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SITE LEASE
THIS SITE LEASE (“Lease”) is made as of __________, 202_, being the date on which this Lease is executed by the last party to execute (“Final Execution Date”), by and between the City of Anaheim, a municipal corporation and charter city duly organized and existing under and by virtue of its charter and the constitution and laws of the State of California (“Tenant” or “City”), and TS Anaheim, LLC, a California limited liability company (“Landlord”).
In consideration of the rents, covenants and agreements hereinafter set forth, such parties enter into the following agreement:
ARTICLE 1
BASIC LEASE INFORMATION
Section 1.1 Basic Lease Information.
This Section 1.1 is a summary of the basic terms set forth in this Lease. In addition to the other terms which are elsewhere defined in this Lease, the following shall have the meanings set forth in this Section:
(a) Premises: Land area as described in EXHIBIT A and as depicted on EXHIBIT B, located in the City of Anaheim (the “City”), California. (b) Initial Term: __________ (___) Lease Years (as defined in Section 2.4 below).
(c) Options to Renew: None.
(d) Rent Commencement Date: The date that is [__________________]. (e) Base Rent During Initial Term: One Hundred Dollars ($100.00) per annum.
(f) Permitted Use: Tenant shall use the Premises for [__________________] (“Permitted Use”).
(g) Notice Address:
Landlord: Anaheim Real Estate Partners, LLC
c/o H&S Ventures, LLC
2101 E. Coast Highway, Third Floor
Corona del Mar, CA 92625
Attn.: General Counsel/Legal Department
With copies to: ________________________
________________________
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________________________
________________________
and: Allen Matkins Leck Gamble Mallory & Natsis LLP
2010 Main Street, 8th Floor
Irvine, CA 92614
Attn: Gary S. McKitterick, Esq.
Tenant: City of Anaheim
200 South Anaheim Boulevard
Anaheim, CA 92805
Attention: Finance Director/City Treasurer
With copies to: ________________________
________________________
________________________
________________________
(h) City Leases: The City and Anaheim Public Financing Authority, a joint exercise of powers entity duly organized and existing under and by virtue of the laws of the State of California (“Authority”) desire to finance the costs of construction, installation and/or equipping of certain capital improvement projects of the City. In order to finance a Project (as such term is defined in that certain Lease Agreement between the Authority and the City dated as of ________, 2023 as may be amended from time to time (“Lease Agreement”), the City has (1) leased the Premises from Landlord and in turn the City has (2) leased the Premises to the Authority pursuant to a Ground Lease dated as of ____________, 2023 as may be amended from time to time (“City Ground Lease”) and the City will (3) sublease the Premises back from the Authority. (i) City Financing: The City and the Authority have determined that it would be in the best interest of the City and the Authority to provide the funds necessary to finance the Project through the issuance by the Authority of bonds pursuant to a Master Indenture, dated as of __________ 1, 2023, by and among the Authority, the City and the Trustee (as defined in the Lease Agreement) and payable from the “Base Rental Payments” to be made by the City under the Lease Agreement.
(j) Lease Facilitates Financing: This Lease shall provide terms to facilitate the financing contemplated by the Lease Agreement and City Ground Lease. (k) Amended Facilities Management Agreement: This Lease shall incorporate certain terms and obligations under the Honda Center Amended and Restated Facility Management Agreement by and between the City and Anaheim Arena Management, LLC (an affiliate of Landlord) (the “FMA”).
(l) Incorporation of Defined Terms: This Lease shall incorporate certain defined terms from the City Ground Lease and the Lease Agreement. 4869-7105-8993.2/
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Section 1.2 Exhibits.
The exhibits listed below and attached to this Lease are incorporated herein by this reference:
EXHIBIT A Legal Description of the Premises
EXHIBIT B Depiction of the Premises
EXHIBIT C Memorandum of Lease
EXHIBIT D Non-Disturbance and Attornment Agreement
ARTICLE 2
LEASED PREMISES AND TERM
Section 2.1 Leased Premises.
(a) Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the Premises, together with all easements and appurtenances hereto, as described in EXHIBIT A and as depicted on EXHIBIT B.
(b) Tenant shall be deemed to have accepted the Premises in its as-is, where-is condition, subject to all applicable municipal, county, state and federal laws, ordinances and regulations governing and relating to the use of the Premises and subject to all the matters of record.
Section 2.2 Lease Term.
The Lease is effective as of the Final Execution Date and the term of the Lease shall be Thirty-Four (34) Lease Years (hereinafter defined) (the “Initial Term”) and shall commence on the __________. The Initial Term shall end on the last day of the thirty-fourth (34th) Lease Year, unless sooner terminated or extended as herein provided.
Section 2.3 Lease Year Defined.
“Lease Year,” as used herein, means each period of twelve (12) consecutive months during the Lease Term, provided that the first Lease Year commences __________ and ends on the last day of the 12th full calendar month thereafter.
ARTICLE 3
CONDITION OF TITLE
Section 3.1 Condition of Title.
(a) Title Report. Tenant hereby approves that certain commitment to issue an ALTA leasehold owner’s title insurance policy (the “Title Report”). 4869-7105-8993.2/
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(b) Memorandum. Upon the Final Execution Date, a memorandum of this Lease in the form of EXHIBIT C attached hereto (the “Memorandum”) shall be recorded in the Official Records of Orange County, State of California (“Official Records”). (c) Title Policy. At any time after the recordation of the Memorandum, Tenant may obtain an ALTA extended coverage leasehold owner’s title insurance policy (the “Title Policy”). Landlord shall be responsible for the payment of the Title Policy premium attributable to ALTA standard coverage.
ARTICLE 4
USE AND SUBDIVISION OF PREMISES
Section 4.1 Tenant’s Use.
Tenant shall comply with all applicable laws in use of the Premises. The City will not use, operate or maintain the Premises improperly, carelessly, in violation of any applicable law or in a manner contrary to that contemplated by the Lease Agreement. In addition, the City agrees to comply in all respect (including, without limitation, with respect to the use, maintenance and operation of the Premises) with all laws of the jurisdictions in which its operations may extend and any legislative, executive, administrative or judicial body exercising any power or jurisdiction over the Premises.
ARTICLE 5
RENT AND TAXES
Section 5.1 Base Rent During the Initial Term.
(a) Base Rent. Tenant covenants and agrees to pay to Landlord as rent for the Premises, without notice, demand, set-off or counterclaim, and at Landlord’s Notice Address, or by ACH directly to Landlord’s financial institution as instructed by Landlord to Tenant in writing, “Base Rent” of $100.00 per annum paid ________.
Section 5.2 Taxes.
(a) Business Taxes. Tenant shall pay, during the Lease Term, all license fees and occupation taxes applicable to the business conducted by Tenant on the Premises, and all taxes on any and all personal property owned or placed by Tenant and located upon the Premises. (b) Real Property Taxes. Commencing on the Rent Commencement Date, and continuing for the balance of the Lease, Tenant shall pay, or cause to be paid, without setoff or deduction, all real property taxes levied upon the Premises and the Buildings and other Improvements on the Premises which accrue during the Lease Term, if any. The term “Real Property Tax” or “Real Property Taxes” as used herein shall mean all real property taxes, assessments, levies, and other charges (including all installments of principal and interest required to pay any general or special assessments for public improvements) presently existing or subsequently imposed by any governmental or quasi-governmental authority having the direct or indirect power to tax and which are levied or assessed against, or with respect to the use of, all or any portion of the Premises, the Improvements, and other property, real or personal, located in or 4869-7105-8993.2/
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upon the Premises, or with respect to the use of public utilities or energy within the Premises and/or charges, levies, or fees imposed by reason of environmental regulation or other governmental control with respect to the Premises. If at any time during the Lease Term the methods of taxation or assessment for public improvements shall be so altered so that in lieu of or in addition to any Real Property Tax described in this paragraph there shall be levied, assessed or imposed (i) an alternate or additional tax on the value, use, or occupancy of the Premises or Landlord’s interest therein, or (ii) an alternate or additional tax, excise, fee, license fee or other charge based upon the gross receipts, income, or rentals from the Premises, however designated, then any such tax shall be a “Real Property Tax” for purposes of this Lease. Notwithstanding the foregoing, the term “Real Property Taxes” shall not include estate, inheritance, transfer, gift, or franchise taxes of Landlord or the existing federal or state income tax imposed on Landlord’s income from all sources.
(c) Payment. Tenant shall pay all Real Property Taxes levied upon the Premises and the Improvements on the Premises which accrue during the Lease Term. Tenant has an arrangement for the payment of taxes under the FMA.
Section 5.3 Additional Rent.
All amounts required or provided to be paid by Tenant under this Lease, other than Base Rent, are collectively referred to in this Lease as “Additional Rent”.
ARTICLE 6
LANDLORD AND TENANT WARRANTIES
Section 6.1 Landlord Warranties. Landlord makes as of the Final Execution Date the following representations and warranties, each of which is material and is being relied upon by Tenant:
(a) Representations Regarding Landlord’s Authority. Landlord has the legal power, right and authority to enter into this Lease and the instruments referenced herein, and to consummate the transaction contemplated hereby. All requisite action (corporate, trust, partnership or otherwise) has been taken by Landlord in connection with the entering into this Lease, the instruments referenced herein, and the consummation of the transaction contemplated hereby. No consent of any partner, shareholder, trustee, trustor, beneficiary, creditor, investor, judicial or administrative body, governmental authority or other party is required or, if required, has been obtained. The individuals executing this Lease and the instruments referenced herein on behalf of Landlord and the members of Landlord have the legal power, right, and actual authority to bind Landlord to the terms and conditions hereof and thereof.
Section 6.2 Tenant Warranties. Tenant makes as of the Final Execution Date the following representations and warranties, each of which is material and is being relied upon by Landlord:
(a) Representations Regarding Tenant’s Authority. Tenant has the legal power, right and authority to enter into this Lease and the instruments referenced herein, and to consummate the transaction contemplated hereby. All requisite action (corporate, trust, partnership or otherwise) has been taken by Tenant in connection with the entering into this Lease, 4869-7105-8993.2/
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the instruments referenced herein, and the consummation of the transaction contemplated hereby.
No consent of any partner, shareholder, trustee, trustor, beneficiary, creditor, investor, judicial or administrative body, governmental authority or other party is required or, if required, has been obtained. The individuals executing this Lease and the instruments referenced herein on behalf of Tenant and the members of Tenant have the legal power, right, and actual authority to bind Tenant to the terms and conditions hereof and thereof.
ARTICLE 7
UTILITIES
Section 7.1 Utility Connections.
Tenant shall be responsible for any and all utilities contained on the Premises.
Section 7.2 Tenant’s Utility Expenses.
Tenant shall be solely responsible for, and promptly pay directly to the applicable utility companies, all charges for use or consumption of sanitary sewer, natural gas, electricity, water and all other utility services on the Premises, all as otherwise set forth in the Lease Agreement, the City Ground Lease, or the FMA.
ARTICLE 8
CONDUCT OF BUSINESS BY TENANT
Section 8.1 Use of Premises.
The Premises shall be occupied and used by Tenant solely for the Permitted Use, and otherwise in compliance with the terms and conditions of this Lease, the Lease Agreement, the City Ground Lease, and the FMA.
Section 8.2 Compliance with Laws.
Tenant, in the use, occupation, control and enjoyment of the Premises and in the prosecution and conduct of its business therein, shall comply with all requirements of all present and future laws, orders, ordinances, rules and regulations of federal, state, county, municipal and other authorities, and with any direction of any public officer or officers imposed in accordance with any applicable laws, which shall impose any duty upon the Landlord or Tenant with respect to the use, occupation, control or enjoyment of the Premises, the conduct of any business therein or the construction, alteration or demolition of any Improvement located on the Premises.
Section 8.3 Private Restrictions.
Tenant shall abide by, promptly observe and comply with any and all reciprocal easements and other recorded instruments to the extent the same are identified in the Title Policy and affect the Premises, are created by or through the acts of Tenant, were disclosed to Tenant or discovered by Tenant prior to the Final Execution Date, or are otherwise permitted pursuant to the terms of this Lease, including, without limitation, the Project Covenants Conditions and Restrictions (“CC&Rs”).
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ARTICLE 9
MAINTENANCE OF LEASED PREMISES
Section 9.1 Maintenance by Tenant.
Tenant shall maintain the Premises as set forth in Section 4.01 of the Lease Agreement and the City Ground Lease.
ARTICLE 10
IMPROVEMENTS
Section 10.1 Ownership of Improvements.
The Improvements and any alterations, changes and additions shall remain Tenant’s property for the Lease Term, and notwithstanding anything in this Lease to the contrary, Tenant shall be deemed to hold fee title to all of the Improvements during the Term of this Lease. Upon the expiration or earlier termination of this Lease, the Improvements shall immediately become Landlord’s property without Landlord being obligated to make any payment to Tenant and Tenant shall take all actions reasonably required by Landlord to confirm that fee title in the Improvements, free and clear of all liens and encumbrances, including any Leasehold Mortgage, vest in Landlord.
Section 10.2 Alterations.
From time to time during the Lease Term, Tenant may make alterations in and to the Premises, at Tenant’s sole expense and without Landlord’s prior written consent, as Tenant may find necessary or convenient for its purposes, so long as the structural integrity of the Premises and the overall quality and design of the Building is not diminished or impaired in any material respect. All alterations to be made to the Premises shall be performed in a good and workmanlike manner in compliance with all government laws and regulations and shall be diligently prosecuted to completion. Any such alterations shall be performed and done strictly in accordance with the laws and ordinances relating thereto.
ARTICLE 11
INSURANCE
Section 11.1 Tenant’s Insurance Coverage.
(a) Generally. Tenant shall maintain the insurance coverages required by the Lease Agreement, the City Ground Lease, and the FMA.
ARTICLE 12
ESTOPPEL, ATTORNMENT, SUBORDINATION
Section 12.1 Estoppel.
Within twenty (20) days after either party’s written request, the other party shall deliver, an estoppel certificate to any person designated by the requesting party (a) ratifying this Lease; (b) stating the commencement and termination dates; and (c) certifying (i) that this Lease is in full 4869-7105-8993.2/
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force and effect and has not been assigned, modified, supplemented or amended (except by such writings as shall be stated), (ii) that all conditions under this Lease to be performed by the requesting party have been satisfied (stating exceptions, if any), (iii) that no defenses or offsets against the enforcement of this Lease by the requesting party exist (or stating those claimed), (iv) as to advance Rent, if any, paid by Tenant, (v) the date to which Rent has been paid, and such other information as the requesting party reasonably requires. Persons receiving such statements shall be entitled to rely upon them.
Section 12.2 Omitted.
Section 12.3 No Subordination.
This Lease shall be senior at all times to the lien of any mortgage or mortgages. Landlord shall not encumber the Premises with any Landlord Mortgage.
Section 12.4 Failure to Execute Instruments.
A party’s failure to execute instruments or certificates provided for in this Article 12 within thirty (30) days after the mailing by the other party of a written request (or, if applicable, any such shorter period as may be expressly called for) shall constitute an acknowledgment by such failing party, which may be relied upon by any person who would be entitled to rely upon any such statement, that the statements in such instruments or certificates as submitted by the other party are true and correct.
ARTICLE 13
ASSIGNMENT AND SUBLETTING
Section 13.1 Assignment of Lease.
Tenant may pursue the leases and subleases contemplated in the Basic Lease Information recitals (h) and (i).
Section 13.2 Landlord’s Consent.
Except for an assignment or transfer as set forth in Section 13.1 above, Tenant shall not assign this Lease (except to an affiliate) without Landlord’s consent.
Section 13.3 Assignment by Landlord.
Landlord reserves the right to assign its interest under this Lease and transfer its fee interest in the Premises together with its reversionary interest in the Improvements, if any, at any time during the Lease Term to an affiliate of Landlord. In the event of any such assignment Landlord shall be, effective upon the date of such assignment, entirely freed and relieved of all liability under any and all of its covenants and obligations contained in or derived from this Lease so long as Landlord’s successor covenants to recognize Tenant under this Lease and assume the obligations of Landlord imposed herein, in a written agreement reasonably acceptable to Tenant, Landlord and its assignee.
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ARTICLE 14
DAMAGE AND DESTRUCTION
Section 14.1 Rights and Obligations.
Landlord’s and Tenant’s rights and obligations are as set forth in the Lease Agreement, the City Ground Lease, and the FMA.
ARTICLE 15
EMINENT DOMAIN
Section 15.1 Condemnation and Damages.
Landlord’s and Tenant’s rights and obligations are as set forth in the Lease Agreement, the City Ground Lease and the FMA.
ARTICLE 16
OMITTED
ARTICLE 17
DEFAULT BY TENANT
Section 17.1 Default by Tenant.
Landlord shall have remedies set forth in the Lease Agreement, the City Ground Lease and the FMA in the event of a default by the City.
ARTICLE 18
DEFAULT BY LANDLORD
Section 18.1 Default by Landlord.
Landlord shall in no event be charged with default in any of its obligations hereunder unless and until Landlord shall have failed to perform such obligations within thirty (30) days after written notice to Landlord by Tenant, specifically describing such failure; provided, however, that if the term, condition, covenant or obligation to be performed by Landlord is of such nature that the same cannot reasonably be performed within such thirty-day period, such default shall be deemed to have been cured if Landlord commences such performance within said thirty-day period and thereafter diligently completes the required action within a reasonable period of time thereafter (a “Landlord Event of Default”). In the event of a Landlord Event of Default, Tenant shall be entitled to exercise any and all remedies available to Tenant.
Section 18.2 Limitations on Landlord Liability.
In no event shall Landlord be (a) liable to Tenant for consequential, punitive, or special damages except to the extent Tenant is obligated to pay the same to third parties due to Landlord’s breach of this Lease, or as otherwise required elsewhere under this Lease, or (b) responsible for injury to or interruption of Tenant’s business or for any loss of income or profit therefrom except 4869-7105-8993.2/
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to the extent caused by the gross negligence or willful misconduct of Landlord or its contractors, agents or employees. Notwithstanding the foregoing, no assets of Landlord other than its reversionary interest and other right, title, and interests, in this Lease and the Premises, and all of the rents, profits and issues therefrom, shall be subject to levy, execution or other procedures for the satisfaction of any Tenant’s remedies, including, without limitation, any judgment awarded to Tenant.
ARTICLE 19
ACCESS BY LANDLORD
Section 19.1 Right of Entry.
After the Final Execution Date, Tenant shall permit Landlord or its agents to enter upon the Premises at times reasonably acceptable to Tenant and subject to Tenant’s reasonable requirements including without limitation that such activities do not unreasonably interfere with Tenant’s development of the Premises or with any occupants of the Premises, for the purpose of making periodic inspections to determine whether the covenants and agreements of Tenant under this Lease are being kept and performed. During the last twelve (12) months of the Lease Term, Landlord may exhibit the Premises to prospective tenants at times acceptable to Tenant and subject to Tenant’s reasonable requirements including without limitation that such activities do not unreasonably interfere with any occupants of the Premises.
ARTICLE 20
HOLDING OVER, SUCCESSORS
Section 20.1 Holding Over.
If Tenant holds over or occupies the Premises beyond the Lease Term (it being agreed there shall be no such holding over or occupancy without Landlord’s written consent), Tenant shall pay Landlord for each day of such holding over a sum equal to twice the Base Rent prorated for the number of days of such holding over, plus a pro rata portion of all other amounts which Tenant would have been required to pay hereunder had this Lease been in effect. If Tenant holds over with or without Landlord’s written consent Tenant shall occupy the Premises on a tenancy from month to month and all other terms and provisions of this Lease shall be applicable to such period.
Tenant hereby waives any and all notice to which Tenant may otherwise be entitled under the laws of the State where the Premises is located as a prerequisite to a suit against Tenant for unlawful detention of the Premises.
Section 20.2 Successors.
All rights and liabilities herein given to or imposed upon the respective parties hereto shall bind and inure to their respective heirs, successors, administrators, executors and assigns (to the extent assignable).
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ARTICLE 21
QUIET ENJOYMENT
If Tenant pays the Rent and other amounts herein provided, observes and performs all the covenants, terms and conditions hereof, Tenant shall be entitled to peaceably and quietly hold and enjoy the Premises for the Lease Term without interruption by Landlord or any person or persons claiming by, through or under Landlord.
ARTICLE 22
MISCELLANEOUS
Section 22.1 Waiver.
No waiver by Landlord or Tenant of any breach of any term, covenant or condition hereof shall be deemed a waiver of any prior or subsequent breach of the same or any other term, covenant or condition. The acceptance of Rent by Landlord shall not be deemed a waiver of any earlier breach by Tenant of any term, covenant or condition hereof, regardless of Landlord’s knowledge of such breach when such Rent is accepted. Any failure by Landlord or Tenant to insist upon strict performance by the other of this Lease of any of the terms and provisions of the Lease shall not be deemed to be a waiver of any of the terms or provisions of the Lease, and Landlord or Tenant, as the case may be, shall have the right thereafter to insist upon strict performance by the other of any and all of them. No covenant, term or condition of this Lease shall be deemed waived by Landlord or Tenant unless waived in writing.
Section 22.2 Omitted.
Section 22.3 Omitted.
Section 22.4 Entire Agreement.
There are no representations, covenants, warranties, promises, agreements, conditions or undertakings, oral or written, between Landlord and Tenant other than herein set forth. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant unless in writing and signed by both parties.
Section 22.5 No Partnership.
Landlord is not, in any way or for any purpose, a partner, employer, principal, master, agent or joint venturer of or with Tenant.
Section 22.6 Omitted.
Section 22.7 Submission of Lease.
Submission of this Lease to Tenant does not constitute an offer to lease; this Lease shall become effective only upon execution and delivery thereof by Landlord and Tenant. The effective date of this Lease shall be the date filled in on the first page of this Lease by Landlord, which shall be the date of execution by the last of the parties to execute the Lease. 4869-7105-8993.2/
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Section 22.8 Notices.
All notices from Tenant to Landlord required or permitted by any provision of this Lease, including, without limitation, all payments of Base Rent or other Rent due from Tenant to Landlord, shall be directed to Landlord at the notice address set forth in Section 1.1 and all notices from Landlord to Tenant required or permitted by any provision of this Lease shall be directed to Tenant at the notice address set forth in Section 1.1.
All notices to be given hereunder by either party shall be in writing and sent by certified mail, return receipt requested, postage pre-paid, or national express delivery service which provides proof of receipt, addressed to the party intended to be notified at the address set forth above. Either party may, at any time, or from time to time, notify the other in writing of a substitute address for that set forth above, and thereafter notices shall be directed to such substitute address.
Notice given as aforesaid shall be sufficient service thereof and shall be deemed given as of the date received or refused, as evidenced by the return receipt of the certified mail, or the date delivery is attempted as evidenced by the proof of receipt by the express delivery service.
Section 22.9 Captions, Section Numbers and Table of Contents.
This Lease shall be construed without reference to titles of Articles and Sections or to the Table of Contents, which are inserted only for convenience of reference.
Section 22.10 Number and Gender.
The use herein of a singular term shall include the plural and use of the masculine, feminine or neuter genders shall include all others.
Section 22.11 Omitted.
Section 22.12 Broker’s Commission.
Each party represents and warrants to the other that neither of them nor their agents or representatives has engaged or contacted any broker, finder or intermediary, nor caused or incurred any claims for brokerage commissions or finder’s fees in connection with the execution of this Lease. Landlord and Tenant agree that no broker, finder or intermediary has been involved with the transaction contemplated hereunder, and each party agrees to indemnify and hold the other party harmless from any and all claims for fees, commissions or other compensation claimed to be due any broker, finder or intermediary with whom the indemnifying party may have dealt in connection with this transaction (including without limitation, the cost of attorneys’ fees in connection therewith).
Section 22.13 Partial Invalidity.
If any provision of this Lease or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Lease, or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby and each provision of this Lease shall be valid and enforceable to the fullest extent permitted by law.
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Section 22.14 Applicable Law.
THIS LEASE SHALL BE GOVERNED EXCLUSIVELY BY THE PROVISIONS
HEREOF AND BY THE LAWS OF THE STATE OF CALIFORNIA AS THE SAME FROM TIME TO TIME EXIST.
Section 22.15 Attorney’s Fees.
If Landlord incurs any expense as a result of Tenant’s failure to perform any of Tenant’s obligations hereunder, including, but not limited to, attorney’s fees and court costs, Tenant shall pay or reimburse Landlord for such expenses and any such expenses that have not been paid or reimbursed by Tenant may be added to or included in any judgment rendered in Landlord’s favor in any lawsuit or other proceeding against Tenant. Otherwise, in the event of any litigation, mediation, arbitration or other non-judicial dispute resolution proceeding (if both parties in their sole and absolute discretion elect to use mediation, arbitration or a non-judicial dispute proceeding), or other legal process between the parties with respect to this Lease, then all costs and expenses, including without limitation, all reasonable professional fees such as appraisers’, accountants’ and attorneys’ fees, incurred by the prevailing party therein shall be paid or reimbursed by the other party. The prevailing party shall be entitled to recover all such costs and expenses on appeal and in connection with enforcing any judgment awarded to it. The “prevailing party” means the party determined by the court or arbitrator (if the parties elected to use arbitration) to have most nearly prevailed, even if such party did not prevail in all matters, not necessarily the one in whose favor a judgment is rendered.
Section 22.16 Counterparts.
This Lease may be executed in multiple originals or counterparts, including executed counterparts transmitted via electronic mail, each of which will be an original and, when all of the parties to this Lease have signed at least one (1) copy, such copies together will constitute a fully executed and binding agreement.
Section 22.17 Electronic Transmission.
This Lease may be transmitted between the parties electronically. In such event, it is recognized by the parties that differences in computer software and hardware may result in the Lease being printed in two or more different locations resulting in the form of the Lease being visually dissimilar, though substantively identical. This difference in form shall in no way diminish the validity or enforceability of this Lease if it has been properly executed by the parties as provided herein. Each party agrees to circulate original execution copies of this Lease to the other party, so that ultimately there will be at least one (1) fully executed original for each party, in form and substance one identical to the other, but failure to do so shall not affect the validity or enforceability of this Lease, it being expressly agreed that each party to this Lease shall be bound by its own executed copy.
Section 22.18 Miscellaneous.
(a) The language in all parts of this Lease shall in all cases be construed as a whole according to its fair meaning, and not strictly for or against either Landlord or Tenant. 4869-7105-8993.2/
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(b) As used in this Lease, the term “business day(s)” shall mean a day which is not a Saturday, Sunday or recognized federal or state holiday. If the last date for performance by either party under this Lease occurs on a day which is not a business day, then the last date for such performance shall be extended to the next occurring business day. 4869-7105-8993.2/
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IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this Lease as of the day and year first above written.
LANDLORD: TS ANAHEIM, LLC,
a California limited liability company
By: __________________________________
Name: _______________________________
Title: ________________________________
TENANT: CITY OF ANAHEIM,
a municipal corporation and charter city duly
organized and existing under and by virtue of its
charter and the constitution and laws of the State of
California,
By: __________________________________
Name: _______________________________
Title: ________________________________
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EXHIBIT A
-1-
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
[TO BE PROVIDED]
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EXHIBIT B
-1-
EXHIBIT B
DEPICTION OF PREMISES
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EXHIBIT C
-1-
EXHIBIT C
MEMORANDUM OF LEASE
[TO BE PROVIDED]
4869-7105-8993.2/
378054.00014/9-13-22/gsm/pmc
SITE LEASE
by and between
TS ANAHEIM, LLC,
a California limited liability company
(“LANDLORD”)
and
THE CITY OF ANAHEIM,
a municipal corporation and charter city duly organized and existing under and by virtue of its charter and the constitution and laws of the State of California (“TENANT”)
Final Execution Date
[___________, 202_]
TABLE OF CONTENTS
Page
4869-7105-8993.2
378054.00014/9-13-22/gsm/pmc (i)
ARTICLE 1 BASIC LEASE INFORMATION.........................................................................1 Section 1.1 Basic Lease Information............................................................................1 Section 1.2 Exhibits .....................................................................................................3 ARTICLE 2 LEASED PREMISES AND TERM......................................................................3 Section 2.1 Leased Premises ........................................................................................3 Section 2.2 Lease Term................................................................................................3 Section 2.3 Lease Year Defined...................................................................................3 ARTICLE 3 CONDITION OF TITLE ......................................................................................3 Section 3.1 Condition of Title......................................................................................3 ARTICLE 4 USE AND SUBDIVISION OF PREMISES.........................................................4 Section 4.1 Tenant’s Use..............................................................................................4 ARTICLE 5 RENT AND TAXES.............................................................................................4 Section 5.1 Base Rent During the Initial Term ............................................................4 Section 5.2 Taxes .........................................................................................................4 Section 5.3 Additional Rent .........................................................................................5 ARTICLE 6 LANDLORD AND TENANT WARRANTIES...................................................6 Section 6.1 Landlord Warranties..................................................................................6 Section 6.2 Tenant Warranties .....................................................................................6 ARTICLE 7 UTILITIES............................................................................................................6 Section 7.1 Utility Connections ...................................................................................6 Section 7.2 Tenant’s Utility Expenses .........................................................................6 ARTICLE 8 CONDUCT OF BUSINESS BY TENANT..........................................................7 Section 8.1 Use of Premises.........................................................................................7 Section 8.2 Compliance with Laws..............................................................................7 Section 8.3 Private Restrictions ...................................................................................7 ARTICLE 9 MAINTENANCE OF LEASED PREMISES.......................................................7 Section 9.1 Maintenance by Tenant .............................................................................7 Page
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378054.00014/9-13-22/gsm/pmc (ii)
ARTICLE 10 IMPROVEMENTS ...............................................................................................9 Section 10.1 Ownership of Improvements.....................................................................9 Section 10.2 Alterations .................................................................................................9 ARTICLE 11 INSURANCE........................................................................................................9 Section 11.1 Tenant’s Insurance Coverage....................................................................9 ARTICLE 12 ESTOPPEL, ATTORNMENT, SUBORDINATION .........................................10 Section 12.1 Estoppel...................................................................................................10 Section 12.2 Omitted....................................................................................................10 Section 12.3 No Subordination ....................................................................................10 Section 12.4 Failure to Execute Instruments................................................................11 ARTICLE 13 ASSIGNMENT AND SUBLETTING................................................................11 Section 13.1 Assignment of Lease ...............................................................................11 Section 13.2 Landlord’s Consent.................................................................................11 Section 13.3 Assignment by Landlord .........................................................................11 ARTICLE 14 DAMAGE AND DESTRUCTION.....................................................................11 Section 14.1 Rights and Obligations............................................................................11 ARTICLE 15 EMINENT DOMAIN .........................................................................................12 Section 15.1 Condemnation and Damages...................................................................12 ARTICLE 16 OMITTED...........................................................................................................14 ARTICLE 17 DEFAULT BY TENANT ...................................................................................14 Section 17.1 Default by Tenant....................................................................................14 ARTICLE 18 DEFAULT BY LANDLORD .............................................................................14 Section 18.1 Default by Landlord ................................................................................14 Section 18.2 Limitations on Landlord Liability...........................................................14 ARTICLE 19 ACCESS BY LANDLORD ................................................................................14 Section 19.1 Right of Entry..........................................................................................14 ARTICLE 20 HOLDING OVER, SUCCESSORS....................................................................15 Section 20.1 Holding Over...........................................................................................15 Page
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378054.00014/9-13-22/gsm/pmc (iii)
Section 20.2 Successors ...............................................................................................15 ARTICLE 21 QUIET ENJOYMENT........................................................................................15 ARTICLE 22 MISCELLANEOUS ...........................................................................................15 Section 22.1 Waiver .....................................................................................................15 Section 22.2 Omitted....................................................................................................16 Section 22.3 Omitted....................................................................................................16 Section 22.4 Entire Agreement ....................................................................................16 Section 22.5 No Partnership.........................................................................................16 Section 22.6 Omitted....................................................................................................16 Section 22.7 Submission of Lease................................................................................17 Section 22.8 Notices.....................................................................................................17 Section 22.9 Captions, Section Numbers and Table of Contents.................................17 Section 22.10 Number and Gender ................................................................................17 Section 22.11 Omitted....................................................................................................17 Section 22.12 Broker’s Commission..............................................................................17 Section 22.13 Partial Invalidity......................................................................................18 Section 22.14 Applicable Law .......................................................................................18 Section 22.15 Attorney’s Fees.......................................................................................18 Section 22.16 Counterparts ............................................................................................18 Section 22.17 Electronic Transmission..........................................................................18 Section 22.18 Miscellaneous..........................................................................................19 Page
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378054.00014/9-13-22/gsm/pmc (iv)
EXHIBIT A – LEGAL DESCRIPTION OF THE PREMISES
EXHIBIT B - DEPICTION OF THE PREMISES AND PARK LANE PROJECT
EXHIBIT C - MEMORANDUM OF LEASE AND PURCHASE OPTION
EXHIBIT D - NON-DISTURBANCE AND ATTORNMENT AGREEMENT
EXHIBIT E - APPROVED PLANS
EXHIBIT F - FORM OF ASSIGNMENT AND ASSUMPTION