HELICOPTER MAINTENANCE AND OPERATIONS LEASE
between the
BURBANK-GLENDALE-PASADENA AIRPORT AUTHORITY
and the
CITY OF BURBANK and the CITY OF GLENDALE
ATTACHMENT 1
1. LEASED PREMISES ....................................................................................................... 1
1.1 Defined .................................................................................................................. 1
1.2 “AS-IS” ................................................................................................................. 1
1.3 Title ....................................................................................................................... 2
1.4 Landlord’s Right of Access .................................................................................. 2
2. TERM ............................................................................................................................... 2
2.1 Initial Term ........................................................................................................... 2
2.2 Early Termination ................................................................................................. 3
2.2.1 Landlord’s Right to Terminate...................................................... 3
2.2.2 Tenant Acknowledgments Regarding Landlord’s
Right to Terminate ........................................................................ 3
2.2.3 Tenant’s Right to Terminate ......................................................... 3
3. RENT AND OTHER CHARGES .................................................................................... 3
3.1 No Rent ................................................................................................................. 3
3.2 Taxes ..................................................................................................................... 4
3.2.1 Right to Contest ............................................................................ 4
3.3 Utilities .................................................................................................................. 4
3.4 Other Charges ....................................................................................................... 4
3.4.1 Obligation to Pay .......................................................................... 4
3.4.2 Fire and Security Services ............................................................ 4
3.4.3 Trash Removal .............................................................................. 5
3.4.4 Manner of Payment ....................................................................... 5
3.5 Net Lease .............................................................................................................. 5
3.6 Interest on Past Due Payments .............................................................................. 5
3.7 Address for Payment ............................................................................................. 5 ATTACHMENT 1
3.8 No Abatement of Rent or Fees .............................................................................. 5
4. USE OF LEASED PREMISES ........................................................................................ 6
4.1 Use of Leased Premises ........................................................................................ 6
4.1.1 Principal Use As Airport ............................................................... 6
4.1.2 Authorized Use of Leased Premises ............................................. 6
4.1.3 Restrictions on Storage ................................................................. 6
4.2 Prohibited Uses ..................................................................................................... 6
4.2.1 Sales of aviation fuel or oil ........................................................... 6
4.2.2 Sales of food ................................................................................. 6
4.2.3 Sales of products or sundry items ................................................. 6
4.2.4 Sales or dispensing of alcoholic beverages ................................... 6
4.2.5 Any use prohibited by Law or not related to aviation ....................................................................................................... 6
4.2.6 Knowingly boarding, enplaning or unloading
revenue passengers, either on a scheduled or
nonscheduled basis........................................................................ 7
4.3 Conduct of Tenant’s Activities ............................................................................. 7
4.3.1 Standards ....................................................................................... 7
4.3.2 Conduct of Employees .................................................................. 7
4.3.3 Landlord Noise Abatement Rules ................................................. 7
4.3.4 Licenses, Permits .......................................................................... 7
4.3.5 Air Quality Improvement Plan...................................................... 8
4.3.6 Burbank Airport Employee Ride Share Policy ............................. 8
4.4 Manner of Use....................................................................................................... 8
4.5 Interference with Utilities, Police, Fire Fighting .................................................. 9 ATTACHMENT 1
4.6 Interference with Fire Exits .................................................................................. 9
4.7 Temporary Structures............................................................................................ 9
4.8 Signs ...................................................................................................................... 9
4.9 Vending Machines ................................................................................................ 9
4.10 Non-Discrimination and Affirmative Action ........................................................ 9
4.11 Compliance with FAA Grant Assurances and Airport Use ................................ 10
4.11.1 Development or Improvement of Landing Area ......................... 10
4.11.2 Maintenance of Landing Area and Public Facilities ................... 10
4.11.3 Agreements with United States ................................................... 10
4.11.4 Construction of Improvements ................................................... 10
4.11.5 Non-exclusive Rights .................................................................. 10
4.11.6 Reservation of Rights .................................................................. 10
4.11.7 Height Restrictions...................................................................... 10
4.11.8 Interference with Aircraft ........................................................... 10
4.11.9 Rights of United States ............................................................... 11
4.11.10 Unauthorized Access .................................................................. 11
4.11.11 Security Checks .......................................................................... 11
4.12 Airport Security .................................................................................................. 11
4.12.1 Security Requirements ................................................................ 11
4.12.2 Security Program ........................................................................ 11
4.12.3 Violations by Tenant or Others ................................................... 11
4.12.4 Indemnity .................................................................................... 11
4.13 Quiet Enjoyment ................................................................................................. 12
5. MAINTENANCE AND REPAIRS ................................................................................ 12 ATTACHMENT 1
5.1 Tenant’s Obligations ........................................................................................... 12
5.2 Limitations on Landlord Obligations .................................................................. 12
5.3 Landlord Cure Rights .......................................................................................... 13
6. ALTERATIONS AND IMPROVEMENTS ................................................................... 13
6.1 Approval and Construction of New Improvements ............................................ 13
6.1.1 Landlord’s Approval ................................................................... 13
6.1.2 Cosmetic Alterations ................................................................... 13
6.1.3 Compliance with Policy on Tenant Improvements ..................... 13
6.1.4 Review and Approval of Plans ................................................... 13
6.1.5 Conditions of Approval............................................................... 14
6.1.6 Entitlements and Permits ............................................................ 14
6.1.7 Additional Requirements ............................................................ 14
6.1.8 Performance of Work .................................................................. 14
6.1.9 Payment for Work Performed ..................................................... 15
6.1.10 As Built Plans and Statement of Cost ......................................... 15
6.2 No Liability of Landlord ..................................................................................... 15
6.3 Indemnity ............................................................................................................ 16
6.4 Removal of New Improvements, Personal Property and Trade Fixtures ............................................................................................................... 16
7. INSURANCE, INDEMNITY AND EXCULPATION .................................................. 16
7.1 Obligation to Maintain Insurance ....................................................................... 16
7.2 Liability and Workers’ Compensation Coverage ............................................... 16
7.2.1 General Liability Insurance......................................................... 17
7.2.2 Aircraft Liability Insurance......................................................... 17 ATTACHMENT 1
7.2.3 Automobile Liability Insurance .................................................. 17
7.2.4 Workers’ Compensation Insurance ............................................. 17
7.2.5 Employer’s Liability Insurance ................................................... 17
7.3 Helicopter Liability Insurance ............................................................................ 17
7.4 Property Insurance .............................................................................................. 17
7.4.1 Fixtures and Equipment .............................................................. 18
7.4.2 Aircraft/Helicopter Hull Insurance ............................................. 18
7.4.3 Adjustment of Required Insurance ............................................. 18
7.5 Policy Requirements ........................................................................................... 18
7.6 No Limitation of Liability ................................................................................... 19
7.7 Waivers ............................................................................................................... 19
7.8 Indemnification ................................................................................................... 19
7.9 Tenant Acknowledgment of Notice of Claim ..................................................... 19
7.10 Exculpation of Landlord from Liability .............................................................. 19
7.11 Self-Insurance ..................................................................................................... 20
8. DAMAGE AND DESTRUCTION................................................................................. 20
8.1 Termination Right ............................................................................................... 20
8.2 Landlord’s Repair Obligations ............................................................................ 21
8.3 Costs of Restoration or Repair ............................................................................ 21
8.4 Waiver by Tenant ................................................................................................ 21
9. ASSIGNMENT, SUBLETTING AND ENCUMBRANCES......................................... 21
9.1 Assignment and Subletting Prohibited................................................................ 21
10. EMINENT DOMAIN ..................................................................................................... 21
10.1 Entire or Substantial Taking ............................................................................... 22 ATTACHMENT 1
10.2 Partial Taking ...................................................................................................... 22
10.3 Awards ................................................................................................................ 22
10.4 Sale Under Threat of Condemnation .................................................................. 22
10.5 Condemnation by Landlord ................................................................................ 22
11. SUBORDINATION ........................................................................................................ 22
11.1 Subordination ...................................................................................................... 23
11.2 Attornment .......................................................................................................... 23
12. DEFAULTS AND REMEDIES ..................................................................................... 23
12.1 Events of Default ................................................................................................ 23
12.1.1 Insolvency and Creditor Protection ............................................ 23
12.1.2 Attachment, Execution or Other Levy ........................................ 24
12.1.3 Transfer or Encumbrance ............................................................ 24
12.1.4 Vacation or Abandonment .......................................................... 24
12.1.5 Failure to Pay .............................................................................. 24
12.1.6 Failure to Maintain Insurance ..................................................... 24
12.1.7 Failure to Comply with Rules and Regulations .......................... 24
12.1.8 Other Defaults ............................................................................. 24
12.1.9 Multiple Defaults ........................................................................ 24
12.1.10 Failure to Acknowledge Notice of Claim ................................... 25
12.1.11 Defaults Under Other Agreements.............................................. 25
12.2 Remedies ............................................................................................................. 25
12.2.1 Termination of Lease .................................................................. 25
12.2.2 Continuation of Lease without Termination ............................... 25
12.3 Waiver of Claims ................................................................................................ 25 ATTACHMENT 1
12.4 Waiver of Rights of Redemption ........................................................................ 25
12.5 No Waiver ........................................................................................................... 26
12.6 Cumulative Remedies ......................................................................................... 26
12.7 Performance of Tenant’s Covenants by Landlord .............................................. 26
12.8 Excuse of Performance by Landlord................................................................... 26
12.9 Default by Landlord ............................................................................................ 26
13. SURRENDER AT END OF TERM ............................................................................... 27
14. HOLDOVER BY TENANT ........................................................................................... 27
15. OTHER RULES AND REGULATIONS OF LANDLORD .......................................... 27
16. TRANSFER OF LANDLORD’S INTEREST................................................................ 27
17. COMMON USE FACILITIES ....................................................................................... 27
17.1 Common Use Facilities ....................................................................................... 27
17.2 Reservation of Right to Make Changes .............................................................. 28
18. COMPLIANCE WITH ENVIRONMENTAL LAWS ................................................... 28
18.1 Use of Toxic Materials Prohibited ...................................................................... 28
18.2 Compliance with Environmental Laws ............................................................... 28
18.3 Disclosure ........................................................................................................... 28
18.4 Business Plan ...................................................................................................... 29
18.5 Tenant’s Indemnity ............................................................................................. 29
18.6 Notice .................................................................................................................. 29
18.7 Storage and Use of Toxic Materials.................................................................... 30
18.8 Disposal of Toxic Materials ................................................................................ 30
18.9 Safety .................................................................................................................. 30
18.10 Fees, Taxes and Fines ......................................................................................... 30 ATTACHMENT 1
18.11 Delivery of Documentation................................................................................. 30
18.12 Annual Site Investigation .................................................................................... 30
18.13 Limitation on Liability of Landlord .................................................................... 30
18.14 Definitions........................................................................................................... 31
18.14.1 Environmental Laws ................................................................... 31
18.14.2 Toxic Materials ........................................................................... 31
18.14.3 Liabilities .................................................................................... 31
19. OFFSET STATEMENTS/ESTOPPEL CERTIFICATES .............................................. 32
19.1 Delivery............................................................................................................... 32
19.2 Reliance............................................................................................................... 32
20. MISCELLANEOUS ....................................................................................................... 32
20.1 Lease Interpretation ............................................................................................ 32
20.1.1 Incorporation of Prior Agreements ............................................. 32
20.1.2 No Representations by Landlord ................................................ 33
20.1.3 Examination of Lease ................................................................. 33
20.1.4 Severability ................................................................................. 33
20.1.5 Gender and Number .................................................................... 33
20.1.6 Headings ..................................................................................... 33
20.2 Further Assurances.............................................................................................. 33
20.3 Disclaimer of Partnership or Agency .................................................................. 33
20.4 Waivers ............................................................................................................... 33
20.5 No Merger ........................................................................................................... 34
20.6 Waiver of Jury Trial ............................................................................................ 34
20.7 Notices ................................................................................................................ 34 ATTACHMENT 1
20.8 Brokers ................................................................................................................ 35
20.9 Recording ............................................................................................................ 35
20.10 Governing Law ................................................................................................... 35
20.11 Attorneys’ Fees ................................................................................................... 35
20.12 Force Majeure ..................................................................................................... 35
20.13 Authority of Persons Signing for Tenant ............................................................ 35
20.14 Parking ................................................................................................................ 35
Exhibit A Leased Premises
Exhibit B Noise Abatement Rules
Exhibit C FAA Grant Agreement Assurances - Nondiscrimination Exhibit D Policy on Tenant Improv ements
Exhibit E Other/General Landlord Rules and Regulations
ATTACHMENT 1
HELICOPTER MAINTENANCE AND OPERATIONS LEASE
THIS HELICOPTER MAINTENANCE AND OPERATIONS LEASE (“Lease”) is dated as of and is entered into by and among the BURBANK - GLENDALE PASADENA AIRPORT AUTHORITY, a public entity formed under a joint exercise of powers agreement among the Cities of Burbank, Glendale, and Pasadena, California, pursuant to the California Joint Exercise of Powers Act (“Landlord”), and the CITY OF BURBANK, a charter city and municipal corporation and the CITY OF GLENDALE, a charter city and municipal corporation, as tenants in common, each as to an undivided one-half (½) interest (collectively, and jointly and severally, “Tenant”).
RECITALS
A. Landlord is the owner and operator of the Hollywood Burbank Airport located in Burbank, California (“Airport”).
B. Tenant desires to lease space at the Airport (as described in Section 1.1 below, the “Leased Premises”) from Landlord to obtain space for the storage, maintenance, and operation of the police helicopters of the cities of Burbank and Glendale, and in order to thereby enhance and further promote the public safety and welfare served by such cities’ law enforcement programs.
THEREFORE, in consideration of the covenants and agreements contained herein and for other valuable consideration, the sufficiency of which is hereby acknowledged, Landlord and Tenant agree as follows:
1. LEASED PREMISES.
1.1 Defined. Landlord hereby leases to Tenant, and Tenant hereby leases and hires from Landlord, the hangar space described and/or depicted in Exhibit “A” attached hereto (the “Leased Premises”), upon the terms and subject to the conditions set forth in this Lease.
1.2 “AS-IS”. Tenant accepts the Leased Premises as of the Commencement Date (as hereinafter defined) in the condition existing as of the Commencement Date, without representation or warranty, express or implied, and agrees that the Leased Premises are otherwise in a good and tenantable condition and acknowledges that, except as specifically provided herein, Landlord is not otherwise obligated to make any repairs or alterations to the Leased Premises.
The Leased Premises, the building in which they are located, the office space in the building that is included in the Leased Premises, and any other areas that may be used by Tenant under this Lease (herein, the “subject premises”) have not been inspected by a Certified Access Specialist (CASp). A CASp can inspect the subject premises and determine whether they comply with all of the applicable construction- related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, a commercial property owner or lessor may not prohibit a lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties must mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any ATTACHMENT 1
repairs necessary to correct violations of construction- related accessibility standards within the subject premises.
The Landlord and Tenant hereby agree that Landlord will not be obligated to obtain or pay for such an inspection report, and will not make or pay for any necessary repairs (all of which shall be the responsibility of the Tenant under this Lease).
1.3 Title; Reservations to Lan dlord. Tenant accepts the Leased Premises subject to any and all existing easements, servitudes and encumbrances, whether recorded or unrecorded. Landlord reserves the right, without obligation, to install, lay, construct, maintain, repair and replace utilities and appurtenances necessary or convenient in connection therewith in, over, upon, through, across, under and along the Leased Premises and any New Improvements (as defined in Section 6.1.1) or any part thereof, and to enter the Leased Premises or a ny New Improvements for any and all such purposes. Landlord also reserves the right to grant franchises, licenses, easements, rights of way and permits in, over, upon, through, across, under and along any and all portions of the Leased Premises. No right reserved by Landlord in this Section shall be so exercised as to interfere unreasonably with Tenant’s use of the Leased Premises or Tenant’s business operations in the Leased Premises or the construction of the New Improvements as provided in this Lease or Tenant’s reasonable access to the Common Use Facilities.
1.4 Landlord’s Right of Access. Landlord shall have free access to the Leased Premises during all reasonable hours, or at any time in the event of an emergency, for the purposes of examining the same to ascertain if they are in good repair, inspecting any work in progress within or upon the Leased Premises, New Improvements or elsewhere on the Airport, making repairs which Landlord may be permitted to make hereunder, and, during the last twelve (12) months of the term of this Lease or at any time following either Landlord or Tenant giving a notice of termination under this Lease, exhibiting the same to prospective purchasers or tenants. Such entry shall be made in a manner that will not unreasonably interfere with Tenant’s use of the Leased Premises, except in case of emergency. In the event that Tenant is not personally present to open and permit such entry, Landlord may enter by means of master keys or may enter forcibly and shall incur no liability to Tenant as a result of such entry, except for any gross negligence or willful misconduct on the part of Landlord or any of its employees, agents, representatives or contractors. In non- emergency situations, Landlord shall exercise such right of access with reasonable notice and frequency and shall exercise commercially reasonable efforts to be accompanied by Tenant’s representative.
2. TERM.
2.1 Initial Term; Commencement Date; Annual Period. The term of this Lease shall commence at 12:01 a.m. on , 2024 (“ Commencement Date”) and continue until 11:59 p.m. on , 2054 (“Expiration Date”). Each twelve (12) full calendar month period, commencing on the Commencement Date, during the term of this Lease is sometimes hereinafter referred to as an “Annual Period”.
ATTACHMENT 1
2.2 Early Termination.
2.2.1 Landlord’s Right to Terminate . Tenant acknowledges that Landlord is presently conducting and in the future will conduct feasibility, economic, land use and other studies of the Airport and its physical configuration for the purpose of relocating or rebuilding terminal facilities, fixed base operator facilities, cargo facilities, fueling facilities, retail, commercial, industrial and manufacturing facilities, parking areas, service areas, runways, taxiways, apron areas, access roads, control tower, safety and open areas, safety and navigation equipment and other Airport and non- Airport facilities, some or all of which may be required by the Federal Aviation Administration (“FAA”), by considerations of safety or efficiency of operation at the Airport, or by economic conditions, opportunities or circumstances, and that it is not possible to determine whether or to what extent the Leased Premises or New Improvements will be included within or affected by any such studies, reconfiguration of the Airport or rebuilding or relocation of Airport facilities. In the event that Landlord, in its sole and absolute discretion, determines that all or a portion of the Leased Premises is needed for alternative purposes, uses or opportunities, or that any reconfiguration of the Airport, reconstruction, rebuilding or reconstruction of Airport facilities, or construction of new Improvements or facilities, will prevent or interfere with Tenant’s authorized use of the Leased Premises, and without any requirement that Landlord consider the potential or actual adverse economic impacts upon Tenant or that Landlord meet any standard of reasonableness, need, good faith or fair dealing, all of which Tenant acknowledges shall not be required to be considered by Landlord, Landlord shall have the right to terminate this Lease as to all of the Leased Premises by delivering to Tenant not less than six (6) months’ prior written notice of such termination pursuant to this Section.
2.2.2 Tenant Acknowledgments Regarding Landlord’s Right to Terminate. The provisions of Section 2.2.1 are contractual and arise from Landlord’s unwillingness to enter into a long term lease of the Leased Premises without the right of termination provided herein, and are in part in exchange for Tenant’s rights under Section 2.2.3 below. Tenant acknowledges that under these circumstances, including those in the preceding sentence, such provisions are reasonable and Tenant is willing to accept Landlord’s termination rights in order to obtain a longer lease term than might otherwise be provided by Landlord. The exercise by Landlord of its termination right shall not be construed as a taking by Landlord of any part of the Leased Premises or New Improvements or of Tenant’s rights or leasehold estate under this Lease, and Tenant shall not be entitled to payment for any loss of goodwill, income or other amount measured by Tenant’s loss upon termination or reduction of its business following termination of this Lease as to the Leased Premises or any New Improvements.
2.2.3 Tenant’s Right to Terminate. Provided Tenant is not in default under this Lease as of the date its termination notice (hereinafter described) is sent and the date specified in such notice as the date on which this Lease shall terminate, then Tenant shall have the right to terminate this Lease upon six (6) months’ prior written notice to Landlord.
3. RENT AND OTHER CHARGES.
3.1 No Rent . In consideration of the enhancement and promotion of public safety being served by the law enforcement helicopter facility to be located on the leased premises, Tenant shall not be required to pay to Landlord any sums as and for rent.
ATTACHMENT 1
3.2 Taxes. Tenant shall, if not otherwise exempt from payment, pay prior to delinquency all taxes and assessments imposed by any authority having the direct or indirect power to tax which are applicable during the term of this Lease on the leasehold estate of Tenant hereunder (i.e., possessory interest taxes) and/or any improvements or constructed, installed or made to the Leased Premises by Tenant, and all personal property of Tenant.
3.2.1 Right to Contest . Tenant shall have the right to contest the validity, applicability, and/or amount of any taxes alleged by the applicable taxing authority to be payable by Tenant by appropriate proceedings and the cost of such contest shall be paid by Tenant, but Tenant shall be entitled to receive and retain the recoveries from such contest. Notwithstanding the foregoing, if such Taxes are secured by a lien on any portion of the Airport or its revenues or if, in the sole opinion of Landlord, the nonpayment of such Taxes will be detrimental to Landlord, then as a condition to making such contest, Tenant shall pay the contested Taxes with a right of reservation.
3.3 Utilities. Tenant shall pay charges for water, gas, heat, light, power, air conditioning, telephone, internet and other utilities and services supplied to and/or used in the Leased Premises, together with any and all taxes thereon and connection fees relating thereto, in accordance with Section 3.3 below. Tenant acknowledges, for itself that, except to the limited extent expressly provided in Section 3.3, Landlord has no obligation to provide utilities or services to the Leased Premises. Landlord shall not be liable to Tenant under any circumstances for destruction, damage or loss to property, injury or death of any person, or any consequential damages, arising out of, resulting from or relating to, whether directly or indirectly, the furnishing, failure to furnish, interruption, cancellation or termination of any of said utilities or services by the providers or suppliers of any said utilities or services. Tenant shall comply with all rules, regulations and other requirements which any provider or supplier of utilities or services may establish for the use, proper functioning and protection of any said utility or service.
3.4 Other Charges.
3.4.1 Obligation to Pay. Tenant shall pay, as additional rent all the costs and expenses incurred by Landlord described in Section 3.3 (Utilities) above and this Section
3.4. 3.4.2 Fire and Security Services. Landlord is not obligated to Tenant to furnish any fire -fighting services or security services to the Leased Premises. Tenant acknowledges that the Leased Premises, Common Use Facilities and other areas of the Airport are within the municipal service areas of the City of Burbank and the City of Los Angeles. Tenant shall provide such security services as may be reasonably required by Landlord to protect the Leased Premises against fire, theft, vandalism, malicious mischief, and unauthorized use or entry of the Leased Premises, and any improvements so required shall be included in “Approved New Improvements”. Without limiting or modifying any obligation of Tenant to pay Annual Base Rent or other amounts due under this Lease, with Landlord’s prior written approval, which shall not be unreasonably withheld, Tenant shall have the right to station its own security personnel at the Leased Premises and to install its own security systems in the Leased Premises.
ATTACHMENT 1
3.4.3 Trash Removal. Tenant shall comply with all reasonable written instructions of Landlord in disposing of its trash and refuse. Tenant shall dispose of its refuse at its sole expense.
3.4.4 Manner of Payment . In the event Landlord pays or incurs any amount reimbursable to Landlord under this Section 3.3 or under any other section of this Lease, Tenant shall reimburse Landlord for such charge, as additional rent hereunder, within thirty (30) days after Landlord gives to Tenant an appropriate invoice therefor.
3.5 Net Lease. Except as otherwise provided in this Lease, Tenant shall be responsible for all costs attributable to the Leased Premises and Tenant’s use or occupancy thereof.
Landlord shall receive all amounts payable by Tenant pursuant to this Section 3, or any other provision of this Lease, free and clear of any and all other impositions, Taxes, liens, charges or expense of any nature whatsoever in connection with the ownership and operation of the Leased Premises. In addition to the amounts payable by Tenant pursuant to this Section 3, Tenant shall pay to the parties respectively entitled ther eto all other impositions, operating charges, maintenance charges, construction costs, and any other charges, costs and expenses which arise or may be contemplated under any provision of this Lease during the term hereof; provided, however, that Tenant shall have the right to contest the validity, applicability or amount of any such charge, cost or expense and, if the claimant attempts to attach or to assert any stop notice or mechanics lien rights against funds held by Tenant’s lender, the Leased Premises or any New Improvements, Tenant provides any statutory bond required to prevent such claimant from exercising any such rights or remedies against the lender, the Leased Premises or the New Improvements. All of such charges, costs and expenses which either (i) are payable to Landlord or (ii) the failure to pay will create a lien against the Land, shall constitute additional rent, and upon the failure of Tenant to pay any of such costs, charges or expenses, Landlord shall have the same rights and remedies a s otherwise provided in this Lease for the failure of Tenant to pay rent.
3.6 Interest on Past Due Payments. Any amount due from Tenant to Landlord pursuant to this Section 3 or any other provision of this Lease which is not paid within fifteen (15) days after Landlord delivers written notice to Tenant that such amount is due shall bear interest from the due date until paid at a rate equal to the lower of (i) ten percent (10%) per annum or (ii) five (5%) in excess of the prevailing rate established by the Federal Reserve Bank at San Francisco on advances to member banks on the twenty-fifth (25th) day of the month preceding the Commencement Date (but not more than the maximum rate permissible by Law); provided, however, that the payment of any interest pursuant to this Section shall not excuse or cure any default by Tenant with respect to its obligations to pay any amount due from Tenant pursuant to this Section 3 or any other provision of this Lease.
3.7 Address for Payment . The rent and all other amounts due to Landlord pursuant to this Section 3 or any other provision of this Lease shall be paid at the office of Landlord; Burbank-Glendale- Pasadena Airport Authority, 2627 Hollywood Way, Burbank, California 91505, Attention: Controller, or at such other place as Landlord may designate from time to time in writing to Tenant.
3.8 No Abatement of Rent or Fees . Tenant acknowledges and agrees that, except as provided in Sections 8.1, 8.2, 10.1 or 10.2: (i) this Lease shall not be terminable for any ATTACHMENT 1
reason by Tenant, and (ii) Tenant shall in no event be entitled to any abatement of or reduction in rent payable under this Lease. Any present or future Law to the contrary shall not alter this Lease.
4. USE OF LEASED PREMISES.
4.1 Use of Leased Premises.
4.1.1 Principal Use As Airport. Tenant hereby acknowledges that the principal use of the Airport consists of the operation of a public airport and that all other businesses and operations which now are or hereafter permitted by Landlord, to be conducted on or at the Airport, including Tenant’s use of the Leased Premises pursuant to this Lease, must at all times be compatible with such principal use, as Landlord, in its sole and absolute discretion, shall determine, including, without limitation, the exercise of Landlord’s rights pursuant to Section
2.2.1. 4.1.2 Authorized Use of Leased Premises. Tenant shall use the portion of the Leased Premises constituting hangar space exclusively throughout the Lease term for helicopter storage and maintenance and for no other use; Tenant shall use the portion of the Leased Premises constituting office space exclusively throughout the Lease term for office use and for no other use; and Tenant shall use the remainder of the Leased Premises constituting hangar for operation of Tenant’s helicopters and related law enforcement equipment and operations (collectively, the “Permitted Uses”). Tenant shall not use nor authorize the use of the Leased Premises, or any portion thereof, for any purpose whatsoever that is not a Permitted Use for the applicable portion without Landlord’s prior written consent, which consent Landlord may withhold or condition in Landlord’s sole and absolute discretion without regard to any standard of reasonableness.
4.1.3 Restrictions on Storage . Derelict aircraft, inoperative ground vehicles, unused ramp equipment, scaffolding, hoists and related items may not be kept on any portion of the Airport unless such equipment and materials are kept within the fully enclosed hangar building portion of the Leased Premises.
4.2 Prohibited Uses. Tenant shall neither use nor permit the use of any part of the Leased Premises for any purpose other than as set forth in Section 4.1. Without limiting the generality of the foregoing sentence, the following uses are specifically prohibited unless the prior written consent of Landlord is obtained:
4.2.1 Sales of aviation fuel or oil;
4.2.2 Sales of food;
4.2.3 Sales of products or sundry items;
4.2.4 Sales or dispensing of alcoholic beverages;
4.2.5 Any use prohibited by Law or not related to aviation.
ATTACHMENT 1
4.2.6 Knowingly boarding, enplaning or unloading revenue passengers, either on a scheduled or nonscheduled basis.
4.3 Conduct of Tenant’s Activities.
4.3.1 Standards. In addition to any and all other terms, conditions and requirements under this Lease, Tenant, at all times during the term of this Lease, shall comply strictly with the terms, conditions and requirements set forth in this Section 4.3.
4.3.2 Conduct of Employees. Tenant shall exercise its diligent efforts to control the conduct, demeanor, and appearance of its officers, employees, agents, representatives, contractors, licensees, permittees, invitees and permitted Tenants, and shall require all of its employees to wear clean and neat appearing clothing and shall take all actions necessary to ensure their courteous, polite and inoffensive conduct and demeanor. Upon receipt of reasonable written objection from Landlord concerning the conduct, demeanor, or appearance of any such person, Tenant immediately shall take all legal steps necessary to correct or to remove the cause of the objection.
4.3.3 Landlord Noise Abatement Rules. Tenant hereby acknowledges that Tenant has read and understands the Burbank- Glendale-Pasadena Airport Authority noise abatement rules as they presently exist, attached hereto as Exhibit “B”. Tenant shall conduct its business and flight operations, if any, in compliance with the noise abatement rules, as the same may be amended by Landlord from time to time, including, without limitation, any voluntary or mandatory curfew imposed now or in the future by Landlord, consistent with federal law, on flight operations between specified nighttime and morning hours (the “Noise Abatement Rules”).
Tenant shall also conduct its flight operation in accordance with any voluntary noise abatement procedures as may be promulgated by Landlord that are in compliance with federal law. Landlord shall give written notice to Tenant of any violation of the Noise Abatement Rules by Tenant which comes to Landlord’s attention.
4.3.4 Licenses, Permits; Compliance With Laws. Tenant, at Tenant’s own cost and expense , shall obtain and maintain in effect at all times during the term hereof all licenses, permits, certificates, approvals and other authorizations required by any federal, state, county, city or other governmental department, bureau, agency or other authority having jurisdiction over Tenant, Tenant’s business and operations from the Leased Premises or any other areas of the Airport, including, without limitation, all licenses, permits, certificates, approvals and other authorizations required by the FAA. Tenant shall comply with all applicable federal, state, county and city statutes, regulations, rules and ordinances governing or regulating matters of health, safety or security or the use or occupancy of the Leased Premises or the operation of the Airport, including all rules and regulations promulgated by the FAA or the TSA, all rules, regulations, policies and guidelines of Landlord promulgated pursuant to Section 16 of this Lease, and all orders of any governmental department, bureau, agency or other authority having jurisdiction over Tenant, Tenant’s business and operations from the Leased Premises, the Leased Premises and New Improvements or any other areas of the Airport (collectively, “Laws”).
Landlord shall give written notice to Tenant of any violation of Laws by Tenant which comes to Landlord’s attention.
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4.3.5 Air Quality Improvement Plan . In addition to complying with Section 4.3.3, Tenant shall also comply with the certain provisions of the Burbank Airport’s Air Quality Improvement Plan:
4.3.5.1 Ground Support Equipment Emissions Policy . Airlines and other entities own and operate ground support equipment (“GSE”) to support arriving, departing, and parked aircraft at the Airport. The Airport’s GSE policy will ensure that the Airport achieves Airport -wide GSE emissions targets. The Airport will achieve an airport average composite emissions factor for its GSE fleet which is equal to or less than 1.66 horsepower-hour of nitrogen oxides (g/hp- h of Nox) by January 1, 2023, and 0.74 g/hp-h of Nox by January 1, 2031. Upon achieving the 2023 and 2031 emissions targets, Tenant shall be required to ensure its fleet average continues to meet the Airport emissions targets. Tenant’s obligation to meet the 2 031 target shall be contingent on the installation of adequate infrastructure to support zero-emission GSE, which is operationally feasible and commercially available. Tenant’s “Burbank Airport GSE fleet” shall be comprised solely of GSE operated at the Ai rport. Emissions performance of GSE operating at the Airport cannot be averaged with emissions performance of GSE operating at other airports to demonstrate compliance with the Airport GSE emissions targets.
4.3.5.2 Clean Construction Policy. Landlord has adopte d a Clean Construction Policy, which may be accessed/found at http://hollywoodburbankairport.com/green-initiatives/. For all capital improvement projects (“CIPs”) undertaken by Tenant, Tenant shall comply, and shall cause its CIP contractors to comply, with such Clean Construction Policy, and shall otherwise ensure its contractors follow clean construction policies to reduce emissions of Nox such as using low -emission vehicles and equipment, recycling construction and demolition debris, and minimizing non- essential trips through better schedule coordination.
4.3.6 Burbank Airport Employee Ride Share Policy. Landlord intends to join the Burbank Transportation Management Organization (BTMO), which will serve all Airport employees and all Airport tenant employers , including employers with less than 250 employees. Tenant is encouraged to also join and to actively participate in the BTMO as an individual member.
4.4 Manner of Use . Tenant shall not use or permit the use of the Leased Premises or any other areas of the Airport in any manner that will (i) tend to create or permit any waste or nuisance, (ii) unreasonably tend to disturb other tenants, users or occupants of the Airport, (iii) invalidate, cause the cancellation of or conflict with any fire or other hazard insurance policies covering the Airport, or (iv) increase the premiums for any fire insurance policies covering the Leased Premises, the Airport or any property located thereon; or (v) constitute an immoral, improper, unlawful or objectionable purpose. Tenant, at its expense, shall comply with all rules, orders, regulations, or requirements of the National Board of Fire Underwriters, or any other similar body with respect to Tenant’s operations at the Leased Premises.
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4.5 Interference with Utilities, Police, Fir e Fighting. Tenant shall not do or permit to be done anything which may interfere with the effectiveness or accessibility of the mechanical, gas, electrical, heating, ventilating, air conditioning, plumbing or sewer systems, facilities or devices or portions thereof on or servicing the Leased Premises, or elsewhere on the Airport. In addition, Tenant shall not do or permit to be done anything which may interfere with free access or passage to the Leased Premises or the streets, roads, parking lots, curb a reas, entryways, exits, sidewalks, Common Use Facilities or any other areas of the Airport other than such interference resulting from Tenant’s compliance with Landlord’s Security Requirements in accordance with the terms of this Lease. Further, Tenant shall not hinder police, fire fighting or other emergency personnel in the discharge of their duties.
4.6 Interference with Fire Exits . Tenant shall not do or permit to be done anything which may interfere with the effectiveness or accessibility of fire exits in or adjacent to the Leased Premises or elsewhere at the Airport.
4.7 Temporary Structures. Tenant shall not allow any temporary structures or facilities on the Leased Premises, unless Tenant has obtained Landlord’s prior written approval, which approval may be granted or withheld by Landlord in its sole and absolute discretion and, if such approval is granted, it shall be revocable at any time by Landlord, in its sole and absolute discretion.
4.8 Signs. Tenant shall not place, erect or maintain or cause to be pl aced, erected or maintained on or to the roof or any exterior door, wall, window or the roof of the building in which the Leased Premises are located or any New Improvement, or on or to the glass of any window or door of the Leased Premises or any New Improvement, any sign, marquee (flashing, moving, hanging, handwritten, or otherwise), decal, placard, awning, decoration, flashing, moving or hanging lights, lettering, or any other advertising matter of any kind or description without the express, written consent of Landlord. If Tenant places or causes to be placed or maintained any of the foregoing, Landlord or Landlord’s representative may remove the same at Tenant’s sole cost and expense and without notice or liability and without such removal constituting a breach of this Lease or entitling Tenant to claim damages on account thereof. No illuminated sign located within the Leased Premises th at is visible from the outside of the Leased Premises shall be permitted.
Tenant shall repair, at its sole cost and expense, any damage to the Leased Premises caused by the erection, maintenance or removal of any sign or other attachment. Landlord hereby acknowledges its approval of Tenant’s existing signage, and signs substantially similar thereto.
4.9 Vending Machines. Tenant shall not place any vending machines or devices in or on the Leased Premises except for sales to its employees, without the prior written consent of Landlord.
4.10 Non-Discrimination and Affirmative Action. Tenant shall comply with the provisions of “C ” attached hereto and by this reference made a part hereof regarding nondiscrimination, as the same may be amended by Landlord from time to time. In addition, Tenant shall undertake an affirmative action program, as required by 14 Code of Federal Regulations Part 152, Subpart E, to insure that no person shall, on the ground of race, creed, color, national origin, or sex, be excluded from participating in any employment activities covered in 14 Code of Federal Regulations Part 152, Subpart E. Tenant agrees that no person shall be excluded ATTACHMENT 1
on these grounds from participating in or receiving the services or benefits of any program or activity covered by said Subpart.
4.11 Compliance with FAA Grant Assurances and Airport Use . In connection with the ownership and use of the Airport by Landlord, Tenant hereby agrees as follows:
4.11.1 Development or Improvement of Landing Area . Landlord reserves the right to further develop or improve the landing area of the Airport as it sees fit, regardless of the desires or views of Tenant, and without interference or hindrance.
4.11.2 Maintenance of Landing Area and Public Facilities . Landlord reserves the right, but shall not be obligated to Tenant, to maintain and keep in repair the landing area of the Airport and all publicly owned facilities of the Airport, together with the right to direct and control all activities of Tenant in this regard.
4.11.3 Agreements with United States. This Lease shall be subordinate to the provisions and requirements of any existing or future agreement between Landlord and the United States, or any lawful requirement of the United States, relative to the development, operation, or maintenance of the Airport.
4.11.4 Construction of Improvements. In the event any future structure or building is planned for the Leased Premises in the event of any planned modification or alteration of any present or future building or structure situated on the Leased Premises, Tenant shall comply with the notification and review requirements covered in Part 77 of the Federal Aviation Regulations.
4.11.5 Non-exclusive Rights. It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of any exclusive right within the meaning of Section 308 (a) of the Federal Aviation Act of 1958 (49 U.S.C. 1349(a)).
4.11.6 Reservation of Rights. There is hereby reserved to Landlord, its successors and assigns, for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the Leased Premises and the other areas of the Airport.
This public right of flight shall include the right to cause within said airspace any noise inherent in the operation of any aircraft used for navigation or flight through said airspace or landing at, taking off from or operating on the Airport.
4.11.7 Height Restrictions. Tenant shall not erect nor permit the erection of any structure or object, nor permit the growth of any tree, on the Leased Premises in violation of federal height restrictions and obstruction criteria or any more restrictive height restrictions and obstruction criteria established from time to time by Landlord. In the event the aforesaid covenants are breached, in addition to all other rights and remedies of Landlord, Landlord reserves the right to enter upon the Leased Premises to remove the offending structure or object and to cut the offending tree, all of which shall be at the expense of Tenant.
4.11.8 Interference with Aircraft . Tenant shall not make use of the Leased Premises nor any other areas of the Airport in any manner which might interfere w ith the landing and taking off of aircraft from the Airport, or which might otherwise constitute a hazard.
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In the event the aforesaid covenant is breached, in addition to all other rights and remedies of Landlord, Landlord reserves the right to enter upon the Leased Premises or any other areas of the Airport and cause the abatement of such interference, at the expense of Tenant.
4.11.9 Rights of United States. This Lease and all the provisions hereof shall be subject to whatever right the United States Government now has, or in the future may have or acquire, affecting the control, operation, regulation and taking over of the Airport, or the exclusive or non- exclusive use of the Airport by the United States during the time of war or national emergency or otherwise.
4.11.10 Unauthorized Access. Tenant shall use reasonable precautions to prevent unauthorized persons from gaining access to restricted flight and aircraft operational areas, including, without limitation, the precautions established pursuant to Section 4.13.
4.11.11 Security Checks . Tenant shall comply with Part 107 of the Federal Aviation Regulations requiring background checks, including references and prior employment history, for all persons who have unescorted access to the airfield. Tenant agrees to maintain records of background checks for all employees of Tenant and to make such records available to the FAA and Landlord as may be requested from time to time.
4.12 Airport Security.
4.12.1 Security Requirements . Tenant’s written security program described in Section 4.13.2 below may be modified or supplemented from time to time by Landlord or its staff in writing, and in its sole and absolute discretion (“Security Requirements”), is an integral part of this Lease and is hereby incorporated herein by this reference.
4.12.2 Security Program. To the extent not previously submitted, within thirty (30) days after the date hereof, Tenant shall submit Tenant’s written security program to Landlord for review and approval.
4.12.3 Violations by Tenant or Others . Upon receipt of any written notice from Landlord of a violation of the Security Requirements by Tenant or by any person subject to Tenant’s control, Tenant shall promptly engage security personnel or undertake other necessary security procedures as reasonably requested by Landlord to cure the violation of the Security Requirements described in such notice and Tenant shall pay any fine or penalty imposed by the FAA as a result of such violation or imposed by Landlord under the Rules and Regulations.
Tenant’s failure to cure timely the violatio n of the Security Requirements described in the Landlord’s notice shall constitute an Event of Default under this Lease.
4.12.4 Indemnity. Tenant shall defend, indemnify and hold harmless Landlord and the other Landlord Parties from and against any and all demands, claims, actions, causes of action, proceedings, judgments, awards, damages, fines, penalties, liabilities, obligations, losses, costs and expenses, including, without limitation, attorneys’ fees, of any nature whatsoever, whether now existing or hereafter arising, known or unknown, foreseen or unforeseen, fixed or contingent (collectively, “Claims”), that Landlord or any other Landlord Party may at any time sustain or incur arising out of, resulting from or relating to any breach or violation by Tenant, or anyone subject to Tenant’s control of, or failure to comply with, any provision of the Security ATTACHMENT 1
Requirements, Tenant’s own security program, any applicable Laws relating to Airport security, or any applicable guidelines, policies or procedures relating to Airport security adopted and published from time to time by the FAA or by Landlord or their respective staffs and applicable to tenants at the Airport, including, without limitation, the Rules and Regulations.
4.13 Quiet Enjoyment. Subject to the provisions of this Lease and applicable Laws, so long as Tenant is not in default (after applicable notice, if any, and an opportunity to cure) in the performance of any of its obligations under this Lease, Tenant shall lawfully and quietly hold, occupy and enjoy the Leased Premises during the Lease term.
5. MAINTENANCE AND REPAIRS.
5.1 Tenant’s Obligations. Tenant, at Tenant’s expense, shall maintain the Leased Premises and every part thereof in good order, condition, and repair according to standards determined by Landlord (whether or not such part of the Leased Premises requiring repair, or the means of repairing the same, are reasonably or readily accessible to Tenant, and whether or not the need for such repairs occurs as a result of Tenant’s use, any prior use, the elements or the age of such part of the Leased Premises) including, without limiting the generality of the foregoing, (i) all buildings, structures or fixtures, including ceilings, floors, interior walls, non- structural components of exterior walls and exterior wall surfaces; (ii) store fronts, windows, doors, plate glass, showcases, skylights, entrances, and vestibules located within the Leased Premises, (iii) pavement, driveways, landscaping, parking lots, fences and signs, and all sprinkler, plumbing, sewer, drainage, heating, air conditioning, mechanical electrical and other system facilities, devices and equipment located within the boundaries of the Leased Premises, including air compressor and locks. Tenant shall commence any repair within ten (10) da ys after the delivery to Tenant of written notice of the need for such repair. Landlord shall not be liable to Tenant by reason of any injury to or interference, with Tenant’s operations arising from o connected with the need for or the making of any repairs to the Leased Premises. All repairs to the Leased Premises shall be performed by Tenant, at its expense, and in accordance with the building standards of the City of Los Angeles and it shall be the responsibility of Tenant to secure appropriate permit s pursuant to the applicable ordinances, rules and regulations of the City of Los Angeles, Tenant shall paint the walls and shall wash all windows in the Leased Premises as often as may be required to keep the Leased Premises neat and attractive, and shall keep the Lease and Premises at all times in a sanitary condition, free from waste or debris consistent with standards established by Landlord, all at Tenant’s expense. Tenant shall screen and landscape any outside storage areas and any service yards of the Leased Premises with fencing and landscaping approved by Landlord.
5.2 Limitations on Landlord Obligations. Landlord shall have no obligation to maintain or make any repairs or replacement to the Leased Premises. Tenant for itself and for each Tenant Party hereby waives any and all rights provided in Section 1941 through 1942, inclusive, of the Civil Code of California and hereby waives, to the extent possible, any rights under any other statutes or laws nor or hereafter in effect which are contrary to the obligations of Tenant under this Lease or which place obligations upon Landlord. Landlord shall not be liable to any Tenant or any Tenant Party for any injury to or interference with Tenant or any Tenant Party or the business or operations of Tenant or any Tenant Party or the use or occupancy of the Leased Premises or the Common Use Facilities or any other area of the Airport by any Tenant Party arising ATTACHMENT 1
out of, resulting from or relating to the need for or performance or non- performance of any maintenance, repair or replacement.
5.3 Landlord Cure Rights. In the event Tenant fails to perform its obligations under this Section 5, in addition to any and all other rights and remedies of Landlord, Landlord may, at its option, after fifteen (15) days’ written notice to Tenant, enter upon the Leased Premises and put the same in good order, condition and repair and make any required replacement, and the cost thereof shall become due and payable, upon demand, by Tenant to Landlord as additional rent; provided, however , so long as Tenant commences required maintenance, repairs and replacements within such fifteen (15) day period and diligently prosecutes such maintenance, repairs and replacements to completion, Tenant shall be deemed to be fully performing Tenant’s obligations hereunder.
6. ALTERATIONS AND IMPROVEMENTS.
6.1 Approval and Construction of New Improvements.
6.1.1 Landlord’s Approval. Without in each instance obtaining the prior written approval of Landlord in accordance with this Section 6.1.1, which approval may be granted or withheld in Landlord’s sole and absolute discretion (“Landlord’s Approval”), Tenant shall not (i) demolish any Existing Improvements, (ii) construct or install any Improvements or (iii) except as provided in Section 6.1.2, make any modifications, alterations or additions to the Leased Premises or Improvements (all such demolition, construction, installation, modifications, alterations and additions are individually and collectively referred to in this Lease as “New Improvements”), and no work required in connection therewith shall commence, prior to receiving Landlord’s Approval. Landlord reserves the right to disapprove any New Improvements wholly on aesthetic grounds. If Tenant makes or commences any New Improvements without the prior written approval of Landlord, then Landlord shall have the right to require Tenant to remove any or all of such New Improvements at Tenant’s sole expense and shall also have the right to declare Tenant in default under this Lease.
6.1.2 Cosmetic Alterations. Landlord shall not unreasonably withhold its consent to any interior Alterations that do not affect the roof or load bearing walls (collectively, “Cosmetic Alterations”), provided that any signage or graphic materials constituting Cosmetic Alterations shall not be visible from outside the Leased Premises. Landlord shall not impose any aesthetic condition or condition upon any approval of a Cosmetic Alteration.
6.1.3 Compliance with Policy on Tenant Improvements . Prior to the commencement of any New Improvements, Tenant shal l comply with the rules and guidelines established by Landlord for such work pursuant to Landlord’s policy on tenant improvements attached hereto as Exhibit “D”, as the same may be amended from time to time. If there is any express conflict between the policy on tenant improvements and the provisions of this Lease, the provisions of this Lease shall apply.
6.1.4 Review and Approval of Plans. In order to expedite plan review and approval and to insure that the proposed New Improvements will be compatible with Ai rport uses, Tenant first shall submit to Landlord for approval a conceptual plan and shall pay Landlord ATTACHMENT 1
an administrative fee in the amount equal to the greater of five percent (5%) of the total estimated cost of all New Improvements, or Two Thousand Dollars ($2,000), for reviewing Tenant’s plans.
Notwithstanding Landlord’s Approval of the conceptual plan, all construction plans and specifications shall be subject to Landlord’s Approval and, when required by the Airport Engineer, shall be prepared, stamped and signed by a California licensed architect or engineer. Engineers shall be licensed for the particular discipline required. All changes to plans and specifications previously receiving Landlord’s Approval which are required by the City of Burbank to be submitted to the City for plan check or review in accordance with the City’s building codes (“Material Plan Change”) shall also concurrently be submitted to Landlord and shall require Landlord’s Approval. Landlord shall have three (3) working days within which to review and to approve or disapprove the proposed Material Plan Change and, if Landlord fails to disapprove the Material Plan Change, then the Material Plan Change shall be deemed to have received Landlord’s Approval. Upon Landlord’s Approval, Landlord shall issue promptly a Certificate of Approval for each Material Plan Change.
6.1.5 Conditions of Approval. Landlord may impose, as a condition of its approval of any New Improvements, such reasonable requirements as to the design, construction, installation, making or removal of the New Improvements, as Landlord determines, in the exercise of its reasonable judgment, including, without limitation, requirements as to the following: (i) the experience, qualifications, financial condition and other factors relating to the contractor; (ii) the time for the commencement and completion of the construction or installation of the New Improvements; (iii) the type or quality of materials used in the construction or installation of the New Improvements; and (iv) the means or methods used in the construction or installation of the New Improvements.
6.1.6 Entitlements and Permits . No New Improvements shall be constructed until Tenant shall have procured and paid for all entitlements, permits, licenses, approvals and authorizations relating to such New Improvements required by all Laws and governmental authorities and agencies.
6.1.7 Additional Requirements . Prior to the commencement of any New Improvements, Tenant shall (i) provide Landlord with a copy of the construction contract, construction schedule, trade payment breakdown and list of subcontractors and suppliers for Landlord’s prior written approval; (ii) furnish to Landlord a copy of all building permits; (iii) record or cause the general contractor performing the const ruction contract to record a statutory payment and performance bond acceptable to Landlord and issued by a corporate surety acceptable to Landlord in an amount equal to the construction cost; (iv) provide Landlord with ten (10) days’ written notice prior to commencing any work; and (v) require any contractor used by Tenant carry a comprehensive liability insurance policy, on a “per -occurrence basis”, covering bodily injury in the amounts of Two Million Dollars ($2,000,000.00) for death or injury to any one person, Two Million Dollars ($2,000,000.00) for the death or injury to more than one person, and One Million Dollars ($1,000,000.00) for property damage.
6.1.8 Performance of Work . All work done in connection with any New Improvements shall be done at Tenant’s sole expense and with reasonable diligence, in a good and workmanlike manner, and in compliance with all applicable Laws. Landlord shall have the right to inspect and reject any work not done in accordance with the approved plans and ATTACHMENT 1
specifications, including any changes permitted under Section 6.1.4, and Tenant shall immediately repair or remove such work in accordance with this Section. Any work in areas adjacent to active portions of the airfield, such as taxiways and runways, shall be scheduled and performed in a manner designed to avoid interference with aircraft operations. In the event that it becomes necessary to close or temporarily alter any part of the active areas of the airfield to accommodate any work by Tenant or its contractors, Tenant shall not perform such work without submitting a detailed work plan and schedule to Landlord, which Landlord shall have the right to approve, modify or disapprove in Landlord’s sole and absolute discretion.
6.1.9 Payment for Work Performed . Tenant shall pay, when due, all claims for labor, materials, equipment, supplies and services furnished or alleged to have been furnished to or for Tenant at or for use in the Leased Premises or any other areas of the Airport, including, without limitation, in connection with the construction, installation or making of any Improvements, which claims are or may be secured by any stop notice rights or by any lien against the Leased Premises or other areas of the Airport or any interest therein. Tenant shall have the right to contest the validity, applicability or amount of any such claims so long as Tenant establishes an adequate reserve for the disputed amount and, if the claimant asserts any stop notice rights or lien against the Landlord, the Leased Premises, the Improvements, or other areas of the Airport or any interest therein, Tenant, at Tenant’s expense, within (10) days after any such stop notice or lien is asserted, shall provide and record a statutory bond sufficient to release any such stop notice or lien. Tenant shall deliver to Landlord written notice of its intent to commence construction or installation of any New Improvements at least fifteen (15) days prior to the commencement thereof, and Landlord shall have the right to post such notices of non - responsibility as are provided for in the mechanics’ lien Laws of California.
6.1.10 As Built Plans a nd Statement of Cost . Within sixty (60) days following the completion of any New Improvements, Tenant shall furnish to Landlord a set of “as built” plans and specifications and, if the New Improvements are eligible to be Approved New Improvements, within one hundred twenty (120) days following the completion of the New Improvements, Tenant shall furnish to Landlord a statement certified as accurate by Tenant of the actual direct out-of-pocket cost of the New Improvements, which may include architectural and engineering fees, permit fees, capitalized construction period interest and loan fees, and other “soft costs” reasonably approved by Landlord, together with any reasonable supporting documentation required by Landlord sufficient to verify such cost. Failure by Tenant to notify Landlord in writing of the cost of any such New Improvements within one hundred twenty (120) days after completion shall constitute Tenant’s irrevocable waiver of any future right to receive payment of the Unamortized Cost of Approved New Improvements for such New Improvements and Landlord shall have no obligation or liability to make any payment to Tenant therefor under Section 2.2.1.
Tenant shall not include in the cost of New Improvements any cost paid or reimbursed from the proceeds of insurance, condemnation awards or damages recovered from any party, or any settlement related thereto.
6.2 No Liability of Landlord. Landlord shall not be liable for any damage, loss, or prejudice suffered or claimed by Tenant, its agents or any other person or entity on account of (i) the approval or disapproval of any plans, contracts, bonds, contractors, sureties or other matters; (ii) the construction of any New Improvements or performance of any work, whether or not pursuant to approved plans; (iii) the improvement of or alteration or modification to any portion ATTACHMENT 1
of the Leased Premises (except to the extent performed by Landlord); or, (iv) the enforcement or failure to enforce any of the covenants, conditions and restrictions contained in this Lease .
Landlord’s approval of Tenant’s plans, or requirement that Tenant modify Tenant’s plans, shall not be deemed Landlord’s express or implicit covenant or warranty that such plans are safe or comply with any or all Laws.
6.3 Indemnity. Tenant shall defend, indemnify and hold harmless Landlord, its airport manager in its capacity as manager of the Airport (the airport manager is presently TBI Management, Inc., and any present or future airport manager is referred to hereinafter as “Airport Manager”), and the Cit ies of Burbank, Glendale and Pasadena, California, and their respective officials, commissioners, officers, employees, agents, representatives, contractors, successors and assigns (individually, “Landlord Party” and collectively, “Landlord Parties”)from and against any and all Claims arising out of, resulting from or relating to any and all New Improvements constructed, installed or made by Tenant pursuant to this Section 6, whether such Claims are based upon Landlord’s review of the plans and specifications relating thereto or otherwise. Tenant hereby assigns to Landlord any and all warranties, guaranties or indemnities of contractors, subcontractors and suppliers furnishing labor, materials, equipment and services in connection with the New Improvements, which assignment shall be effective upon the expiration or earlier termination of this Lease.
6.4 Removal of New Improvements, Personal Property and Trade Fixtures .
Except in the event of a termination pursuant to Section 2.2, promptly upon the expiration or sooner termination of this Lease, Tenant shall remove all New Improvements constructed or installed by Tenant during the term of this Lease and Tenant shall repair any and all damages caused by said removal, unless, prior to such removal, Landlord shall ha ve given written notice to Tenant that some or all of the New Improvements need not be removed, in which case such New Improvements that Landlord elects to retain shall be surrendered with the Leased Premises. At any time during the term of this Lease and upon the expiration or sooner termination of this Lease, including a termination pursuant to Section 2.2, Tenant shall have the right to remove from the Leased Premises the personal property and trade fixtures of Tenant not permanently affixed.
7. INSURANCE, INDEMNITY AND EXCULPATION.
7.1 Obligation to Maintain Insurance . Subject to Section 7.10 below, at all times during the term of this Lease and at its sole cost and expense, Tenant shall maintain in effect the insurance coverage and limits of liability as provided in this Section 7 (“Required Insurance”).
In the event that Tenant fails to maintain any of the Required Insurance, Landlord shall have the right, but not the obligation, to obtain some or all of the Required Insurance. In the event Landlord elects to maintain some or all of the Required Insurance because of Tenant’s failure to provide Required Insurance, Tenant shall pay to Landlord, as additional rent hereunder, the premiums for all Required Insurance paid by Landlord within ten (10) days following the delivery to Tenant of each written statement setting forth the amount of said premiums and the applicable premium period.
7.2 Liability and Workers’ Compensation Coverage. Tenant shall maintain in effect insurance protecting Tenant and each “Landlord Insured Party” (as hereinafter defined) from ATTACHMENT 1
and against claims arising out of, resulting from or relating to the use or occupancy of the Leased Premises or the conduct of Tenant’s business upon the Leased Premises, as follows:
7.2.1 General Liability Insurance. General liability insurance covering airport premises and operations liability, ground hangar keeper’s liability, personal injury liability, contractual liability, products and completed operations liability and independent contractors liability, including standard war risks writeback, all written on an occurrence basis in an amount not less than Twenty- Five Million Dollars ($25,000,000.00) combined single limit for bodily injury and property damage each occurrence and each aircraft, and, with respect to products and completed operations liability and war risks writeback, in the annual aggregate, and, with respect to personal injury, not less than Twenty- Five Million Dollars ($25,000,000.00) each offense and in the annual aggregate.
7.2.2 Aircraft Liability Insura nce. Aircraft liability insurance with standard war risk writeback covering all owned, non- owned and hired aircraft, written on an occurrence basis in an amount not less than Twenty- Five Million Dollars ($25,000,000.00) combined single limit for each occurrence for bodily injury, death (including passengers) and property damage, and, with respect to the war risks writeback, in the annual aggregate, as applicable.
7.2.3 Automobile Liability Insurance. Automobile liability insurance covering all owned vehicles, and all non-owned and hired vehicles, written on an occurrence basis in an amount not less than Two Million Dollars ($2,000,000.00) combined single limit for each occurrence for bodily injury, death and property damage.
7.2.4 Workers’ Compensation Insurance . Workers’ compensation insurance written in accordance with California statutory limits.
7.2.5 Employer’s Liability Insurance. Employer’s liability insurance in amounts not less than the following:
Bodily injury by accident - $2,000,000 – each accident
Bodily injury by disease - $2,000,000 – policy limit
Bodily injury by disease - $2,000,000 – each employee
7.3 Helicopter Liability Insurance . Helicopter liability insurance insuring against injuries to or death of persons or damage or loss to property arising out of, resulting from or relating to the use, operation or condition of each helicopter owned, leased, or used by Tenant in connection with its operations at the Leased Premises in the minimum amount of Five Million Dollars ($5,000,000.00) per occurrence.
7.4 Property Insurance. Tenant shall maintain in effect insurance protecting Tenant and Landlord, as their respective interests may appear, from and against claims arising out of damage or destruction to property as follows:
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7.4.1 Fixtures and Equipment. A policy or policies of hazard insurance insuring against loss or damage to or destruction of (i) Tenant’s fixtures, personal property and equipment located in, on or at the Leased Premises in an amount not less than one hundred percent (100%) of their replacement value, and (ii) all plate glass in the Leased Premises, caused by fire, vandalism, malicious mischief and any and all other perils included within the classification of “Standard Fire” and Extended Coverage.”
7.4.2 Aircraft/Helicopter Hull Insurance. Tenant shall, at all times and at its sole cost and expense, maintain in effect Aircraft Hull Insurance (such coverage to include both ground and flight coverage) in such limits as to cover the value of the aircraft/helicopter hull for all aircraft (including helicopters) operated by or on behalf of Tenant and any Tenant Party in its capacity as such. Tenant shall obtain from Tenant’s insurers a written waiver of subrogation in favor of the Landlord Insured Parties for any damage to the hulls of such aircraft (including helicopters) whatsoever.
7.4.3 Adjustment of Required Insurance . Tenant understands and agrees that the types and amounts of Required Insurance may become inadequate during the term of this Lease, and Tenant agrees that it shall add such insurance or coverage and increase such minimum limits of liability by such amounts as may be required at any time and from time to time by Landlord, if Landlord shall adopt a resolution or other written policy requiring such additional insurance coverage or limits of liability from all comparable hangar tenants at the Airport.
7.5 Policy Requirements. Each policy of Required Insurance shall be obtained from an insurance company, or pool of multiple insurance companies, each authorized to conduct business in California and having a rating of not less than A -X in A.M. Best’s Insurance Guide and/or otherwise acceptable to Landlord. Policies of Required Insurance may be blanket policies covering multiple Tenant Parties or multiple properties owned or leased by a Tenant Party. Within fifteen (15) business days after the Commencement Date, Tenant shall deliver to Landlord certificates of insurance issued by Tenant’s independent insurance broker or other party acceptable to Landlord evidencing that all Required Insurance has been obtained and is being maintained by Tenant and certifying that the Required Insurance includes provisions (i) requiring the insurers to give to Landlord at least thirty (30) days’ prior written notice (or such lesser period as is customary as respects war risks writebacks) of the cancellation or non-renewal of some or all of the Required Insurance, (ii) with respect to the general liability, automobile liability, aircraft liability and employer’s liability insurance, naming (a) Tenant and their respective owners, shareholders, partners, directors and employees as named insureds, and (b) except for employer’s liability insurance, Landlord, the Airport Manager, the Cities of Burbank, Glendale and Pasadena and the Commissioners of Landlord (“Landlord Insured Parties”) as additional insureds, (iii) with respect to the property insurance (other than aircraft hull insurance) naming Landlord as a loss payee, and (iv) with respect to the general liability and aircraft liability insurance, including standard war risks writeback, with a description of the specific perils or risks that are included within the policy coverage set forth in or attached to the certificates of insurance. The failure of Tenant to provide said certificates of insurance within said fifteen (15) business days after the Commencement Date or, if a notice of cancellation or non- renewal of any Required Insurance has been delivered to Tenant, the failure of Tenant to replace the Required Insurance which is the subject matter of such notice of cancellation or non- renewal prior to the effectiveness of such cancellation or non - renewal, shall in either case constitute an Event of Default und er Section 12.1. All Required ATTACHMENT 1
Insurance shall be primary insurance without right of contribution of any other insurance carried by or on behalf of any Landlord Insured Party and all policies shall be endorsed to this effect. In no event shall any Landlord Insured Party be responsible or liable for the payment of any premiums for the insurance required to be obtained and maintained by Tenant pursuant to this Section 7.
Deductibles or self-insured retentions under all Required Insurance liability policies applicable to the Leased Premises and Tenant’s operations at the Airport shall not exceed Twenty Five Thousand Dollars ($25,000.00).
7.6 No Limitation of Liability. Tenant acknowledges and agrees that the limits of liability provided in the Required Insurance shall in no event be considered as limiting the liability of Tenant under this Lease.
7.7 Waivers. Each of the parties hereto hereby waives any and all rights of recovery against (a) the other party, (b) any other Tenant or occupant of the Airport, or (c) the officers, commissioners, employees, agents, representatives, customers, and business visitors of such other party or of any other Tenant or occupant of the Airport, for loss of or damage to such waiving party, its property or the property of others under its control, arising from any cause insured against under the standard form of insurance policy with all permissible extension endorsements covering additional perils, or under any other policy of insurance carried by such waiving party in lieu thereof; provided, however, that in the event that Tenant elects to self- insure its obligations under this Section pursuant to Section 7.11, such waiver shall not apply to any loss of or damages to Landlord, its property or the property of others in its control. Tenant shall obtain and furnish evidence to the Landlord of the waiver of any right of subrogation against Landlord by all of Tenant’s insurance carriers providing the insurance required hereunder.
7.8 Indemnification. In addition to any other express indemnity hereunder, Tenant shall defend, indemnify and hold harmless all Landlord Parties from and against any and all Claims arising out of, resulting from or relating to (i) the breach of this Lease by, or any negligent act or omission or willful misconduct of, any Tenant Party with respect to (a) the use or occupancy of the Leased Premises, or any other areas of the Airport, (b) the conduct of Tenant’s or any Tenant’s business, (c) Tenant’s construction of improvements (including, without limitation, failure to comply with the Prevailing Wage Laws); or (d) any other matter relating to this Lease or the subject matter of this Lease. Notwithstanding the foregoing, the provisions of this Section shall not apply to any Claim which arises out of, results from or relates to the gross negligence, willful misconduct or material breach of this Lease by Landlord.
7.9 Tenant Acknowledgment of Notice of Claim . If Landlord delivers to Tenant a notice of a claim filed with Landlord involving Tenant with a request that Tenant acknowledge receipt of the notice, then Tenant shall acknowledge receipt of such notice in writing within thirty (30) days, and failure to timely acknowledge receipt shall constitute an Event of Default.
7.10 Exculpation of Landlord from Liability. Tenant, on behalf of itself and the Tenant Parties, hereby waives any and all Claims against the Landlord Parties, and the Landlord Parties shall not be liable, for any injury or death to persons or any damage or loss to any property in, on or about the Leased Premises, arising out of, resulting from or relating to any cause whatsoever, including, without limitation, the following: (i) latent or patent defects in the ATTACHMENT 1
construction or condition of the Leased Premises, including, without limitation, any use or release of “Toxic Materials” (as defined in Section 18.15.2) on, under or into the Leased Premises; (ii) Acts of God; (iii) fire, steam, electricity, gas, water, or rain which may leak or flow from or into any part of the Leased Premises, New Improvements or any other areas of the Airport; (iv) riot, civil commotion, aircraft, vehicles, smoke, vandalism, malicious mischief; (v) breakage, leakage, obstruction or other defects of the pipes, wires, appliances, plumbing, heating, ventilation and air conditioning systems, or lighting fixtures of or serving the Leased Premises, New Improvements or other areas of the Airport; (vi) the use or occupancy of the Leased Premises, New Improvements or any other areas of the Airport by any Tenant Party, whether said damage or injury results from conditions arising upon the Leased Premises, New Improvements or upon other areas of the Airport, or from other sources; or (vii) any damage or loss arising from any negligent acts or omissions or willful misconduct of any other tenant, licensee, concessionaire or customer of the Airport or any other person or entity; except to the extent any of the foregoing arises from the gross negligence, willful misconduct or material breach of this Lease by Landlord.
7.11 Self-Insurance. Notwithstanding any other provision of this Section 7, the insurance coverage required to be maintained by Tenant under Section 7.1 may be maintained under a plan of self-insurance, provided, however, that Tenant shall be entitled to utilize such self- insurance for such periods as the general operating funds of Tenant are adequate to cover its liabilities and obligations under Section 7.1. In the event that Tenant elects to utilize such self - insurance to cover its obligations under this Section 6, Tenant shall deliver to Landlord upon request, financial statements relating to Tenant’s general operating fund for purposes of determining whether the general operating funds of Tenant are sufficient for purposes of this waiver. Each of the parties hereto waives any and all rights of recovery against (a) the other party, (b) any other Tenant or occupant of the Airport, or (c) the officers, commissioners, employees, agents, representatives, customers, and business visitors of such other party or of any other Tenant or occupant of the Airport, for loss of or damage to such waiving party, its property or the property of others under its control, arising from any cause insured against under the standard form of insurance policy with all permissible extension endorsements covering additional perils, or under any other policy of insurance carried by such waiving party in lieu thereof; provided however, that in the event that Tenant elects to self -insure its obligations under this Section pursuant to this Section, such waiver shall not apply to any loss of or damages to Landlord, its property or the property of others in its control. Tenant shall obtain and furnish evidence to Landlord of the waiver of any right of subrogation against Landlord by all of Tenant’s insurance carriers providing the insurance required hereunder.
8. DAMAGE AND DESTRUCTION.
8.1 Termination Right . In the event that all or such portion of the Leased Premises or the Improvements within which the Leased Premises are located are destroyed or damaged such that Tenant cannot reasonably use the Leased Premises for the aviation related uses permitted under this Lease for an unreasonable period of time, then Tenant shall have the right to terminate this Lease by written notice to Landlord given within thirty (30) days after the damage (except that in the event of complete destruction of the Improvements in w hich the Leased Premises are located, this Lease shall automatically terminate without notice). If the Lease is not terminated, Tenant shall restore promptly those portions of the Leased Premises that Tenant initially caused to be constructed, and Landlord shall restore promptly those portions of the Leased ATTACHMENT 1
Premises that Landlord initially caused to be constructed. If the Lease is not terminated, then the Annual Base Rent payable by Tenant hereunder shall be abated in proportion to the reduction in the ability of the Tenant to use the Leased Premises, provided that if, during the period of any repair of such damage or destruction to the Improvements within which the Leased Premises are located, the Landlord makes available to Tenant other reasonably acceptable hangar space, then the Annual Base Rent shall continue unabated (but for reasonable relocation costs). Landlord shall not be liable to Tenant for any inconvenience or annoyance to Tenant or injury to Tenant’s business resulting in any way from the undertaking of any repair following any damage or destruction, to the extent such repair is conducted in compliance with this Lease.
8.2 Landlord’s Repair Obligations. Except as provided in Section 8.1, in the case of damage or destruction to the Improvements within which the Leased Premises are located, and notwithstanding any other provision in this Lease, Landlord shall have no obligation to Tenant to repair or restore any of the Improvements within which the Leased Premises are located; provided, however, that if Landlord has not commenced within 6 months after the date of such damage or destruction the repair and restoration of the Improvements within which the Leased Premises are located or is not prosecuting such construction with reasonable diligence afte r such commencement, then Tenant shall have the right to terminate the Lease upon written notice to Landlord as Tenant’s sole right and remedy.
8.3 Costs of Restoration or Repair . To the extent Landlord elects to rebuild, then the Landlord shall be responsible for all costs and expenses associated with the reconstruction of the Improvements of which the Leased Premises are a part; provided, however, that Tenant shall be responsible for all costs and expenses associated with reconstructing Improvements or fixtures within the Leased Premises that Tenant caused to be constructed. Tenant shall cause any such Improvements or fixtures to be constructed in accordance with provisions of Section 6 of this Lease. Tenant shall pay to Landlord all proceeds from the casualty insurance required to be carried by Tenant pursuant to the provisions of Section 7.3.1 above except proceeds of casualty insurance for Tenant’s personal property, plate glass, and Tenant’s actual cost of reconstructing Improvements or fixtures.
8.4 Waiver by Tenant. Tenant hereby waives the provisions of Sections 1932, 1933, and 1941 through 1942, inclusive, of the California Civil Code and of any other statute or Law now or hereafter in effect which is contrary to the obligations of Tenant under this Section 8 or which relieves Tenant therefrom, or which places upon Landlord obligations to repair or restore the Leased Premises or the Improvements within which the Leased Premises are located.
9. ASSIGNMENT, SUBLETTING AND ENCUMBRANCES.
9.1 Assignment and Subletting Prohibited. Tenant shall not voluntarily or by operation of Law assign, or transfer or mortgage, hypothecate, grant a security interest in or otherwise encumber, all or any part of Tenant’s rights or interest in or to this Lease or the Leased Premises, and shall not sublet all or any portion of the Leased Premises, without Landlord’s prior written consent, in Landlord’s sole and absolute discretion.
10. EMINENT DOMAIN.
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10.1 Entire or Substantial Taking. In the event the entire Leased Premises, or such portion thereof as to make the balance not reasonably adequate for the permitted uses hereunder, as determined by Tenant in the exercise of its reasonable judgment, shall be taken under the power of eminent domain, this Lease shall automatically terminate as of the date of the vesting of title to all or such portion of the Leased Premises in such condemning entity. The termination of this Lease as to all or a portion of the Leased Premises by Landlord pursuant to any right of Landlord to do so set forth in this Lease, including, without limitation, under Section 2.2.1 or after an uncured Event of Default under Section 12, shall not be a taking under this Section 10.
10.2 Partial Taking . In the event of any taking under the power of eminent domain which does not result in a termination of this Lease pursuant to Section 10.1, the Annual Base Rent payable hereunder shall be reduced, effective as of the earlier of the date on which the condemnor obtains a right of possession of any portion of the Leased Premises or the date on which title vests with the condemning entity, by an amount calculated in the manner described in Section
2.3.1.1. Tenant, at its expense with respect to New Improvements and at Landlord’s expense with respect to the balance of the Leased Premises, shall promptly restore the remaining portion of the Leased Premises to the condition existing immediately prior to such condemnation to the extent reasonably possible, and this Lease shall continue in full force and effect as to such remaining portion; provided, however, if the taking occurs during the last five (5) years of the term of this Lease, at Tenant’s option, exercised by written notice to Landlord, Tenant shall have the right to terminate this Lease.
10.3 Awards. Except as provided below, any award or sett lement proceeds for any taking under the power of eminent domain of all or any part of the Leased Premises shall be the property of Landlord, whether such award or payment shall be made as compensation for diminution in value of the leasehold or for the taking of the fee, and any award or settlement proceeds for any taking of all or any part of the New Improvements shall be the property of Tenant.
Nothing contained herein, however, shall be deemed to preclude Tenant from obtaining, or to give Landlord any interest in, any award to Tenant for loss of or damage to Tenant’s Possessory interest in the Leased Premises, trade fixtures and removable personal property or damages for cessation or interruption of Tenant’s business or operations at the Airport; provided, however, that in determining the value of Tenant’s business or operations, all goodwill attributable to the location of Tenant’s business or operations at the Airport shall belong to Landlord.
10.4 Sale Under Threat of Condemnation. A sale by Landlord to any entity having the power of eminent domain, either under threat of condemnation or while condemnation proceedings are pending, shall be deemed a taking under the power of eminent domain for all purposes of this Section.
10.5 Condemnation by Landlord. Nothing in this Lease (including, without limitation, Section 2.3.1) shall impair, limit or otherwise affect the power of eminent domain of Landlord or the exercise of such power by Landlord or the obligation of Landlord to pay just compensation, should Landlord exercise its power of eminent domain with respect to the Leased Premises.
11. SUBORDINATION.
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11.1 Subordination. This Lease is subject and subordinate to all mortgages, deeds of trust, bond indentures, liens, encumbrances and other security interests now or hereaft er affecting the Landlord’s interest in the Leased Premises or the Airport, and to all renewals, modifications, replacements, consolidations and extensions thereof (“Senior Lien” and the holder thereof being a “Senior Lienholder”). Tenant shall execute and deliver to Landlord or any other party requiring confirmation of such subordination, within ten (10) calendar days following receipt of a request for such confirmation, any and all documents which may be required to effectuate such subordination; provided, however, that with respect to any mortgage, deed of trust, bond indenture, lien, encumbrance or other security interest affecting the Landlord’s interest in the Leased Premises or the Airport created after the date of this Lease, such subordination shall not be effective and Tenant shall not be required to execute and deliver such confirmation unless Tenant receives a non-disturbance agreement in recordable form and on terms and conditions reasonably acceptable to Tenant that has been duly executed and acknowledged by any Senior Lienholder making such request. Tenant further agrees that this Lease shall be amended, altered or modified in accordance with the reasonable requirements of a Senior Lienholder, so long as such amendment, alteration or modification does not materially alter the rights or duties or materially increase the obligations or liabilities of Tenant under this Lease, and that Tenant’s written consent to any such amendment, alteration or modification shall not be unreasonably withheld or delayed.
Tenant shall give prompt written notice to each Senior Lienholder, of which Tenant has written notice, of any default of Landlord, and Tenant shall allow such Senior Lienholder a reasonable length of time (in any event, not less than thirty (30) days from the date of such notice) in which to cure such default.
11.2 Attornment. Subject to the terms of any nondisturbance agreement between Tenant and a Senior Lienholder, in the event that any Senior Lien is foreclosed, Tenant, with and at the election of the purchaser or, if there is no purchaser, with and at the election of the holder of the fee title to the Leased Premises, agrees to (i) enter into a new Lease covering the Leased Premises and the New Improvements for the remainder of the term of this Lease, on the same provisions herein provided or (ii) attorn to the purchaser and recognize the purchaser as the Landlord under this Lease, provided such purchaser agrees to assume in writing all obligations of Landlord under this Lease.
12. DEFAULTS AND REMEDIES.
12.1 Events of Default. After the expiration of any applicable cure period, each of the following shall constitute an “Event of Default” by Tenant under this Lease:
12.1.1 Insolvency and Creditor Protection. (i) The voluntary or involuntary appointment of a receiver, trustee or liquidator to take possession of the Leased Premises, New Improvements or all or substantially all of the assets of Tenant when such appointment is not terminated or vacated or possession of the Leased Premises is not restored to Tenant within ninety (90) days; or (ii) a general assignment by Tenant for the benefit or protection of creditors; or (iii) Tenant’s written admission of its inability to pay its debts as they become due; or (iv) any action taken against or suffered by Tenant under any federal, state or other statute relating to insolvency, bankruptcy, reorganization, arrangement, composition, liquidation, dissolution or other relief for debtors; unless, in the case of an involunta ry petition filed against Tenant to have Tenant adjudged a bankrupt or for reorganization or arrangement, the petition is ATTACHMENT 1
dismissed within ninety (90) days. The appointment of a trustee or conservator of the person or estate of an individual Tenant, or in aid of the voluntary winding up, dissolution and liquidation of a partnership or corporate Tenant, shall not constitute an Event of Default hereunder.
12.1.2 Attachment, Execution or Other Levy. Any attachment, execution, distraint, judicial seizure, or other process of Law pursuant to which Tenant’s interest or estate in the Leased Premises, the New Improvements or this Lease may be taken, occupied or used by anyone other than Tenant, when such attachment, execution, distraint, judicial seizure or other process of Law shall not be released, dismissed or stayed within ninety (90) days.
12.1.3 Transfer or Encumbrance . A purported assignment, Lease, transfer, mortgage, grant of security interest, hypothecation or other encumbrance of Tenant’s interest or estate in the Le ased Premises, the New Improvements or this Lease in violation of Section 9.
12.1.4 Vacation or Abandonment. The vacation or abandonment of the Leased Premises by Tenant.
12.1.5 Failure to Pay. The failure by Tenant to pay any amount when due and payable hereunder, where such failure to pay continues for ten (10) days following Tenant’s receipt of written notice that such amount is past due.
12.1.6 Failure to Maintain Insurance . Any cancellation or lapse of insurance policies providing Required Insurance to be provided by Tenant pursuant to Section 7, unless Landlord has elected to obtain such insurance pursuant to Section 7.1, or any other failure by Tenant to comply with the provisions of Section 7, where such other failure to comply continues for ten (10) days following Tenant’s receipt of written notice from Landlord that Tenant has not complied with the provisions of Section 7.
12.1.7 Failure to Comply with Rules and Regulations. Any violation of the Rules and Regulations described in Exhibit E that is not corrected within five (5) business days after written notice from Landlord.
12.1.8 Other Defaults; Failure to Cure . The default, breach or non - performance of any covenant or provision of this Lease not otherwise described in Sections 12.1.1 through 12.1.7 above or 12.1.9 through 12.1.11 below, where Tenant fails to cure such default, breach or non-performance within thirty (30) days after the delivery to Tenant of written notice of such default, breach or non-performance (or, in the case of a default, breach or non- performance which reasonably requires more than thirty (30) days to cure, where Tenant fails to commence such cure within said thirty (30) days or thereafter fails diligently to prosecute the same to completion).
12.1.9 Multiple Defaults. The receipt by Tenant during any twelve (12) consecutive calendar month period of more than three (3) written notices pertaining to actual defaults, breaches or non- performance under Sections 12.1.5, 12.1.6, or 12.1.7 of this Lease, irrespective of the cure thereof by Tenant.
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12.1.10 Failure to Acknowledge Notice of Claim. The failure by Tenant to comply with Section 7.10.
12.1.11 Defaults Under Other Agreements . The occurrence and continuation of any default or breach by Tenant under any other written agreement between Landlord and Tenant, after giving effect to any applicable grace period, notice requirement or opportunity to cure such default or breach.
12.2 Remedies. Upon the occurrence of any Event of Default by Tenant , Landlord, at its option and election, and without further demand or notice, shall have all of the following rights and remedies:
12.2.1 Termination of Lease. Landlord shall have the right to declare this Lease, including Tenant’s leasehold estate, terminated. Upon termination of this Lease prior to the expiration of its term, Tenant’s ownership of any New Improvements shall end automatically and Landlord shall succeed to ownership of the New Improvements free and clear of any and all liens or encumbrances upon Tenant’s leasehold estate, the Leased Premises or upon the New Improvements. Landlord shall have the right to re -enter the Leased Premises and the New Improvements to remove and eject all persons therefrom, to take possession thereof; and to use and enjoy the Leased Premises and the New Improvements and Landlord shall have all of the rights and remedies of a landlord provided in Section 1951.2 of the California Civil Code which are not based on rent, and which Section is incorporated herein by this reference as though set forth in full. In the event that Landlord may have lawfully reentered the Leased Premises and the New Improvements after an Event of Default hereunder without having declared this Lease terminated, Landlord shall have the right at any time thereafter to elect to terminate this Lease and all of the rights and remedies of Tenant in and to the Leased Premises and the New Improvements as provided in this Section 12.2.
12.2.2 Continuation of Lease without Termination. Landlord has the remedy described in California Civil Code, Section 1951.4 (lessor may continue lease in effect after lessee’s breach and abandonment and recover sums payable as they becomes due, if lessee has right to sublet or assign, subject only to reasonable limitations). In this regard, Landlord shall have the right to continue this Lease and to maintain Tenant’s right to possession of the Leased Premises and the New Improvements, whether or not Tenant shall have breached this Lease and/or abandoned the Leased Premises and the New Improvements. I n such event this Lease shall continue in effect for so long as Landlord chooses not to terminate Tenant’s right of possession and Landlord shall be entitled to enforce all of Landlord’s rights and remedies under this Lease, including the right to collect and receive any and all other amounts payable by Tenant to Landlord under this Lease as the same shall come due.
12.3 Waiver of Claims. Tenant hereby waives all claims and demands against Landlord for damages or loss arising out of or in connection with any lawful exercise by Landlord of any one or more of its rights and remedies under this Section 12.
12.4 Waiver of Rights of Redemption. In the event of the lawful exercise by Landlord of any one or more of its rights and remedies under Section 12.2, Tenant hereby expressly waives any and all rights of redemption or relief from forfeiture under California Code of Civil ATTACHMENT 1
Procedure Section 1174 or 1179, or granted by or under any present or future Laws, and further releases Landlord, from any and all claims, demands and liabilities by reason of such lawful exercise by Landlord.
12.5 No Waiver . Efforts by Landlord to mitigate the damages caused by Tenant’s breach of this Lease shall not waive Landlord’s right to recover damages under this Section 12. For the purposes of this Section 12, the following shall not constitute a termination of Tenant’s right to possession: acts of maintenance or preservation or efforts to relet the Leased Premises; or appointment of a receiver upon the initiative of Landlord to protect Landlord’s interest under this Lease.
12.6 Cumulative Remedies. The various rights, options, elections, powers and remedies reserved to Landlord herein shall be cumulative, and, except as otherwise provided by Law, Landlord may pursue any or all s uch rights and remedies, whether at the same time or otherwise, and no single right shall be deemed to be exclusive of any of the other or of any right or priority allowed by Law or in equity. No delay or omission of Landlord to exercise any right or remedy shall be construed as a waiver of any such right or remedy or waiver of any Event of Default. In addition to the foregoing, Landlord may exercise any other remedy now or hereafter available to a landlord against a defaulting tenant under the Laws of the State of California.
12.7 Performance of Tenant’s Covenants by Landlord. In the event that Tenant at any time fails to make any payment or perform any other act under this Lease, and such failure continues for the applicable cure period specified herein, or if no cure period is specified herein, for at least five (5) business days after written notice thereof is delivered to Tenant (but no prior notice shall be required in an emergency), Landlord shall have the right, but not the obligation, immediately or at any time thereafter, without further notice or demand and without waiving any right or releasing Tenant from any obligation to Landlord, to make such payment or perform such other act for the account of Tenant, to the extent Landlord may deem desirable. In connection therewith, Landlord may pay reasonable expenses and employ counsel in instituting, prosecuting or defending any action or proceeding under this Lease. All sums so paid by Landlord and all expenses incurred in connection therewith, together with interest thereon at the annual rate specified in Section 3.6 shall be deemed additional rent hereunder and shall be payable to Landlord on demand. In the event such additional amounts remain unpaid within ten (10) days following the delivery to Tenant of a written demand therefor, Landlord shall have the same rights and remedies as for the nonpayment of rent.
12.8 Excuse of Performance by Landlord. Landlord shall be under no obligation to observe or perform any covenant of this Lease on its part to be obse rved or performed for the benefit of Tenant, which accrues after the date of any Event of Default by Tenant, unless and until such Event of Default is cured by Tenant or waived by Landlord.
12.9 Default by Landlord. Landlord shall not be deemed to be in defaul t in the performance of any obligation required to be performed by it hereunder unless and until it has failed to perform such obligation for thirty (30) days following the delivery by Tenant to Landlord of written notice specifying the obligation Landlord has failed to perform; provided, however, in the event that the nature of Landlord’s obligation is such that more than thirty (30) days are required for its performance, Landlord shall not be deemed to be in default if it shall commence ATTACHMENT 1
such performance within such thirty (30) day period and thereafter diligently prosecutes the same to completion.
13. SURRENDER AT END OF TERM.
Upon the expiration or other termination of this Lease, unless required to be removed by Tenant pursuant to Section 6.4, ownership of the New Improvements shall pass automatically to Landlord and Tenant shall quit and surrender the Leased Premises and the Improvements to Landlord, broom clean and in good order and condition, ordinary wear and tear, casualty and damage by the elements excepted, and, except as otherwise provided in this Lease, Tenant shall remove all of its personal property, trade fixtures and equipment and shall promptly repair any damages to the Leased Premises caused by such removal. Tenant’s obligation to perform this covenant shall survive the expiration or other termination of this Lease.
14. HOLDOVER BY TENANT.
In the event that Tenant shall holdover in the Leased Premises after the expiration or termination of the term hereof, with the written consent of Landlord, such holdover, in the absence of a written agreement on the subject executed by both parties, shall be deemed to have created a month to month tenancy with respect to the Leased Premises, terminable on thirty (30) days’ written notice by either party to the other party. Such holdover tenancy otherwise shall be subject to the same provisions as contained in this Lease, unless the parties execute a written agreement modifying any of the terms hereof applicable to such holdover tenancy.
15. OTHER RULES AND REGULATIONS OF LANDLORD.
Tenant shall also comply with the rules and regulations described in Exhibit E, and all amendments thereto that are delivered to Tenant (sometimes referred to herein as the “Rules and Regulations”). Landlord shall not be responsible to Tenant for the nonperformance of any other Tenant or user of the Airport of any of the Rules and Regulations.
16. TRANSFER OF LANDLORD’S INTEREST.
In the event of any transfer of Landlord’s interest in the Leased Premises, the transferor automatically shall be relieved of any and all obligations and liabilities accruing from and after the date of such transfer, provided that the transferee assumes all of the liabilities and obligations of Landlord under this Lease from and after the date of such transfer, but the transferor shall not be released from any obligations or liabilities accruing prior to the date of such transfer.
17. COMMON USE FACILITIES.
17.1 Common Use Facilities. As an appurtenance to Tenant’s leasehold estate in the Leased Premises and in conjunction wit h Tenant’s use of the Leased Premises, Tenant is hereby granted the non-exclusive right, at any time and from time to time, to enter upon or make customary and reasonable use of (i) runways, landing areas, taxiways, aprons, roadways, runway lights, signals, and other operating aids of the Airport and all aviation or flight easements now or hereafter granted or reserved for the benefit of Landlord and (ii) such other areas of the Airport provided and developed by Landlord for public aviation use as Landlord may from time to time ATTACHMENT 1
make available or designate as “Common Use Facilities” (collectively, the “Common Use Facilities”). Tenant’s rights hereunder shall be in common with Landlord and with other persons authorized by Landlord from time to time to use the Common Use Facilities, including members of the general public and shall be exercised by Tenant subject to all applicable Laws and FAA, TSA or other applicable governmental regulations governing aviation and air navigation and to the uniform rules and procedures adopted by Landlord from time to time governing the use of the Airport and the Common Use Facilities.
17.2 Reservation of Right to Make Changes . Landlord reserves the right, in its sole and absolute discretion, to make changes, at any time and from time to time, in the size, shape, location, number and extent of the Common Use Facilities and specifically further reserves the right to designate portions of the Common Use Facilities for the exclusive or non- exclusive use of certain tenants, licensees, concessionaires and other vendors or users of the Airport; provided, however, that none of such changes or designations shall materially interfere with reasonable access by Tenant between the Leased Premises and the Common Use Facilities.
18. COMPLIANCE WITH ENVIRONMENTAL LAWS.
18.1 Use of Toxic Materials Prohibited . Tenant shall not cause or permit any “Toxic Materials” (as defined in Section 18.14.2) to be brought onto, stored, used, generated, recycled, or disposed of (collectively, “Use of Toxic Materials”) in, on, under or about the Leased Premises, the Improvements associated with the Leased Premises, or any other part of the Airport, by any Tenant Party or any of their respective licensees, permittees or invitees; provided, however, that Tenant shall be permitted to store and use in the ordinary course of maintaining aircraft stored in the Leased Premises Toxic Materials so long as Tenant demonstrates to Landlord’s reasonable satisfaction that such Toxic Materials, and the quantities thereof, are necessary or useful to Tenant’s business and that such use of Toxic Materials is at all times subject to and in compliance with all Environmental Laws (as defined in Section 18.14.1). Landlord shall not cause any “Toxic Materials” (as defined in Section 18.14.2) to be brought onto, stored, used generated, recycled or disposed of in, on, under or about the Leased Premises unless requested to do so by Tenant. Tenant shall demonstrate that such Toxic Materials are necessary or useful by submitting information to Landlord in accordance with Section 18.3.
18.2 Compliance with Environmental Laws . Tenant and Landlord shall each comply, at their respective sole cost and expense, with all “Environmental Laws” (as defined in Section 18.14.1), applicable to their respective premises and their use thereof and operation of their respective businesses at the Airport and, with respect to any use of Toxic Materials permitted under Section 18.1 above; provided, unless caused by a Tenant Party, Tenant’s obligations under this Section 18.2 sha ll exclude any discharge or release migrating to the Leased Premises from other land, unless caused by a Tenant Party. Tenant shall not release or dispose of any Toxic Material in the drains, storm drains, sewers, plumbing or any other drainage facility that will cause or contribute to a violation of any Environmental Law or any contamination. The off-site disposal of any and all Toxic Materials shall be in strict compliance with all Environmental Laws.
18.3 Disclosure. Prior to or upon the Commencement Date, and prior to the end of January during each Annual Period, Tenant shall submit to Landlord the following documents:
(i) an inventory or list of all compounds or products that contain Toxic Materials which were used, ATTACHMENT 1
stored or disposed of by each Tenant Party on or about the Leased Premises or the New Improvements during the prior year, (ii) all Safety Data Sheets for said compounds or products containing Toxic Materials, (iii) an estimate of the quantity or volume o f such products or compounds used, stored or disposed of on or about the Leased Premises during the prior year, and (iv) copies of all hazardous waste manifests for wastes generated on the Leased Premises and sent offsite for treatment, storage, disposal or recycling.
18.4 Business Plan. If any Tenant Party’s business conducted or to be conducted in, on, under or about the Leased Premises requires the establishment and implementation of a business plan pursuant to California Health and Safety Code Sections 25500 et seq., concerning the handling of hazardous materials, Tenant shall immediately give written notification to Landlord that the Tenant Party’s business is subject to the business plan requirement of such Code and that the business is in compliance with such Code. A copy of the plan shall be delivered to Landlord with such notification.
18.5 Tenant’s Indemnity. Tenant shall defend, indemnify and hold harmless each of the Landlord Parties from and against any and all “Liabilities” (as defined in Section
18.14.3) arising out of, resulting from or caused by the Use of any Toxic Materials by any Tenant Party; provided, unless such Contamination is caused by a Tenant Party, Tenant’s obligations under this Section 18.5 shall exclude any discharge or release migrati ng to the Leased Premises from other land. In the event of any indemnification under this provision, the Tenant shall pay promptly upon demand all reasonable costs and expenses incurred by Landlord for attorneys’ fees, environmental consultants or other amounts incurred for remediation or otherwise because of the Tenant’s violation of the terms of this Lease with respect to Toxic Material or failure to comply with any Environmental Laws. Tenant acknowledges that Landlord shall have complete control (which control shall be exercised in a reasonable manner) over any litigation, settlement discussion or regulatory compliance or remediation with respect to any indemnity claim under this Section
18.5 and that Tenant shall cooperate fully with Landlord in connection therewith, including without limitation, executing any instruments, affidavits or other documents necessary in the reasonable judgment of Landlord in connection therewith. This indemnity shall survive the termination of this Lease.
18.6 Notice. If any Tenant Party is required by statute or regulation to give notice to any Agency about any spilling, discharging, releasing or disposing of Toxic Materials on, in, under or about the Leased Premises, Tenant shall immediately give the Landlord’s Director of Airport Operations the same notice by telephone at (818) 840 -8840, which shall be confirmed by written notice not later than the next business day. This obligation to notify Landlord shall also extend to any personal injuries or property damage to third part ies resulting directly or indirectly from said spilling, discharging, releasing or disposing of Toxic Materials on, in, under or about the Leased Premises. If Tenant becomes aware of the presence of or Use of any Toxic Materials not authorized in accordance with the terms of this Lease, or of any spilling, discharging, releasing or disposing of Toxic Materials on, in, under or about the Leased Premises not subject to the notification provisions of the first sentence of this Section, Tenant shall immediately give written notice of such condition to Landlord to the extent required by California Health and Safety Code Section 25359.7.
ATTACHMENT 1
18.7 Storage and Use of Toxic Materials. Any and all Toxic Materials permitted in, on, under or about the Leased Premises pursuant to this Lease shall be stored and used in strict compliance with all Environmental Laws. There shall be no ponding or uncovered surface storage whatsoever of Toxic Materials in, on or about the Leased Premises. No underground storage tanks shall be constructed, installed or used without Landlord’s prior written consent, which consent may be withheld by Landlord in its absolute discretion. If the Tenant is not in substantial compliance with Environmental Laws concerning underground storage tanks or has failed to take Necessary Action when required to do so, Landlord shall have the right to enter the Leased Premises for the purpose of removing any underground storage tank, if any, at Tenant’s sole expense in accordance with a closure plan approved by regulatory authorities.
18.8 Disposal of Toxic Materials . Notwithstanding anything to the contrary contained in this Section 18, Tenant shall not release or dispose of any Toxic Material, in the drains, storm drains, sewers, plumbing, or any other drainage facility within the Leased Premises, New Improvements, or the Airport that will cause or contribute to a violation of Environmental Laws or Contamination. The offsite disposal of Toxic Materials shall be in strict compliance with all Environmental Laws.
18.9 Safety. Tenant shall maintain Material Safety and Data Sheets for each and every item or product containing any regulated amount of Toxic Material brought onto the Leased Premises. Such information shall be kept current at all times.
18.10 Fees, Taxes and Fines. Tenant shall pay, prior to delinquency, any and all fees, taxes (including excise taxes) and fines which are charged upon or incident to Tenant’s activities related to Toxic Materials, provided Tenant shall have the right to contest the validity or amount of any such fees, taxes or fines, so long as (i) Tenant establishes a reserve in the amount thereof on its financial statements, and (ii) shall not allow such obligations to become a lien or charge against the Leased Premises, New Improvements or the Airport or upon Landlord.
18.11 Delivery of Documentation. Tenant shall deliver to Landlord true and correct copies of the following documents related to compliance with Environmental Laws concurrently with the receipt from or submission to an Agency: (i) permit applications; (ii) permits and approvals; (iii) notices of violations of Environmental Laws and Tenant’s responses thereto; (iv) environmental assessments, and (v) any other documents related to compliance with Environmental Laws that the Landlord may reasonably request from time to time.
18.12 Annual Site Investigation. In addition to Landlord’s right of access to the Leased Premises set forth in Section 1.4, Landlord shall have the right, but not the obligation, to conduct annually an environmental inspection and assessment of the Leased Premises during each year of the term of this Lease, either alone or in conjunction with other areas of the Airport, and to utilize the services of an environmental consultant or consulting firm for such inspection and assessment. Tenant shall reimburse Landlord, as additional rent hereunder, for the cost of such inspections/assessments.
18.13 Limitation on Liability of Landlord . Without limiting any other rights or remedies of any Landlord Party or any other obligation of Tenant pursuant to this Lease or applicable Laws, Tenant hereby assumes the risk of, waives, releases and forever discharges the ATTACHMENT 1
Landlord Parties from and against, and covenants not to bring any action or proceeding against, the Landlord Parties as a result of, any delay in construction, prevention of construction, increase in the cost of Improvements, loss or adverse effects upon Tenant’s financing (if any), diminution in the value of the Leased Premises or Improvements, or any and all other Claims arising out of or resulting from the discovery or presence on, in, under or about the Improvements, of any spilling, discharging, releasing or disposing of Toxic Materials. Landlord’s sole obligation and liability arising out of the presence of any such spilling, discharging, releasing or disposing of Toxic Materials, irrespective of the theory of liability or the facts supporting any such theory, shall be to take, or cause any person legally obligated to take, any and all action which any federal, state, regional, municipal or local governmental agency lawfully requires of Landlord to be taken to investigate, clean-up, remediate or remove such spilling, discharging, releasing or disposing of Toxic Materials.
18.14 Definitions.
18.14.1 Environmental Laws. The term “Environmental Laws” means any and all Laws, rules, regulations, judgments, orders, permits, licenses, agreements, covenants, restrictions, requirements, policies or the like enacted now or hereafter relating to or governing in any way the environmental condition of soil, air, water, groundwater or the presence of Toxic Materials in or affecting all or any portion of the Leased Premises or Common Use Facilities, including, without limitation, the statutes described in the definition of Toxic Materials.
18.14.2 Toxic Materials . The term “Toxi c Materials” means any hazardous or toxic materials, pollutants, effluents, contaminants, radioactive materials, flammables, explosives, pesticides, chemicals known to cause cancer or reproductive toxicity, emissions, wastes or any other chemicals, materi als or substances, whose handling, storage, release, transportation or disposal is or becomes prohibited, limited or regulated by any federal, state, county, regional or local authority or, even if not so regulated, is or becomes known to pose a hazard or potential threat to the health and safety of any person or to the environment. The term “Toxic Materials” shall include, without limitation, the following compounds: (i) asbestos; (ii) petroleum, petroleum by-products, and petroleum degradation products; (iii) polychlorinated biphenyls; (iv) all substances now or hereafter defined as a “hazardous substance” pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, Section 101 (14), 42 U.S.C. Section 9601(14), including petroleum, crude oil, and any fractions thereof; (v) all substances now or hereafter defined as “extremely hazardous substances” pursuant to the Emergency Planning and Community Right -to-Know Ac t of 1986, Section 302(a), 42 U.S.C.
Section 11002(a); (vi) all substances now or hereafter defined as “hazardous waste” by Section 25117 of the California Health and Safety Code; (vii) all substances now or hereafter designated by the Governor of the Stat e of California as substances known to the state to cause cancer or reproductive toxicity pursuant to California Health and Safety Code Section 25249.8; (viii) all substances now or hereafter defined as an “economic poison” pursuant to California Health and Safety Code Section 12753; and (ix) all substances now or hereafter defined as “extremely hazardous waste” pursuant to California Health and Safety Code Section 25115.
18.14.3 Liabilities. The term “Liabilities” shall mean any and all Claims (as defined in Sect ion 4.12.4) arising out of, resulting from or caused by the release, discharge, storage, handling, use, accumulation, transportation, generation, migration, disposal, investigation, ATTACHMENT 1
clean-up, remediation or removal of any Toxic Materials caused by any Tenant Party or any of their respective licensees, permittees or invitees, including, without limitation, the following:
(i) diminution in value of the Airport, the Leased Premises, the Common Use Facilities or any Improvements thereon; (ii) damages for the loss or restriction on use of rentable or usable space or of any amenity of the Airport, the Leased Premises, the Common Use Facilities or any Improvements thereon; (iii) damages arising from any adverse impact on marketing of space at the Airport, the Leased Premises, Common Use Facilities or any Improvements thereon; (iv) sums paid in settlement of Claims (including, without limitation, attorneys’ fees, consultant fees and expert fees); (v) damages caused by the breach or nonperformance by Tenant of any covenant or other provision of this Lease related to Toxic Materials; and (vi) costs incurred in connection with any investigation of site conditions and any cleanup, remediation, removal or restoration work related to the violation of this Lease or any Environmental Law, and (vii) any liabilities of Landlord under any statute, law or regulation.
19. OFFSET STATEMENTS/ESTOPPEL CERTIFICATES.
19.1 Delivery. Tenant, from time to time upon not less than ten (10) days’ prior written notice from Landlord, shall execute, acknowledge and deliver to Landlord a s tatement in writing: (i) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect); (ii) setting forth the dates to which the charges, if any, due under this Lease are paid; and (iii) acknowledging that there are not, to Tenant’s knowledge, any uncured defaults on the part of Landlord hereunder (or specifying such defaults if any are claimed).
19.2 Reliance. Any such statement may be relied upon by any encumbrancer of the Leased Premises or any Senior Lienholder or underwriter of debt financing for all or any portion of the Airport. Tenant’s failure to deliver such statement with in such time shall be conclusive evidence upon Tenant that: (i) this Lease is in full force and effect, without modification except as may be represented by Landlord; and (ii) there are no uncured defaults in Landlord’s performance.
20. MISCELLANEOUS.
20.1 Lease Interpretation.
20.1.1 Incorporation of Prior Agreements; Amendments . This Lease contains the entire agreement between the parties hereto, and no prior or contemporaneous agreement or understanding shall be effective for any purpose, all of which, if any, are hereby terminated or rescinded, except as to provisions which are expressly stated to survive termination and any indemnity or insurance obligations in favor of Landlord. Except as otherwise expressly provided herein, no provision of this Lease may be amended or added to, except by an agreement in writing signed by the parties hereto or their respective successors in interest. Tenant agrees that it shall not unreasonably refuse to execute any amendment of or supplement to this Lease which Landlord determines is necessary or advisable in order to comply with applicable Laws, governmental regulations or Landlord’s uniform policies reflected in resolutions in effect from time to time; provided Tenant shall not be required to execute any amendment of or supplement ATTACHMENT 1
to this Lease which materially impairs the rights and benefits of Tenant or materially increases the obligations and liabilities imposed on Tenant under this Lease.
20.1.2 No Representations by Landlord. Tenant acknowledges that no Landlord Party has made any representations, warranties or promises with respect to the Leased Premises or the Airport, except as herein expressly set forth. Tenant acknowledges that it has not executed this Lease in reliance upon any representations, warranties or promises of any Landlord Party with respect to the Leased Premises or the Airport, except as herein expressly set forth.
20.1.3 Examination of Lease. Submission of this Lease for examination or signature by Tenant does not constitute a reservation of or option for a lease, and it is not effective as a lease or otherwise until its execution and delivery by both Landlord and Tenant.
20.1.4 Severability. In the event that any one or more of the provisions contained in this Lease shall be determined to be invalid, il legal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in other respect and the remaining provisions of this Lease shall not be in any way impaired.
20.1.5 Gender and Number. As used in this Lease, each gender shall be deemed to include each other gender, and the singular shall be deemed to include the plural and vice versa, whenever the context so indicates.
20.1.6 Headings. The Section headings, paragraph captions and marginal headings contained in this Lease are for convenience only and shall have no effect in the construction or interpretation of any provision hereof.
20.2 Further Assurances. Tenant and Landlord each agree to perform any further acts and execute and deliver any additional documents which may be reasonably necessary to carry out the provisions of this Lease, or which may be reasonably requested by the other party.
20.3 Disclaimer of Partnership or Agency. Neither Landlord nor Tenant are the legal representatives or agents of the other party for any purpose whatsoever and neither party shall have the power or authority to assume or create, in writing or otherwise, any obligation or responsibility of any kind, express or implied, to transact business, to make any warranty or otherwise to act in any manner in the name of or on behalf of the other party. This Lease shall not be construed as constituting or creating a partnership between Landlord and Tenant or as creating any other form of legal association between Landlord and Tenant which would impose liability upon one party for the act or the failure to act of the other party.
20.4 Waivers. The waiver by either party of any provision of this Lease shall not be deemed to be a waiver of any other provision hereof or of any subsequent breach of the same or any other provision. Landlord’s consent to any act by Tenant requiring Landlord’s consent shall not be deemed to render unnecessary the obtaining of Landlord’s consent to any subsequent act by Tenant, whether or not similar to the act so consented. The subsequent acceptance by Landlord of any amount due from Tenant hereunder shall not be deemed to be a waiver of any preceding breach or Event of Default by Tenant of any provision of this Lease, other than the failure of Tenant to pay the particular am ount so accepted, regardless of Landlord’s knowledge of such preceding ATTACHMENT 1
breach at the time of acceptance of such amount. No waiver on the part of Landlord with respect to any provision of this Lease shall be effective unless such waiver is in writing.
20.5 No Merger. The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not work as a merger, but shall, at the option of Landlord, shall or operate as an assignment to Landlord.
20.6 Waiver of Jury Trial. Landlord and Tenant hereby waive the right of trial by jury to the maximum extent permitted by Law.
20.7 Notices. All notices, requests, demands and other communications given, or required to be given under this Lease, shall be in writing, duly addressed to the parties as follows:
To Landlord: Burbank-Glendale-Pasadena Airport Authority 2627 Hollywood Way
Burbank, CA 91505
Attn: Executive Director
With a copy to:
Burbank-Glendale-Pasadena Airport Authority
2627 Hollywood Way
Burbank, CA 91505
Attn: Business and Properties
To Tenant: City Manager
CITY OF BURBANK
275 E. Olive Ave.
P.O. Box 6459
Burbank, CA 91505
With a copy to:
Chief of Police
CITY OF BURBANK
272 E. Olive Ave.
Burbank, CA 91505
AND
City of Glendale
CITY MANAGER
613 E. Broadway
Glendale, CA 91206
With a copy to:
ATTACHMENT 1
Chief of Police
140 N. Olive Ave.
Glendale, CA 91206
Any notices properly addressed, sent by registered or certified mail, return receipt requested, shall be deemed to have been duly given and received seventy- two (72) hours after they are deposited in the United States Mail, postage prepaid. Notices shall be deemed delivered and received at the time delivered if properly addressed and delivered to the addresses set forth in this Section during normal business hours or personally delivered to the person to whose attention they are addressed.
Notice sent by any other manner shall be effective upon actual receipt of the addressee. Any party may change its address for purposes of this Section by giving notice to the other party as provided in this Section.
20.8 Brokers. Each party warrants that it has not had any dealings with any real estate broker or agent in connection with this Lease, and each party agrees to defend, indemnify and hold harmless the other party from and against any and all Claims for any compensation, commission or other charge by any finder or any other real estate broker or agent.
20.9 Recording. No copy, short form or memorandum of this Lease shall be recorded.
20.10 Governing Law. This Lease shall be governed by and construed pursuant to the Law of the State of California applicable to contracts made and to be performed fully within such state.
20.11 Attorneys’ Fees. In the event of any action or proceeding (including, without limitation, any bankruptcy proceeding) to enforce or construe any of the provisions of this Lease, the prevailing party in any such action or proceeding shall be entitled to reasonable attorneys’ fees and costs.
20.12 Force Majeure. If either party hereto shall be delayed in or prevented from the performance of any repair or maintenance obligation required hereunder by reason of acts of God, labor troubles, inability to procure materials, restrictive governmental Laws or regulations, delays arising from environmental remediation (except to the extent caused by the party obligated), or other causes without fault and beyond the control of the party obligated (financial inability excepted), performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay; provided, however, nothing in this Section shall excuse Tenant from the prompt payment of any rent or other charge required of Tenant hereunder.
20.13 Authority of Persons Signing for Tenant. Tenant and the persons executing this Lease on behalf of Tenant hereby represent and warrant to Landlord that such person has the legal power and authority to execute this Lease on behalf of Tenant and bind Tenant to the terms of this Lease, and that this Lease and the execution hereof has been duly authorized by Tenant.
20.14 Parking. Landlord is not responsible or obligated to provide Tenant or its officers, directors, employees, agents, representatives or customers with any parking spaces within ATTACHMENT 1
the Airport or otherwise, as an appurtenance to this Lease. Tenant shall be solely responsible for arranging any and all necessary parking incidental to this Lease.
ATTACHMENT 1
IN WITNESS WHEREOF, this Lease has been executed by the undersigned as of on the date first set forth above.
“LANDLORD”
BURBANK-GLENDALE-PASADENA
AIRPORT AUTHORITY
By:
Print Name:
Title:
“TENANT”
CITY OF BURBANK
By:
Print Name:
Title:
Approved as to Form:
Richards, Watson & Gershon
Landlord Counsel
Approved as to Form:
, City Attorney
CITY OF GLENDALE
By:
Print Name:
Title:
Approved as to Form:
, City Attorney
ATTACHMENT 1
Exhibit A
Leased Premises
ATTACHMENT 1
Exhibit B
BURBANK-GLENDALE-PASADENA
AIRPORT AUTHORITY
NOISE ABATEMENT RULES
(amended and effective as of April 1, 2019)
The daily operation of the Burbank -Glendale-Pasadena Airport is governed by a set of specific rules and regulation which have been established by the Airport Authority. One section of the Airport Rules and Regulations applies to noise abatement and is commonly called the Airport “noise rules.”
For legal or technical reasons, some of these rules are long and may be difficult to follow. For clarity, this booklet begins with a brief and-nontechnical summary of the noise abatement section.
Although this summary may be useful as a quick reference, the complete and unabridged version is produced later in this booklet. Please refer to the complete version for specific information, exact details and any pertinent exceptions.
ATTACHMENT 1
NOISE RULES
The Airport Noise Rules were originally adopted in the 1980s and have been enforced as follows since the late 1980s. This restatement and clarification is not intended to modify the enforceability of the Noise Rules under federal law.
Rule 1
All subsonic transport category airplanes and all subsonic turbojet powered airplanes regardless of category operating at the Burbank- Glendale-Pasadena Airport shall be in compliance with all Federal Air Regulations respecting noise, as the same may be amended from time to time.
This Rule has been and shall continue to be enforced by requiring all aircraft to be FAA certified under Part 36 (provision governing aircraft noise levels).
Rule 2
Each air carrier jet operator shall implement appropriate FAA approved takeoff and arrival procedures consistent with the standard of Case 9A as contained in the Final Environmental Impact Statement approved by FAA on September 12, 1977.
This Rule has been and shall continue to be enforced by requiring that all aircraft meet the noise performance levels of certified Stage 3 aircraft.
Rule 3
All other jet operators shall use the National Business Aircraft Association’s noise abatement procedures established January 1978.
This Rule has been and shall continue to be enforced by requiring that all general aviation turbojet aircraft (including Stage 2 hush- kitted aircraft that are certified as Stage 3) use the applicable NBAA noise abatement procedures as amended from time to time.
Rule 4
Each air carrier that operates, for any reason, after 10:00 p.m. or before 7:00 a.m. shall pay the full amount of any costs charged to or incurred by the Authority for maintaining the crash rescue service on duty.
ATTACHMENT 1
This Rule has not been enforced since the mid-1980s due to grant assurances adopted by the federal government in the 1980s that prohibit such enforcement, and shall not be enforced going forward.
Rule 5
This Rule was repealed in 1986 and shall not be enforced going forward. (It specif ied departure runways for flights to the east and south.)
Rule 6
Each aircraft operator and maintenance and repair facility shall adhere to the Authority Engine Test Run-up Policy as contained in the Airport Operations Manual, as the same may be amended from time to time.
This Rule has been and shall continue to be enforced by requiring all operators to comply with the run-up policy in the Airport’s Operations Manual as amended from time to time.
Rule 7
A. No air carrier shall: (1) inaugurate any operations; (2) implement any increase in operations; (3) substitute aircraft types producing higher noise levels for aircraft already in service (except on a temporary basis because of emergency maintenance, weather, payload, or other unanticipated conditions beyond the carrier’s control); or (4) substitute aircraft which do not comply with the Stage 3 requirements of F.A.R. Part 36 for aircraft which meet those requirements (except on a temporary basis because of emergency maintenance, weather, payload, or other unanticipated conditions beyond the carrier’s control) without having first obtained the written approval of the Commission, which approval shall not be granted except upon a determination by the Commission that such proposed operations or increase will not result in or contribute to an increase in the noise impact area of the Airport from all aircraft operations based on the annual CNEL of 70 for the period ending June 30, 1978.
B. As used herein, the term “operations” shall mean takeoffs and landings other than emergency procedures or takeoffs or landings resulting from the use of the Airport as weather alternate. The term “weighted operations” shall mean operations weighted on the basis of time of occurrence as provided in Section 5006 of the California Noise Standards, 21 Cal. Admin. Code Section 5000 et. seq. As used herein, noise levels are defined as sound exposure levels measured at, or calculated for, Airport noise monitor system positions.
C. Any air carrier desiring to: (1) inaugurate any operations; (2) implement any increase in operations or weighted operations; (3) substitute aircraft types producing higher noise levels for aircraft types already in service (except on a temporary basis because of emergency maintenance, weather, payload, or other unanticipated conditions beyond the carrier’s control); or (4) substitute aircraft which do not comply with the Stage 3 requirements of F.A.R. Part 36 for aircraft which meet those requirements (except on a temporary basis because of emergency maintenance, weather, payload, or other unanticipated conditions beyond the carrier’s control) pursuant to Part (A) hereof shall, not less than 30 days prior to the proposed effective date of such service apply in writing for permission to the Airport Operations Committee. Such application shall include information as to the nature of the proposed operations or increase, and the projected ATTACHMENT 1
effect thereof on the Airport’s June 30, 1978 noise impact area and other material which the applicant air carrier wishes to bring to the attention of the Operations Committee.
Upon review of the application and such other information as it deems appropriate, the Operations Committee shall recommend to the Commission that it grant or deny the permission requested, or any portion thereof. The Commission shall consider the recommendation of the Operations Committee, together with any other additional information which the applicant air carrier desires to present to it, and act thereon at its next regularly scheduled meeting.
D. The Commission may approve an application, in whole or in part, for a period not to exceed one year from the commencement of such approved operations or weighted operations.
Any air carrier desiring to continue such operations or weighted operations beyond said period shall have the burden of demonstrating to the Commission prior to the expiration thereof that such increase did not result in or contribute to an increase in the Airport’s June 30, 1978 noise impact area.
E. Any air carri er violating the provision of this Rule may, in the discretion of the Commission and in addition to any other remedies, including injunctive remedies available, be subject to civil penalties in the amount of One Thousand Dollars ($1,000) for each operation which has not been approved by the Commission pursuant to the provisions of this Rule.
This Rule has been and shall continue to be enforced by a public report by Airport Staff to the Commission of schedule changes and a report of the anticipated impact, if any, on the Airport’s Noise Impact Area of those changes. No approval of the Authority has been or shall be needed by an air carrier for any changes as long as the Noise Impact Area incompatible land within the 70db CNEL contour of the Airport does not exceed the 403 acres existing in 1978. If the acreage of incompatible land within the Airport’s 70db CNEL contour ever exceeds 403 acres, the Airport shall attempt to prevent the increase in operations. That effort may or may not be successful.
Rule 8
F. Between the hours of 10:00 p.m. and 7:00 a.m.:
1. No intersection takeoffs shall be permitted;
2. No maintenance engine run- ups shall be permitted, unless a delay of such maintenance engine run-up would cause an aircraft to arrive and/or depart after 10:00 p.m. in the succeeding 24 hour period; and
3. No flight training operations, including practice instrument approaches and touch-and-go operations, shall be permitted.
G. Any pilot in command or maintenance facility violating the provisions of these Rules ma y, in the discretion of the Commission, and in addition to other remedies (including injunctive remedies) available, be subject to civil penalties for each violation of this Rule as follows: (1) For the first violation, one thousand five hundred fifty- five dollars ($1,555); (2) For subsequent violations, two thousand two hundred fifty-eight dollars ($2,258).
ATTACHMENT 1
This Rule has been and shall continue to be enforced as written.
Rule 9
H. Except as provided in Parts (B) and (C) hereof, no aircraft may land at or t ake off from the Burbank-Glendale-Pasadena Airport between the hours of 10:00 p.m. and 7:00 a.m.
I. The following aircraft shall be permitted to land at and take off from the Burbank- Glendale-Pasadena Airport between the hours of 10:00 p.m. and 7:00 a.m.:
1. Public aircraft, military aircraft, aircraft owned or operated by the armed forces of the United States, and aircraft operated in support of military operations.
2. Aircraft operated by commercial air carriers whose schedules comply with Rule 7 of these Rules and Regulations.
3. Aircraft, other than those listed in FAA Advisory Circular 36-1B or 36- 2C, whose total rated maximum brake or shaft horsepower is 200 or less.
4. Propeller-driven aircraft whose certificated takeoff weights are 12,500 pounds or less and whose measured or estimated flyover noise levels, as contained in FAA Advisory Circular 36-1H or 36-2C (as said Advisory Circulars may be revised, supplemented, or replaced from time to time), are equal to or less than 85.6 dBA.
5. Aircraft whose estimated sideline noise levels, as set forth in FAA Advisory Circular 36-3 (or in any revision, supplement, or replacement thereof listing sideline noise levels), are equal to or less than:
a. for aircraft whose noise levels have been determined at a sid eline distance of 450 meters, 82.2 dBA;
b. for aircraft whose noise levels have been determined at a sideline distance 0.25 nautical miles, 82 dBA; and
c. for four-engine aircraft whose noise levels have been determined at a sideline distance of 0.35 nautical miles, 79.1 dBA.
6. Aircraft whose maximum noise levels, under normal operating conditions and procedures, have been determined by the Airport Authority, upon a showing by the aircraft manufacturer or operator, are equal to or less than either:
a. when measured or estimated at a sideline distance of 450 meters,
0.25 nautical miles, or 0.35 nautical miles pursuant to F.A.R. Part 36 Appendix C, 82.2 dBA, 82 dBA, or 79.1 dBA, as applicable respectively, or
b. when measured or estimated at a flyover alt itude of 1,000 feet pursuant to F.A.R. Part 36 Appendix F, 85.6 dBA.
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J. Aircraft other than those specified in Paragraph (B) shall be permitted to land at or take off from the Burbank- Glendale-Pasadena Airport between the hours of 10:00 p.m. and 7:00 a.m. only under the following circumstances:
7. in the event such landing and/or takeoff results from the existence of a declared emergency;
8. in the event such landing and/or takeoff results from the use of the airport as a weather alternate; and
9. in the event such landing and/or takeoff results from a weather, mechanical, or air traffic control delay; provided however, that this exception shall not authorize any landing or takeoff between the hours of 11:00 p.m. and 7:00 a.m.
K. Upon the request of the Airport Authority, the aircraft operator or pilot in command shall document or demonstrate the precise emergency conditions resulting in a landing and/or takeoff between the hours of 10:00 p.m. and 7:00 a.m. or the precise weather, mechanical, or air traffic control conditions resulting in a landing and/or takeoff between the hours of 10:00 p.m. and 11:00 p.m.
L. Any aircraft operator or pilot in command violating the provisions of this Rule may, in the discretion of the Commission, and in addition to any other remedies (including injunctive remedies) available, be subject to civil penalties in the amount of four thousand five hundred twenty-two dollars ($4,522) for each unauthorized landing and each unauthorized takeoff.
This Rule has been and shall continue to be enforced consistent with the ongoing enforcement of Clarified Rule 7 with respect to aircraft other than public aircraft, military aircraft, aircraft owned or operated by the armed forces of the United States, and aircraft operated in support of milita ry operations. In particular, this Rule has been and will be enforced by allowing Stage 3 certified aircraft to fly between 10 p.m. and 7:00 a.m. With respect to Stage 2 hush- kitted aircraft that are certified as Stage 3, such aircraft operating between 10 p.m. and 7:00 a.m. shall continue to have to demonstrate compliance with the Rule as written. Stage 2 aircraft not certified as Stage 3 are not permitted to fly at any time.
Rule 10
M. Except as provided in Parts (B) and (C) hereof, no aircraft operating pursuant to an Operating Certificate issued by the Federal Aviation Administration may land at or take off from the Burbank-Glendale-Pasadena Airport.
N. The following aircraft operated pursuant to an Operating Certificate issued by the Federal Aviation Administration shall, subject to all other applicable Rules and Regulations, be permitted to land at and take off from the Burbank-Glendale-Pasadena Airport:
10. Transport category large airplanes and turbojet powered airplanes certificated under F.A.R. Part 36 or ICAO Annex 16 whose certificated sideline noise levels are equal to or less than:
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a. for aircraft whose certificated noise levels have been determined at a sideline distance of 0.25 nautical miles, 105.0 effective perceived noise decibels; b. for aircraft whose certificated noise levels have been determined at a sideline distance of 450 meters, 105.1 effective perceived noise decibels; and c. for four- engine aircraft whose certificated noise levels have been determined at a sideline distance of 0.35 nautical miles, 103.5 effective perceived noise decibels.
11. Aircraft whose average sound exposure levels (SEL) on takeoff from Runway 15, under normal operating conditions and procedures, as measured at Airport Monitoring Stations 1, 2, and 3, are equal to or less than 104.5 dB, determined as follows:
d. for aircraft types regularly operating at the Airport during the year ending June 30, 1981, the average level shall be determined from the energy average of the SEL values measured at Monitoring Stations 1, 2, and 3 during April, May, and June, 1981. e. for aircraft types not regularly operating at the Airport during the year ending June 30, 1981, the aircraft operator shall submit estimates of the energy average SEL values expected at Monitoring Stations 1, 2, and 3, accompanied by noise level and takeoff performance calculations sufficient to show the basis for obtaining the estimates. Where the average combined noise level estimates fall within the range of 101.5 to 104.5 dB, the Airport shall have the option of allowing the aircraft to operate at the Airport for a demonstration period of 90 days. The noise levels measured at Stations 1, 2, and 3 during this 90- day demonstration period shall be the basis for determining whether or not the aircraft meets the noise limits under this Part.
The permission granted under this Part (B) (3) (b) shall continue only for so long as the approved aircraft continues to be operated at an average combined noise level at or below 104.5 dB as set forth above.
O. Aircraft op erated pursuant to an Operating Certificate issued by the Federal Aviation Administration, whose noise levels exceed the limits specified in Part (B) shall be permitted to land at and take off from the Burbank- Glendale-Pasadena Airport only under the following circumstances:
12. in the event such landing and takeoff results from the existence of a declared emergency;
13. in the event such landing and takeoff results from use of the Airport as a weather alternative; or
14. in the event such landing and takeoff occurs in connection with FAA certificated maintenance, repair and modification.
P. Upon request of the Airport Authority, the aircraft operator or pilot in command shall document or demonstrate the precise emergency conditions or FAA certificated maintenance, repair, or modification resulting in the landing and takeoff of an aircraft whose noise levels exceed those set forth in Part (B) above.
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Q. Any aircraft operator or pilot in command violating the provisions of this Rule may, in the discretion of the Commission, and in addition to any other remedies (including injunctive remedies) available, be subject to civil penalties in the amount of One Thousand Dollars ($1,000) for each unauthorized landing and takeoff.
This Rule has been and shall continue to be enforced as written as all modern commercial and general aviation aircraft in service meet these standards.
Rule 11
Subject to the provisions of Rule 7 of these Rules and Regulations:
R. No air carrier shall inaugurate or reinstitute scheduled turbojet operations at the Burbank-Glendale-Pasadena Airport (“the Airport”), except as provided in Part C below, unless all turbojet operations of that carrier are to be conducted solely with aircraft which comply with the noise level criteria of F.A.R. Part 36 Stage 3 (section C36.5 (a) (3) of Appendix C), as the same may be revised, supplemented, or replaced from time to time (“Stage 3 aircraft”).
S. Each air carrier that has continuously provided scheduled passenger service at the Airport using non-Stage 3 aircraft since March 1, 1982, shall:
15. Utilize only Stage 3 aircraft in increases in its scheduled turbojet operations above the number of such operations in effect on June 30, 1982;
16. Conduct at least twenty -five percent (25%) of its scheduled turbojet operations with Stage 3 aircraft until March 31, 1986; and
17. From April 1, 1986, to March 31, 1987, conduct at least fifty percent (50%) of its scheduled turbojet operations with Stage 3 aircraft.
T. Air carriers seeking to inaugurate or reinstitute scheduled passenger operations at the Airport between the effective date of this Rule and March 31, 1987, will be permitted to make use of non-Stage 3 aircraft to the extent such aircraft may be used during that period by air carriers that have continuously utilized such aircraft at the Airport in scheduled passenger service since March 1, 1982, if the air carrier seeking to inaugurate or reinstitute scheduled passenger service demonstrates that the non-Stage 3 aircraft sought to be utilized will produce, at the average gross weight reasonably expected in operations at the Airport, an energy average Sound Exposure Level (“SEL”) no greater than 98 decibels at Airport Monitoring Stations 1, 2, and 3 for departures on Runway 15 and no greater than 93 decibels at Station 9 for arrivals on Runway 8.
U. After March 31, 1987, each air carrier providing scheduled passenger service at the Airport shall conduct one hundred percent (100%) of its scheduled turbojet operations with Stage 3 aircraft.
V. Air carriers may substitute higher noise level aircraft in operations required to be flown with lower noise level aircraft only if the required lower noise level aircraft is removed from service on a temporary basis for unanticipated conditions beyond the carrier’s control, but only for so long as is necessary to correct such unanticipated conditions.
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W. Each scheduled air carrier shall demonstrate, in writing, its intention and ability to fulfill the requirements of this Rule not less than 30 days prior to the commence ment (including reinstitution) of scheduled passenger service or any proposed increase in operations at the Airport.
Each such air carrier shall also, upon request of the Authority, provide written documentation of the reasons for and duration of any substitution of aircraft pursuant to Part E hereof.
X. Each scheduled air carrier violating the provisions of this Rule may, in the discretion of the Commission, and in addition to the other remedies (including injunctive remedies) available, be subject to civil penalties in the amount of Ten Thousand Dollars ($10,000) for each day on which operations are conducted in violation of the provisions of this Rule.
This Rule has been and shall continue to be enforced by requiring all air carriers to use aircraft that are certified Stage 3 or quieter at the Airport.
Rule 12
In the event one or more clauses, sections or provisions of these Rules shall be held to be unlawful, invalid or unenforceable, the remainder of such Rule (or Rules) shall not be affected thereby.
This Rule has been and shall continue to be enforced as written.
Noise Rules Enforcement
The following procedures shall govern the enforcement of the Noise Abatement Rules.
18. Alleged violations of the Noise Abatement Rules shall be investigated by the Noise & Environmental Department or such other airport staff member as the Executive Director may designate.
19. In each instance of a potential violation identified by the Noise & Environmental Department, the Noise & Environmental Department staff shall notify the owner or operator of the aircraft in question. In the case of potential violations of Rules 8 or 9, or in any other instance in which a violation, if confirmed, would result in the imposition of a monetary fine or operational restriction, such notice shall be in writing and shall be delivered by certified mail or other form of registered delivery. Such written notice shall specify the nature of the alleged violation, the time, date and location of its occurrence, the rule allegedly violated, and shall include a copy or description of these enforcement procedures.
20. The owner or operator shall have fifteen (15) business days from the date of such notice to: pay the proposed fine; contest in writing the finding of a violation; or request in writing an informal conference with the Director, Noise & Environmental Programs (“Director”).
The Director shall, based upon information received in writing or through an informal conference, determine whether a violation has occurred and shall promptly give written notice of such determination to the owner or operator.
21. The owner or operator shall have ten (10) business days from the date of such notice of determination to appeal the determination of the Director to the Authority’s Operations Committee. Such appeal shall be in writing, submitted to the Noise & Environmental ATTACHMENT 1
Department, and shall set forth all information the owner or operator believes necessary to support such appeal. The Operations Committee shall have the discretion to request further inform ation from the owner or operator, either in writing or in person, and may affirm, overrule or modify the determination of the Director. The Operations Committee shall give written notice of its decision to the owner or operator.
22. The owner or operator may, within ten (10) business days of the date of the notice of decision of the Operations Committee, appeal that decision to the full Airport Authority Commission, by submitting a notice of appeal, together with such written information as it deems appropriate, to the Noise & Environmental Department. The Commission may request further information from the owner or operator, either in writing or in person, and may affirm, overrule or modify the decision of the Operations Committee. The Commission shall give written notice of its decision to the owner or operator.
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Exhibit C
FAA Grant Agreement Assurances
Nondiscrimination
A. Tenant, for itself, its representatives, successors in interest, and permitted assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that in the event facilities are constructed, maintained, or otherwise operated on the Leased Premises for a purpose for which a Department of Transportation program or activity is extended or for another purpose involving the provision of similar services or benefits, Tenant shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally- Assisted Programs of the Department of Transportation- Effectuation of Title VI of the Civil Rights Act of 1964, and as said regulations may be amended.
B. Tenants for itself and its representatives, successors in interest and permitted assigns as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that:
1. No person on the ground of race, color, or national origin shall be excluded from participation, denied the benefits of, or be otherwise subjected to discrimination in the use of the Leased Premises;
2. In the construction of any Improvements on, over or under the Leased Premises, if allo wed, and the furnishings of services thereon, no person on the ground of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; and
3. Tenant shall use the Leased Premis es in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, part 21, Nondiscrimination in Federally- assisted programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended.
C. In the event of breach of any of the above nondiscrimination covenants, Landlord shall have the right to terminate this Lease and to re -enter and to repossess the Leased Premises, and hold the Leased Premises as if this Lease had never been made. This provision does not become effective until the procedures of 49 Code of Federal Regulations Part 21 are followed and completed, including expiration of appeal rights.
D. Tenant shall furnish its accommodations and/or services on a fair, equal and not unjustly discriminatory basis to all users thereof and it shall charge fair, reasonable and not unjustly discriminatory prices for each unit or service; provided, that the Tenant may make reasonable and nondiscriminatory discounts, rebates or other similar type of price reductions to volume purchasers.
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E. Noncompliance with Provision D, above shall constitute a material breach hereof and in the event of such noncompliance Landlord shall have the right to terminate this Lease and the estate hereby created without liability therefor or, at the election of Landlord or the United States, either or both thereof shall have the right to judicially enforce Provisions A, B, C and D above.
F. Applicant agrees that it shall insert the above five provisions in any Permitted Lease, license or agreement by which said Tenant grants a right or privilege to any person, firm or corporation to render accommodations and/or service to the public at the Leased Premises.
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Exhibit D
Policy on Tenant Improvements
REQUEST FOR APPROVAL
PROPOSED TENANT IMPROVEMENT
MUST BE SUBMITTED AT LEAST TEN BUSINESS DAYS PRIOR TO PROJECT START DATE. LARGER PROJECTS REQUIRE ADDITIONAL LEAD TIME.
1. INFORMATION
Tenant Building #
Name of Contact Phone #
Address Email:
Describe Proposed Improvements *
Estimated cost of improvements
Estimated start date Completion date
***Attach sketches or drawings as required to clearly indicate the type, size, height and location of proposed improvements***
2. PRE-CONSTRUCTION
Contractor License #
Address
Contract Price Phone #_
Construction Commencement Date End Date
***Applicant must submit required Certificate of Insurance, Material and Labor Bond two weeks prior to the start of construction***
Tenant Representative (Signed) Date
3. INITIAL APPROVALS
Operations (Approver) Date
Pre-Con Needed (Y/N)
Comments
Business & Properties (Approver) Date Pre-Con Needed (Y/N) Comments
Engineering Department (Approver) Date Pre-Con Needed (Y/N) Comments
Environmental & Noise (Approver) Date Pre-Con Needed (Y/N) Comments
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Fire Department (Approver) Date Pre-Con Needed (Y/N)
Comments
ICT Department (Approver) Date Pre-Con Needed (Y/N)
Comments
Maintenance Department (Approver) Date
Comments
Safety Department (Approver) Date
Pre-Con Needed (Y/N)
Comments
Police & Security (Approver) Date Pre-Con Needed (Y/N) Comments
4. FINAL APPROVAL
Airport Administration (Reviewed by) Date
INSTRUCTIONS FOR COMPLETING THIS FORM
The following procedures are to be followed by all Airport Tenants desiring to make improvements to their leasehold. Close adherence to the procedures and regulations outlined below will greatly aid in expediting the processing and approval of each Proposed Improvement.
1. Tenant shall complete Section 1 and 2 of this form and submit to: Burbank-Glendale-Pasadena Airport Authority, Business, Property and Administrative Services Department, 2627 Hollywood Way, Burbank, CA 91505.
2. Upon receipt of this Request Form, the Business, Property and Administrative Services Department will review the Proposed Improvement and, if the proposal is considered to be basically acceptable, it will then be forwarded to Airport Engineering for further review and evaluation. However, if the proposal is not considered to be basically acceptable, the Request Form will be returned to the Tenant accompanied by a written statement from the Authority as to why the request is being denied at this stage or if additional information is required.
3. In addition to the submission of the Tenant Improvement Form, Tenant shall also provide final plans and specifications for the Proposed Improvement. The plans and specifications shall conform to the following requirements: five (5) sets of plans and specifications shall be submitted by the Tenant with this form to Business, Property and Administrative Services Department for review by all applicable Airport Departments with final review and approval by Airport Administration.
4. The Business, Property and Administrative Services Department and Engineering Department will determine any impact of the Proposed Improvement on the Airport Master Plan, Airport Facilities, Navigable Airspace Requirements of Federal Aviation Regulations Part 77, and/or if it conforms to the Airport Rules and Regulations.
5. P rior to the start of construction and after all insurance and bond requirements have been satisfied, an Indemnification & Defense Agreement has been submitted to the Authority, and Building permits and any other necessary permits are on file with the Authority, a pre-construction meeting must be held in the Authority Administrative offices. When all of these requirements have been satisfied, approval to begin construction will be granted on the Tenant Improvement Form and a copy returned to the Tenant. The form will indicate whether approval has been granted, and if not granted, the reason for denial.
6. All Tenants shall, within thirty (30) days after completion, submit to Business, Property and Administrative Services Department one set of "as built" plans. Also, an itemized summary of construction costs shall be forwarded to Business, Property and Administrative Services Department.
The itemized summary shall be signed by the contractor and notarized.
NOTES: a.) For smaller projects costing less than $5,000, the Authority may, at its discretion, waive any or all of the above requirements. b.) Airport approval does not constitute a substitution of approval from any other governmental agency having jurisdiction.
PLANS AND SPECIFICATIONS
Plans shall be drawn to scale and dimensioned on standard size drawing sheets for future reference and file retention, and shall be of sufficient clarity to indicate the nature and extent of the work proposed and show in detail that it conforms to the provisions of the governing codes, ordinances, rules and regulations. The minimum number of drawings normally acceptable with each set of plans submitted for final review and approval will generally consist of a plot plan, foundation plan, floor plan, elevations, framing section and details. Electrical, plumbing, heating and air conditioning plans and details shall be submitted when applicable. Foundation recommendations, including calculations and a soils investigation report shall be submitted when appropriate or requested by Airport Engineering. All design documents, including required calculations, shall be prepared, stamped, and signed by a licensed professional engineer or architect registered in the State of California. Engineers shall be licensed for the specific discipline required. Drawings/specifications and/or calculations prepared by contractors and/or fabricators will not be acceptable.
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OTHER REQUIREMENTS
INSURANCE REQUIREMENT
Contractor shall take out and maintain during the period of the Contract the following insurance and amounts unless a larger amount is specified on the Approval Request Form:
Comprehensive General Liability: $1,000,000 single limit for combined Bodily Injury and Property Damage for each occurrence. $1,000,000 for Personal Injury for each occurrence.
Comprehensive Automobile Liability: $1,000,000 single limit for combined Bodily Injury and Property Damage for each occurrence.
Workers' Compensation: California statutory requirements
Liability policies shall name the Burbank-Glendale-Pasadena Airport Authority as an Additional Insured. Certificates of Insurance on all policies shall be filed with Business, Property and Administrative Services Department. Each of said insurance policies shall contain a provision requiring the insurer to notify the Burbank-Glendale-Pasadena Airport Authority ten (10) days prior to the cancellation or material change in the Policy.
BOND REQUIREMENT
The Tenant shall require the contractor to obtain a material and labor bond equal to the contract price of the work.
A copy of said bond shall be forwarded to Airport Engineering.
INDEMNIFICATION & DEFENSE
AGREEMENT
The Tenant and its Contractor agree to and do hereby indemnify, defend and hold harmless the Burbank-Glendale- Pasadena Airport Authority, and its officers, agents, employees and contractors from all claims, demands, liabilities, losses, damages, costs and expenses, of any nature whatsoever, caused by or arising from, directly or indirectly, any act or omission (including, without limitation, negligent acts, negligent omissions, willful misconduct and any violation of the terms of that certain Lease between Tenant and Authority in, on or near the Bob Hope Airport by Contractor, or its subcontractors, agents or employees (including without limitation work done by Contractor for Tenant on Tenant’s leased premises).
PREVAILING WAGES
As part of Tenant’s obligations under the terms of the Lease to comply with applicable law, Tenant acknowledges and agrees that Tenant shall (and shall cause its contractors to) pay prevailing wages for such improvements and shall otherwise comply with California Labor Code Sections 1720 et seq. (including all recordkeeping and reporting requirements).
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Exhibit E
OTHER/GENERAL RULES AND REGULATIONS
Reference is hereby made to that certain 45-page document entitled:
BURBANK-GLENDALE-PASADENA AIRPORT AUTHORITY
RULES AND REGULATIONS GOVERNING CONDUCT ON, OPERATIONS AT,
AND USE OF FACILITIES AT THE
BURBANK-GLENDALE-PASADENA AIRPORT AUTHORITY
as revised May 4, 2020 and receipt of which is hereby acknowledged by Tenant. Said rules and regulations are hereby incorporated herein by reference.
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