant
may have reasonable deductibles solely in conjunction with the commercial general and
automobile liability coverage set forth above; provided, however, Tenant shall be responsible
for, pay, defend indemnify and hold Landlord harmless from, any and all damages, liability,
claims, costs or expenses up to the amount of such deductible(s), plus any losses over and above
the insurance coverage required hereunder.
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11.04. Loss Payable
The loss under all insurance policies insuring against property damage to the
Improvements shall be payable to Tenant, or to any lender of Tenant.
11.05. Compliance with Insurance Policies
Tenant shall not violate, or permit to be violated, any of the conditions of any of the
policies of insurance required under this Article 11.
11.06. Waiver of Subrogation
Landlord and Tenant each waive any rights either may have against the other on account
of any loss or damage occasioned to Landlord or Tenant, as the case may be, their respective
property, the Ground Lease Property or the contents of the Ground Lease Property arising from
any risk covered by casualty insurance carried (including, for purposes of this provision, any risk
for which Landlord has elected to self - insure) or required to be carried pursuant to this Article
11, when, and to the extent, that such loss or damage is actually compensated pursuant to such
insurance. Landlord and Tenant also agree that the insurance policies, if any, obtained by each
of them pursuant to this Lease shall contain endorsements waiving any right of subrogation of
which the insurer may otherwise have against the non - insuring party. The foregoing release and
the foregoing requirement for waivers of subrogation shall be operative only so long as the same
shall neither preclude the obtaining of such insurance nor diminish, reduce or impair the liability
of any insurer.
11.07. Self Insurance
Notwithstanding the foregoing requirements of this Article 11, Tenant shall be entitled to allow
one or more Subtenants, as defined in Section 1.04, to self - insure all or a portion of the insurance
required under Section 11.2 provided each such Subtenant has and maintains a tangible net worth
of at least Twenty -Five Million Dollars ($25,0000,000), such amount to be adjusted every five
(5) years in accordance with changes in the CPI in the manner as set forth herein. For purpose of
this Section 11.07, the tangible net worth requirement shall be adjusted based upon the increase
in the Consumer Price Index for then current year, as shown in the Consumer Price Index
( "CPI ") for "All Items — U.S. City Average — Los Angeles" over the same CPI for 2003 the
"Base Year "), computed as a percentage of the base figure. For example, assuming the CPI for
the Base Year is 110 and the CPI for the current year is 121, the percentage to be applied would
be 121/110 = 1.10 = 110 percent. In the event that the CPI is no longer available, the
replacement index to be used shall be the one reported in the U.S. Department of Labor's most
comprehensive official index then in use and most nearly answering the foregoing description of
the index to be used.
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12.01. Definitions
ARTICLE 12.
CONDEMNATION
(a) "Condemnation" means (i) the exercise of any governmental power in eminent
domain, whether by legal proceedings or otherwise, by a condemnor, and (ii) a voluntary sale or
transfer to any condemnor, either under threat of condemnation or while legal proceedings for
condemnation are pending.
(b) "Date of taking" means the date the condemnor has the right to possession of the
property being condemned.
(c) "Award" means all compensation, sums or anything of value awarded, paid or
received on a total or partial condemnation.
(d) "Condemnor" means any public or quasi- public authority, or private corporation
or individual, having the power of condemnation.
12.02. Parties' Rights and Obligations to Be Governed By Lease
If during the Term of this Lease, there is any taking of all or any part of the Ground Lease
Property, any improvements on the Ground Lease Property or any interest in this Lease by
condemnation, the rights and obligations of the parties shall be determined pursuant to the
provisions of this Article 12.
12.03. Total Taking
If the Ground Lease Property is totally taken by condemnation, this Lease shall terminate
on the date of the taking.
12.04. Effect of Partial Taking
If any portion of the Ground Lease Property or the Improvements thereon is taken by
condemnation, this Lease shall remain in effect as to the portion remaining, except that Tenant
may elect to terminate this Lease if the remaining portion of the Ground Lease Property is
rendered unsuitable (as defined herein) for Tenant's continued use. The remaining portion of the
Ground Lease Property shall be deemed unsuitable for Tenant's continued use if, following a
reasonable amount of reconstruction, Tenant's business on the Ground Lease Property could not
be operated at an economically feasible level as reasonably determined by Tenant. Tenant must
exercise its right to terminate by giving Landlord written notice of its election within ninety (90)
days after the nature and extent of the taking have been finally determined. Such notice shall
also specify the date of termination, which shall not be prior to the date of taking. Failure to
properly exercise the election provided for in this section will result in this Lease continuing in
full force and effect, except that Rent shall be abated pursuant to Section 12.05 below.
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12.05. Effect of Partial Takine on Rent
If any portion of the Ground Lease Property is taken by condemnation and this Lease
remains in full force and effect as to the portion of the Ground Lease Property not so taken, the
Rent shall be reduced as of the date of taking in an amount determined by subtracting the Rent,
as the case may be, attributable to that portion of the Ground Lease Property so taken at the time
immediately prior to such taking and taking into account such things as any improvements
located thereon. All other obligations of the Tenant under this Lease shall remain in full force
and effect.
12.06. Waiver of CCP Section 1265.130
Each party waives the provisions of the Code of Civil Procedure Section 1265.130
allowing either party to petition the Superior Court to terminate this Lease in the event of a
partial taking of the Ground Lease Property.
12.07. Award
Awards and other payments on account of a taking, less costs, fees and expenses incurred
in the collection thereof ( "Net Awards and Payments ") shall be applied as follows:
(a) Net Awards and Payments received on account of a taking other than a total
taking or a taking for temporary use shall be held and applied to pay the cost of restoration of the
Ground Lease Property and any Improvements located thereon. The balance, if any, shall be
divided between. Landlord and Tenant in the ratio, as nearly as practicable, which (i) the then
value of Landlord's interest in the Ground Lease Property (including its interest hereunder) bears
to (ii) the then value of Tenant's interest in the remainder of the Term (for such purposes the
Term shall not be deemed to have terminated even if Tenant so elects under Section 12.04).
In case of a taking other than a total taking or a taking for temporary use, Tenant shall furnish to
Landlord evidence reasonably satisfactory to Landlord of the total cost of the restoration as
provided for herein.
(b) Net Awards and Payments received on account of a taking for temporary use shall
be paid to Tenant.
(c) Net Awards and Payments received on account of a total taking shall be allocated
as follows:
First: There shall be paid to Landlord an amount equal to the present value of all
Rent which would become due until the end of the Term if it were not for the total
taking.
Second: There shall be paid to any mortgagee of Tenant an amount equal to the
sum of any unpaid principal amount of the indebtedness secured by the Ground
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Lease Property, if any, and any interest accrued thereon, all as of the date on
which such payment is made.
Third: There shall be paid to Tenant an amount equal to the value of the interest
of Tenant in the remainder of the Term, including the value of the ownership
interest in and use of the Improvements constructed on the Ground Lease
Property, determined as of the date of such taking, after deducting the amount, if
any, paid to any mortgagee of Tenant pursuant to clause Second. Such
determination shall be made as if the Term shall not have terminated. Tenant
shall be entitled to any compensation based upon the difference between the then
fair market rent of the Ground Lease Property and the rent actually being paid
pursuant to this Lease ( "bonus value ").
Fourth: Any remaining balance shall be paid to Landlord.
12.08. Voluntary Conveyance
A voluntary conveyance by Landlord to a public utility, agency or authority under threat
of a taking under the power of eminent domain in lieu of formal proceedings pursuant to the
imposition of governmental requirements for dedication or otherwise shall be deemed a taking
within the meaning of this Article 12.
12.09. Power of Landlord
Tenant acknowledges that the original named Landlord hereunder is comprised of a
public municipal corporation and that as such, Landlord and its City Council, Boards,
Commissions, Departments, employees, officers, agents and representatives exercise certain
police powers, taxation powers, and other governmental powers duties and authorities over the
Ground Lease Property and are required to follow applicable provisions and requirements of the
City Charter of the city of Downey, the Downey Municipal Code, the California Environmental
Quality Act (Public Resources Code § 21000 et seq., "CEQA "), and other ordinances,
regulations, statutes and laws (collectively the "Entitlement Laws ") regarding the review,
consideration, processing and approval of all entitlements and other administrative or ministerial
approvals, permits, plans or actions required for the development of the Ground Lease Property.
The Entitlement Laws require, among other actions, the filing of applications, payment of
processing fees, and public notice and public hearings regarding the any entitlements and the
Ground Lease Property. Tenant acknowledges that Landlord reserves the right (without
qualification or restriction under any statute, law ordinance, order, code or regulation) to
approve, conditionally approve, modify, or deny any entitlements and all other administrative or
ministerial approvals, permits, plans or actions required for the development of the Ground
Lease Property. Nothing contained in this Lease shall in any manner (a) limit, restrict or affect
(or constitute any form of promise to limit, restrict or affect in the future) in any manner the
exercise by Landlord of its police powers, taxation powers or any other governmental powers,
duties and authorities under the Entitlement Laws or any other statutes, laws, ordinances, or
regulations or (b) except as expressly provided to the contrary herein, create any duty or
obligation of Landlord (or any other governmental body) to cooperate with or assist Tenant in
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the development of the Ground Lease Property; provided, however, that in its dealings with
Tenant in processing any entitlements, Landlord shall treat Tenant on generally the same basis as
it would deal with any similarly situated ground lessee or owner of real property located in the
City of Downey, without regard to Landlord's interest in the Ground Lease.
13.01. General
Except as otherwise provided in Section 13.02, Article 15 and in the event of judicial
foreclosure, trustee's sale or deed or assignment in lieu of foreclosure of a Leasehold Mortgage,
Tenant and its successors and assigns shall not assign their interest in this Lease or any portion
hereof without the prior written consent of Landlord. Landlord's consent shall be granted upon
the terms and conditions hereinafter provided. The consent by Landlord to an assignment
hereunder shall not in any way be construed to relieve Tenant from obtaining the express consent
in writing of Landlord to any further assignment. Notwithstanding any other provision of this
Lease, Tenant shall be entitled to assign this Lease to any entity in which Tenant, or any affiliate
of Tenant, has a controlling interest.
13.02. Landlord's Consent
ARTICLE 13.
ASSIGNMENT AND SUBLETTING
Tenant's right to make an assignment shall be subject to compliance with the following
terms and conditions:
(a) At the time of such assignment, this Lease shall be in full force and effect and
either no default then exists or no default will exist upon consummation of the assignment;
(b) The assignee's financial condition shall be subject to Landlord's approval, which
approval shall not be unreasonably withheld or delayed, and shall be equal to or greater than the
Tenant's condition at the time of the execution of this Lease; and
(c) The assignee shall have a reputation in the community for honesty and integrity.
13.03. Foreclosure of Leasehold Mortgage
Upon the foreclosure or trustee's sale or deed or assignment in lieu of foreclosure of any
Leasehold Mortgage, the person or entity which was Tenant under this Lease prior to such sale
or deed or assignment in lieu will not be liable for obligations arising under this Lease, save and
except for Rent accruing prior to such sale or deed or assignment in lieu; provided that the
purchaser at such sale or transferee by such deed shall be liable for the payment of all Rent
becoming due with respect to the period during which such purchaser, transferee or other
successor is the holder of the leasehold estate hereunder.
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13.04. Subleases and other Possessory Interests
Nothing in this Article 13 shall limit Tenant's right to sublease all or any portion of the
Ground Lease Property for any of the uses permitted pursuant to the terms of this Lease or the
Acquisition Parcel Purchase Agreement, or to grant any other type of possessory interest in and
to any portion of the Ground Lease Property (collectively, a "Sublease "). No approval from
Landlord shall be necessary with respect to any Sublease.
ARTICLE 14.
TENANT DEFAULTS AND LANDLORD'S REMEDIES
14.01. Defaults by Tenant
Any of the following occurrences shall constitute a "default" under this Lease:
(a) Tenant shall at any time be delinquent in the payment of any Rent or other
monetary sum called for by this Lease for more than ten (10) days following written notice from
Landlord to Tenant (a "Monetary Default ");
(b) Except as set forth in Section 16.04 hereof, Tenant shall at any time fail to keep
and perform any of its covenants or agreements herein contained other than a Monetary Default
(a "Non- monetary Default "), and should such Non - monetary Default continue for thirty (30)
days after written notice thereof from Landlord to Tenant (or in the case of any Non- monetary
Default which results in a condition of the Ground Lease Property which is hazardous to life,
within fourteen (14) days after written notice thereof) specifying the particulars of such default,
provided, however, that if such Non - monetary Default is of a nature that curing such default will
take more than thirty (30) days (or in the case of a default hazardous to life, fourteen (14) days)
and Tenant has commenced such cure within the foregoing time period, Tenant shall not be
deemed in default so long as Tenant diligently pursues completion of such cure;
(c) Tenant assigns (whether or not such assignment is deemed to be effective) this
Lease (or any rights herein) in violation of Articles 13 and 15 herein, or sells, transfers or
conveys, the whole or any part of the Ground Lease Property or any Improvement thereon in
violation of this Lease;
(d) The abandonment of the Ground Lease Property, or any substantial portion
thereof, for a period of thirty (30) days at any one time after written notice from the City
Manager calling attention to such abandonment, except when prevented by any of the causes
described in Section 16.04, provided that Tenant shall return to and resume continuous
possession and operation at the earliest date possible after occurrence of such event; or
(e) A default by Tenant of any of the terms and conditions of the Acquisition Parcel
Purchase Agreement which is not cured in a timely manner as set forth therein.
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14.02. Regulatory Restrictions
Tenant shall not be considered in default as to any provision of this Lease when such
default is the result of or pursuant to any process, order or decree of any court or regulatory body
of competent jurisdiction, provided Tenant diligently pursues whatever action is required to
obtain release from or reversal of such process, order or decree. Compliance with the process,
order or decree shall not excuse a Monetary Default.
14.03. Landlord's Remedies
Subject to the rights of any Leasehold Mortgagees permitted under Article 15 of this
Lease, upon the occurrence of any such default, in addition to any and all other rights or
remedies of Landlord hereunder, or by law or in equity provided, Landlord shall have the sole
option to exercise the following rights and remedies:
(a) Terminate this Lease by giving Tenant notice of termination (the "Termination
Notice "). On the giving of the Termination Notice, (i) all of Tenant's rights in the Ground Lease
Property and in all Improvements shall terminate, and (ii) Tenant shall promptly surrender and
vacate the Ground Lease Property and all Improvements subject to the provisions of Article 8
herein, respecting the right of certain subtenants to remain, Landlord may reenter and take
possession of the Ground Lease Property and all improvements and eject all parties in possession
or eject some and not others, or eject none. Termination under this Section shall not relieve
Tenant from the payment of any sum then due to Landlord or from any claim for damages
previously accrued or then accruing against Tenant.
(b) Without terminating this Lease, Landlord may at any time and from time to time
relet the Ground Lease Property and improvements or any part or parts of them for the account
and in the name of Tenant or otherwise. Landlord may at Landlord's election eject all persons or
eject some and not others, or eject none, provided, however, that Landlord shall not have the
right to eject any Subtenant who is not in default under its respective sublease. Landlord agrees
to execute such non - disturbance agreements with Subtenants as Tenant may from time to time
reasonably request. Any reletting may be for the remainder of the term or for a longer or shorter
period. Landlord may execute any leases made under this provision either in Landlord's name or
in Tenant's name, and shall be entitled to all rents from the use, operation or occupancy of the
Ground Lease Property or Improvements, or both. Tenant hereby appoints Landlord its attorney -
in -fact for the purpose of such leasing. Tenant shall nevertheless pay to Landlord on the due
dates specified in this Lease the equivalent of all sums required of Tenant under this Lease, plus
Landlord's expenses, less the avails of any reletting or attornment, including (by way of
example), but not limited to, remodeling expenses, commissions and advertising costs. No act
by or on behalf of Landlord under this provision shall constitute a termination of this Lease
unless Landlord gives Tenant notice of termination.
14.04. Damages
Should Landlord elect to terminate this Lease under the provisions of Section 14.03(a),
Landlord shall be entitled to recover from Tenant, as damages:
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(a) The worth at the time of the award of the unpaid rent that had been earned at the
time of termination of this Lease;
(b) The worth at the time of the award of the amount by. which the unpaid rent that
would have been earned after the date of termination of this Lease until the time of award
exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided;
(c) The worth at the time of the award of the amount by which the unpaid rent for the
balance of the Term of this Lease after the time of award exceeds the amount of the loss of rent
that Tenant proves could have been reasonably avoided; and
(d) Any other amount necessary to compensate Landlord for all detriment
proximately caused by Tenant's default, including, without limitation, costs of recovering
possession of the Ground Lease Property, expenses of reletting (including necessary repair,
renovation and alteration of the property to meet the standard required by this Lease), reasonable
attorneys' fees and any other reasonable costs.
The "worth at the time of the award," as used in subsections (a), (b) and (c) of this
Section, is to be computed by allowing interest at the maximum rate allowed by law. The "worth
at the time of the award," as referred to in subsection (c) of this Section, is to be computed by
discounting the amount at the discount rate of the Federal Reserve Bank of San Francisco at the
time of the award, plus one percent (1%).
14.05. Conveyance or Release of Improvements.
On the Expiration Date, title to all Improvements located on or about the Ground Lease
Property shall automatically pass to Landlord's, free of any right, title, interest or estate of
Tenant therein, or its successors or assigns, without the necessity of executing any further
instrument and without the necessity of any allowance, compensation, consideration or payment
by Landlord therefor. Tenant hereby grants, releases, transfers, sets over, assigns and conveys to
Landlord all of its rights, title and interest in and to all such Improvements, to be effective for all
purposes upon any such termination of this Lease. Notwithstanding the foregoing, Tenant agrees
to execute, acknowledge and deliver to Landlord promptly following the Expiration Date, a
proper recordable instrument quitclaiming and releasing to Landlord any right, title and interest
of Tenant in and to the Ground Lease Property and all Improvements remaining thereon, and
giving such further assurances of title as may be reasonably required by Landlord or its
successors, assigns or title insurers. Nothing contained in this Section 14.05, however, shall
adversely affect any right under this Lease that Tenant may have to quiet enjoyment and
possession or to modify the Improvements from time to time. Tenant shall, upon such Lease
termination or expiration, surrender and deliver the Ground Lease Property to the possession and
use of Landlord, without delay.
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15.01. General
During the term of this Lease, Tenant shall have the right, in accordance with the terms
and conditions of this Article 15 and with respect to the Ground Lease Property, to encumber by
mortgage or assign Tenant's interest in this Lease.
15.02. Mortgages
With respect to the Ground Lease Property, or any portion thereof, Tenant's interest in
this Lease may only be encumbered by one or more Leasehold Mortgages as defined in Section
15.03. Any assignment of Tenant's interest hereunder as security for such a mortgage, however,
shall be subject to each and all of the covenants, conditions and restrictions set forth in this
Lease, and in the event of any conflict between the provisions of this Lease and the provisions of
a Leasehold Mortgage or any such assignment, the provisions of this Lease shall control.
15.03. Leasehold Mortgage Authorized: Fee Not Subordinated
Subject to the applicable provisions of this Lease, Tenant may mortgage or otherwise
encumber Tenant's leasehold estate to an Institutional Investor (as hereinafter defined) under one
or more Leasehold Mortgage(s) and assign this Lease as security for such Mortgage(s). The
Leasehold Mortgage(s) shall affect only Tenant's leasehold estate and shall be subject to all of
the terms and provisions of this Lease. Landlord's fee interest shall not be encumbered or
subordinated. One copy of any and all Leasehold Mortgages finally executed and recorded shall
be promptly filed with Landlord.
15.04. Notice to Landlord
ARTICLE 15.
MORTGAGEE PROTECTION PROVISIONS
Provided that Tenant provides Landlord with (i) notice of any Leasehold Mortgage
properly entered into hereunder, together with a true copy of such Leasehold Mortgage, the note
and all other material documents relating to such Leasehold Mortgage, and (ii) the name and
address of the Leasehold Mortgagee, Landlord and Tenant agree that, following receipt of such
notice by Landlord, the provisions of this Article 15 shall apply with respect to such Leasehold
Mortgage. In the event of any transfer or assignment of a Leasehold Mortgage or in the event of
a change of address of a Leasehold Mortgagee or of an assignee of such Leasehold Mortgage,
notice of the new name and address shall be provided to Landlord. Tenant shall thereafter also
provide Landlord from time to time with a copy of each amendment or other modification or
supplement to such instruments. All documents shall be accompanied by a certification by
Tenant or the Leasehold Mortgagee that such documents are true and correct copies of the
originals.
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15.05. Definitions
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As used in this Article 15:
(a) The term "Institutional Investor" shall refer to a savings bank, savings and loan
association, commercial bank, trust company, credit union, insurance company, college,
university, real estate investment trust, pension fund or other lender of substance which performs
functions similar to any of the foregoing.
(b) The term "Leasehold Mortgage" shall include a mortgage, a deed of trust or
other security instrument by which Tenant's leasehold estate is mortgaged, conveyed, assigned or
otherwise transferred to an Institutional Investor to secure a debt or other obligation.
(c) The term "Leasehold Mortgagee" or "Mortgagee" shall refer to a holder of a
Leasehold Mortgage with respect to which the notice provided for by Section 15.04 has been
given and received and as to which the provisions of this Article 15 are applicable.
15.06. Consent of Leasehold Mortgagee Reauired
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.
15.07. Default Notice
Landlord, upon providing Tenant any notice of default under this Lease, shall at the same
time provide a copy of such notice to each Leasehold Mortgagee. Notice by Landlord to Tenant
shall be deemed to have been duly given even in the absence of notice to a Leasehold Mortgagee,
provided, however, that the time periods with respect to such Leasehold Mortgagee shall not
commence until notice is given to such Mortgagee. From and after such notice has been given to
the Leasehold Mortgagee, such Leasehold Mortgagee shall have the same period, after the 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 Tenant, after the giving of
such notice to Tenant, plus in each instance, the additional periods of time specified in Sections
15.08 and 15.09 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 Tenant
had done the same. Tenant authorizes the Leasehold Mortgagee to take any such action at such
Leasehold Mortgagee's option and does hereby authorize entry upon the Ground Lease Property
by the Leasehold Mortgagee for such purpose.
15.08. Notice to Leasehold Mortgagee
If any default shall occur which entitles Landlord to terminate this Lease, Landlord shall
not (except as necessary to prevent waste or otherwise preserve the Ground Lease Property)
exercise any right, power or remedy with respect to any default hereunder, and shall have no
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right to terminate this Lease unless, following the giving of the notice (if any) required by
Section 14.01 of this Lease and the expiration of the period of time (if any) given Tenant to cure
such default (or the act or omission which gave rise to such default), Landlord shall notify the
Leasehold Mortgagee of Landlord's intent to so terminate 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, 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. The
provisions of Section 15.09 below shall apply if, during such thirty (30) day or sixty (60) day
termination notice period, the Leasehold Mortgagee shall:
(a) Notify Landlord of such Leasehold Mortgagee's desire to nullify such notice;
(b) Pay or cause to be paid all Rent and other payments then due and in arrears as
specified in the termination notice to such Leasehold Mortgagee except for those amounts which
were delinquent by more than sixty (60) days on the date of such termination notice, and that rent
which may become due during such thirty (30) day or sixty (60) day period following the notice
of termination; and
(c) Comply, or in good faith, with diligence and continuity, commence to comply,
with all Non - monetary Defaults reasonably susceptible of being complied with by such
Leasehold Mortgagee; provided, however, that in the event such Leasehold Mortgagee shall
commence foreclosure proceedings within such thirty . (30) day or sixty (60) day period, such
Leasehold Mortgagee shall not be required during such period to cure or commence to cure any
default consisting of Tenant's failure to satisfy and discharge any lien, charge or encumbrance
against the Tenant's interest in this Lease or the Ground Lease Property junior in priority to the
lien of the mortgage held by such Leasehold Mortgagee, and provided further that if such
Leasehold Mortgagee is restrained by a court of competent jurisdiction or by reason of any law,
regulation, order or rule from proceeding to commence foreclosure proceedings, the time periods
set forth above shall be tolled (notwithstanding which, Leasehold Mortgagee shall continue to
pay all Rent due and becoming due during the period of such toll) and if default is cured,
Leasehold Mortgagee may discontinue such proceedings.
Any notice to be given by Landlord to a Leasehold Mortgagee pursuant to any provision
of this Article 15 shall be deemed properly addressed if sent to the Leasehold Mortgagee
specified in the notice referred to in Section 15.04 at the address stated in such notice unless
notice of a change of mortgage ownership has been given to Landlord pursuant to Section 15.04.
15.09. Mortgagee to Foreclose
If Landlord shall elect to terminate this Lease by reason of any default of Tenant and the
Leasehold Mortgagee shall have proceeded in the manner provided for by Section 15.08, the
specified date for 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:
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(a) Pay, or cause to be paid, all Rent and any other monetary obligations of Tenant
under this Lease with respect to such six (6) month period as the same become due, and continue
its good faith efforts to perform all of Tenant's other obligations under this Lease; and
(b) If not enjoined or stayed, take steps to acquire or sell Tenant's interest in this
Lease by foreclosure of the Leasehold Mortgage or other appropriate means and prosecute the
same to completion with due diligence.
If at the end of such six (6) month period such Leasehold Mortgagee is diligently
complying with this Section 15.09, this Lease shall not then terminate, and the time for
completion by such 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 Tenant's interest in this Lease by
foreclosure of the Leasehold Mortgage or by other appropriate means with reasonable diligence
and continuity. Nothing in this Section 15.09, however, shall be construed to extend this Lease
beyond the original term hereof, 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 Mortgagee shall discontinue such foreclosure proceedings, this Lease shall continue in
full force and effect as if Tenant had not defaulted under this Lease.
15.10. Purchase and Sale
If the Leasehold Mortgagee is complying with Section 15.09, upon the acquisition of
Tenant's estate herein by such Leasehold Mortgagee or its designee or any other purchaser at a
foreclosure sale or otherwise (and the discharge of any lien, charge or encumbrance against the
Tenant's interest in this Lease or the Ground Lease Property which is junior in priority to the lien
of the Leasehold Mortgagee held by such Leasehold Mortgagee and which the Tenant is
obligated to satisfy and discharge by reason of the terms of this Lease), this Lease shall continue
in full force and effect as if Tenant had not defaulted under this Lease. 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, including such Leasehold Mortgagee, or the transferee under any
instrument of assignment or transfer in lieu of the foreclosure of the Leasehold Mortgage shall be
deemed to have agreed to perform all of the terms, covenants and conditions on the part of the
Tenant to be performed hereunder from and after the date of such purchase and assignment.
15.11 Mortgagee's Right to Sell
If the leasehold estate hereunder shall be acquired pursuant to foreclosure, assignment in
lieu of foreclosure or other proceedings, such transferee, upon acquiring Tenant's leasehold
estate, may sell and assign the leasehold estate on such terms and to such persons and
organizations as are acceptable to such transferee. The purchaser at such sale or the transferee
by such assignment and its successors as holders of the leasehold estate hereunder shall not be
liable for the Rent or other obligations accruing after its or their subsequent sale or transfer of
such leasehold estate and such purchaser or transferee and its successors shall be entitled to
transfer such estate or interest without consent or approval of Landlord; provided that the
purchaser or transferee or successor as holder of the leasehold estate hereunder shall be liable for
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the payment of. all Rent becoming due with respect to the period during which such purchaser,
transferee or other successor is the holder of the leasehold estate hereunder.
ARTICLE 15A.
REPRESENTATIONS, WARRANTIES
AND COVENANTS AND TITLE MATTERS
15A.01 Representations. Warranties and Covenants by Landlord
Effective as of the Commencement Date, Landlord hereby represents, warrants and
covenants to Tenant, and acknowledges that Tenant is relying upon such representations,
warranties and covenants in leasing the Ground Lease Property, as follows:
(a) Landlord Authority. Landlord is a public body, corporate and politic,
exercising governmental functions and powers and organized and existing under the laws of the
State of California and is fully authorized to execute this Lease and to fulfill its obligations as set
forth herein.
(b) Leases. Other than the agreements with NASA (listed on Exhibit "K "),
Landlord is unaware of any leases or agreements affecting the Ground Lease Property or any
parties in possession other than related to the studio operations.
(c) Adverse Claims. As of the Commencement Date, Landlord is unaware of
any pending or threatened claims with respect to the Ground Lease Property that would have any
adverse impact on Tenant's ability to develop the Ground Lease Property for the Permitted Uses,
other than with respect to the excess dirt located on the Ground Lease Property caused by
operations at the studio in or about July through September 2003, which Developer has agreed to
remove and dispose of pursuant to the terms of the Acquisition Parcel Purchase Agreement.
(d) No Violation of Other Agreements. The execution of this Lease does not
constitute a breach or violation of any other agreement to which Landlord is a party.
(e) Litigation. As of the Commencement Date, there is no litigation, dispute,
action or claim against any person, whether pending or threatened, which may have a material
adverse effect on the Ground Lease Property.
(f) Environmental Insurance. Landlord shall cooperate with Tenant and use
its best efforts to cause Tenant and any present or future lender of Tenant to be added as
additional named insureds on any environmental insurance policies arranged by Landlord and
IRAD with respect to the NASA Site.
(g) Best Efforts. Subject to applicable federal, state and local laws, statutes
and regulations, Landlord will exercise good faith and use its best efforts to (i) process on a
timely basis the City Entitlements required for Tenant's intended development of the Ground
Lease Property, and (ii) assist Tenant in obtaining the other project approvals required by Tenant
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from other governmental agencies or third parties for Tenant's intended development of the
Ground Lease Property.
(h) Infrastructure Reauirements. Other than as set forth in Sections 11.2.2 and
11.2.3 of the Acquisition Parcel Purchase Agreement, Landlord acknowledges that Tenant is not
required to install, pay for, or reimburse Landlord for, any other on -site or off -site infrastructure
improvements in connection with Tenant's use of the Ground Lease Property as an unimproved
studio production facility/back -lot, excluding sets and temporary structures.
(i) Effectiveness of Representations. Warranties and Covenants. The
representations, warranties and covenants of Landlord contained herein shall be accurate and true
in all material respects on the Commencement Date and shall, except as otherwise provided
above, continue through the Lease Term.
15A.02Representations, Warranties and Covenants by Tenant
Effective as of the Commencement Date, Tenant hereby represents, warrants and
covenants to Landlord, and acknowledges that Landlord is relying upon such representations,
warranties and covenants in leasing the Ground Lease Property, as follows:
(a) No Payments. Tenant has not paid or given, and will not pay or give, any
third person any money or other consideration for obtaining this Lease, other than the normal
cost of conducting business and cost of professional services such as architects, engineers and
attorneys.
(b) Authority. Tenant is a limited liability company duly organized, qualified
and validly existing and in good standing under the laws of the State of Nevada, is duly qualified
to do business and in good standing under the laws of each other jurisdiction where the operation
of its business or its ownership of property make such qualification necessary, and has all
required power and authority to own and operate its properties, to carry on its business as now
and whenever conducted, and to enter into and perform its obligations under this Lease.
(c) Lawful Operation. Tenant will obtain all licenses, permits, consents and
approvals required by all applicable governmental authorities to own, operate and develop the
Ground Lease Property.
(d) Litigation and Compliance. To Tenant's knowledge, as of the
Commencement Date there are no suits, other proceedings or investigations pending or
threatened against, or affecting the business or the properties of Tenant which, if determined
adversely to Tenant, would have a materially adverse affect on the financial condition of Tenant,
nor is Tenant in violation of any laws or ordinances which would result in a material adverse
affect on the financial condition of Tenant.
(e) Proiect Compliance. The construction and completion of any or all of the
improvements to be constructed on the Ground Lease Property will: (i) comply with all
applicable governmental restrictions, including, without limitation, compliance with all laws and
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ordinances necessary to permit development as permitted by this Lease; (ii) will be entirely on
the Ground Lease Property; and (iii) will not violate any enforceable use, easement, license,
covenant, condition or restriction.
(f) Effectiveness of Representations, Warranties and Covenants. The
representations, warranties and covenants of Tenant contained herein shall be accurate and true
in all material respects on the Commencement Date and, except as otherwise provided above,
shall continue through the Lease Term.
15.A03 Title to the Ground Lease Property
Landlord hereby agrees to provide Tenant with an ALTA leasehold policy of title
insurance (the "Leasehold Policy ") in the face amount of $7,840,000 showing title to the
Ground Lease Property vested of record in City subject only to the exceptions to title approved
by Tenant. Landlord and Tenant shall equally share the cost of the Leasehold Policy.
16.01. Holding Over
16.02. Attorney's Fees
ARTICLE 16.
MISCELLANEOUS
This Lease shall terminate and become null and void without further notice upon the
expiration of the Term and any holding over by Tenant after such expiration shall not constitute a
renewal hereof or give Tenant any rights hereunder or in or to the Ground Lease Property, except
as otherwise herein provided, it being understood and agreed that this Lease cannot be renewed,
extended or in any manner modified except by a writing signed by both parties hereto. If Tenant
shall hold over for any period after the expiration of the Term, Landlord may, at its option,
exercisable by written notice to Tenant, treat Tenant as a tenant at sufferance commencing on the
first day following the expiration of this Lease and subject to the terms and conditions herein
contained, except that the monthly Rent, which shall be payable in advance, shall be one hundred
fifty percent (150 %) of an amount equal to the greater of (i) the then fair market monthly rent for
the Ground Lease Property, as reasonably determined by Landlord, or (ii) the monthly Rent
payable by Tenant for the last full calendar month of the Term, increased to reflect any increases
in the CPI from the Commencement Date through the Expiration Date. If Tenant fails to
surrender the Ground Lease Property upon the expiration or sooner termination of this Lease,
Tenant shall indemnify, defend and hold Landlord harmless from and against any and all Claims,
Damages and Expenses resulting from such holder, including, without limitation, any claims,
made by any succeeding tenant founded on or resulting from such failure to surrender, and
Landlord shall be entitled to the benefit of all provisions of Law respecting summary recovery of
possession to the same extent as if such statutory or other notice had been given.
In the event that any action is brought by either party hereto as against the other party
hereto for the enforcement or declaration of any right or remedies in or under this Lease or for
the breach of any covenant or condition of this Lease, then and in that event the prevailing party
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shall be entitled to recover, and the other party agrees to pay all fees and costs to be fixed by the
court therein including, but not limited to, reasonable attorneys' fees.
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16.03. Ouiet Possession
Landlord agrees that Tenant, so long as Tenant is not in default under this Lease and is
paying the rent and performing the covenants and conditions of this Lease, shall quietly have,
hold and enjoy the Ground Lease Property throughout the term hereof without interruption or
disturbance from Landlord or any other persons claiming by, through or under Landlord; and
Landlord warrants to Tenant that as of the Commencement Date, there are no existing tenancies
on the Ground Lease Property.
16.04. Force Maieure
Except as to the payment of rent or other monetary sums due hereunder, neither of the
parties hereto shall be chargeable with, liable for, or responsible to, the other for anything or in
any amount, and performance hereunder by either party shall not be deemed to be in default for
any delay caused by fire, earthquake, explosion, flood, hurricane, the elements, acts of. God or
the public enemy, action or interference of governmental authorities or agents, war, invasion,
insurrection, rebellion, riots, strikes, lockouts, litigation, or any other cause whether similar or
dissimilar to the foregoing which is beyond the control of such parties and any delay due to said
causes or any of them shall not be deemed a breach of or default in the performance of this
Lease.
16.05. Notices
Any notice, request, demand, instruction or other document or communication required
or permitted to be given hereunder shall be in writing addressed to the respective party as set
forth below and may be personally served, sent by facsimile, or sent by a nationally recognized .
overnight courier or by U.S. Mail, first class, addressed as follows:
Landlord:
With copy to:
City Hall
City of Downey
11111 Brookshire Avenue
Downey, California 90241
Attention: City Manager
Fax: (562) 923 -6388
Oliver, Vose, Sandifer, Murphy & Lee
281 S. Figueroa Street
Los Angeles, California 90012
Attention: Casey S. Vose, Esq.
Fax: (213) 621 -2211
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Tenant:
With copy to:
Industrial Realty Group, LLC
12214 Lakewood Blvd.
Downey, California 90242
Attention: Stuart Lichter
Fax: (562) 803 -4796
Fainsbert, Mase & Snyder, LLP
11835 West Olympic Blvd., Suite 1100
Los Angeles, California 90064
Attention: John A. Mase, Esq.
Fax: (310) 473 -8702
Any party may change their notice address and/or facsimile number by giving written
notice thereof in accordance with this Section. All notices hereunder shall be deemed given: (1)
if served in person, when served; (2) if sent by facsimile, on the date of transmission if before
6:00 p.m. P.S.T.; provided that a hard copy of such notice is also sent by either a nationally
recognized overnight courier or by U.S. Mail, first class; (3) if by overnight courier, by a
nationally recognized courier which has a system of providing evidence of delivery, on the first
business day after delivery to the courier; or (4) if by U.S. Mail, on the third day after deposit in
the mail, postage prepaid, certified mail, return receipt requested.
16.06. Service of Process
If Tenant or any successor in interest of Tenant is not a resident of the State of California,
or is an limited liability company or partnership without a member or partner resident of
California, or is a foreign corporation not registered to do business in the State of California,
Tenant shall file with the Landlord the name and address of a natural person or entity qualified to
do business in the State of California as its duly authorized agent of Tenant for the service of
process in any court action between Tenant and Landlord, arising out of or based upon this
Lease, and the delivery to such agent of written notice or a copy of any process in such action
shall constitute a valid service upon Tenant.
If for any reason service of such written notice or of such process upon such agent is not
possible, then Tenant may be personally served with such written notice or process in or outside
of the State of California and such service shall constitute valid service upon Tenant. It is further
expressly agreed that Tenant is amenable to such process and submits to the jurisdiction of the
court of the State of California and waives any and all objections and protests thereto. This
Lease shall be subject to the application of the internal laws of California and not California's
Conflict of Laws with respect to issues which arise hereunder.
16.07. Waiver
Any waiver by Landlord or Tenant of any breach of any one or more of the covenants,
conditions, terms and agreements of this Lease shall not be construed to be a waiver of any
subsequent or other breach of the same or of any other covenant, condition, term or agreement of
this Lease, nor shall failure on the part of Landlord or Tenant to require exact, full and complete
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compliance with any of the covenants, conditions, terms and agreements of this Lease be
construed as in any manner changing the terms hereof or estopping the other party from
enforcing the full provisions hereof, nor shall the terms of this Lease be changed or altered in any
manner whatsoever other than by written agreement of Landlord and Tenant. No delay, failure
or omission of Landlord to reenter the Ground Lease Property or to exercise any right, power,
privilege or option, arising from any default, nor any subsequent acceptance of rent then or
thereafter accrued shall impair any such right, power, privilege or option to be construed as a
waiver of or acquiescence in such default or as a relinquishment of any right. No notice to
Tenant shall be required to restore or revive "time of the essence" after the waiver by Landlord of
any default. No option, right, power, remedy or privilege of Landlord shall be construed as
being exhausted by the exercise thereof in one or more instance.
16.08 Surrender
The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation
thereof, shall not work a merger, but shall terminate all or any existing subleases unless the
sublessee has been formally permitted by the Landlord or the Landlord expressly elects to treat
such surrender or cancellation as an assignment to Landlord of any or all such subleases.
16.09. Binding
Subject to the restrictions set forth herein regarding assignment of the leasehold estate,
each of the terms, covenants and conditions of this Lease shall extend to and be binding on and
shall inure to the benefit of not only Landlord and Tenant, but to each of their respective heirs,
administrators, executors, successors and assigns. Whenever in this Lease reference is made to
either Landlord or Tenant, the reference shall be deemed to include, wherever applicable, the
heirs, administrators, executors, successors and assigns of such parties, the same as if in every
case expressed.
16.10 Authority
Each individual executing this Lease on behalf of Landlord or Tenant represents and
warrants that he or she is duly authorized to execute and deliver the Lease on behalf of such
party, and that this Lease is binding upon such party in accordance with its terms.
16.11. Landlord's Right to Enter Premises
Landlord and its authorized representatives shall have the right to enter the Ground Lease
Property at all reasonable times, after giving Tenant three (3) business days prior written notice,
for any of the following purposes: to determine whether Tenant is complying with its
obligations under this Lease; to serve, post or keep posted any notices required or allowed under
the provisions of this Lease; to post "for sale" signs at any time during the term, so long as such
signs make it clear at first impression it is Landlord's interest alone that is for sale; to post "for
rent" or "for lease" signs during the last one (1) year of the term, or during any period while
Tenant is in default; to show the Ground Lease Property to prospective brokers, agents, buyers,
tenants or persons interested in an exchange, at any time during the term; and to do any act or
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thing necessary for the safety or preservation of the Ground Lease Property if any excavation or
other construction is undertaken or is about to be undertaken on any adjacent property or nearby
street.
Landlord shall use its best efforts to not to interfere with the operations of Tenant, or any
Subtenant or Occupant of the Ground Lease Property and, subject to the foregoing, Landlord
shall not be liable in any manner for any inconvenience, disturbance, loss of business, nuisance,
or other damage arising out of Landlord's entry on the Ground Lease Property as provided in this
Section.
16.12. Disclaimer of Partnership
The relationship of the parties hereto is that of Landlord and Tenant, and it is expressly
understood and agreed that Landlord does not in any way nor for any purpose become a partner
of Tenant or a joint venturer with Tenant in the conduct of Tenant's business or otherwise. This
Lease is not intended, and shall not be construed, to create the relationship of agent, servant,
employee, partnership, joint venture or association as between Landlord and Tenant.
16.13. Memorandum
Upon the request of either party, Landlord and Tenant shall execute a memorandum of
this Lease or any amendment or modification thereof for recordation in the official records of
Los Angeles County, California.
16.14. Ouitclaim
At the expiration or earlier termination of this Lease, Tenant shall execute, acknowledge
and deliver to Landlord within thirty (30) days after written demand from Landlord to Tenant,
any quitclaim deed or other document required by any reputable title company to remove the
cloud of this Lease from the real property subject to this Lease.
16.15. [Intentionally Deleted]
16.16. [Intentionally Deleted]
16.17. [Intentionally Deleted]
16.18. [Intentionally Deleted]
16.19. Interpretation
The titles to the sections of this Lease are not a part of this Lease and shall have no effect
upon the construction or interpretation of any part of this Lease.
S:UAM\LICHTER\DowneylGround L ease \DowneyGroundLeasev9.12 -03 -03.doc
51
16.20. Covenants and Conditions
Each term and each provision, including, without limitation, the obligation for the
payment of Rent, to be performed by Tenant or Landlord, as the case may be, shall be construed
to be both a covenant and a condition of this Lease.
16.21. Integration
This Lease, together with the exhibits and documents incorporated by reference,
constitutes the entire agreement between the parties concerning the Ground Lease Property and
there are no conditions, representations or agreements regarding the matters covered by this
Lease which are not expressed herein. No person, firm or corporation has at any time had any
authority from Landlord or Tenant to make any representations or promises on behalf of such
party, and Tenant and Landlord each expressly agrees that if any such representations or
promises have been made by the other party or others, Tenant or Landlord, as the case may be,
waives all right to rely thereon. No verbal agreement or implied covenant shall be held to vary
these provisions.
16.22. Estonnel Certificate
If upon any sale, assignment or hypothecation of the Ground Lease Property by Landlord
an offset statement shall be required from Tenant, Tenant agrees to deliver, within ten (10) days
after written request therefore by Landlord, a statement addressed to any such proposed
mortgagee or purchaser, or to Landlord, in a form reasonably requested by Landlord's mortgagee
or purchaser, certifying that this Lease is unmodified and is in full force and effect (if such be the
case), certifying the Commencement Date and the Expiration Date, certifying that there has been
no assignment of this Lease and that there are no defenses or offers hereto (or stating those
claimed by Tenant) and containing such other information as may reasonably be requested by the
party to whom such certificate is addressed. In the event Tenant fails to deliver such offset
statement to Landlord within the ten (10) day period provided above, it shall be deemed that this
Lease is in full force and effect and that Tenant has no defenses or offsets against Landlord.
16.23 Landlord's Right to Sell
Landlord shall have the right to sell its fee estate in the Ground Lease Property and assign
its interest in this Lease without limitation; provided, however, that any such sale or assignment
shall be subject to this Lease and Landlord shall first exercise its best efforts in good faith to
obtain any consent required from NASA, if any, to allow Tenant the right to acquire the Ground
Lease Property. Upon any such conveyance as permitted herein, Landlord shall automatically be
relieved of any obligations under this Lease other than those obligations which accrued prior to
the date of such conveyance.
16.24. Intentionally Deleted
S: UAM\LICHTER\DowneylGround Leau\DowncyGroundLeasev9. 12- 03 -03.doc
52
16.25. Approvals
Wherever a consent or approval is required by a party under this Lease, such consent or
approval shall not be unreasonably withheld, conditioned or delayed, except where such consent
or approval is in the sole discretion of such party. No consent or approval shall be unreasonably
delayed.
[Signatures on the following page]
S:UAMTICIrIER\Downey\Ground L ease \DowneyGroundLeasev9.I2 -03 -03.doc
53
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of the date
(P4 set forth above.
r
r
Date: December 26 2003 By: ,e o
Kirk O. Carbofan, Mayor
APPROVED AS TO FORM:
OLIVER, VOSE, SANDIFER, MURPHY & LEE
City Attomey
By
Date: December 26 , 2003 By:
APPROVED AS TO FORM:
Fainsbert Mase & Snyder, LLP
By: Fj0 St1 1,0
V *44-
S:UAMU.dCHTER\Downey\Ground LcaseDowneyGroundLcasev9 .12 -03 -03.doc
LANDLORD:
CITY OF DOWNEY
TENANT:
INDUSTRIAL REALTY GROUP, LLC
A Nevada limited liability company
By: S. L. Properties, Inc.
A Delaware corporation
Its: Manager
54
Stuart Lichter, President
LIST OF EXHIBITS
Exhibit "A" NASA Site Plan (Recital A)
Exhibit `B" License Agreement (Recital C (viii))
Exhibit "C' Existing Enviionmental Documents (Recital D & 6B.01)
Exhibit `Y" [Intentionally Deleted]
Exhibit "E" [Intentionally Deleted]
Exhibit "F' Acquisition Parcel Legal Description (Recital F)
Exhibit "G" [Intentionally Deleted]
Exhibit "H" Ground Lease Property Legal Description (Section 1.01)
Exhibit `T' [Intentionally Deleted]
Exhibit "J" [Intentionally Deleted]
Exhibit "K" NASA Documents (Sections 6B.01 & 15A.01(b))
Exhibit "L" [Intentionally Deleted]
Exhibit `M' [Intentionally Deleted]
Exhibit "N" Form of Occupant Release (Section 6B.06(a))
Exhibit "0" [Intentionally Deleted]
S:UAMUSCHTER'Downey\Ground Lease DowucyGroundLeasev9. l 2 -03 -03.doc
55
EXHIBIT "A"
NASA Site Plan (Recital A)
- 5220 0 STREET
CHINO, CA. 91710
» (909) 364 -1681
(909) 364 -1781 FAX
E EADSON & ASSOCIATES. INC.
Surveying & Mapping Consultants
1 inch = 400 feet
PARCEL 3
NASA SIZE EXHIBIT
EXISTING PARCELS
1
PARCH. 2
PARCH. 1
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PARCEL 4
SIEWART AND GRAY R0A0
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EXHIBIT A —DIAGRAM OF TILE NASA STPE-n41Fxri lll•a.M
PARCEL 6
PARCEL 5
ELIA
VISTA OR.
WASHBURN •
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5- 15 -t13 9:42:45 arm EST
4 .
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EXHIBIT "B"
License Agreement (Recital C
REVOCABLE LICENSE
The NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), acting by and through
the Director, Lyndon B. Johnson Space Center (JSC), for good and adequate consideration, does hereby
grant to the CITY OF DOWNEY, CALIFORNIA (the City), this Revocable License (this License) for the
term of one (1) year, for the non - exclusive use of Parcels 1 and 2 of the NASA Industrial Plant (the
Premises), located at 12214 Lakewood Boulevard, Downey, California, and described in Exhibit A to this
License, for film and video production, other purposes related to film and video production, site
preparation for development (including environmental testing), and for such other purposes as may be
added to this License pursuant to the terms thereof, subject to existing easements and rights -of -way, and
subject to the following conditions:
I. GENERAL CONDITIONS—
a. COMPLIANCE. Any use made of the Premises by this License, and any construction, maintenance,
repair, or other work performed thereon by the City, including the installation and removal of any article
or thing, shall be accomplished in a manner satisfactory to NASA Except as otherwise indicated in this
License, all communications, requests for approval, and other coordination pursuant to this License
between the City and NASA shall occur through the JSC Realty Officer, NASA Johnson Space Center,
2101 NASA Road 1, Mail Code JA 16, Houston, Texas 77058. All requests for consent or approval from
the City to NASA under this License, and all consents or approvals granted by NASA under this License,
must be in writing.
b. STRUCTURES. The City shall not place or construct upon, over or under the Premises any
installation or structure of any kind or character, without the prior written consent of NASA. Upon
termination of this License, to the extent directed by NASA, the City shall remove all alterations,
additions, betterments and improvements made, or installed, pursuant to this License, and restore the
Premises to the same, or as good condition, as existed on the date of entry under this License (with the
exception of reasonable wear and tear, acts of God, or acts of NASA, its agents or contractors), unless
such termination is incident to the transfer of title to the Premises from the United States to the City.
c. LAWS AND ORDINANCES. In the exercise of any privilege granted by this License, the City shall
comply with all applicable Federal, State, municipal and local laws, regulations, and ordinances, and the
rules, orders, regulations and requirements of Federal governmental departments and bureaus.
d. SANITARY CONDITIONS. The City shall at all times keep the Premises in a sanitary condition
satisfactory to NASA.
e. DAMAGE. No United States property shall be destroyed, displaced or damaged by the City in the
exercise of the privileges granted by this License without the prior written consent of NASA. NASA'S
consent will be conditioned upon the express agreement of the City promptly to remove all rubble and
debris resulting from the destruction, displacement, or damage to property in the exercise of the privileges
granted by this License. Any proposal by the City to destroy, displace, or damage United States property
under this License which may result in the generation of hazardous waste shall be subject to the
requirements of section II. d. below.
The City shall be liable for any loss of, or damage to, the Premises, including any environmental loss or
damage to the Premises, incurred ai a result of its use, and shall make such restoration or repair or
monetary compensation, as may directed by NASA. The City shall not be responsible for any loss of,
or damage to, the Premises incurred solely as a result of reasonable wear and tear, acts of God, or acts of
NASA, its agents or contractors, occurring during the term of this License. Pre- existing conditions are
covered by section 1. p. below.
f. STORAGE. Any United Slates property which must be removed to permit exercise of the privilege
granted by this License shall be stored, relocated or removed from the site, and returned to its original
location upon termination of this license, at the sole cost and expense of the City, as directed by NASA,
unless NASA determines that such activities will be rendered unnecessary due to the transfer of title of
the Premises from the United States to the City.
g. OPERATION. The City shall confine activities on the Premises strictly to those reasonably necessary
for the enjoyment of the authorized uses hereby Licensed, as set forth in section I1. a., and shall refrain
from unreasonably marring or impairing the appearance of said Premises, obstructing access thereto,
interfering with the transaction of Government business and the convenience of the public, or
jeopardizing the safety of persons or property, or causing public criticism.
The City shall maintain the Premises, including all equipment, fixtures, and appurtenances furnished by
NASA under this License, in as good a repair and condition as the condition of the Premises as of the date
hereof, with the exception of reasonable wear and tear, acts of God, or acts of NASA, its agents or
contractors. The City shall obtain, at its own expense, any utility /energy resources required to operate the
Premises in the desired operable condition ( "Premises Utility Services "). The City shall also provide, at
its own expense, security adequate to maintain the Premises in a safe condition. In addition to the
Premises Utility Services, upon request by NASA the City shall undertake commercially reasonable
efforts to provide available utility service, including uninterruptible power, to NASA for the ongoing
rensediation work ( "NASA Utility Service "). NASA shall reimburse the City for all actual direct costs
and expenses incurred by the City in supplying the NASA Utility Service in a manner to be agreed upon
by NASA and the City. The City shall have the right to contract with any utility provider, in its sole and
absolute discretion, for the supply of the NASA Utility Service. In no event shall the City be required to
assume or be bound by any contract, arrangement or other agreement by which utility service is currently
being provided to NASA for the ongoing remediation work.
h. NOTICE. Any property of the City installed or located on the Premises shall be removed upon thirty
C aw (30). calendar days' written notice from NASA, or upon such notice as indicated in section I. m. below,
unless NASA determines that such activities will be rendered unnecessary due to the transfer of title of
the Premises from the United States to the City.
i. NONDISCRIMINATION. The City agrees that no person will be discriminated against in
connection with the use made by the City of the Premises on the ground of race, color, national origin,
sex, handicapped condition, or age, nor will any person be denied the benefits of or be subjected to
discrimination under any program or activity held, conducted or sponsored by the City in that any
activity, program or use made of the Premises by the City will be in compliance with the provisions of
Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.), Section 504 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and the Age Discrimination Act of 1975, as
amended (42 U.S.C. 6101 et seq.), and the applicable regulations of NASA (14 CPR Parts 1250 - 1252).
The City will obtain from each person or firm, who through contractual or other arrangements with the
City, provides services, benefits or performs work on the Premises, a written agreement whereby the
person or firm agrees to assume the same obligations with respect to nondiscrimination as those imposed
upon the City by law and will furnish a copy of such agreement to NASA.
The breach by the City of conditions relating to nondiscrimination shall constitute sufficient cause for
termination of this License.
j. INDEMNIFICATION. The City shall indemnify and hold harmless the United States, its officers,
agents, servants and employees (the released parties) against any and all actions, claims, demands,
liabilities, losses, or damages whatsoever, that may in any manner be imposed on, or incurred by, the
released parties under the Federal Tort Claims Act, as amended (28 U.S.C. 2671 et seq.), any
environmental law or regulation, or any other law, due to the death or injury of any person, or the loss or
2
1
damage, including environmental loss or damage, to the property of any person, directly or indirectly due
to the exercise by the City of the privileges granted by this License, or to any other act or omission of the
City, including failure to comply with the obligations of this License. Pre - existing conditions are covered
-�— by section 1. p. below. The indemnification provided for in this section 1. j. shall be independent of the
presence or absence of any insurance coverage.
k. INSURANCE. The City, at no expense to NASA, shall carry and maintain the following insurance
during the entire period of this License:
(1) Insurance providing coverage (in the amount of two million dollars ($2,000,000) per occurrence and
in the aggregate) against claims for property damage, and personal injury, including without limitation,
bodily injury or death, occurring upon, in or about the Premises, including any buildings thereon and
adjoining sidewalks, streets, and passageways, which shall include coverage against liability for bodily
injury and property damage arising out of the acts or omissions by or on behalf of any person or
organization using the Premises in connection with the City's activities, including use involving any
owned, non - owned, leased or hired automotive equipment ( "General Liability insurance "). NASA
acknowledges that the City shall: (i) be'self insured for the first one million dollars ($1,000,000) of
General Liability Insurance; and (ii) maintain excess municipal liability insurance in the amount of one
million dollars ($1,000,000) through a pooled system of insurance provided by the independent Cities
Risk Management Authority ( "ICRMA "), in full satisfaction of its General Liability Insurance obligations
under this License. Subject to the terms of section 1. k.(S), the City shall maintain General Liability
Insurance throughout the term of this License. The City's self insurance coverage shall be evidenced by
the issuance of a Certificate of insurance to NASA in the form attached hereto as Exhibit B, concurrently
with the execution of this License.
(2) If and to the extent required by law, the insurance required to be carried and maintained by the City
shall include workers' compensation and employer's liability or similar insurance in form and amounts
required by law.
(3) All policies of insurance which this License requires the City to carry and maintain shall be effected
under valid and enforceable polices issued by insurers of recognized responsibility. All insurance policies
or certificates issued by the respective insurers as provided for above shall be for the mutual benefit of the
United States and the City, and shall name the United States, National Aeronautics and Space
Administration, as either a named insured or as an additional insured, as appropriate for the particular
policy. Each policy shall provide that any losses shall be payable notwithstanding any acts or failure to
act or negligence of NASA-or the City or any other person; provide that no cancellation, reduction in
amount, or material change in coverage thereof shall be effective until at least thirty (30) calendar days
after receipt by NASA of written notice thereof; provide that the insurer shall have no right of subrogation
against the United States; and be reasonably satisfactory to NASA in all other respects. Under no
circumstances will the City be entitled to assign to any third party rights ()faction that the City may have
against the United States. Notwithstanding the foregoing, any cancellation of insurance coverage based
on nonpayment of the premium shall be effective upon thirty (30) calendar days' written notice to NASA.
The City understands and agrees that cancellation of any insurance coverage required to be carried and
maintained by the City shall constitute a failure to comply with a material term of this License, and
NASA shall have the right to terminate this License upon receipt of any such cancellation notice provided
that NASA has first notified the City in writing of its intent to terminate this License on account of such
failure, and the City fails to provide NASA evidence of insurance within fifteen (1 5) days of the City's
receipt of such notice.
(4) The City shalt apply and use any proceeds paid under any insurance policy or policies carried and
maintained by the City pursuant to this License first to satisfy any claims, damages, and costs assessed
against the United States, or to restore, repair or replace any United States property damaged or
destroyed, or both, as the case may be.
(5) Notwithstanding anything to the contrary in this section I. k., the City may satisfy its insurance
obligations under section 1. k. (1) and section 1. k. (2) by requiring its licensees, sublicensees, and invitees
to carry such insurance coverage and requiring that they name NASA an additional insured on policies
evidencing such insurance, in which event the City shall be relieved of its obligations under section
1. k. (1) and section 1. k. (2) until such licensees, sublicensets, and invitees no longer carry such insurance
coverage; provided that NASA has given its prior written approval to each such insurance policy carried,
and provided that the City has assured NASA that no gap in the required insurance coverage will result
from this alternative procedure.
1. NON- ASSIGNABILITY. The License shall be neither assignable nor transferable by the City. The
City may enter into sublicenses under this License upon prior written approval by NASA for each such
sublicense. Such approval shall not be unreasonably denied.
in. TERMINATION. This License shall terminate at the end of one (1) year from the date hereof, unless
renewed pursuant to section 1:. o. below. This License may be terminated at any time by NASA, without
cost to NASA, upon thirty (30) calendar days written notice to the City if: there has been a failure by the
City to comply with any term or condition of this License; or there has been a determination by NASA
that the interests of the national defense, the national space program, or the public welfare require such
termination, or that termination is desirable in order to facilitate disposal of the Premises. If this License
is terminated by NASA, written notice of termination shall be given to the City by the Director ofJSC,
and the termination shall be effective as of the date specified by such notice. This License may be
terminated by the City at any time, upon thirty (30) calendar days written notice to NASA. This License
shall automatically terminate upon the transfer of title to the Premises from the United States to the City,
if such transfer occurs prior to the expiration of this License.
n. ATTEMPTED VARIATIONS. There shall be no variation or departure from the terms of this
License by the City without prior written consent of NASA.
o. RENEWAL. Upon the mutual consent of NASA and the City, this License may be renewed prior to
its termination at the end of its one (1) year term for an additional one (1) year period.
p. PRE-EXISTING CONDITIONS. The City shall not have any obligation, liability or responsibility to
(i) correct, remedy, or indemnify the released parties under section I. j. above, for any violations of
applicable Federal, State, municipal and local laws, regulations and ordinances, and the rules, orders,
regulations and requirements of Federal governmental departments and bureaus in effect as of the date
hereof relating to the physical and/or environmental condition of the Premises existing on or before the
date hereof; or (ii) to remediate, indemnify the released parties under section 1. j. above, or otherwise take
any action with respect to any hazardous substance existing in, on, under, or about the Premises as of the
date hereof not released by the City or any sublicensee, agent or contractor of the City, and for which the
City, or any sublicensee, agent or contractor of the City, is not otherwise responsible. However, the City
agrees that no action shall be taken or omitted which would in any way aggravate any existing violation
of applicable Federal, State, municipal and local laws, regulations and ordinances, and the rules, orders,
regulations and requirements of Federal governmental departments and bureaus in effect as of the date
hereof relating to the physical and/or environmental condition of the Premises. Consistent with section
I. q. below, the City accepts the Premises under this License "As Is ".
q. TRANSFER OF THE PREMISES "AS IS ". The City agrees that the Premises are transferred to the
City under this License "As Is' for the authorized uses contained herein, without any representation,
warranty, or guaranty of any kind as to any matter related to the condition or state of repair of the
Premises, including but not limited to any representation, warranty, or guaranty that the Premises are in a
condition or fit to be used for the purposes authorized by this License. The City acknowledges that it has
inspected, is aware of, and accepts the condition and state of repair of the Premises, and further
acknowledges that NASA has not made any representation, warranty, or guaranty concerning the
condition or state of repair of the Premises.
4
t
II. SPECIAL CONDITIONS --
a. The only authorized uses of the Premises as of the effective date of this License are for film and video
production, other purposes related to film and video production, and site preparation for development
(including environmental testing). NASA may authorize additional uses upon the request of the City,
provided that such uses are not incompatible with ownership of the Premises by NASA. Such
authorization of additional uses must be in writing.
b. The City and NASA recognize the importance of the environmental remediation and monitoring
being undertaken by NASA pursuant to its responsibilities under environmental laws and regulations, and
the necessity of maintaining undisturbed the areas of such environmental remediation and monitoring.
The City will take all necessary measures to secure these areas, listed in Exhibit C to this License, and to
restrict access to these areas to City and NASA employees and contractors with a need to inspect or work
in these areas. The City will also ensure that all activities undertaken pursuant to the above authorized
use or uses are compatible with the proper operation and maintenance of the environmental remediation
and monitoring being undertaken by NASA.
c. The City is authorized to conduct environmental testing upon the Premises for purposes of site
characterization in preparation for development subject to the following conditions. Prior to the
commencement of any environmental testing on the Premises, the City shall provide a work plan for
NASA approval at least ten (10) working days prior to the proposed commencement of testing. The
work plan must outline the kind of testing being proposed, the location and the duration of the proposed
testing, and the methods to be used in such testing. The work plan must also include an opportunity to
• take split samples for analysis by NASA's environmental contractor. The City must provide NASA with
a copy of any reports produced as a result of any tests taken on the site. The work plan should be
submitted to the Environmental Office, NASA Johnson Space Center, 2101 NASA Road 1, Mail Code
JA131, Houston, Texas 77058. NASA will use it best efforts to either approve or deny approval to the
plan within ten (10) working days of receipt of the work plan by the P- nvironmental Office.
Environmental testing shall not commence before the approval of NASA is obtained. If approval is
denied. NASA will give its reasons for such denial, and will use its best efforts to work with the City to
help formulate an acceptable work plan for environmental testing.
d. Any proposal by the City to destroy, displace, or damage United States property under this License
which may result in the generation of hazardous waste pursuant to the Resource Conservation and
Recovery Act (RCRA), as amended, 42 U.S.C. 6901., shall include a work plan for N ASA
approval containing a description of the proposed process for packaging and handling the hazardous
waste, and transferring the hazardous waste off site, including record - keeping procedures and the
identities and Environmental Protection Ageny ID numbers of all entities involved in the generation,
transportation, and disposal of the hazardous waste. The work plan should be submitted to the
Environmental Officc,'NASA Johnson Space Center, 2101 NASA Road 1, Mail Code JA 131, Houston,
Texas 77058. NASA will use it best efforts to either approve or deny approval to the plan within twenty
(20) working days of receipt of the working plan by the Environmental Office. No United States property
containing hazardous waste shall be destroyed, displaced or damaged before the approval of NASA is
obtained. If approval is denied, NASA will give its reasons for such denial, and will use its best efforts to
work with the City to help formulate an acceptable work plan for hazardous waste disposal.
e. The City shall forward any funds received from the sale of United States property destroyed,
displaced, or damaged under this License, including but not limited to sales for recycling or materials
recovery purposes, net of reasonably allocated coats, to the following address: JSC Collection Agent,
NASA Johnson Space Center, 2101 NASA Road 1, Mail Code LZ, Houston, Texas 77058.
t ow f. The City and NASA acknowledge the existence of numerous structures on the Premises which have
been identified as having historical significance, and that a Memorandum of Agreement (MOA), dated
• 5
c.
April 2, 2001, has been entered into between the City , NASA, the General Services Administration
(GSA) and the California State Historic Preservation Officer (the Historic Property MOA) to protect the
historical nature of these structures. lie City will take all necessary measures to ensure that all activities
undertaken pursuant to the above authorized use or uses are compatible with the Historic Property MOA.
The structures subject to the Historic Property MOA include Buildings 1, 6, 10, 11, 25, 36, 39, 41, 42,
108, 120, 123, 125, 126, 127, 128, 130, 288, and 290. (he parties agree that this listing of structures
covered by the MOA is not all inclusive.) Furthermore, the City shall provide a copy of the MOA along
with all referenced documents to any sublicensee, agent or contractor, and agrees to provide oversight to
make certain that all aspects of the MOA arc properly complied with by any sublicensee, agent or
contractor. The parties agree that failure to comply with the MOA shall constitute a sufficient cause for
termination of this License.
g. Prior to the commencement of any film production activity on the Premises, the City shall afford
NASA a reasonable opportunity to review the script, to ensure that the script does not compromise or
otherwise adversely affect the integrity, reputation, and high standards associated with NASA and the
U.S. Government. Film production activity shall not commence before the approval of NASA is
obtained. NASA will use its best efforts to initially approve or deny approval of the script within twelve
(i 2) working days of receipt of the script by the JSC Realty Officer, NASA Johnson Space Center,
2101 NASA Road 1, Mail Code JA16, Houston, Texas 77058, who will forward the script to NASA
Headquarters for review, if necessary.
h. For any authorized use pursuant to which the City derives net revenue during the term of this License,
the City shall submit to the Collection Clerk at the address shown below at the end of the one (1) year
term of this License, and at the end of the one (1) year renewal period, if applicable, a certified statement
itemizing its operating expenses and the revenues derived from the use or the Premises, along with a
check or money order made payable to NASA for 50 percent of the revenues generated by the use of the
Premises in excess of the City's expenses. The certified statement and payment, if any, shall be mailed•to
Car the following address: JSC Collection Agent, NASA Johnson Space Center, 2101 NASA Road 1, Mail
Code LZ, Houston, Texas 77058. (All such revenues received by the JSC Collection Agent shall be
deposited in the miscellaneous receipts accounts of the U.S. Treasury.)
i. For purposes of implementing the above GENERAL CONDITIONS and SPECIAL CONDITIONS
clauses, prior to commencing any activities encompassed by the above authorized use or uses,. the City
shall submit a plan to the Environmental Office, NASA Johnson Space Center, 2101 NASA Road 1, Mail
Code JA 13 1, Houston, Texas 77058, which shall include the following: 1) a description of the locations
proposed to be utilized for such activities, including the specific buildings and areas to be utilized;
2) whether flammable or hazardous materials will be used in the performance of the activities, including
the proposed utilization of any Federal or State Iisted hazardous or toxic materials, pyrotechnic devices,
bio hazardous materials, radioactive materials, or hazardous wastes from any off; - site location; 3) whether
individuals who are not employees of NASA or the City will be invited onto the Premises; and 4) the
precautions and safeguards to be implemented for purposes of complying with Federal, State, municipal
and local environmental and health and safety laws, regulations, and ordinances. The plan must contain a
certification by the Fire Marshal of the City, or other appropriate City official, to the effect that the
proposed activities are compatible with the areas in which they are to be performed, with the Historic
Property MOA, and with the proper operation and maintenance of the environmental remcdiation and
*monitoring areas; and that the proposed activities comply with all Federal, State, municipal and local
'ironmental and health and safety laws, regulations, and ordinances.
1
IN WITNESS WHEREOF, NASA and the City have executed this license of the date last set forth below.
FOR NASA:
A Roy S. Estcss
Acting Director
Lyndon B. Johnson Space Center
FOR THE CITY:
12c_
Robert C. Winningham
Mayor
City of Downey
:
AT:
APPROVED AS TO FORM:
0tAid5isdi CdalimPtt-#c
Special Legal Counsel
7
Date: A,/ .21 00 1
Date: NO V • • �l
c.
c
c.
EXHIBIT "A"
PSOMAS
.1 - LEGAL. PESCROMON
2 PARC z.
3
4 Those portions of Lots 2 and 3 and the northwest quarter of the southwest quarter
of ftacdoaai Section 10, Township 3 South, Range 12 West, in the Rancho Santa
6 Gertaudes. in the City of Downey. County of Las Angeles, State of Callfomin as
7 per map txoaded in Book 1. Pare 502. of 1vBsecilarteoas Records, records of said
County. descaibed as a whole at follows:
9
10 Beginning at a point on the northerly line of Lot 2. In said northwest qustner of
11 frectionsl Section 10, said liras also being the northerhy litre of Stewart and Gray
12 Road, 80 feet wider, distant thereon South 89 degrees 52 minutes 14 seconds WC-St
13 64651 feet from the northeast eotneu of said lot 2; thence on a line between said
14 point of beginning and the southwest corner of the southeast gutter of the
15 northeast quarter of the southwest quutcrof said ftsctfooal Secdoa 10, South 0
16 degrees 13 minutes szeonds West 122241 &et; than; South 89.degrccs 51
11 minutes 04 seconds west 318.22 feet•. thence South p degrees 08 situates 56
11 *seconds £eat 70.39 feet-. theme South 89 degrees 46 ulittutcs 04 rewinds Wcst
19 1039.00 feet; thence South 0 degrees 08 orient:4 56 seconds East 25.70 feet
m theme South 89 depots 51 minutes 04 seconds West 357.50 feet to the
21 northwesterly line of said fractional Secdoa 10, said line being parallel with sad
21 distant 20.00 feet southeasterly, !reamed at right angles, frees the centerline of
23 Lakewood Boulevard 80 fat wide. u shown, oo County Surveyors 13 Sedcs Map
24 No. 1141, on She in the office of the County Engineer of said County; thence
25 long said northwestcdy line of frictional Section 10. North 91 degrees 41
26 minutes 38 seconds East 1583.10 feet to an angle point* thence along Same North
27 31 degas 29 miautcs 35 seconds East 558.11 feet to the northedy line of said
. 23 Lot 2 thence along said norihedy find. North 89 degrdes 52 minutes 11 Sat
24 East 597.82 feet to the point of beginning.
etatnotselrelepIereeeluaee
r; tt9a
Shcct 1 01'2
99 0690589
LEGAL DESCRIPTION
BEING A PORTION OF SECTION 10, TOWNSHIP 3 SOUTH, RANGE 12 WEST, RANCHO
SANTA GERTRUDES_ IN THE CITY OF DOWNEY, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA PER THE MAP THEREOF RECORDED IN BOOK 32, PAGE 18 OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID LOS
ANGELES COUNTY, DESCRIBED AS FOLLOWS:
COMMENCING AT THE MONUMENT IN THE CENTERLINE INTERSECTION OF LAKEWOOD
BOULEVARD AND STEWART AND GRAY ROAD, AS SAID MONUMENT IS SHOWN ON
• CALIFORNIA DEPARTMENT OF TRANSPORTATION DISTRICT 7- SURVEY FIELD NOTES,
FIELD BOOK ALA019C, PAGE 35;
THENCE SOUTH 9 ° 0610" EAST A DISTANCE OF 544.13 FEET TO THE TRUE POINT OF
BEGINNING;
THENCE SOUTH 0 °03'04" EAST A DISTANCE OF 152.85 FEET;
THENCE NORTH 89 °55'45" EAST A DISTANCE OF 278.72 FEET;
THENCE NORTH 0 "08'30" WEST A DISTANCE OF 204.40 FEET;
THENCE NORTH 88 °52'21" WEST A DISTANCE OF 148.88 FEET;
THENCE SOUTH 0 ° 05'48" WEST A DISTANCE OF 19.43 FEET;
THENCE NORTH 89 °41'01" WEST A DISTANCE OF 76.82 FEET;
THENCE SOUTH 0 °09'10" EAST A DISTANCE OF 36.71 FEET;
THENCE NORTH 89 ° 14'03" WEST A DISTANCE OF 52.74 FEET TO THE TRUE POINT OF
BEGINNING.
GORDON D. EDWARDS
PIS 6678 EXPIRES 6-30- 2004
PSONIAS
Except the northwesterly 20 feet of that portico lying southerly of the southerly
One of the land described in dte deed to J IL Klieg, u recorded in Hook 20, Page
567 of Deed,. monde of said County, included in roads,
Zlris Legal Deseriptioa u described II delineated OA the actlmpsuying "Ct1Y OF
DOW -NASA SIT MAP" and is made a part hereof for reference
purposes.
This legal description is not kneaded to be used in the conveyance of land in
violation of the Subdivision Map Acid the state of California.
•
Robert C Olson, PLS 5490 •
Proms and Associates
pare; , g r a9.91' .
CITY OF DOWNEY — - NASA
EXHIBIT MAP
PARCEL
town or w1Krc
7
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4 That putlon of the southwest quarto of fractional Section 10. Township 3 South, Runge
S 12 West. in the Rancho Santa Gexavdes, in the City of Downey. County of Los Angeles,
6 Start of California u pu map terarded in Rook 1, Page 502. of Miseellancous Records,
t records of said County, described as follows
$
9 Beginning at m print on the northerly line of Lot 21n said northwest quarter of fractional'
to Secion 10, said line also being die uottltcdy lint of odd Stewart and Gray Road, 80 feet
! 1 wide. distant them South 89 degas 52 minutes 14 seconds West 646.51 feet from
12 the northeast corner of said Lot 2: thence on a 6ae betwcen said point of lsegumIng and
19 the southwest corner of the southeast questa of the natthesst quail r of dm soethwett
14 quarter of said fiacdon3l Section 10, South 0 dew 13 minutes 16 seconds West
1S 172221 feet to the title point of begianinx thence South 89 degtets S1 minutes 04
16 seconds West 313.22 feet; t South 0 degarttt 03 minutes 56 seconds East 1039
17 fact; thence South 39 degrees 46 minutes 04 seconds West 1039.00 fe e4 thence South 0
11 demos 08 minutes 56 seconds Eau 2.5.70 fo= thence South 89 degrees 51 minutes 04
19 seconds West 333.96 feet to the southeasterly line of Lakewood Boulevard. 80 feet
20 wide, as shown on County Suuveyors H Sexier Map No. 1147, an file in tha office of the
21 County Engineer of said County; thence along said southeasterly line of Lakewood
n Boulevad South 31 degtces 41 minuses 33 saouds West 505.70 feet to the easterly lino
23 of Clads Avenue, 70 fat wide, as shown on mid County Surveyors B Series Map No,
A 1147; thence along said easterly line of Clash Avenue South 0 degrees 03 slimes 38
23 • seconds West 46336 feat to a line which is parallel with mad 593.40 feet nordiedY.
24 meastat:d at right llgles. hots the northerly line of Pareei Map No. 24577, in said City.
27 as pct trap filed in Book 273, Pages 73 through! 75, inclusive of Patter Maps, maids of
2s said County; thcux along said parallel line North 89 dogmas 51 minutes 30 seconds
29 East 96226 fee to thenorLhcdy prolongation of the easterly rly line of said Parcel Map No.
PSOMAS
DESO UPT1ON
2 PAM: 70
2
3
euartta
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mojee
Shea i of 2
- . . • • ..r. ..r
- 99 0690589
1 245Th thence along said northerly prolongation Souds 0 degmea 00 minutes 20 seconds
2 East 407.41 feet to nt line parallel with and 544.00 fat northerly, commuted at right
3 angler to the southerly+ line of fractional Sexton 10; thence along said parallel line North
(ipe 4 19 degica S 1 Minutes 30 seconds First 991.56 feet to the easterly line of the wcstetly
s hallo( the southeast quarter of the soathwrat quarter of raid eamda ial Section 10;
6 theme North 0 degrees 02 minutes 18 seeamada West 477.41 feet to the southwest wader
• 7 of the southeast quarter of the northeast quartet old* southwest quarter amid
1 (melons' Section 10; thence North 0 degrees 13 mina ea 16 maids Feast 92282 feet to
9 tlta ttn0 point of beginning.
10
al This Lepi Description as descdbcd is delineated as the accompanying "CITY OF
1a DOWNEY - NASA F.7Q1T MAP"' and Is made a part hereof for reference purpoes.
13
14 This Segal dcs«iption is not intended to be used in the conveyance of land In Yiotat ion
15 of the Subdivision Map Mt of the state of California.
16
17
19
1,--ear
20 t f Robert C. Olson. PIS 5490
21
/ / itw0
r ' E Psonaas and Associates
23 •
24
25.
26
27
21
29
•
Sheet 2 of 2
99.069058g
1
CITY OF DOWNEY - NASA
EXHIBIT MAP
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EXHIBIT `B"
c Ltt oi oCJownew
CERTIFICATE OF INSURANCE
OR SELF INSURANCE
('UTURE UNLIMITED
In the event of cancellation of the self - insurance programs or policies designated
below, it is the intent of the City of Downey to mail 30 days' prior notice thereof
to:
The City of Downey certifies that the following self - insurance programs or
insurance policies are in force:
WORKERS COMPENSA SELF - INSURED INDEFINITE
MICR..: J DATE
FINANCE DIRECTOR! MANAGER
CITY OF DOWNEY
JSC Realty Officer
NASA Johnson Space Center
2101 NASA Road 1, Mail Code JA16
Houston, Texas 77058
_17,_ •1...7,. -- -7110,., MI II ., ,L
TYPE OF COVERAGE COMPANY & POLICY LIMITS OF LIABILITY
POLICY NO. PERIOD
BODILY INJ. PROP DAMAGE
COMPREHENSIVE GENERAL SELF - INSURED INDEFINITE $1,000,000 COMBINED SINGLE LIMITS
LIABIUT Y end. AUTO UADILCTY
s
ROr iafarmatiaa regatdiag the above self - insurance covera =c please mama the Roam Depatlmbat at (310) 904.7264
It\RNANCEUM1CIUCOFFUNS CERTIFICATE
11111 °ROOKSHIRE AVENUE POST OFFICE BOX 7016 DOWNEY. CALIFORNIA 90241 -7016
NO COVERAGE
THIS CERTIFICATE IS NOT VALID UNLESS SICKED BY AN AUTHORIZED REPRESENTATIVE OF THE CITY OF DOWNEY.
chv
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EXHIBIT "C"
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36484
1
EXHIBIT "C"
Existing Environmental Documents (Recital D; Section 93)
1. Proposal for Environmental Insurance - City of Downey, California; IRG
Environmental, LLC; undated but circa July 2002
3. Groundwater Monitoring Report First Quarter 2002 NASA Industrial Plant 12214
Lakewood Boulevard, Downey, California 90241; Earth Tech; April 30, 2002 .
4. City of Downey - Downey Landing Specific Plan; EIP Associates; February 2002
5. Additional Site Assessment Report - NASA Industrial Plant 12214 Lakewood
Boulevard, Downey, California Project Number 36484; Earth Tech; February 15,
2002
6. Work Plan for Phase 11 Environmental Site Assessment and Risk Assessment
Former Parcel II Portion and Parcel IV of NASA/Boeing Industrial Facility 12214
Lakewood Boulevard Downey, California; SECOR International Incorporated;
January 29, 2002
7. Phase I Environmental Site Assessment Report Former Parcel 11 Portion and
Parcei IV of NASA/Boeing Sndustrial Facility 12214 Lakewood Boulevard
Downey, California SECOR Job Number 037.20576.001; SECOR International
Incorporated; November ' 5, 200 i
5. Draft Health Risk Assessment Former NASA Industrial Facility; Downey,
California, Clayton Group Services, Inc., October 2001
9. Midpoint Sampling Report Building 244 and Additional Assessment Building 287
NASA industrial Plant 12214 Lakewood Boulevard Downey; California 90241-
7009; Earth Tech; August 3, 2001
10. Report of Phase 1 Environmental Site Assessment Proposed Bellflower
Replacement Hospital Near Northwest Corner of Imperial Highway and
Bellflower Boulevard Downey, California (LAW Project 70131 -1- 0097.0002);
LawGibb Group; May 8, 2001
11. Radiation Survey of the Downey Facility (RS- 00019); The Boeing Corporation;
March 1, 2001
• LAR27539.21
EXHIBIT C
List of Environmental Documents Describing Environmental Condition
of NASA Site
Groundwater Remediation Scope of Work - Enhanced Reductive Dechlorination -
NASA Industrial Plant, Downey, California, AGM, undated but circa July 2002
12. Additional Site Assessment Report Parcel 1 and Parcel II NASA Industrial Plant
12214 Lakewood Boulevard, Downey, California 90241 4009; Earth Tech, Inc.;
September 28, 2000
13. Interim Remedial Action Plan Building 244 Area NASA Industrial Plant 12214
Lakewood Boulevard Downey, California 90241 -7009; Earth Tech; June 27, 2000
14. Environmental Assessment for the Disposal and Reuse of NASA Industrial Plant
Downey, California, NASA; May 2000
15. Preliminary Assessment Report Parcel 1 NASA Industrial Plant 12214 Lakewood
Boulevard, Downey, California 90214 -7009; Earth Tech; May 30, 2000
16. Preliminary Assessment Report Parcel 2, NASA Industrial Plant 12214 Lakewood
Boulevard, Downey, California 90214 -7009; Earth Tech; May 31, 2000
17. Environmental Assessment Disposal and Reuse of NASA Industrial Plant
Downey, California; NASA; February 2000
18. National Aeronautics and Space Administragon NASA Contract NASA -4598
Task Order Number 87 Environmental Baseline Survey of Parcel 1 NASA
Industrial Plant Downey, California; Foster Wheeler Environmental Corporation;
January 2000
19. Work Plan for Geo- technical Investigation Proposed Kaiser Bellflower Hospital
Facility Northwest Corner of Imperial Highway and Bellflower Boulevard 12214
Lakewood Boulevard, Downey, California; SECOR International Incorporated;
January 29, 2000
20. Application for Permit to Construct/Operate NASA Industrial Plant 1214
Industrial Plant 12214 Lakewood Boulevard Downey, California; Earth Tech;
December 29 [ 999
21. Final Historic. Buildings and Structures Inventory and Evaluation National
Aeronautics and Space Administration Industrial Plant Parcels 1 and II, Downey,
California; Earth Tech; November 1999
22. Quality Assurance Plan and Field Sampling Plan NASA Industrial Plant 12214
Lakewood Boulevard Downey, California 90241 -7009; Earth Tech; November
12, 1999
23. Underground Storage Tank Closure Report Boeing North American 12214
Lakewood Boulevard Downey, California; Earth Tech; September 17, 1999
W727S39 21
2
c.,
24. Site Assessment Report Building 244 NASA Industrial Plant 12214 Lakewood
Boulevard Downey, California 90241 -7009; Earth Tech, Inc.; August 16, 1999
25. -90 -Day SVE Pilot Test Report - ApriVMay 1999 Building 244 NASA Industrial
Plant 12214 Lakewood Boulevard Downey, California; Earth Tech; June 14, 1999
26. 90 -Day SVE Pilot Test Report Mach 1999 Build 244 NASA Industrial Plant
12214 Lakewood Boulevard, Downey, California; Earth Tech, April 26, 1999
27. Groundwater Well Installation Report - Parcels 1 and [[ NASA Industrial Plant
12214 Lakewood Boulevard, Downey, California 90241 -7009; Earth Tech,
February 3, 1999
28. Underground Storage Tanks Removal Closure Report Building 25 Area NASA
Industrial Plant 12214 Lakewood Boulevard Downey, California; Earth Tech;
July 30, 1998
29. LA -105 De- watering Model Study Los Angeles County, California CALTRANS
Contract Number 43Y046 EA-C3408; Professional Service Industries; April 3,
1998
30. Soil Investigation Report Parcels 3, 4, 5, and 6 NASA Facility Downey,
California (File Number 0197120.01); SCS Engineers (SCS); February 1998
31. Health and Safety Plan NASA Parcel 1 Site Assessment 12214 Lakewood
Boulevard Downey, California; Earth Tech, Inc.; October 1997
32. Initial Site Investigation Report Parcels 1 and II NASA industrial Plant 12214
Lakewood Boulevard Downey, California 9021 -7009; Earth Tech, Inc.; April 14,
1997
33. Closure Report for Underground Diesel and Gasoline Storage tanks at Rockwell
International Corporation 12214 Lakewood Boulevard, Downey, California; Earth
Tech; October 24, 1996
34. Subsurface Soil Investigation Parcels 4, 5 and 6 NASA Industrial Plant Downey,
California; Groundwater Resources Consultants, Inc.; August 21, 1996
35. Environmental Baseline Survey of Parcel 5 NASA Industrial Plant Downey,
California; Foster Wheeler Environmental Corporation; July 1996
36. Closure Report for Underground Diesel Tanks at Rockwell International
Corporation 12214 Lakewood Boulevard, Downey, California 902241 -7009;
Earth Tech; May 23, 1996
LA/72709.21
3
• 37. Groundwater Monitoring Report July 1996 Former Tank 015 Site Rockwell
International Corporation Space Systems Division Downey, California;
Groundwater Resources Consultants, Inc.; August 26, 1996.
38. Phase II Investigation Groundwater Conditions Tank 011 Area Rockwell
International Corporation Space Systems Division Downey, California;
Groundwater Resources Consultants, Inc.; March 17, 1995
39. Environmental Site Assessment Helipad Area NASA Industrial Facility Downey,
California; Fugro McClelland, Inc., May 1993
40. Limited Subsurface Environmental Assesstnent Investigation Rockwell
International 12214 Lakewood Boulevard, Downey, California; Active Leak
Testing; April 1993
41. Tank Removal Report - Building 36, Tank #15: Active Leak Testing; March 2,
1992
42. Tank Removal Report - Building 249, Tank #20: Active Leak Testing; January
28, 1992
43. Tank Closure Report Rockwell International Space Transportation Systems
Division 12214 Lakewood Boulevard Downey California; Active Leak Testing,
March 29, 1990
44. Report of Site Investigation Performed At Space Transportation Systems Division
Rockwell International Corporation 122114 Lakewood Boulevard Downey,
California 90241 Building 61 Tank Number 1; Active Leak Testing Incorporated;
August 1988
45. Final Report of Site Investigation Performed For Rockwell International
Corporation Downey Facility 12214 Lakewood Boulevard, Downey, California
Phase III- Sumps; Active Leak Testing, Inc; May 1988
46. Interim Report of Site Investigation Performed for Rockwell International
Corporation Downey Facility 12214 Lakewood Boulevard, Downey, California;
Active Leak Testing, Inc; April 1, 1988
47. Interim Report of Site Investigation Performed for Rockwell International
Corporation Downey Facility 12214 Lakewood Boulevard Downey, CA Phase I[;
Active Leak Testing, January 1988
48. A Work Plan for Rockwell International Corporation Downey Facility (UST
Investigations); Active Leak Testing, Inc.; August 1987
LA1727539.21
49. Rockwell International Downey Facility Environmental Resources Document
(SOD 80- 0511); Rockwell Intemational; December 1980
50. Rockwell International Downey Complex, Downey, California- Asbestos Survey
Report; Baker Consultants, Inc.; The report is undated, but laboratory results are
dated July 21, 1986
51. Legal Description of Parcels 1 through 6 (each a separate document); PSOMAS
Professional Land Surveyor, March 1997 through April 1998 .
52. Groundwater Monitoring Report Fourth Quarter 2001 Parcels 1 and II NASA
Industrial Plant 12214 Lakewood Boulevard, Downey, California; Earth Tech;
January 11, 2002 °
53. Groundwater Monitoring_ Report and Hydropunch Sampling Report Second
Quarter 2000 Parcels 1 and 11 NASA Industrial Plant 12214 Lakewood Boulevard,
Downey, California 90241 -7009; Earth Tech; August 29, 2000
54. Groundwater Well Gauging and Sampling Report First Quarter 2000 Parcels I and
[1 NASA Industrial Plant 122I4 Lakewood Boulevard Downey, California 90241-
7009; Earth Tech; May 3, 2000
55. Groundwater Monitoring and Hydropunch Sampling Report Fourth Quarter 1999
Parcels 1 and 11 NASA Industrial Plant 12214 Lakewood Boulevard Downey,
California; Earth Tech; May 3, 2000
56. Groundwater Well Gauging and Sampling Report Third Quarter 1999 Parcels . 1
and I1 NASA Industrial Plant 12214 Lakewood Boulevard Downey, California
90241 -7009; Earth Tech; February 28, 2000
57. Groundwater Well Gauging and Sampling Report Second Quarter 1999 Parcels I
and [1 NASA Industrial Plant I2214 Lakewood°Boutevard Downey, California
90241-7009; Earth Tech; July 31, 1 999
58. Groundwater Well Gauging and Sampling Report First Quarter 1999 Parcels I and
II NASA Industrial Plant 12214 Lakewood Boulevard Downey, California 9024 (-
7009; Earth Tech; July 22, 1999
59. Replacement Groundwater Well Installation and Groundwater Sampling Report
Parcels 1 and II NASA Industrial Plant 12214 Lakewood Boulevard Downey,
California 90241 -009; Earth Tech; June 24, 1999
60. Groundwater Monitoring Report Parcels I and II NASA Industrial Plant 12214
Lakewood Boulevard Downey, California 90241 -7009; Earth Tech June 20, 1999
LA/72753921
61. Phase II ESA Report, Former Parcel II and Parcel IV of NASA/Boeing Industrial
Facility, 12214 Lakewood Boulevard, Downey, California; SECOR; November
25, 2002. .
62. Risk Assessment of Construction/Operation of Hospital Complex Report,
Proposed Downey Facility, California; SECOR; September 10, 2002.
63. Clayton Group Services (CGS), 2000. Review of Environmental Baseline
Reports, NASA Downey Industrial Facility, Downey, California. April 13.
64. Clayton Group Services (CGS), 2001. Technical Memorandum, Results of the
Surface Flux Chamber Testing at the NASA Site located in Downey, California.
September.
65. Environmental Resolutions (ER), Inc., 2000. Work plan addendum listing
production wells within a one -mile radius of 11445 Dolan Avenue, Downey,
California. March 14.
66. Earth Tech (ET), Inc., 1996. Closure Report for Underground Diesel Tanks at
Rockwell International Corporation, 122I4 Lakewood Boulevard, Downey,
California. May 23.
67. Foster Wheeler Environmental Corporation, 1999. Environmental Baseline
Survey, Parcel II, NASA Downey, Industrial Facility, Downey, California. June.
68. National Aeronautics and Space Administration (NASA), 2000. Environmental
Assessment, Disposal and Reuse of NASA Industrial Plant, Downey, California.
May.
69. Phase I ESA, Spartan Lacquer and Paint Corporation, 9255 East Imperial
Highway, Downey, California; SECOR; March 1, 2002.
70. Phase I ESA, Former Building 305 of Rockwell Boeing Facility, 12254
Bellflower Boulevard, Downey, California; SECOR; September 13, 2001.
71. Expedited Phase I[ ESA, Former Boeing Building 305, 12254 Bellflower
Boulevard, Downey, California; SECOR; November 7, 2001.
72: Department of Toxic Substances Control, Memorandum Regarding: Risk
assessment of Construction/Operation of Hospital Complex Report, Proposed
Downey Facility, California, December 20, 2002.
73. Department of Toxic Substances Control, Memorandum Regarding: Phase 2
Environmental Site Assessment Final Report, Former Parcel II Portion and Parcel
74. Department of Toxic Substances Control, Memorandum Regarding:
Geologic/Hydrogeologic Review of Preliminary Endangerment Assessment
Equivalent for a portion of the former Parcel II and Parcel IV of the
NASA/Boeing Industrial Facility (Phase I and Phase [I Reports). 12214 Lakewood
Boulevard, Downey, California, January 13, 2003.
75. Workplan for Additional Phase I[ Environmental Site Assessment, Parcel II
Portion and Parcel IV of the Former NASA/Boeing Industrial Facility, 12212
Lakewood, Boulevard, Downey, California, SECOR International, April 18,
2003.
76. Groundwater Monitoring Report, Fourth Quarter 2002, NASA Industrial Plant,
I2214 Lakewood Boulevard, Downey, California, Earth Tech, Inc., March 12,
2003.
77. Environmental Baseline Survey of Parcel I, NASA Industrial Plant, Foster
Wheeler Environmental Corp., January 2000.
78. 'Environmental Baseline Survey of Parcel III, NASA Industrial Plant, Foster
Wheeler Environmental Corporation, April 1996.
79. Environmental Baseline Survey of Parcel [V, NASA Industrial Plant, Foster
Wheeler Environmental Corporation, July 1996.
80. Environmental Baseline Survey of Parcel VI, NASA Industrial Plant, Foster
Wheeler Environmental Corporation, July 1996.
81. Site Assessment Report, Earth Tech Inc., December 15, 1997.
82. Covenant Deferral Request for the 96 -Acre Parcel, NASA, January 30, 2002.
83. Report of Site Investigation Performed at Space Transportation Systems Division,
Active Leak Testing Inc., August [988b.
84. LA -105 Groundwater Investigation Construction Dewatering Project, Los
Angeles County, California, Volume I, Professional Service Industries, February
23, 1998 [Excerpted Portions].
85. Subsurface Soil and Groundwater Investigation Requirements — NASA,
California Regional Water Quality Control Board, November 5, 1999.
86. DTSC Correspondence regarding their non - involvement in a non - emergency
release, DTSC, March 5, 1998.
I.A/12753921
IV of NASA/Boeing Industrial Facility, 12214 Lakewood, Boulevard, Downey,
California, January 9, 2003.
L
87. Non - Emergency Release Report, Boeing, February 6, 1998.
88. Correspondence Characterization of Oil from an UST, NASA Industrial Park,
Downey, California, Global Geochemistry Corporation, February 9, 1998.
r
89. DTSC Correspondence, Non - emergency Hazardous Substance Release Report —
NASA Industrial Plant — Report #94 -R3 -19 -022, DISC, February 27, 1995.
90. Non - emergency Release Report, Rockwell International, December 23, 1994.
91. Results of Soil and Groundwater Sampling in the Vicinity of Spartan Lacquer and
Paint, Groundwater Resources Consultants, Inc., November 10, 1994.
92. Groundwater Monitoring Report, Former Tank 011 Site, Groundwater Resources
Consultants, Inc., July 1996.
93. Transmittal Letter to County of Los Angeles, Tank Permit Corrections, Rockwell
Aerospace, February 18, 1997. .
94. Transmittal Letter to County of Los Angeles, Sump Exemption Determination,
Rockwell Aerospace, October 28, 1996.
95. Map, Plant Fire House, North American Aviation, Unknown Date.
96. Operational Report, Third Quarter 2001, Soil Vapor Extraction System Building
244, NASA Industrial Plant, Downey, California, Earth Tech, Inc., February 5,
2002. NEED TO VERIFY DATE.
97. Draft Letter to Mr. Douglas B. Gray to follow up on the meeting held on 09/28/00
at the NIP in Downey & on 09/18/00 request for documents & information,
Slosky & Company, Inc., July 10, 2001.
98. Existing Data Gaps, Former NASA Industrial Site, Downey, California, Clayton
Group Services, September 10, 2001.
99. Work Plan for Subsurface Investigation, Building 25 and Midpoint Wells, NASA
Industrial Plant, I2214 Lakewood Boulevard, Downey, California 90241 -7009,
Earth Tech, Inc., August 16, 1999.
100. Transmittal of Preliminary Results of the October 2000 Environmental Sampling
NASA Industrial Plant, Slosky & Company, December 19, 2000.
101. Permit to Construct Soil Vapor Extraction and Treatment System, NASA
Industrial Plant, Building 244, South Coast Air Quality Management District,
May l9, 2000.
LA/127539.21
102. Map/Drawing, General Arrangement – Water Conditioning and Wastewater
Treatment Facilities, Rockwell International, Downey, CA, August 1993.
103. Map/Drawing, Plot Nan & Tank Schedule, Rockwell International, May 1995.
104. Map/Drawing, Building & Property Ownership, Consolidated Vultee Aircraft
Corporation, November 1, 1944.
105. Results of Observations Near a Pipe Break and Contaminant Metals Analysis
Performed at Space Transportation Systems Division Rockwell International
Corporation, Building 61– Excavation Pit, Active Leak Testing Inc., August
1988a..
106. Correspondence to the RWQCB Concerning Former Sumps, Clarifiers, and Tanks
at the NASA Industrial Plant, Earth Tech, February 7, 2000.
107. Geophysical Investigation of Possible Underground Storage Tanks, Boeing North
American, NASA Industrial Plant, Earth Tech, May 7, 1999.
108. Correspondence from Regional Water Quality Control Board Regarding Soil and
' Groundwater Remediation, NASA Industrial Plant, April 11, 2001
•109. Tank and Sump Summary Table, Provided by Earth Tech (electronic file), March
26, 2002.
110. Correspondence from Regional Water Quality Control Board Regarding Time
Schedule for Additional Investigation and Remediation, NASA Industrial Plant,
September 26, 2001.
111. Correspondence from Regional Water Quality Control Board Regarding
Determination of the Status of Remediation, NASA Industrial Plant, March 21,
2001.
112. Correspondence from Regional Water Quality Control Board Regarding Interim
Remediation Action Plan Approval— Building 244, NASA Industrial Plant,
March 20, 2001.
113. Correspondence from Regional Water Quality Control Board Regarding Spills,
Leaks, Investigations and Cleanups Cost Recovery Program – NASA File No. 97-
197, November 20, 1998.
114. Correspondence from U.S. Environmental Protection Agency NASA Industrial
Plant, Downey, California, July 2, 2001.
LA1727539.21
115. Correspondence Regarding Review of Soil Data from Parcels IV, V, and VI and
Release Reporting Requirements, NASA Industrial Plant, Foster Wheeler
Environmental Corporation, September 13, 1996.
116. Memorandum Regarding Need for Additional Site Characterization and
Documentation, Downey NASA Industrial Plant, Leonard Slosky, Slosky &
Company, October 22, 2001.
117. Correspondence Regarding Current Outstanding Environmental Issues, Former
NASA Industrial Site, Downey, California, Ed Steward, Clayton Environmental
Services, November 8, 2001.
118. Memorandum Regarding Soil Staining and Pond Along Old Vultee Runway,
Leonard Slosky, Slosky & Company, October 17, 2001.
119. Correspondence Regarding Draft Environmental Assessment, May 2000 For
Disposal and Reuse of NASA Industrial Plant in Downey, California, Department
of Toxic Substances Control, August 24, 2000.
120. Groundwater Results for Hexavalent Chromium, NASA Industrial Plant Parcels 1
and [[, Earth Tech, January 14, 2002.
121. Documents in File Related to Permit for gallon Underground Storage Tank
for Herbicide Located Near Building 39, 1956 -1957.
122. Agency Contact Report, Boeing, March 15, 2000.
'123. Groundwater Monitoring and Upgradient Hydropunch Sampling Report, Second
Quarter 2002, NASA Industrial Plan, 12214 Lakewood Boulevard, Downey,
California, Earth Tech, September 6, 2002.
124. Groundwater Monitoring Report, Third Quarter 2002, NASA Industrial Plan,
12214 Lakewood Boulevard, Downey, California, Earth Tech, December 4, 2002.
125. Response to CGS Review of Geology and Seismology, Kaiser Bellflower Medical
Center, 12214 Lakewood Boulevard, Downey, California; OSHPD Permit
Number HL-020740 -19; SECOR International Incorporated; April 15, 2003.
126. Letter Transmitting Comments Regarding "Workplan for Additional Phase [I
Environmental Site 127.Assessment (Workplan), Parcels I[ & [V of the
NASA/Boeing Facility, Downey, California," Department of Toxic Substances
Control, May 23, 2003.
127. Additional [nformation and Sampling Rationale for Areas of Concern as
identified in the DTSC Correspondence datedlanuary 13, 2003, former Parcel 11
Portion and Parcel IV of the NASA Industrial Plant; SECOR International, Inc.,
March 16, 2003.
128. Soil Vapor Extraction System Operational Report, First Quarter 2002, Building
244 – NASA Industrial Plant, 12214 Lakewood Boulevard, Downey, California,
Earth Tech, May 13, 2002.
129. Downey Landing Specific Plan, Final Program Environmental Impact Report,
State Clearinghouse Number 2001031096, EIP Associates, February 2002.
130. In -Situ Reactive Zone Interim Measure Source Reduction Remedial Action Plan,
Former NASA Industrial Plant, Downey, California, ARCADIS G &M, Inc., May
20, 2003.
I31. Groundwater Monitoring Well Installation Report, NASA Industrial Plant, 12214
Lakewood Boulevard, Downey, California, Earth Tech, May.15, 2003.
I32. Well Construction Diagrams, P1 -MW-8, P1 -MW -9, P1- MW -10, and P1- MW -11;
Earth Tech, May 2003.
133. Correspondence from NASA to RWQCB Requesting Extension of Deadlines in
April 11, 2002 RWQCB Letter, April 30, 2002.
134. Correspondence from RWQCB Regarding USAT Program -- Request for
Additional Information, April 21, 2003.
135. Correspondence from Los Angeles County Regarding Hazardous Materials
Underground Storage Tank Closure Certification, March 19, 2003.
136. Correspondence from RWQCB Approving Groundwater Remedial Action Plan;
July 15, 2003.
137. Correspondence from Secor International, Inc. to IRG transmitting comments on
Draft Risk Management Plan Future Hospital and Medical Office Buildings
Project Area; June 23, 2003.
138. Email Correspondence from Downey Landing to IRG transmitting comments on
Draft Risk Management Plan — Downey Landing Retail Redevelopment Project
Area June 16, 2003.
139. Correspondence from Ervin, Cohen & Jessup to IRG transmitting comments on
Draft Risk Management Plan — Downey Landing Retail Redevelopment Project
Area; June 24, 2003.
LAM1539.21
11
140. Correspondence from ERG to Secor International responding to comments on
Draft Risk Management Plan— Future Hospital and Medical Office Buildings
Project Area; July 18, 2003.
141. Correspondence from IRO to Eclipse Development Group (Downey Landing)
responding to comments on Draft Risk Management Plan —Draft Risk
Management Plan — Downey Landing Retail Redevelopment Project Area July
18, 2003.
142. Risk Management/Soil Management Plan — Downey Landing Retail
Redevelopment Project Area, Former NASA industrial Plant, Downey,
California; ARCADIS G &M, Inc., July [7, 2003.
143. Risk Management/Soil Management Plan— Future Hospital and Medical Office
Buildings Project Area, Former NASA Industrial Plant, Downey, California;
ARCADIS G &M, Inc., July 17, 2003.
144. SECOR's Responses to DISC Comments Regarding WP/HASP /SAP /QAPP
Document Dated April 18, 2003. Correspondence dated June 13, 2003.
LA/127539.21
12
c.
EXHIBIT "F"
Acquisition Parcel Legal Description (Recital E; Section 2.1.1)
to
L
EXHIBIT "A"
LEGAL DESCRIPTION
ACQUISITION PARCEL
THOSE PORTIONS OF LOT 2 AND LOT 3 OF FRACTIONAL SECTION 10, TOWNSHIP 3
SOUTH, RANGE 12 WEST, IN THE RANCHO SANTA GERTRUDES, TOGETHER WITH A
PORTION OF THE SOUTHWEST QUARTER OF SAID FRACTIONAL SECTION 10, IN THE
CITY OF DOWNEY, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA AS RECORDED
IN BOOK 1, PAGE 502 OF MISCELLANEOUS RECORDS, RECORDED IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE NORTHERLY LINE OF SAID LOT 2 IN THE NORTHWEST
QUARTER OF FRACTIONAL SECTION 10, SAID UNE ALSO BEING THE NORTHERLY LINE
OF STEWART AND GRAY ROAD, 80 FEET WIDE, DISTANT THEREON SOUTH 895214'
WEST 046.51 FEET FROM THE NORTHEAST CORNER OF SAID LOT 2; THENCE ON A
LINE BETWEEN SAID POINT OF BEGINNING AND THE SOUTHWEST CORNER OF THE
SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER
OF FRACTIONAL SECTION 10, SOUTH 0013 WEST 1011.24 FEET TO THE TRUE POINT
OF BEGINNING; THENCE SOUTH 89'48'11' WEST 1194.23 FEET TO A POINT IN A UNE
THAT IS PARALLEL WITH AND DISTANT SOUTHEASTERLY 40.00 FEET, MEASURED AT
RIGHT ANGLES, FROM THE CENTERLINE OF LAKEWOOD BOULEVARD, AS SHOWN ON
COUNTY SURVEYORS B SERIES MAP NO. 1147, ON FILE IN THE OFFICE OF THE
COUNTY ENGINEER OF SAID COUNTY; THENCE SOUTH 3141'38' WEST, ALONG SAID
PARALLEL UNE, A DISTANCE OF 1437.27 FEET TO A POINT IN A LINE THAT IS PARALLEL
WITH AND DISTANT EASTERLY 40.00 FEET, MEASURED AT RIGHT ANGLES, FROM THE
CENTERLINE OF CLARK AVENUE AS SHOWN ON SAID COUNTY SURVEYORS B SERIES
MAP NO. 1147; THENCE SOUTH 00°03'38" WEST, ALONG LAST SAID PARALLEL UNE, A
DISTANCE OF 485.49 FEET; THENCE NORTH 9000'00' EAST 859.79 FEET TO THE
BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A
RADIUS OF 600.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 18°48'42", A DISTANCE OF 197.00 FEET TO THE BEGINNING OF A
COMPOUND CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 82.00
FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE
OF 59'12'23 ", A DISTANCE OF 84.73 FEET TO THE BEGINNING OF A REVERSE CURVE
CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 396.00 FEET; THENCE
NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 78 A
DISTANCE OF 541.95 FEET; THENCE NORTH 9000'00" EAST 321.62 FEET TO THE
BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A
RADIUS OF 418.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 17°39x05", A DISTANCE OF 128.78 FEET TO SAID UNE BETWEEN
THE POINT OF BEGINNING AND THE SOUTHWEST CORNER OF THE SOUTHEAST
QUARTER OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
FRACTIONAL SECTION 10; THENCE NORTH 0013'16' EAST, ALONG SAID LINE, A
DISTANCE OF 1324.18 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING AN AREA OF 2,550,976 SQUARE FEET, MORE OR LESS.
ALL AS SHOWN ON EXHIBIT 'B' ATTACHED HERETO AND MADE APART HEREOF.
m
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1" •400'
////
S 8948'11" W
N.
- 78'01'g6"
R■398.00
L- 541.95'
+ 0= 5912'23"
R- 82.00'
IL•284.73'
N 90''00'00 E 859.79' —'
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su ywro « Mapping Consultants
CALIFORNIA
5220 0 STREET UCENSED IN:
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(900) 304 -1701 FAX NEVADA
EXHIBIT "B"
"ACQUISITION PARCEL"
+. 1
A- 18'48'42'
R =600.00'
L6197.00'
1194.23'
SIEWART AND Yp
93 4 W
10 io
MI w w
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+ 4.
- 17'39'Q5"
N 9000'09" E] L- 128.78
'
S.W. MR.,
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S.E. 1/4,
N.E. 1/4,
SEC. 1 1"0 4,
N.E. COR.
LOT 2
1
I VISTA DR.
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RD.
S 10
EXHIBIT "H"
Ground Lease Parcel Legal Description (Recital E)
EXHIBIT "A"
LEGAL DESCRIPTION
INDUSTRIAL REALTY GROUP -- GROUND LEASE
THAT PORTION OF LOT 2 IN THE NORTHWEST QUARTER OF FRACTIONAL SECTION 10,
TOWNSHIP 3 SOUTH, RANGE 12 WEST, IN THE RANCHO SANTA GERTRUDES,
TOGETHER WITH A PORTION OF THE SOUTHWEST QUARTER OF SAID FRACTIONAL
SECTION 10, IN THE CITY OF DOWNEY, COUNTY OF LOS ANGELES, STATE OF
CAUFORNIA AS RECORDED IN BOOK 1, PAGE 502 OF MISCELLANEOUS RECORDS,
RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT IN THE NORTHERLY LINE OF SAID LOT 2 IN THE NORTHWEST
QUARTER OF FRACTIONAL SECTION 10, SAID UNE ALSO BEING THE NORTHERLY UNE
OF STEWART AND GRAY ROAD, 80 FEET WIDE, DISTANT THEREON SOUTH 89°52'14'
WEST 646.51 FEET FROM THE NORTHEAST CORNER OF SAID LOT Z THENCE ON A UNE
BETWEEN SAID POINT OF BEGINNING AND THE SOUTHWEST CORNER OF THE
SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER
OF FRACTIONAL SECTION 10, SOUTH 00°1318' WEST 1100.59 FEET TO THE TRUE POINT
OF BEGINNING; THENCE AT RIGHT ANGLES TO THE EASTERLY UNE OF SAID LOT 2,
SAID EASTERLY UNE ALSO BEING THE CENTERLINE OF BELLFLOWER BOULEVARD,
NORTH 89°52'23` EAST 813.20 FEET TO A POINT IN A UNE THAT IS PARALLEL WITH AND
DISTANT WESTERLY 40.00 FEET, MEASURED AT RIGHT ANGLES, FROM SAID EASTERLY
LINE OF LOT 2; THENCE SOUTH 00°07'37 EAST, ALONG SAID PARALLEL UNE, A
DISTANCE OF 222.54 FEET TO THE INTERSECTION OF SAID PARALLEL UNE, WITH A
LINE THAT IS PARALLEL WITH AND DISTANT WESTERLY 40.00 FEET, MEASURED AT
RIGHT ANGLES, FROM THE EASTERLY UNE OF SAID SOUTHWEST QUARTER OF SAID
FRACTIONAL SECTION 10; THENCE SOUTH 00'04'17" EAST, ALONG LAST SAID PARALLEL
UNE, A DISTANCE OF 1225.63 FEET TO A UNE THAT 15 PARALLEL WITH AND DISTANT
NORTHERLY 98.00 FEET, MEASURED AT RIGHT ANGLES, FROM THE SOUTHERLY UNE
OF SAID NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF FRACTIONAL
SECTION 10; THENCE SOUTH 89 °51'04" WEST, ALONG LAST SAID PARALLEL UNE, A
DISTANCE OF 238.81 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE
NORTHEASTERLY AND HAVING A RADIUS OF 252.00 FEET; THENCE NORTHWESTERLY
ALONG SAID CURVE THROUGH A CENTRAL ANGLE 49°21'31', A DISTANCE OF 217.09
FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE SOUTHWESTERLY AND
HAVING A RADIUS OF 418.00 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 31°33'30", A DISTANCE OF 230.23 FEET TO SAID UNE
BETWEEN THE POINT OF BEGINNING AND THE SOUTHWEST CORNER OF THE
SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER
OF FRACTIONAL SECTION 10; THENCE NORTH 00 °13'18" EAST, ALONG SAID LINE, A
DISTANCE OF 1234.83 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING AN AREA OF 857,497 SQUARE FEET, MORE OR LESS.
ALL AS SHOWN ON EXHIBIT '8' ATTACHED HERETO AND MADE A PART HEREOF.
I ▪ UNE
1 L1
CAUFOR N1A
5220 0 STREET
(900) 36 1661
(400 364 -1 FAX
UNE TABLE
BEARING DISTANCE
S 89'51'04" W 238.81'
�y
r=400'
_
----- - ..r........
"INDUSTRIAL REALTY GROUP — GROUND LEASE"
4 t:e-
P �
E EADSON & ASSOCIATES. INC.
IL Jr Surveying s iloppinQ Consultants
ARIZONA
CALIFORNIA
!NEVADA
EXHIBIT "B"
N LY UNE
/ LOT 2
/
STEWART AND ` WAD
s
8 =31'33'40'
=418.00
L =230.23'
S.W. C
S.E. 1/4,
N.E. 1/4,
S.W. 1
N 89'52'23" E
613.20
LOT
S'LY U�IE.
N.E. 1 4
S.W. 1/4
SEC. 10
1� L
42. 2_LOT UNE
t WASHBURN
CENTER ---' RD.
SECT. 10
r E'LY UNE
S.W. 1 /4,
40' SECT. 10
■■1 I
w
IP
2
A =4911'31- rn
R- 252.00'
L= 217.09'
.1
EXHIBIT "K"
NASA Documents (Section 4.1; Section 7.1.3)
r 1.
EXHIBIT "K"
NASA DOCUMENTS
Quitclaim Deed dated April 19, 1999 and recorded in the Official Records as Document No. 99
0690588
2. Right of First Refusal Agreement dated April 19, 1999 and recorded in the Official Records as
Document No. 99 0690586
3. Assignment of Sale Proceeds dated April 19, 1999 and recorded in the Official Records as
Document No. 99 0690587
4. Easement Agreement dated April 19, 1999 and recorded as Document No. 99 0690589
5. Promissory Note dated April 21, 1999 in the principal amount of $20,145;000.00 executed by the
City of Downey, as borrower, in favor of the United States, as lender
6. Pledge, Escrow and Trust Agreement dated April 21, 1999 between the City of Downey, the
United States, and the U.S. Bank Trust National Association;
7. Agreement Concerning Payment of Sale Proceeds dated April 21, 1999 between the City of
Downey and the United States
8. Proposed 2003 NASA Quitclaim Deed for Parcels 1 and 2 of the NASA Site
'—` 9. Transfer Agreement dated , 2003 by and between the City and the United States of
America through GSA
10. Covenant Deferral Request dated December 20, 2001 (the "CDR ")
11. Environmental Services Agreement between the City and the United States of America through
NASA, dated 2003
12. Environmental Responsibility Assumption Agreement dated as of , 2003 entered into
between City of Downey and International Risk Assumption Downey, LLC ("IRAD") •
13. Remediation Agreement between IRAD and ARCADIS identified in Section 2.1.4.3 of the
Assumption Agreement
14. Escrow Agent Agreement between the City, IRAD and AIG Environmental
15. Declaration of Covenants, Conditions and Environmental Restrictions dated , 2003 and
recorded on , 2003 in the Official Records of the County of Los Angeles as Document
No.
16. Memorandum of Agreement Among NASA, the GSA, the California State Historic Preservation
Officer and the City of Downey Regarding Disposal of a Portion of the NASA Industrial Plant (the
"MOA ")
17. Revocable License Agreement between NASA and the City of Downey dated November 26, 2001
(the "License Agreement")
l
EXHIBIT "N"
Form of Occupant Release (Section 9.6.1)
Exhibit "N"
Form of New Occupant Release
Release
THIS RELEASE ( "Release") is made as of this day of
20_ by ("New Occupant") in favor of the City of
Downey, a political subdivision of the State of Califomia ( "City").
New Occupant acknowledges and agrees as follows:
A. Pursuant to that certain
[Lease /Sublease /License /Easement] dated as of _ , 20
and between , a • ( "Owner") and
New Occupant, New Occupant has agreed to acquire from Owner certain
rights to use and occupy those certain premises commonly known as
and more particularly described on Exhibit "7"
attached hereto (the "Premises ").
B. The Premises are located within that certain real property owned by
Owner which is located within that certain land containing approximately
one hundred sixty (160) acres located in the City of Downey, California
and generally bounded by Lakewood Boulevard, Stewart and Gray Road,
Bellflower Boulevard, Imperial Highway and Clark Avenue as more
particularly described in Exhibit "2" attached hereto (the "NASA Site ").
C. The NASA Site, including the Premises, is subject to those certain
Covenants, Conditions & Environmental Restrictions recorded as
Document No. 03- in the Official Records, County of Los
Angeles, California ( "CC&Rs ").
D. Pursuant to the CC &Rs, Owner is required to cause New Occupant to
execute and deliver this Release to the City.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, New Occupant hereby agrees as
follows:
9. Release. New Occupant hereby irrevocably and unconditionally waives,
releases and forever discharges the City, its City Council members, and
its and their employees, affiliated entities, successors -in- interest and any
other person or entity associated with the City (collectively, the "City
Parties ") from any and all present and future claims, demands, suits, legal
and administrative proceedings and from all liability and obligations for
r► damages, losses, costs, liabilities, fees and expenses, including, without
limitation, attorneys' fees and court costs present and future, in any
manner arising out of or in any way related to any physical, title or other
defect or condition in, of, or related to the Premises or the NASA Site, any
Hazardous Materials in, on, under or about the Premises or the NASA Site
(or the improvements contained thereon), or the existence of any
Hazardous Materials contamination in any state in, on, under, about or
adjacent to the Premises or the NASA Site (or any of the improvements
contained thereon) as of the "Effective Date," as such term is defined in
the CC &Rs. New Occupant acknowledges that it is aware of and familiar
with the provisions of Section 1542 of the California Civil Code which
provides as follows:
c.
2. Cooperation. New Occupant further acknowledges and agrees to
cooperate with City in the execution of any additional documents needed
to effectuate the provisions of this Release.
3. Authority. Each person executing this Release on behalf of New
Occupant hereby represents and warrants to and for the benefit of the City
that each signatory to this Release is duly authorized to execute and
deliver this Release to the City on behalf of New Occupant.
LIV909e42.1
"A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
As such relates to this Section 1, New Occupant hereby waives and
relinquishes all rights and benefits which it may have under Section 1542
of the California Civil Code.
IN WITNESS WHEREOF, New Occupant has caused this Release to be
executed by its duly authorized officer as of the date first written above.
a
By:
Name:
its:
By:
• Name:
Its:
1A/909862.1
Exhibit "1"
The Premises