1.GRANT OF AVIGATION EASEMENT
FOR VALUABLE CONSIDERATION, receipt of which is hereby
acknowledged, Grantor, for itself and its successors and assigns, does hereby
grant to Grantee, its successors and assigns, for the use and benefit of
Grantee, the tenants and licensees of Grantee, and all users of the Airport,
the following easements, rights and servitudes, which shall be appurtenant to
the Airport, as to Grantee, and in gross, as to the tenants and licensees of
Grantee and as to all users of the Airport (collectively the “Avigation
Easement”):
1.1.Passage of Aircraft. A perpetual nonexclusive easement
and right of way for the “Passage of Aircraft” (as hereinafter
defined) by whomsoever owned and operated in, to, over and through all air
space of the Property located above the height of the lowest of the
“imaginary surfaces” established in relation to the Airport and to
each runway at the Airport in accordance with the applicable provisions of
Federal Aviation Administration regulations set forth in 14 C.F.R.
§§77.21-77.29 (as the same may be amended from time to time), to an
indefinite height above said imaginary surfaces. As used herein, the term
“Aircraft” shall mean any contrivance now known or hereafter
invented, used or designed for navigation of or flight in the air, and the term
“Passage of Aircraft” shall include, but not be limited to, Aircraft
operation, navigation and flight; however, except to the extent constituting
“Incidental Effects” as provided in Section 1.2 below, the term
“Passage of Aircraft” shall not include Aircraft landing, explosion,
crash, falling objects, dumping or spillage of liquid fuel or other occurrence
causing direct physical injury to persons or direct physical damage to
property.
1.2.Incidental Effects. A perpetual nonexclusive easement and right to
cause within, and to enter or penetrate into or transmit through, any improved
or unimproved portion of the Property, or any air space above the ground
surface of the Property, such noise, sounds, vibrations, electronic
interference, fumes, dust, fuel vapor particles, and all other similar effects
that may result from or be related to the ownership, operation or maintenance
of the Airport, the use of the Airport by Aircraft, the flight of Aircraft to,
from or over the Airport, or the flight of Aircraft over the Property (at
heights above the “imaginary surfaces” described in Section 1.1
above), or the taking-off or landing of Aircraft from or at the Airport
(collectively, “Incidental Effects”), including, without limitation,
any Incidental Effects that may be objectionable or would otherwise constitute
a trespass, a permanent or continuing nuisance, personal injury or taking or
damage to the Property due to invasiveness, intermittence, frequency, loudness,
intensity, toxicity of Aircraft emissions or fuel, interference, emission,
odor, annoyance or otherwise.
2.COVENANTS
2.1.Interference With Air Navigation. In furtherance of the
easements and rights herein granted, Grantor hereby covenants, for itself and
its successors and assigns, at all times hereafter, that it will not take any
action, cause or allow any electronic, electromagnetic or light emissions,
allow any obstruction to exist, or construct any structure on the Property
which would conflict or interfere with or infringe Grantee's rights hereunder,
including the full use and enjoyment of the Avigation Easement.
2.2.Changes. The rights, easements, benefits, waivers, covenants and
agreements granted hereunder, including the Avigation Easement, shall continue
notwithstanding any increase or other change in the boundaries, volume of
operations, noise, or pattern of air traffic at the Airport. The Avigation
Easement and this Avigation Easement Agreement may not be modified, amended,
terminated or abandoned except by execution and delivery of an instrument
executed and acknowledged by Grantee, and Grantor agrees that, in the absence
of such an instrument, no conduct by Grantee or increase, diminution or change
in use of the Avigation Easement shall constitute either an overburdening of
the Avigation Easement or a termination or abandonment of the Avigation
Easement.
2.3.Covenants Binding On and Benefitting Successive Owners and Assigns.
The parties intend that all waivers, restrictions, covenants and agreements set
forth herein relate to the use, repair, maintenance or improvement of the
Property or the Airport, or some part thereof, and shall run with the land of
Grantor and Grantee, and any grantee, successor or assign of Grantor who
acquires any estate or interest in or right to use the Property shall be bound
hereby for the benefit of the Airport and for the benefit of any grantee,
successor or assign of Grantee, including, without, limitation, the tenants and
licensees of Grantee, and all users of the Airport.
3.GENERAL PROVISIONS
3.1.Attorneys' Fees. Should Grantor or Grantee or any of
their respective successors or assigns retain counsel to enforce any of the
provisions herein or protect their interests in any matter arising under this
Avigation Easement Agreement, or to recover damages by reason of any alleged
breach of any provision of this Avigation Easement Agreement, the losing party
in any action pursued in a court of competent jurisdiction shall pay to the
prevailing party all costs, damages, and expenses incurred by the prevailing
party, including, but not limited to, attorneys' fees and costs incurred in
connection therewith.
3.2.Interpretation. No provision of this Avigation Easement Agreement is
to be interpreted for or against any party because that party or that party's
legal representative drafted such provision.
3.3.Waiver. No violation or breach of any provision of this Avigation
Easement Agreement may be waived unless in writing. Waiver of any one breach of
any provision of this Avigation Easement Agreement shall not be deemed to be a
waiver of any other breach of the same or any other provision of this Avigation
Easement Agreement.
3.4.Severability. In the event that any one or more covenant, condition,
right or other provision contained in this Avigation Easement Agreement is held
to be invalid, void or illegal by any court of competent jurisdiction, the same
shall be deemed severable from the remainder of this Avigation Easement
Agreement and shall in no way affect, impair or invalidate any other covenant,
condition, right or other provision contained in this Avigation Easement
Agreement.
3.5.Additional Documents. In addition to the documents and instruments
to be delivered as provided in this Avigation Easement Agreement, Grantor or
its successors and assigns, as the case may be, shall, from time to time at the
request of Grantee, execute and deliver to Grantee such other documents and
shall take such other action as may be reasonably required to carry out more
effectively the terms of this Avigation Easement Agreement.
3.6.Governing Law. This Avigation Easement Agreement has been negotiated
and entered into in the State of California, and shall be governed by,
construed and enforced in accordance with the statutory, administrative and
judicial laws of the State of California.
3.7.Integration. This Avigation Easement Agreement, including the
exhibits, constitutes the final, complete and exclusive statement of the
parties relative to the subject matter hereof and there are no oral or parol
agreements existing between Grantor and Grantee relative to the subject matter
hereof which are not expressly set forth herein and covered hereby. This is an
integrated agreement.
3.8.Prior Rights. The rights, easements, benefits, waivers, covenants
and agreements in favor of Grantee, its successors and assigns, the tenants and
licensees of Grantee, and all users of the Airport under this Avigation
Easement Agreement are subject and subordinate to, and do not terminate,
modify, restrict, or impair in any manner the rights, easements, benefits,
waivers, covenants and agreements in favor of the City of Burbank, a municipal
corporation (“City”), its grantees, successors and assigns, under
that certain document pertaining to the Property entitled Grant of Easements,
Declaration of Use Restrictions and Agreement for Trust Property executed as of
____________, 1999, by the Authority, the City and the Trustee, and recorded on
________, 1999 as Document No. _______ at Book _____, Page _____ of Official
Records, County of Los Angeles, State of California (the “Trust Property
Easement”). Nothing in this Avigation Easement Agreement is intended to,
nor shall be interpreted in any manner to (i) terminate, modify, restrict, or
impair in any manner the rights of the City under that certain Grant of
Easements, Declaration of Use Restrictions and Agreement for Adjacent Property
executed by the Authority and the City as of ____________, 1999, and recorded
on _________, 1999 as Document No. _______ at Book ____, Page ____ of Official
Records, County of Los Angeles, State of California; (ii) permit or require use
of the Property for purposes of expanding or enlarging the Airport under
California Public Utilities Code Section 21661.6 (“PUC Section
21661.6”), or (iii) create rights that will result in the preemption of or
otherwise affect adversely the applicability, validity and enforceability of
PUC Section 21661.6 or local land use laws, including, but not limited to the
City of Burbank’s Zoning Ordinance and General Plan, or the Burbank
Redevelopment Agency's Golden State Redevelopment Plan.