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EXHIBIT 10.18
L E A S E
BETWEEN
PORT OF OAKLAND
AND
NATIONAL AIRMOTIVE CORPORATION
DATED
JANUARY 23, 1991
NATIONAL AIRMOTIVE CORP.
TEST CELLS LEASE
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I N D E X
Section Page
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1 Lease and Description of the Property 2
1.1 Lessee's Right of First Refusal
on Entire Premises 2
2 Effective Date; Term; Option to Extend Term 2
2.1 Effective Date 2
2.2 Term 3
2.3 Option to Extend Term 3
3 Use of Premises 6
3.1 Required and Permitted Uses 6
3.2 Special Noise Limitations 6
3.3 Removal of Adjacent Outside Test Stand 6
3.4 Compliance with Law; Indemnity 7
4 Rental; Monthly Rental Adjustment; Performance
Deposit 8
4.1 Monthly Rent 8
4.2 Delinquency Charge 11
4.3 Accord and Satisfaction 12
4.4 Performance Deposit 12
5 Standard of Service; Rates and Charges 13
6 Condition of Property 13
7 Improvements to the Premises 14
7.1 Improvements by the Port 14
7.2 Improvements by the Lessee 14
8 Maintenance of Improvements 14
8.1 Prevailing Wage Requirements 15
9 Title to Improvements 19
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I N D E X
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10 Signs; Outside Displays 19
11 Utility Easements 20
12 Utilities 20
13 Taxes and Assessments 21
14 Fire Insurance 21
15 Damage or Destruction of Premises 22
16 Fire Extinguishers 23
17 Indemnification, Hold Harmless and Liability
Insurance 23
17.1 Indemnification and Hold Harmless 23
17.2 Liability Insurance 23
18 No Liens; Mortgage of Leasehold and Protection
of Lender 24
19 Assignment and Subletting 25
20 Hazardous Substances; Fumes and Odors; Disposal
of Garbage; Annoying and Injurious Conduct 29
21 Defaults 30
22 Right of Entry 32
23 Surrender and Holding Over 32
24 Duty to Guard Goods 33
25 Waivers 33
26 Right to Inspect Premises 33
27 Agent for Service of Process 33
28 Rights of the United States of America 34
29 Airport Security 34
30 Force Majeure 35
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I N D E X
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31 Eminent Domain Proceedings 35
31.1 Total Taking 35
31.2 Partial Taking; Termination 35
31.3 Partial Taking; No Termination;
Reconstruction 36
31.4 Partial Taking; No Termination;
No Reconstruction 36
31.5 Taking of Leasehold Estate 36
31.6 Relocation Benefits and Goodwill 37
31.7 Trade Fixtures and Equipment 37
31.8 Reduction in Monthly Rent; Arbitration 38
31.9 Port's Reservation of Power of Eminent
Domain 38
32. Waiver of Claims 38
33. Reservation of Aircraft Easement 39
34. Extensions of Time 39
35. Successors 39
36. Board of Port Commissioners 39
37. Time of Essence 40
38. Notices 40
39. Equal Opportunity; Nondiscrimination 40
40. Employment Resources Development Program 42
41. Quiet Possession 42
42. Attorneys' Fees and Costs 42
43. Lease the Entire Agreement; Other Agreements 42
44. Severability 43
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I N D E X
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45. Applicable Law and Venue 43
46. Real Estate Brokers 43
47. Agreement in Multiple Copies 43
48. Covenant Against Contingent Fees 43
Exhibits
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A Sketch of Property
B Legal Description
C Irrevocable Letter of Credit
D Hazardous and Toxic Substances
E Affirmative Action Plan for Lessee
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L E A S E
THIS LEASE, entered into this 23rd day of January 1991, by and between
the CITY OF OAKLAND, a municipal corporation (the "City"), acting by and
through its Board of Port Commissioners, hereinafter called the "Port" or
"Lessor", and NATIONAL AIRMOTIVE CORPORATION, a California corporation, a
wholly owned subsidiary of TRITON GROUP, LTD., a Delaware corporation,
hereinafter called the "Lessee",
W I T N E S S E T H:
WHEREAS, the City of Oakland is the owner in fee of that certain
property located in the Port Area of the City of Oakland at the Metropolitan
Oakland International Airport ("Airport") consisting of approximately 95,256
square feet of land, said property being referred to hereinafter as either "the
Property" or the "Premises"; and
WHEREAS, the Port is vested with the complete and exclusive power, and
it is the Port's duty for and on behalf of the City with respect to the Port
Area, to make provisions for the needs of commerce, shipping and navigation of
the port, to promote and develop the port, and in the exercise of such power
and fulfillment of such duty, to enter into any lease of City-owned properties
in the Port Area upon such terms and conditions as the Board of Port
Commissioners shall prescribe; and
WHEREAS, the Port desires to develop, alter and improve the Property
in order to provide for improvements and facilities which will service and
enhance the Airport and the commerce, shipping and navigation in the Port Area;
and
WHEREAS, the Port has determined that the Airport and the commerce,
shipping and navigation of the port will be promoted and enhanced by leasing
the Property to Lessee for the uses and purposes set forth in this Lease;
NOW, THEREFORE, for the better promotion of commerce, shipping and
navigation and the development of the port and the Airport, and for and in
consideration of the faithful performance of the Port and Lessee of the terms,
covenants and conditions hereof and of the payments herein provided to be made
by Lessee, the Port and Lessee hereby agree as follows:
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1. LEASE AND DESCRIPTION OF THE PROPERTY: The Port has leased and
demised, and by these presents does lease and demise unto Lessee, and Lessee by
these presents does lease, hire and take from the Port the Property which is
located in the "Port Area" of the City of Oakland, County of Alameda, State of
California, and more particularly described and depicted in Exhibit "A"
attached hereto and by this reference incorporated herein. The Property
together with the improvements thereon from time to time are sometimes
hereinafter referred to as the "Premises".
This Lease is subject to (1) all easements, covenants, conditions,
restrictions, reservations, rights of way, liens, encumbrances and other
matters of record, including without limitation those shown on Exhibit "B"
attached hereto (2) all matters discoverable by physical inspection of the
Property or that would be discovered by an accurate survey of the Property and
(3) all matters known to Lessee or of which Lessee has notice, constructive or
otherwise.
1.1. LESSEE'S RIGHT OF FIRST REFUSAL ON ENTIRE PREMISES:
The Port hereby grants to Lessee three (3) rights of first refusal to extend
the term of this Lease for five (5) year periods each, the first to occur on
February 1, 2015 the second to occur on February 1, 2020, and the third to
occur on February 1, 2025 ("Right of First Refusal Dates") when the term of
this Lease as specified in section 2.2 expires. In the event the Port
determines on the Right of First Refusal Date that the Premises as shown on
Exhibit "A" attached hereto should be leased, licensed or assigned to a third
party, the Port shall prior to leasing, licensing or assigning said Premises to
a third party give Lessee fifteen (15) days' prior written notice of its intent
to so lease, license or assign said Premises together with the term of such
lease, license or assignment and the rental and/or other consideration to be
received from the third party for such lease, license or assignment and Lessee
may thereafter within fifteen (15) days of the Port's notice give notice to the
Port of its intention to lease, license or assign the Premises for the same
term and rental and/or other consideration as that set forth in the Port's
notice. It is understood and agreed that Lessee's right of first refusal as
above set forth shall not be applicable in instances in which the Port itself
develops or redevelops the Premises for its own use or common Airport use or
for the ultimate use by third parties. In the event Lessee so exercises its
right to so lease the Premises, said Lease shall be effective thirty (30) days
after the date of the Port's said notice and if Lessee does not so exercise its
right within fifteen (15) days of the Port's notice, Lessee's right to exercise
its option to lease the Premises shall immediately expire.
2. EFFECTIVE DATE; TERM; OPTION TO EXTEND TERM:
2.1. EFFECTIVE DATE: This Lease shall become effective
upon the effective date of the ordinance authorizing the Lease. However, if
said ordinance does not become effective immediately upon the expiration of
thirty (30) days from and after the date of
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its final passage because of the referendum process then this Lease shall not
become effective except by mutual written agreement of the Port and Lessee.
2.2. TERM: The term of this Lease shall commence upon the
first day of the first full calendar month after the effective date of this
Lease and shall terminate on January 31, 2015.
2.3 OPTION TO EXTEND TERM: The Port hereby grants to
Lessee three (3) five-year options to rent all of its leased property at Fair
Market Rental Value, commencing February 1, 2015, upon each and all of the
following terms and conditions:
(i) Lessee must lease approximately 100,000
square feet parcel immediately adjacent to the northeast of Building No. L-815
hereinafter referred to as Parcel A (as shown on Exhibit "A" to the Main
Building Lease of even date herewith during the first four (4) years from the
effective date (as set forth in Section 2.1) of this Lease.
(ii) Lessee must commence and complete within two
(2) years from the effective date of this Lease (as set forth in Section 2.1)
the acquisition of all necessary permits for the construction of a 60,000
square foot shop/warehouse building on Parcel A.
(iii) Lessee must commence and complete within four
(4) years from the effective date of this Lease (as set forth in Section 2.1)
construction of a 60,000 square foot shop/warehouse building on Parcel A at a
minimum cost of Two million and no/100 ($2,000,000.00) to Lessee.
(iv) Lessee gives to the Port and the Port
receives written notice of the exercise of the option to extend this Lease for
said additional term no earlier than 12 months and no later than 6 months prior
to the time that the option period would commence if the option were exercised.
If said notification of the exercise of the option is not so given and
received, this option shall automatically expire.
(v) Lessee shall have no right to exercise the
option, notwithstanding any provision of this Lease to the contrary, (a) during
the time commencing from the date the Port gives to Lessee a notice of default
pursuant to this Lease and continuing until the default alleged in said notice
of default is cured, or (b) during the time commencing on the day after a
monetary obligation to the Port is due from Lessee and unpaid (without any
necessity for notice thereof to Lessee) and continuing until the obligation is
paid. The period of time within which Lessee may exercise the option shall not
be extended or enlarged by reason of Lessee's inability to exercise because of
the foregoing provisions.
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Lessee may exercise this option upon timely
satisfaction or occurrence of all of the above terms and conditions, and upon
failure of timely satisfaction or occurrence of any one or more of such terms
and conditions, the Port without liability may terminate this option by
resolution adopted by the Board of Port Commissioners. Lessee agrees that
there shall be no waiver or release from the complete and timely satisfaction
of each and every term and condition unless and until the Port at its sole
discretion and by resolution expressly so provides.
(vi) In the event that Lessee exercises its option
and extends the term of this Lease, the Monthly Rent herein provided to be paid
by Lessee on or before the first day of each calendar month during said
remaining term, shall be adjusted to the fair market rental value of the
Property (for land, building and leasehold improvements); provided, that in no
event shall the adjusted Monthly Rent be less than the theretofore existing
Monthly Rent. Pending the final determination of the adjusted Monthly Rent
Lessee shall continue to pay to the Port the amount of the Monthly Rent payable
for the preceding period; and if the adjusted Monthly Rent as finally so
determined should exceed the amount of Monthly Rent for the previous period,
Lessee shall pay to the Port the accrued excess amount then due within 30 days
after the Port sends to Lessee a written request therefore.
The parties shall have ninety (90) days
before the Rent Adjustment Date in which to agree on the adjusted Monthly Rent.
If the parties agree on the adjusted Monthly Rent during that period, they
immediately shall execute and acknowledge an amendment to this Lease stating
the adjusted Monthly Rent.
If the parties are unable to agree on the
adjusted Monthly Rent within that period, then within 10 days after the
expiration of that period each party, at its cost and by giving notice to the
other party, shall appoint a real estate appraiser to appraise and submit an
opinion of the fair market rental value of the Property expressed in terms of
an adjusted Monthly Rent. If a party does not appoint an appraiser within 10
days after the other party has given notice of the name of its appraiser, the
single appraiser appointed shall be the sole appraiser and that appraiser's
opinion of the fair market rental value of the Property shall be the adjusted
Monthly Rent. If the two appraisers are appointed by the parties as stated in
this Section, they shall meet promptly and attempt to select a third appraiser
meeting the qualifications stated in this Section within 10 days after the last
day the two appraisers are appointed. If they are unable to agree on the third
appraiser, either of the parties to this Lease by giving 10 days' notice to the
other party may apply to the presiding judge of the Alameda County Superior
Court for the selection of a third appraiser who meets the qualifications
stated in this Section. Each of the parties shall bear one half of the cost
of appointing the third appraiser and one half of the third appraiser's fee.
The third appraiser, however selected, shall be
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a person who has not previously acted in any capacity for either party.
Within 60 days after the selection of the
third appraiser, each of the appraisers shall submit to each party the
appraiser's report and opinion of the fair market rental value of the Property
expressed in terms of adjusted Monthly Rent.
From among the opinions of adjusted Monthly
Rent submitted, the median opinion shall be identified, such other opinion
which is closest to said median shall be added to said median, and the average
of said two opinions shall be the adjusted Monthly Rent; provided, that in no
event shall the adjusted Monthly Rent be less than the theretofore existing
Monthly Rent.
In forming an opinion of the adjusted Monthly
Rent, the appraiser or appraisers shall consider a similar use for the Property
with regard to the restrictions on use of the Property contained in this Lease.
All appraisers appointed shall hold the MAI
designation of the American Institute of Real Estate Appraisers or its
successor organization.
(vii) The Port and Lessee promptly shall execute
and acknowledge an appropriate amendment to this Lease memorializing exercise
of the option hereunder which the Port shall then record.
In the event Lessee has so extended the term
of this Lease for an initial five (5) year period Lessee shall have a further
option to extend the term of this Lease for an additional five (5) year period
commencing upon February 1, 2020, subject to the same terms and conditions set
forth above in items (iv) through (vii). In the event that Lessee has so
extended the term of this Lease for an additional five (5) year period Lessee
shall have a further option to extend the term of this Lease for an additional
five (5) year period commencing upon February 1, 2025, subject to the same
terms and conditions set forth above in items (iv) through (vii).
The options granted herein shall not extend
the term of this Lease beyond January 31, 2030, and if Lessee elects to
exercise the options granted herein, Lessee's Rights of First Refusal granted
pursuant to Paragraph 1.1 shall immediately terminate. If Lessee has not
exercised the first option, then the second and third options shall be void.
Lessee hereby expressly agrees that it may
exercise the options granted herein only upon the timely satisfaction of the
conditions set forth in items (i) and (ii) above in addition to those items set
forth in items (iii), (iv) (v) and (vi) and upon failure of timely
satisfaction or occurrence of any one or more of such terms and conditions
particularly
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conditions (i) and (ii), the Port without liability may terminate the options
granted herein by resolution.
3. USE OF PREMISES:
3.1. REQUIRED AND PERMITTED USES: The Property shall be
used by Lessee for the construction, maintenance and operation thereon by
Lessee of a complete aircraft engine service test cell facility. The Property
may also be used for other uses and purposes incidental and reasonably related
to such hereinabove specified uses.
3.2 SPECIAL NOISE LIMITATIONS: Lessee agrees that the
noise emitted from the operation of the engine test cell facility constructed
on the Property shall not exceed the following levels when measured at a
distance of 100 feet from the test cell facility:
Daytime 0700 hours - 1900 hours: 78-dBA
Nighttime 1900 hours - 0700 hours: 70-dBA
Lessee further agrees that the noise emitted from the engine test cell
facility shall not exceed the levels for the octave bands indicated in the
following table when measured at a distance of 100 feet from the test cell:
Octave Band
Frequency Cycles Daytime Level Nighttime Level
Per Second (0700-1900 Hours) (1900-0700 Hours)
---------- ------------------ -----------------
63 90 dB 82 dB
125 89 dB 81 dB
250 81 dB 73 dB
500 72 dB 64 dB
1000 69 dB 61 dB
2000 65 dB 57 dB
4000 55 dB 47 dB
8000 52 dB 44 dB
Provided that, if the emitted noise contains a strong
audible pure tone, then the maximum permitted noise level for the octave band
which contains the pure tone frequency shall be reduced by five dB; and
Provided further that, when adjacent Airport property
is developed in the future, the Port reserves the right to review and
reasonably reduce the permitted noise emissions from the test cell facility.
3.3 OUTSIDE TEST CELL: With regard to the outdoor test
cell, known as Test Cell No. 2, the Port will notify Lessee in writing of any
violation of noise restrictions. If the violation is not corrected within
thirty (30) days, the Port will give Lessee
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a sixty (60) days notice to cease its operation. This test cell shall be used
during daylight hours only and shall not be used on weekends.
Lessee agrees for itself, its successors and assigns
that it will not make use of the Premises in any manner which might interfere
with the landing and taking off of aircraft from the Airport or otherwise
constitute a hazard. In the event the aforesaid covenant is breached, the Port
reserves the right to enter upon the Premises and cause the abatement of such
interference at the expense of the Lessee.
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 nonexclusive use of the Airport
by the United States during the time of war or national emergency.
It is understood and agreed that this Lease to use
the Premises, as provided herein, extends only to the Premises and does not
extend to the use of or access to the ramps, taxiways, landing areas, or any
other area of the Airport except as provided in Paragraph 1; provided, however,
that Lessee may use said facilities in common with others and in compliance
with all applicable laws and regulations. It is also understood and agreed
that nothing herein contained shall be construed to grant or authorize the
granting of an exclusive right within the meaning of Section 308(a) of the
Federal Aviation Act of 1958 (49 U.S.C. 1349(a)).
3.4. COMPLIANCE WITH LAW; INDEMNITY: Lessee shall not use
or permit the Premises, or any part thereof, to be used in whole or in part for
any purpose other than as hereinabove set forth except with the prior written
consent of the Port evidenced by resolution of its Board of Port Commissioners,
nor for any use in violation of any present or future laws, ordinances, general
rules or regulations at any time applicable thereto of any public or
governmental authority having jurisdiction over the premises, including the
City of Oakland and its Board of Port Commissioners, relating to filling of or
discharges into the water, sanitation or the public health, safety or welfare.
Lessee hereby expressly agrees at all times during the term of this Lease, at
its own cost, to maintain and operate the Premises in a clean, wholesome and
sanitary condition, and Lessee shall at all times faithfully obey and comply
with all laws, rules and regulations applicable thereto adopted by federal,
state, local or other governmental bodies or departments or officers thereof
and applicable to the Premises; provided, however, that Lessee may reasonably
and in good faith contest any such law, rule or regulation through appropriate
proceedings, and, during such contest, Lessee need not comply therewith,
provided further, that Lessee shall at all times reasonably protect the
interest of the Port under this Lease, shall indemnify the Port for all Port
expenses (exclusive of general
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office and administrative expense) actually and reasonably incurred as a result
of said contest, and shall promptly comply with any such contested law, rule or
regulation if any such contest is resolved against Lessee.
Lessee agrees to indemnify and save harmless the Port
and Port officers, employees and agents from any penalties or charges
(including, without limitation, reasonable attorneys' fees and reasonable legal
expenses incurred by the Port in connection with such penalties or charges)
imposed on the Port for any violation by Lessee or by Lessee's licensees,
sublessees or invitees, of any and all laws, ordinances and regulations
applicable to Lessee's use of the Premises and which violation is not solely
the result of acts or omissions on the part of the Port or its officers, agents
or employees.
4. RENTAL; MONTHLY RENTAL ADJUSTMENT; PERFORMANCE DEPOSIT:
4.1. MONTHLY RENT: The monthly rent for the specified
periods of the term will be as follows:
(i) Commencement of term to January 31, 1995, Two
Thousand Fifty-Eight and 01/100 Dollars
($2,058.01).
(ii) Monthly rent shall be adjusted effective the
1st day of February 1995 by the percentage
increase, if any, in the Consumer Price Index
published immediately before February 1, 1995
from that index published before February 1,
1990; provided, however, that in no event
shall monthly rent ever be less than said
monthly rent for the immediate preceding five
(5) year period; provided further, however,
that in no event shall use of the CPI
adjustment procedure result in an increase of
the then effective monthly rent greater than
35% for the immediately preceding five year
period ("CPI Adjusted Minimum Rent").
"Consumer Price Index", as used herein, and
notwithstanding any other provision of this
Lease to the contrary, as used elsewhere in
this Lease, shall mean the Consumer Price
Index for Urban Wage Earners and Clerical
Workers, All Items, San Francisco-Oakland
(1982-84 equals 100), of the Bureau of Labor
Statistics of the United States Department of
Labor, or the official successor of said
Index. If said Index is changed so that the
base year differs from the base year used in
the last index published prior to the
commencement of the term of this Lease, the
former Index shall be converted to the new
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Index in accordance with the conversion
factor published by the United Stated
Department of Labor Bureau of Labor
Statistics. If the Index is discontinued or
revised during the term of this Lease, such
other government index or computation with
which it is replaced, as determined by said
Department or said Bureau, or, failing such
determination, such other government index or
computation which is most similar to said
Index as determined by the Port, shall be
used in order to obtain substantially the
same result as would be obtained if the index
had not been discontinued or revised;
provided, that in the event the parties are
unable to agree upon such other government
index or computation, it shall be selected by
arbitration pursuant to the rules of the
American Arbitration Association.
(iii) On February 1, 2000, the monthly rent herein
provided to be paid by Lessee on or before
the first day of each calendar month until
January 31, 2005, shall be adjusted to the
fair market rental value of the land only;
provided, that in no event shall the adjusted
monthly rent be less than the thereto-fore
existing monthly rent. Pending the final
determination of the adjusted monthly rent
Lessee shall continue to pay to the Port the
amount of the monthly rent payable for the
preceding period; and if the adjusted monthly
rent as finally so determined should exceed
the amount of monthly rent for the previous
period, Lessee shall pay to the Port the
accrued excess amount then due within thirty
(30) days after the Port sends to Lessee a
written request therefore.
The parties shall have ninety (90) days
before the rent adjustment date in which to
agree on the adjusted monthly rent. If the
parties agree on the adjusted monthly rent
during that period, they immediately shall
execute and acknowledge an amendment to this
Lease stating the adjusted monthly rent.
If the parties are unable to agree on the
adjusted monthly rent within that period,
then within ten (10) days after the
expiration of that period, each party, at its
cost and by giving notice to the other party,
shall appoint a real estate appraiser to
appraise and submit an opinion of the fair
market rental value of the Property expressed
in
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terms of an adjusted monthly rent. If a
party does not appoint an appraiser within
ten (10) days after the other party has given
notice of the name of its appraiser, the
single appraiser appointed shall be the sole
appraiser and the appraiser's opinion of the
fair market rental value of the Property
shall be the adjusted monthly rent. If the
two appraisers are appointed by the parties
as stated in this section, they shall meet
promptly and attempt to select a third
appraiser meeting the qualifications stated
in this Section within ten (10) days after
the last day the two appraisers are
appointed. If they are unable to agree on
the third appraiser, either of the parties to
this Lease by giving ten (10) days' notice to
the other party may apply to the presiding
judge of the Alameda County Superior Court
for the selection of a third appraiser who
meets the qualifications stated in this
section. Each of the parties shall bear one
half of the cost of appointing the third
appraiser and one half of the third
appraiser's fee. The third appraiser,
however selected, shall be a person who has
not previously acted in any capacity for
either party.
Within sixty (60) days after the selection of
the third appraiser, each of the appraisers
shall submit to each party the appraiser's
report and opinion of the fair market rental
value of the Property expressed in terms of
adjusted monthly rent.
From among the opinions of adjusted monthly
rent submitted, the median opinion shall be
identified, such other opinion which is
closest to said median shall be added to said
median, and the average of said two opinions
shall be the adjusted monthly rent; provided,
that in no event shall the adjusted monthly
rent be less than the theretofore existing
monthly rent.
In forming an opinion of the adjusted monthly
rent, the appraiser or appraisers shall
consider a similar use for the Property with
regard to the restrictions on use of the
Property contained in this Lease.
All appraisers appointed shall hold the MAI
designation of the American Institute of Real
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Estate Appraisers or its successor
organization.
(v) Monthly rent shall be adjusted effective the
first day of February 2005, and the first day
of February 2010, by the percentage increase,
if any, in the Consumer Price Index published
immediately prior to the Adjustment Dates
from that index published for the
corresponding index reporting period Sixty
(60) months previous; provided, however, that
in no event shall monthly rent ever be less
than said monthly rent for the immediate
preceding five (5) year period; provided
further, however, that in no event shall use
of the CPI adjustment procedure result in an
increase of the then effective monthly rent
greater than thirty-five percent (35%) for
any Adjustment Date for the immediately
preceding five year period ("CPI Adjusted
Minimum Rent").
"Consumer Price Index", as used herein, and
not-withstanding any other provision of this
Lease to the contrary, as used elsewhere in
this Lease, shall mean the same as Consumer
Price Index as defined in Section (ii)
hereinabove.
4.2 DELINQUENCY CHARGE: Any payment of Monthly Rent or
any other sums (said sums herein deemed to be rent in addition to Monthly Rent)
that remains due and unpaid under the terms of this Lease for a period of
thirty (30) days after it becomes due and payable shall be subject to a
delinquency charge, for violation of this Lease and as liquidated damages, a
sum equal to ten percent (10%) per annum of such rental or such other sums
until payment of said rental or such other sums have been received by the Port.
Unpaid delinquency charges that accrue shall be compounded monthly. The Port
shall apply any monies received from Lessee first to any accrued delinquency
charges and then to any other rental or other sums then due hereunder. The
delinquency charges provided by this Paragraph 4.2 are in addition to all other
remedies that the Port may have that are provided by this Lease or otherwise by
law to enforce payment of any rental or other sum that has become due and has
not been paid.
4.3. ACCORD AND SATISFACTION: No payment by Lessee or
receipt by the Port of a lesser amount of Monthly Rent or any other sum due
hereunder, shall be deemed to be other than on account of the earliest due rent
or payment, nor shall any endorsement or statement on any check or any letter
accompanying any such check or payment be deemed an accord and satisfaction,
and the Port may accept such check or payment and pursue any other remedy
available
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in this Lease, at law or in equity. The Port may accept any partial payment
from Lessee without invalidation of any contractual notice required to be given
herein (to the extent such contractual notice is required) and without
invalidation of any notice required to be given pursuant to California Code of
Civil Procedure Section 1161, et seq., or of any successor statute thereto.
4.4. PERFORMANCE DEPOSIT: The Port acknowledges that it
has on hand as of the date of commencement of this Lease a performance deposit
from Lessee in the amount of $5,135. Such sum is hereinafter referred to as
the "Deposit."
Any Deposits required by this Lease shall be evidenced by
cash, multiple maturity certificates of deposits payable to the Port or an
irrevocable letter of credit in the form of Exhibit "C" attached hereto and by
this reference incorporated herein.
Interest on certificates of deposit shall be payable to Lessee
by the issuer of the same. The Port shall not be required to pay or credit
Lessee with any interest on any deposit. The issuing bank shall provide that a
certificate of deposit or an irrevocable letter of credit is payable in San
Francisco or Oakland. The irrevocable letter of credit shall be confirmed by
and payable at the counters of a bank in San Francisco or Oakland. If despite
Lessee's good faith best efforts Lessee is unable to secure such a provision,
the Port will accept a letter of credit without such provisions but in that
case unless the Port receives a written extension of the letter of credit at
least thirty (30) days before the end of the term of the letter of credit, the
Port without notice to Lessee may negotiate the letter of credit and retain all
proceeds as a cash deposit pursuant to the terms of this Paragraph 4.4.
The Deposit shall be retained by the Port as a performance
deposit and will be returned to Lessee within ninety (90) days of termination
of its occupancy hereunder, except to the extent that the Deposit is required
to pay the cost of all or any combination of the following: (i) replacement of
any improvements or items which were, during the term hereof, the property of
the Port and which have been removed or otherwise misplaced during the term of
this Lease, (ii) repair, restoration and cleaning of the Premises necessary to
put them in condition required by Paragraphs 8 and 23 of this Lease, except for
repair, restoration and cleaning not caused by Lessee's negligence and caused
by (a) ordinary wear and tear given the nature and age of the improvements at
the date of termination or (b) any casualty, fire, the elements or act of God,
or (iii) the payment of any outstanding charges or liabilities incurred by
Lessee to the Port pursuant to any of the provisions of this Lease. In the
event the Port is required to use the Deposit or any portion thereof during the
term of this Lease for the purposes hereinabove set forth, Lessee shall deposit
with the Port an additional sum evidenced as hereinabove provided sufficient to
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restore the Deposit to the amount thereof immediately prior to such required
use.
The required Deposit shall be adjusted as of each Minimum
Monthly Rent Adjustment Date so that the Deposit equals at all times two (2)
times the Monthly rent. In no event shall the Deposit at any time be
decreased.
Each increase in the Deposit shall be submitted to the Port
within thirty (30) days after the date that the Port gives to Lessee written
notice of the Port's final determination of the adjusted Deposit, and Lessee
shall deposit with the Port any additional sums necessary to increase the
Deposit as hereinabove set forth on or before the expiration of such thirty
(30) days period.
The Deposit or any remaining portion thereof shall be returned
to Lessee within 90 days of the termination of this Lease after deduction of
any amounts therefrom for payment of the items specified above for which
deduction from the Deposit is allowable. The payment of the Deposit by Lessee
shall not limit Lessee's liability to the Port for the payment of charges due
to the Port by Lessee in excess of the amount of the Deposit.
5. STANDARD OF SERVICE RATES AND CHARGES: Lessee agrees
to furnish or cause to be furnished good, prompt and efficient service at the
Airport to furnish said service on a fair, reasonable and reasonably
nondiscriminatory basis to all users thereof, and to charge fair, reasonable
and reasonably nondiscriminatory prices for each unit of sale or service;
provided, that Lessee may make reasonable and reasonably nondiscriminatory
discounts, rebates or other similar types of price reductions to volume
purchasers. Noncompliance with this provision shall constitute a material
breach of this Lease and in the event of such noncompliance, the Port shall
have the right to terminate this Lease and any estate hereby created without
liability therefor or at the election of the Port or the United States, either
or both of said Governments shall have the right to judicially enforce this
provision.
6. CONDITION OF PROPERTY: The taking of possession of
the Property by Lessee shall in itself constitute acknowledgment that said
Property is in good and tenantable condition. Lessee agrees to accept said
Property in its then existing condition, "as is", and that the Port shall not
be obligated to make any repairs, improvements, alterations or additions
thereto, except as expressly provided in Paragraph 7 of this Lease. Lessee
acknowledges that it has made a sufficient investigation of the conditions of
the Property existing immediately prior to the execution of this Lease,
including without limitation the condition of the soil, and is satisfied that
said Property will safely and feasibly support the type of improvements to be
maintained by Lessee upon said Property.
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7. IMPROVEMENTS TO THE PREMISES:
7.1. IMPROVEMENTS BY THE PORT: The Port is not obligated
to construct or install any improvements on or off of the property.
7.2. IMPROVEMENTS BY THE LESSEE: The layout,
specifications, detailed plans and architectural plans of all improvements to
be constructed upon the Property and adjacent thereto shall be subject to the
prior written approval of the Port.
Lessee, or its licensed contractor, also shall secure at no
cost to the Port all other necessary permits, including, but not limited to,
building permits and any necessary approvals and permits from the San Francisco
Bay Conservation and Development Commission. Lessee agrees to comply with all
terms and conditions of permits whether secured by Lessee or the Port.
Lessee shall be responsible for the repair of any Port or
other facilities which are damaged as a result of Lessee's construction
activities.
It is understood and agreed that if the Port consents to
Lessee's installation of a fire alarm system in the Premises which is the
subject of this Agreement, Lessee agrees to notify the Port in writing within
thirty (30) days of said installation and to install a proper fire alarm system
which complies with all ordinances, rule(s) and regulations of the City of
Oakland and Port of Oakland, including but not limited to, connecting said
system to the Port of Oakland's Airport Operations Center's fire alarm
annunciator panel or such other fire alarm annunciator panel as the Port may
designate. Lessee's failure to comply with the terms and conditions of this
Paragraph will constitute a material breach of this Agreement subject to the
default provisions of Paragraph 21 hereof.
8. MAINTENANCE OF IMPROVEMENTS: Lessee agrees that
during the entire term of this Lease, at its own cost and expense, it shall
keep and maintain the Premises, in first-class order, repair and condition.
Lessee shall perform, at its own cost and expense, any and all maintenance,
repairs, rehabilitation or reconstruction thereto, whether required by
structural failure or deterioration or by operations of Lessee or otherwise.
The Port shall have no maintenance repair, rehabilitation or reconstruction
obligations of any kind with respect to the Premises.
It is recognized that because of the length of the term of this
Lease it may be necessary for Lessee to perform certain substantial maintenance,
repair, rehabilitation or reconstruction (hereinafter collectively referred to
as "repair" or "repairs") of the Improvements in order to ensure that the
Premises are kept in first-class order, repair and condition.
"First-class order, repair and condition," as used herein,
shall mean the maintenance, repair, renovation or re-
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placement of buildings, equipment, furniture, fixtures, landscaping and
appurtenances necessary to keep the Premises in efficient and attractive
condition, given the nature and age of the Improvements at any time during the
term of this Lease. The Port and Lessee do not intend by the immediately
preceding sentence that a property item is not first-class merely because of
ordinary and reasonable wear and tear that does not materially and
substantially reduce the attractiveness and utility of the item given the
nature and age of the Improvements at any time during the term of this Lease
If Lessee for a period of forty-five (45) days after written
notice from the Port shall fail, neglect or refuse to perform, or commence and
continuously and diligently proceed in good faith to complete, any required
repair or maintenance, the Port may perform such repair or maintenance and
Lessee shall reimburse the Port within thirty (30) days after receipt of notice
from the Port demanding payment for the cost thereof, including the Port's
administrative overhead. In performing such repair, the Port shall interfere
as little as reasonably possible with Lessee's operations on the Premises. The
making of such repairs or performance of maintenance by the Port shall in no
event be construed as a waiver of the duty of Lessee to make repairs or perform
maintenance as herein provided.
Lessee may make alterations, additions, or betterments to the
Premises only after complete plans and specifications therefor have been
submitted to and approved by the Port and after securing, at no cost to the
Port, all the necessary building, electrical and other plumbing permits from
the Port, the City of Oakland and other appropriate governmental agencies. In
addition, Lessee shall maintain, at its expense, all equipment, furnishings and
trade fixtures upon the Premises required for the maintenance and operation of
a business of the type to be conducted pursuant to Paragraph 3 hereof.
Lessee hereby expressly waives the right to make repairs at
the expense of Lessor and the benefit of the provisions of Sections 1941 and
1942 of the Civil Code of the State of California relating thereto.
8.1. PREVAILING WAGE REQUIREMENTS: Lessee agrees that in
the performance of work under this Lease, Lessee shall comply with:
(a) The Public Work Prevailing Wage Requirements,
which are the applicable prevailing wage requirements of California Labor Code
Sections 1720, et seq. and Port Ordinance No. 1606, as amended, and which
generally apply to construction, costing more than $1,000.00, which is made on
or to Port property and the cost of which is paid for in whole or in part by
the Port's advance or reimbursement to Lessee or by credit against rent or
other sums due the Port; and
(b) The Private Work Prevailing Wage Requirements
of this Lease generally apply to all construction, other than
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construction to which the Public Work Prevailing Wage Requirements apply, which
is made on or to Port property, costing more than $50,000.00.
"Construction" as used herein shall apply to construction,
alteration, demolition or repair work, and the laying of carpet and maintenance
work, provided, that Private Work Prevailing Wage Requirements shall not apply
to maintenance work. "Construction" includes all construction of building core
and shell, tenant improvements and public works that are within the customary
jurisdiction of the construction trades and crafts, whether performed on- or
off-site. Off-site work, performed by Materialmen, as defined under California
Law, is not included in the term "Construction".
The Private Work Prevailing Wage Requirements shall not apply
to tenant improvements costing less than $50,000.00, nor to tenant improvements
for which the initial building permit for such work is issued more than one
year after the certificate of occupancy is approved on the core and shell. The
$50,000.00 cost shall be adjusted annually pursuant to the CPI.
The following provisions of this subsection apply only if, and
to the extent that, the prevailing wage requirements are applicable.
The prevailing wage requirements shall apply to the employees
of any employer including the Lessee, any tenant of Lessee, any general
contractor or subcontractor or other contractor engaged in construction of
Improvements for the Lessee, including their successors and assignees, but
shall not apply to supervisory or managerial personnel or to persons employed
in the rental, operation or (in the case of Private Work Prevailing Wage
Requirements only) maintenance of the Premises.
The Lessee shall cause the provisions of this subsection to be
incorporated into each contract and subcontract, and lease agreement which
would be subject to this subsection. In the event the provisions are not so
incorporated, the Lessee shall be liable to the worker in any action or
proceeding for the difference between the prevailing wage rate required to be
paid and the amount actually paid to the worker, including costs and attorney
fees, as if the Lessee were the actual employer.
The prevailing wage requirements of this subsection will be
monitored and enforced by the Port. In addition to any other rights provided
by California law to recover compensation, a worker that has been paid less
than the prevailing wage rates shall have a right to commence an action or
proceeding against the employer of the worker for the difference between the
prevailing wage rates and the amount paid to such worker for each calendar day
or portion thereof for which the worker was paid less than the compensation
required to be paid under the provisions of this subsection. No issue other
than that of the liability of the
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employer for the amount of unpaid wages allegedly due shall be determined in
such action or proceeding, and the burden shall be on the employer to establish
that the amounts demanded are not due. A worker recovering any or all of the
wages claimed to be due shall recover his costs and attorney fees in securing
such recovery. Nothing in this section shall preclude its enforcement by the
California Division of Labor Standards Enforcement.
Nothing in this lease shall prevent the employment of any
number of properly registered apprentices, as defined in Chapter 4, Division 3
of the Labor Code. Every such apprentice shall be paid not less than the
standard wage paid to apprentices under the regulations of the crafts or trade
at which he is employed, and shall be employed only at the work of the craft or
trade to which he is registered. The employment and training of each
apprentice shall be in accordance with the provisions of the apprenticeship
standards and apprentice agreements under which he is in training.
Lessee agrees that, any action by Lessee or its assignee
against the Port for the recovery of penalties or forfeitures shall be
commenced, and written notice thereof shall be actually received by the Port,
within the ninety-day period after the Port's Chief Engineer notifies Lessee in
writing that the Chief Engineer has determined that the work is complete.
Lessee agrees that such suit on the Lease for alleged breach thereof in not
making an advance or reimbursement or in not permitting a credit to rent or
other sums due the Port is the exclusive remedy of Lessee or the Lessee's
assignee with reference to such penalties or forfeitures. Lessee or Lessee's
assignee may bring such suit without permission of the Port, but the suit shall
be limited to the recovery of the penalties or forfeitures without prejudice to
Lessee or Lessee's assignee's rights in other matters affecting the Lease.
Lessee agrees that no other issues shall be presented to the court in such case
and the burden shall be on the plaintiff to establish plaintiff's right to the
penalties or forfeitures withheld or to be withheld.
Lessee agrees that to the extent that Lessee is required to
comply with the prevailing wage requirements, Lessee shall assure that all
workers are paid the prevailing rate of per diem wages, and travel and
subsistence payments (defined in applicable collective bargaining agreements
filed in accordance with Section 1773.8 of the California Labor Code) , in
effect on the date of the Port's first approval of a building permit or other
approval of the work. Copies of the applicable prevailing rate of per diem
wages are on file at the Port's principal office and will be made available to
any interested party on request. Lessee agrees to post a copy of the
prevailing rate of per diem wages at each job site.
Lessee, as a penalty to the Port, shall forfeit twenty-five
dollars ($25) for each calendar day, or portion thereof (or such other sum as
specified from time to time by Section 1775
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of the California Labor code), for each worker paid less than the applicable
prevailing rates for such work or craft in which such worker is employed. The
difference between such prevailing wage rates and the amount paid to each
worker for each calendar day or portion thereof for which each worker was paid
less than the prevailing wage rate shall be paid to each worker by Lessee.
To the extent that there is insufficient money due Lessee as
an advance, reimbursement or credit to cover all penalties forfeited and
amounts due and in all cases where the Lease does not provide for a money
payment by the Port to Lessee, and except in cases where enforcement authority
is vested in the State pursuant to Section 1775 of the California Labor Code,
the Port not later than ninety (90) days after the filing of a valid notice of
completion in the office of the Alameda County Recorder or not later than
ninety (90) days after the Port's acceptance of the work, whichever last
occurs, may maintain an action in any court of competent jurisdiction to
recover the penalties and the amounts due provided for herein. Lessee agrees
that no issue other than that of the liability of Lessee for the penalties
allegedly forfeited and amounts due shall be determined in such action, and the
burden shall be upon Lessee to establish that the penalties and amounts
demanded in such action are not due. Out of any money withheld or recovered or
both there shall first be paid the amount due each worker and if insufficient
funds are withheld or recovered or both to pay each worker in full the money
shall be prorated among all such workers.
Lessee agrees to keep or cause to be kept by each contractor
and subcontractor an accurate payroll record for each worker employed on work
covered by this Paragraph showing all of the information specified in
subsection (a) of Section 1776 of the California Labor Code. All such payroll
records shall be certified, available for inspection and filed in accordance
with the procedures specified in subsections (b)-(e) inclusive of Section 1776
of the California Labor Code. In the event of noncompliance with the foregoing
requirements concerning payroll records which continues for more than ten (10)
days after the Port gives to Lessee written notice specifying in what respects
Lessee must comply, Lessee shall forfeit as a penalty to the Port for each
worker twenty-five dollars ($25) for each calendar day, or portion thereof,
until strict compliance is effectuated.
Lessee shall be responsible for complying with Section 1777.5
of the California Labor Code concerning apprenticeable occupations, with
respect to all work covered by that section.
Except where the context otherwise requires, the definitions
of terms and phrases contained in the State prevailing wage law, Sections 1720
et seq. of the California Labor Code, and in the implementing administrative
regulations, shall apply to the same terms and phrases which are used in the
prevailing wage requirements of this subsection.
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9. TITLE TO IMPROVEMENTS: Title to all structures, buildings and
any and all other permanent improvements constructed, erected or placed upon
the demised premises by either the Port or the Lessee, and additions or
improvements made thereto, shall vest in and become the property of the Port
upon completion thereof and shall be surrendered with the Premises as part
thereof upon termination of this Lease; provided, that the Port, at its option,
may upon prior written notice require Lessee to remove at Lessee's expense,
improvements or portions of improvements constructed, erected or placed upon
the Premises by Lessee during the term of this Lease or any improvements or
portions of improvements built by Lessee prior to the commencement of this
Lease, including but not limited to Building Nos. L-900 and L-914, and the new
Test Cell Facility and if the Port so notifies Lessee of its exercise of its
right to require such removal Lessee shall complete said removal with all
reasonable dispatch but in no event shall said removal completion exceed thirty
(30)days after termination of this Lease. Lessee may, at the termination of
this Lease, if Lessee is not then in default under any provision of this Lease,
remove its machinery, boilers, equipment, movable partitions and other trade
fixtures placed upon the demised premises by it; provided, that in such event
Lessee shall repair any damage caused by such removal and, provided further,
that usual and customary lighting, plumbing, wall-to-wall carpeting, window
coverings, air conditioning and heating fixtures shall remain upon the Premises
and be surrendered therewith upon termination of this Lease. Upon termination
of this Lease, Lessee shall remove all equipment, furniture, furnishings and
trade fixtures from the Premises unless otherwise agreed by the Port.
Lessee agrees and hereby makes the irrevocable and binding
election not to take for federal income tax purposes investment tax credits or
depreciation on assets financed with the proceeds of tax exempt Port bonds or
notes, unless the Port otherwise expressly agrees in advance in writing signed
by the Port's Chief Executive Officer. Lessee also agrees at the Port's
request from time to time to execute such additional documents reasonably
requested by the Port or its bond counsel to effectuate and/or evidence said
agreement and election. This agreement and election, and the obligation to
execute said documents relative thereto is binding on each successor or
assignee of Lessee.
10. SIGNS; OUTSIDE DISPLAYS: Lessee shall not install, paint,
inscribe or place any signs or placards upon the exterior of the Premises or
upon the interior of the Premises if intended to be viewed from the exterior
thereof, without the prior written consent of the Port. The Port agrees not
unreasonably to withhold or delay consent to such signs which state the name of
the tenant or tenants or the type of businesses conducted on the Premises and
that otherwise comply with the applicable Port sign policies for the Airport.
Lessee agrees, at its own expense, to remove or paint over to the satisfaction
of the Port promptly upon termination of this Lease any and all signs or
placards installed, painted, inscribed or placed by it in or upon the interior
or exterior of
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the Premises; and should Lessee fail to so remove or paint over such signs or
placards, the Port may do so at the expense of Lessee and Lessee shall
reimburse the Port for the cost thereof upon demand.
11. UTILITY EASEMENTS: The Port reserves to itself, and reserves
the right to grant to others in the future, nonexclusive utility easements
over, under, through, across or on the Property in locations that will not
unreasonably interfere with Lessee's use of the Premises. Any interference
during the installation of utility facilities shall be temporary, and all work
on the Premises shall proceed expeditiously. Lessee shall be given reasonable
notice before commencement of any work on the Premises.
The Port also reserves and retains (i) any and all existing
rights of way for storm drains, sewer outfalls, for gas and other pipelines,
for water mains, for hydrants, for electrical cables and wires, (ii) the right
to locate in, upon or across said Premises in a location or locations which
will not interfere with Lessee's use and enjoyment of said Premises, other such
conduits, lines and mains as may be deemed necessary by the Port for its uses,
the uses of other tenants of the Port or the United States of America in
connection with the latter's use and enjoyment of premises in the vicinity,
including, but not limited to, the installation and maintenance of a Federal
Aviation Administration radio transmitter in an upper level storage space of
approximately one thousand five hundred square feet of the hangar with related
antennas installed on the structural roof members of the hangar and (iii) the
right by its own employees, agents or designees to enter the Premises to
maintain, repair and replace all of said facilities.
In the event the installation or maintenance of such utilities
in such easements causes any damage to the Premises, or any portion thereof, or
to any other buildings, structures or facilities located upon the Property, the
same shall be repaired by the Port at its expense, if not so repaired by the
party installing and maintaining the utility facility.
12. UTILITIES: Lessee shall pay for all water, gas, heat,
electricity, fuel, power, telephone service, and other utilities, as well as
janitor or watchman services and mechanical fire alarm or security services,
which may be furnished to Lessee. In the event the Port by arrangement with
Lessee provides or pays for any utility services, Lessee shall pay the Port for
such services or reimburse to the Port such payment not later than the first
day of the calendar month following Lessee's receipt from the Port of a billing
statement for said services or reimbursement.
In cases where arrangements have been made between Lessee and the Port
for the Port to furnish and deliver gas, electricity or water, the Port will
exercise reasonable diligence and care to furnish and deliver the same;
provided, however, that the Port does not guarantee the continuity or
sufficiency of such supply. The
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Port will not be liable for interruptions or shortages or insufficiency of
supply or any loss or damage of any kind or character occasioned thereby if the
same is caused by accident, act of God, fire, strikes, riots, war, inability to
secure a sufficient supply from the utility company furnishing the Port, or any
other cause except such as arises from the Port's failure to exercise
reasonable diligence. It is understood that Lessee shall take such steps as
Lessee may consider necessary to protect Lessee's equipment from any damage
that may be caused to such equipment in the event of failure or interruption of
any such utility services. Whenever the Port shall find it necessary for the
purpose of making repairs or improvements to any utility supply system it shall
maintain, it shall have the right to suspend temporarily the delivery of gas,
electricity or water, but in all such cases reasonable notice of such
suspension will be given to Lessee, and the making of such repairs or
improvements will be prosecuted as rapidly as practicable and, if possible, so
as to cause the least amount of inconvenience to Lessee.
13. TAXES AND ASSESSMENTS: The property interests created by this
Lease may be subject to property taxation and the Lessee hereunder in whom the
possessory interest is vested may be subject to the payment of property taxes
levied on such interest. Lessee agrees to pay before delinquency all lawful
taxes, assessments, fees or charges which at any time may be levied by the
state, county, city or any tax or assessment levying body upon any activity
carried on under this Lease, any interest in this Lease or any possessory right
which Lessee may have in or to any property covered hereby by reason of its use
or occupancy thereof or otherwise, as well as all lawful taxes, assessments,
fees and charges on goods, merchandise, fixtures, appliances, equipment and
property owned by Lessee in or about said Premises.
Lessee may at no cost to the Port reasonably contest the legal
validity or amount of any taxes, assessments, or charges for which Lessee is
responsible under this Lease, and institute such proceedings as Lessee
considers necessary; provided, however, that Lessee shall at all times protect
the Port and the Premises from foreclosure of any lien, and that the Port shall
not be required to join in any proceeding or contest brought by Lessee.
14. FIRE INSURANCE: Lessee shall maintain at all times during the
term of this Lease fire legal liability coverage in not less than the sum of
$100,000.00 or in such other sums specified from time to time by the Port.
"All Risk" property insurance in the amount of full insurable
replacement cost of the buildings and improvements. The Port of Oakland shall
be named as Loss Payee.
Lessee shall obtain from its insurers under all policies of
insurance maintained under this Paragraph by Lessee at any time during the term
of this Lease endorsements providing a waiver all rights of subrogation which
the insurer may have against the
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Port. Lessee hereby waives any right which it may have against the Port on
account of any loss or damage occasioned to Lessee arising from any risk
covered by the insurance that Lessee is required to carry under this Paragraph
or covered by any other insurance maintained by Lessee insuring the Premises,
its contents or other of Lessee's personal property on or about the Premises.
A certificate or certificates evidencing Lessee's said fire
legal liability and furniture or fixture insurance shall be filed with the
Secretary of the Board of Port Commissioners prior to the commencement of the
term of this Lease, and said certificate or certificates shall provide that
such insurance coverage will not be canceled or reduced without at least 30
days' prior written notice to said Secretary. At least 30 days prior to the
expiration of such policy or policies a certificate or certificates showing
that such insurance coverage has been renewed or extended shall be filed with
said Secretary.
If any such coverage is canceled or reduced, Lessee shall
within 15 days after receipt of written notice from the Port of such
cancellation or reduction in coverage file with the Secretary of said Board a
certificate showing that the required insurance has been reinstated or provided
through another insurance company or companies. Upon failure to so file such
certificate, the Port may without further notice and at its option either (1)
notwithstanding the provisions of Paragraph 21 of this Lease cause this Lease
to be forfeited and exercise such other rights as it may have in the event of
Lessee's default; or (2) procure such insurance coverage at Lessee's expense
and Lessee shall promptly reimburse the Port for such expense.
15. DAMAGE OR DESTRUCTION OF PREMISES: In the event that, during
the term of this Lease, the demised Premises shall be damaged or destroyed by
fire, earthquake, act of God or other cause to an extent in excess of fifty
percent (50%) of the aggregate of the then value thereof, either party shall
have the right, upon giving sixty (60) days' written notice to the other party
(such notice to be given within sixty (60) days after such damage or
destruction) , to cancel and annul this Lease except when such damage or
destruction is caused by the negligence or fault of Lessee. In the event the
said damage to the Premises does not exceed fifty percent (50%) of said value,
Lessee hereby agrees with due diligence to restore the demised Premises to the
extent insurance proceeds are available for such restoration to a good and
tenantable condition.
16. FIRE EXTINGUISHERS: Lessee agrees at its own expense to
provide and keep on the premises fire extinguishers of such number, type and
material as may be prescribed from time to time by the regulations of the Board
of Port Commissioners, the Fire Prevention Bureau of the City of Oakland or
other competent authority.
17. INDEMNIFICATION, HOLD HARMLESS AND LIABILITY INSURANCE:
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17.1. INDEMNIFICATION AND HOLD HARMLESS: It is an express
condition of this Lease that the Port, the Board of Port Commissioners, and its
officers, employees and agents shall be free from any and all liabilities and
claims for damages and/or suits for or by reason of any death or deaths of or
any injury or injuries to any person or persons or damages to property of any
kind whatsoever, whether the person or property of Lessee, its agents or
employees, or third persons, from any cause or causes whatsoever while in or
upon the Premises or any part thereof during the term of this Lease or
occasioned by any occupancy or use of the Premises or any activity carried on
by Lessee in connection therewith, and Lessee hereby covenants and agrees to
indemnify and to save harmless the Port from all liabilities, charges, expenses
(including reasonable counsel fees) and costs on account of or by reason of any
such death or deaths, injury or injuries, liabilities, claims, suits or losses,
however occurring or damages growing out of the same; provided, however, that
this sentence shall not apply to death or deaths, injury or injuries,
liabilities, claims, suits or losses in any way caused by (i) any actively
negligent or intentional or willful actions or omissions of the Port or its
agents, officers or employees, or (ii) any passively negligent actions or
omissions on the part of the Port or its agents, officers or employees in any
situation or set of circumstances where Lessee was not passively or actively
negligent with respect to the same situation or set of circumstances.
17.2. LIABILITY INSURANCE: Lessee shall maintain in force
during the term of this Lease Premises and Operations coverage, including
personal injury, broad form property damage, blanket contractual, completed
operations, independent contractors coverage, aircraft liability, hangar
keepers liability and owned and nonowned and hired automobiles, with such
coverage and limits as may be reasonably requested by the Port from time to
time, but in no event for less than the sum of FIVE MILLION DOLLARS
($5,000,000) combined single limit, except that the blanket contractual,
completed operations and hangarkeepers liability insurance shall have limits of
not less than ONE MILLION DOLLARS ($1,000,000); and Lessee agrees that the Port
shall be named as an additional insured under such liability insurance policy
or policies. Fire Legal Liability insurance in the amount of ONE HUNDRED
THOUSAND ($100,000) will also be required.
All such policies shall be endorsed with a
severability of interest or cross-liability endorsement, reading generally as
follows:
CROSS-LIABILITY - In the event of one of the assureds
incurring liability to any other of the assureds, this policy
shall cover the assured against whom claim is or may be made
in the same manner as if separate policies had been issued to
each assured. Nothing contained herein shall operate to
increase underwriters' limit of liability.
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A certificate or certificates, in a form reasonably
satisfactory to the Port, evidencing such insurance coverage shall be filed
with the Secretary of the Board of Port Commissioners prior to the commencement
of the term of this Lease, and said certificate(s) shall provide that such
insurance coverage will not be canceled or reduced without at least thirty (30)
days' prior written notice to the Secretary of said Board. Prior to the
expiration of any such policy, a certificate showing that such insurance
coverage has been renewed or extended shall be filed with the Secretary of said
Board; provided that in the event a policy renewal certificate is not
reasonably available to Lessee prior to said expiration Lessee may file with
the Port on a temporary basis a policy binder of other satisfactory evidence of
insurance coverage renewal and shall file the insurance certificate with the
Port as soon as the same is available from the insurance carrier. If such
coverage is canceled or reduced, Lessee shall, within fifteen (15) days after
receipt of written notice from the Port of such cancellation or reduction in
coverage but in no event later than the effective date of cancellation or
reduction, file with the Secretary of said Board a certificate showing that the
required insurance has been reinstated or provided through another insurance
company or companies. Upon failure to so file such certificate, the Port may
without further notice and at its option either (1) exercise the Port's rights
as provided in Paragraph 21 of this Lease ("Defaults") , or (2) procure such
insurance coverage at Lessee's expense and Lessee shall promptly reimburse the
Port for such expense.
18. NO LIENS; MORTGAGE OF LEASEHOLD AND PROTECTION OF LENDER:
Except as otherwise expressly provided in this Lease, Lessee shall pay for all
labor done and materials furnished in the repair, replacement, development or
improvement of the Property by Lessee and shall keep the Premises, and Lessee's
possessory interest in the Premises, free and clear of any lien or encumbrance
of any kind whatsoever created by Lessee.
If any such lien is so filed, Lessee shall promptly either
cause such lien to be released of record or diligently contest the claim
relating to such lien, provided that if such contest is resolved against
Lessee, Lessee shall promptly cause such lien to be released of record, and if
Lessee fails so to do, the Port shall have the right and option, but not the
duty, to pay or otherwise discharge, stay or prevent the execution of any
judgment or lien or both. If the Port exercises such option, the Port shall
not be deemed to have waived the Port's right to declare a default of this
Lease pursuant to Paragraph 21 hereof, and Lessee shall reimburse the Port for
all sums expended in connection with any such judgment or lien, or both,
including the Port's reasonable attorneys' fees and costs, together with any
delinquency charge provided for in Paragraph 4.2 of this Lease, and said
reimbursement shall be due and payable ten (10) days from the date the Port
gives to Lessee written notice of any such payments, fees or costs.
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19. ASSIGNMENT AND SUBLETTING: Except as hereinafter in this
Paragraph 19 expressly provided, Lessee shall not, either directly or
indirectly, voluntarily or involuntarily, assign, hypothecate, encumber or
transfer this Lease or any interest therein or right granted thereby or sublet
the whole or any part of the Premises, or license the use of same, or suffer
any other person or entity to occupy, use or manage (except management by
Lessee's employees) the same, in whole or in part, without the prior written
consent of the Port evidenced by resolution of its Board of Port Commissioners.
The Port shall not unreasonably withhold its consent to an assignment or
subletting. Neither this Lease nor any interest therein or right granted
thereby shall be assignable or transferable in proceedings in attachment,
garnishment or execution against Lessee, or in voluntary or involuntary
proceedings in bankruptcy or insolvency or receivership taken by or against
Lessee or by any process of law and possession of the whole or any part of the
demised premises shall not be divested from Lessee in such proceedings or by
any process of law, without the prior written consent of the Port evidenced by
resolution of its Board of Port Commissioners. Except as hereinafter provided,
no occupancy or use of the demised Premises or exercise of any right granted by
this Lease by any prospective transferee, sublessee, or assignee shall occur
before the Port's written consent to the transfer, sublease, or assignment
which consent shall not be unreasonably withheld; provided that the Port shall
not be deemed unreasonable in withholding its consent if the proposed transfer,
assignment or sublease will involve the relocation of an existing Airport
tenant, will result in reduced percentage rental to the Port, or will result in
Lessee's receipt of a higher rental than Lessee is paying to the Port on a
prorata square foot basis for the Premises area involved in the transfer,
assignment or sublease in which latter event the Port may require Lessee to pay
to the Port as additional minimum rental a portion of the amount by which the
rental paid by said transferee, assignee or sublessee exceeds the Monthly
Rental then paid by Lessee to the Port on a prorata square foot basis. Any
breach of the provisions of this Paragraph shall constitute a default and shall
cause this Lease to terminate immediately at the option of the Port without
further notice to Lessee. Lessee shall not be deemed to be in default if
Lessee causes an attachment or execution to be removed within fifteen (15) days
of levy, or if Lessee causes an involuntary proceeding in bankruptcy to be
dismissed or receiver to be removed within thirty (30) days of the date of
commencement of said proceeding or appointment of said receiver.
An assignment within the meaning of this Paragraph 19 shall
include, but is not limited to, the following:
A. If Lessee is other than a corporation, the transfer
of the Lease or any of Lessee's interests therein to a corporation that is not
wholly owned or controlled by Lessee;
B. If Lessee consists of more than one person or entity,
or a combination of a person or persons and an entity or
NATIONAL AIRMOTIVE CORPORATION
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entities, a purported assignment, voluntary, involuntary, or by operation of
law of any interest in the Lease from one or more such persons or entities, to
any other person or persons or entity or entities whether or not such other
person or persons or entity or entities are Lessees;
C. If Lessee is a partnership, a withdrawal or change,
voluntary, involuntary, or by operation of law, of any general partner, or the
dissolution of the partnership;
D. If Lessee is a corporation, any dissolution, merger,
consolidation, or other reorganization of Lessee, or the sale or other transfer
of a controlling percentage of the capital stock of Lessee, or the sale of more
than fifty percent (50%) of the value of the assets of Lessee whether in one
conveyance or cumulatively in the aggregate in more than one conveyance. The
phrase "controlling percentage" means the ownership of, and the right to vote,
stock possessing at least fifty percent (50%) of the total combined voting
power of all classes of Lessee's capital stock issued, outstanding, and
entitled to vote for the election of directors. This subparagraph D shall not
apply to National Airmotive Corporation or to a corporation the stock of which
is traded through an exchange or over the counter or to any transfer,
distribution or contribution of a controlling percentage of the capital stock
of Lessee (i) by any corporate shareholder of Lessee to one or more of its own
shareholders, or (ii) by any shareholder of Lessee to another corporation the
capital stock of which such shareholder owns a controlling percentage, except
that in such events said Lessee shall give the Port written notice of such
transfers, distribution and contribution.
The Port's consent to or waiver of its option to terminate
this Lease in the event of a default on account of any assignment, transfer,
occupation or use requiring prior written Port consent shall not be construed
or deemed to be a waiver of the restrictions hereinabove contained or to be a
consent to or waiver of objections to any subsequent assignment, transfer or
occupation or use by another person. The Port's consent to a proposed
assignment shall not be deemed effective unless and until there is filed with
the Port's Chief Executive Officer or his designee fully executed and complete
copies of all documents used to effectuate the assignment and a document in
recordable form signed by the assignee whereby assignee expressly shall assume
all covenants and conditions of this Lease.
Lessee and the Port acknowledge and agree that the rights
retained by and granted to the Port pursuant to this Paragraph constitute a
material part of the consideration for entering into this Lease and constitute
a material and substantial inducement to the Port to enter into this Lease at
the rental, for the terms, and upon the other covenants and conditions
contained in this Lease, and that the acceptability of Lessee, and of any
sublessee, assignee or other transferee of any right or interest in this Lease,
involves the exercise of broad discretion by the Port
NATIONAL AIRMOTIVE CORPORATION
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in promoting commerce, navigation and shipping in the Port Area of the City of
Oakland. Therefore, Lessee agrees that it shall not be unreasonable for the
Port to withhold its consent to an assignment, sublease or other transfer by
Lessee in the event that the Port makes the reasonable, good faith
determination that the making of such proposed assignment, sublease or other
transfer is not in accordance with this Lease, or that the proposed assignee,
sublessee or other transferee will not use the Premises for purposes consistent
with the Charter of the City of Oakland or will not otherwise maintain and/or
operate the Premises in the manner provided in this Lease.
No subletting or assignment, even with the Port's consent,
shall relieve Lessee of its rental or other obligations to be performed by
Lessee hereunder, and Lessee shall continue to be liable as a principal and not
as a guarantor or surety, to the same extent as though no assignment or
subletting had been made.
It is expressly understood and hereby agreed that if Lessee
assigns or subleases all or a portion of the premises the Port shall be
entitled to fifty percent (50%) of the "bonus value" or rental income in excess
of the rent then paid by Lessee. Bonus value shall be defined herein as the
present worth of the difference between market rent and contract rent.
Lessee agrees that as a condition to the Port's consideration
of any request by Lessee for each proposed sublease, assignment or other
transfer that Lessee shall deliver to the Port a nonrefundable processing fee
of not less than One Hundred Dollars ($100.00). The Port's Manager of Airport
Properties Department, or such other Port representative designated from time
to time by the Port's Chief Executive Officer, may within ten (10) days of
receipt of said fee give to Lessee notice that said fee shall be increased by a
sum, not to exceed an additional Four Hundred Dollars ($400.00), that said
Manager of Airport Properties Department or such other designated
representative may in his discretion determine is necessary to cover the
anticipated Port administrative costs and expenses, including labor, in
processing and investigating Lessee's request. Lessee agrees that unless and
until said fee, and any request for such additional fee, is delivered to the
Port, Lessee shall be deemed to have made no request to the Port to assign or
sublease. The minimum and maximum fees shall be adjusted upon the commencement
of each successive year of this Lease, in the same percentage as the change in
last Consumer Price Index published prior to the date of each succeeding
one-year period from the last such index published prior to the commencement of
the term of this Lease; provided that in no event shall the adjusted fees be
less than the theretofore existing fees. "Consumer Price Index," as used
herein, shall mean the Consumer Price Index for Urban Wage Earners and Clerical
Workers, All Items, San Francisco-Oakland (1967 equals 100), of the Bureau of
Labor Statistics of the United States Department of Labor, or the official
successor of said Index. If said Index is changed so that the base year
differs from the base year used in the last indexed
NATIONAL AIRMOTIVE CORPORATION
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published prior to the commencement of the term of this Lease, the former Index
shall be converted to the new Index in accordance with the conversion factor
published by the United States Department of Labor, Bureau of Labor Statistics.
If said Index is discontinued or revised during the term of this Lease, such
other government index or computation with which it is replaced, as determined
by said Department or said Bureau, or, failing such determination, such other
government index or computation which is most similar to said Index, shall be
used in order to obtain substantially the same result as would be obtained if
said Index had not been discontinued or revised.
In addition, the parties hereto each agree that Lessee's
request for consent to any proposed sublease, assignment or other transfer
shall not be deemed to have been submitted to the Port unless and until Lessee,
except as and to the extent excused in writing by the Port's Manager of Airport
Properties Department, shall have submitted to the Port, in writing, the
following information and documents:
A. The name of the proposed subtenant, assignee or other
transferee.
B. The nature of proposed subtenant's or assignee's
business to be carried on in the Premises.
C. Each of the terms and provisions of the proposed
sublease, assignment or transfer, including without limitation the full
consideration for such sublease, assignment or transfer.
D. A balance sheet of the proposed subtenant or assignee
as of a date within at least ninety (90) days of the request for the Port's
consent.
E. Statements of income or profit and loss of the
proposed subtenant for the two (2) year period preceding the request for the
Port's consent.
F. A statement in reasonable detail as to the business
experience of the proposed subtenant or assignee during the five (5) year
period preceding the request for the Port's consent.
G. Such other information and documents relating to the
proposed sublessee's or assignee's business, experience, finances as the Port
may reasonably request.
It is understood and agreed that the Port's consent to a
requested sublease, assignment or other transfer, if said consent in the Port's
sole discretion is granted, shall not be granted unless and until the Port
receives each of the following:
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A. In the case of a proposed assignment, a full and
complete executed copy of all documents to effectuate the assignment, together
with a document in recordable form whereby the proposed assignee shall
expressly assume all the covenants and condition of this Lease.
B. In the case of a proposed sublease, a full and
complete copy of the executed sublease, which sublease shall contain a
provision satisfactory to the Port, requiring sublessee to attorn to the Port
if Lessee defaults under this Lease and if the sublessee is notified of
Lessee's default and instructed to make sublessee's rental payments to the
Port.
Lessee shall not accept, directly or indirectly, more
than three (3) months' prepaid rent from any sublessee and said copy of the
executed sublease shall recite this restriction and sublessee's acknowledgment
of the same.
C. In the case of any other proposed encumbrance or
proposed transfer, a full and complete executed copy of all documents to
effectuate the encumbrance or transfer, which documents shall incorporate
directly or by reference all of the provisions of this Lease.
Lessee immediately and irrevocably assigns to the
Port, as security for Lessee's obligations under this Lease, all rent from any
subletting of all or a part of the Premises as permitted by this Lease, and the
Port, as assignee and as attorney-in-fact for Lessee, or a receiver for Lessee
appointed on the Port's application, may collect such rent and apply it toward
Lessee's obligations under this Lease; provided, however, that, until the
occurrence of an act of default by Lessee, Lessee shall have the right to
collect such rent.
Lessee agrees that it shall immediately notify the
Port in writing of any cancellation or surrender of any sublease. No
modification of any sublease, assignment or other transfer after the Port's
initial consent shall be effective without the prior written approval of the
Port as evidenced by resolution of its Board of Port Commissioners.
20. HAZARDOUS SUBSTANCES; FUMES AND ODORS; DISPOSAL OF GARBAGE;
ANNOYING AND INJURIOUS CONDUCT: No goods, merchandise or material shall be
kept, stored or sold in or on the Premises, no dangerous trade, business or
occupation shall be carried on therein or thereon, and nothing shall be done on
the Premises, other than as is provided for in Paragraph 3 of this Lease, which
will increase the rate of or suspend the insurance upon other structures of the
Port; and no machinery or apparatus shall be used or operated on the Premises
which will in any way injure the Premises or adjacent buildings; provided,
however, that nothing in this Paragraph 20 contained shall preclude Lessee from
bringing, keeping or using on or about the Premises materials, supplies,
equipment and machinery as are appropriate or customary in carrying on its
NATIONAL AIRMOTIVE CORPORATION
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said business, or from carrying on its business in all respects as is generally
usual.
Lessee agrees to conduct its operations upon the Premises so
as to reduce to the minimum that is reasonably practicable the emanation from
the Premises of fumes and odors; provided that the Port acknowledges that some
fumes and odors are normal in Lessee's use as described in Paragraph 3 hereof.
Lessee agrees to handle and dispose of its trash, garbage and
refuse in a sanitary manner and not to pile any boxes, cartons, barrels, trash,
debris or refuse in or about the Premises. Lessee shall provide its own
facilities within the Premises for the cleaning of garbage cans and shall make
adequate provision upon the Premises in order that no refuse, containers,
boxes, cartons or the like will be visible from any direction outside the
Premises.
Lessee shall not, without the advance written consent of the
Port's Executive Director, install any exterior decorations or painting or
install any radio or television antennae, loudspeakers, sound amplifiers, or
any devices on the exterior walls of the Premises. No loudspeakers, radios or
other means of broadcasting to be heard outside the Premises shall be used by
Lessee. Anything in the immediately preceding two sentences to the contrary
notwithstanding; Lessee shall be entitled to install an exterior paging system
and various antennae on the exterior of the Premises, so long as the same do
not unreasonably interfere with Airport operations or operation by Airport
tenants or Airport users, are installed and operated in compliance with all
applicable statutes and regulations, and are approved in advance by the Port
(which approval shall not be unreasonably delayed or denied).
Lessee shall not use any false or misleading advertising
relating to activities on the Premises, or engage in any unfair trade practices
injurious to other tenants of the Port.
21. DEFAULTS: It is mutually covenanted and agreed and this Lease
is made upon the condition that if the rents or other sums which Lessee herein
agrees to pay, or any part thereof, shall be unpaid on the date the same shall
become due and payable, or if default be made in any of the other terms,
agreements, conditions or covenants herein contained on the part of Lessee, or
should Lessee abandon or cease to use the Premises for purposes required by
Paragraph 3 of this Lease at any time except when prevented by fire,
earthquake, wars, strike, governmental intervention, or other similar reason
beyond its control, then and in any such event, at its option, the Port may
declare this Lease forfeited, whereupon the Port may exercise all rights of
entry and re-entry upon the demised Premises.
Lessee shall not be considered to be in default for purposes
of this Paragraph 21 until the expiration of ten (10) days (in the case of a
failure in the payment of rent or other sums herein provided to be made by
Lessee) or 30 days (in all other
NATIONAL AIRMOTIVE CORPORATION
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instances) after written notice by the Port to Lessee and if, during such ten
(10) or thirty (30) day period, as the case may be, such failure or condition
in violation of the provisions of this Lease shall have been cured or obviated
by Lessee, then upon payment, performance or satisfaction of such term,
covenant or condition, any right of the Lessor to terminate this Lease or
re-enter upon the demised Premises by reason of such failure shall cease.
If any condition (except failure to pay rent or other sums)
which would entitle the Port to declare a default is of such nature that it
cannot be remedied within thirty (30) days, such declaration of default,
termination and right of re-entry, or exercise of other rights of Lessor, shall
be postponed as long as the Lessee shall have commenced the elimination of such
condition within said thirty (30) days and shall then be continuously and
diligently proceeding reasonably and in good faith to cure the same.
In the event that the Port terminates this Lease and Lessee's
right to possession of the Premises, in the manner provided by law, the Port
shall be entitled to recover from Lessee possession of the premises and the
following:
(a) the worth at the time of award of the unpaid rent and
sums equivalent to rent required to be paid by Lessee under the Lease that had
been earned at the time of termination;
(b) the worth at the time of award of the amount by which
the unpaid rent and sums equivalent to rent required to be paid by Lessee under
this Lease that would have been earned after termination until the time of
award exceeds the amount of such rental loss that Lessee proves could have been
reasonably avoided;
(c) the worth at the time of award of the amount by which
the unpaid rent and sums equivalent to rent required to be paid by Lessee under
this Lease for the balance of the term after the time of award exceeds the
amount of such rental loss that Lessee proves could be reasonably avoided; and
(d) other amounts permitted by law including, but not
limited to, the costs and expenses incurred by the Port (i) in retaking
possession of the Premises, (ii) in cleaning and making repairs of and
alterations to the Premises reasonably necessary to return the Premises to good
condition for uses permitted by this Lease and in otherwise preparing the
Premises for reletting, (iii) in removing, transporting, and storing any of
Lessee's property left at the Premises although the Port shall have no
obligation to remove, transport, or store any of such property, and (iv) in
reletting the Premises, including, but not limited to, brokerage commissions,
advertising costs, and attorneys' fees.
The "worth at the time of award" of the amounts referred to in
items (a) and (b) immediately above is computed by allowing
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interest at the maximum rate permitted by law. The "worth at the time of
award" of the amount referred to in item (c) immediately above is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus one percent (1%).
22. RIGHT OF ENTRY: In any and all cases in which provision is
made herein for the termination of this Lease, except by forfeiture, or for
exercise by the Port of right of entry or re-entry upon the Premises, or in
case of abandonment or vacating of the Premises by Lessee, and the Port may not
elect to invoke a forfeiture of said Lease, the Port may enter upon the
Premises and remove any and all persons and/or property whatsoever situated
upon the Premises, and place all or any portion of said property, except such
property as may be forfeited to the Port, in storage for account of and at the
expense of Lessee; and in such case the Port may relet the Premises upon such
terms as it may seem fit, and if a sufficient sum shall not thus be realized
after paying expense of such reletting and collecting to satisfy the rent and
other sums herein agreed to be paid, Lessee agrees to satisfy and pay any
deficiency, and to pay expenses of such reletting and collecting. Lessee
hereby exempts and agrees to save harmless the Port from any cost, loss or
damage arising out of or caused (except to the extent caused by the active
negligence of the Port or its officers, agents, employees or contractors) by
any such entry or re-entry upon said Premises and/or the removal of persons
and/or property and storage of such property by the Port or its agents.
23. SURRENDER AND HOLDING OVER: Lessee covenants that at the
expiration of the term of this Lease or upon its earlier termination it will
quit and surrender the Premises in good state and condition, reasonable wear
and tear and damage by the elements excepted given the nature and age of the
improvements and subject to the provisions of Paragraph 9 hereof. The Port
shall have the right upon such termination to enter upon and take possession of
all the Premises. Should Lessee with the Port's consent hold over the use of
the Premises after this Lease has been terminated in any manner, such holding
over shall be deemed merely a tenancy from month to month and at a rent to be
fixed from time to time by the Port based on the fair rental value of the
Premises, payable monthly in advance, but otherwise on the same terms and
conditions as herein set forth; provided, however, that rent may be fixed by
the Port from time to time by giving to Lessee at least thirty (30) days' prior
written notice of said rent.
It is understood and agreed that nothing contained in this
Lease shall give Lessee any right to occupy the Premises at any time after
expiration of the term of this Lease or its earlier termination, and that this
Lease shall not create any right in Lessee for relocation assistance or payment
from the Port upon expiration of the term of this Lease or upon its earlier
termination or upon the termination of any holdover tenancy, pursuant to this
paragraph. Lessee acknowledges and agrees that upon such expiration or
termination, it shall not be entitled to,
NATIONAL AIRMOTIVE CORPORATION
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and expressly hereby waives, any relocation assistance or payment pursuant to
the provisions of Title 1, Division 7, Chapter 16, of the Government Code of
the State of California (Sections 7260 et seq.) and pursuant to any other law
or regulation effective now or at any time in the future with respect to any
relocation of its business or activities upon the expiration of the term of
this Lease or upon its earlier termination or upon the termination of any
holdover tenancy pursuant to this paragraph.
24. DUTY TO GUARD GOODS: Lessee shall assume the sole
responsibility for the guarding and safekeeping of and risk of loss to all
property, stock merchandise and equipment stored or located upon or used in
connection with the said Premises.
25. WAIVERS: No waiver by either party at any time of any of the
terms, conditions or covenants or agreements of this Lease or of any forfeiture
shall be deemed or taken as a waiver at any time thereafter of the same or of
any other term, condition or covenant or agreement herein contained, nor of the
strict and prompt performance thereof. No delay, failure or omission of the
Port to re-enter the Premises or to exercise any right, power or privilege, or
option, arising from any default, nor any subsequent acceptance of rent then or
thereafter accrued shall impair any such right, power, privilege or option or
be construed a waiver of any such default or relinquishment thereof, or
acquiescence therein, and no notice by the Port shall be required to restore or
revive time as of the essence after waiver by the Port of default in one or
more instances. No option, right, power,, remedy or privilege of the Port
shall be construed as being exhausted by the exercise thereof in one or more
instances. It is agreed that each and all of the rights, powers, options or
remedies given to the Port by this Lease are cumulative, and no one of them
shall be exclusive of the other or exclusive of any remedies provided by law,
and that exercise of one right, power, option or remedy by the Port shall not
impair its rights to any other right, power, option or remedy.
26. RIGHT TO INSPECT PREMISES: The Port or its duly authorized
representatives, or agents and other persons for it, may enter upon the
Premises at any and all reasonable times and upon reasonable prior notice
(except in emergencies) during the term of this Lease for the purpose of
determining whether or not Lessee is complying with the terms and conditions
hereof or for any other purpose incidental to rights of the Port. The Port
shall not unreasonably interfere with the use and occupancy of Lessee or
sublessees during such entry.
27. AGENT FOR SERVICE OF PROCESS: It is expressly agreed and
understood that if Lessee is not a resident of this state, or is an association
or partnership without a member or partner resident of this state, or is a
foreign corporation, then in any such event Lessee shall file with the Port a
designation of either (a) a natural person residing in the County of Alameda,
State of California, giving the person's name, residence and business address
or (b) a corporation, giving a copy of the corporation's
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certificate filed in accordance with California Corporations Code Section 1505,
as Lessee's agent for the purpose of service of process in any court action
between Lessee and the Port arising out of or based upon this Lease, and the
delivery to such agent of a copy of any process in any such action shall
constitute valid service upon such Lessee; and it is further expressly agreed,
covenanted and stipulated that if for any reason service of such process upon
such agent is not possible, then in such event Lessee may be personally served
with such process out of this state, and that such service shall constitute
valid service upon such Lessee; and it is further expressly agreed that Lessee
is amenable to the process so served, submits to the jurisdiction of the court
so acquired, and waives any and all objection and protest thereto.
28. RIGHTS OF THE UNITED STATES OF AMERICA: It is understood and
agreed that the United States of America has, and may hereafter acquire,
additional rights relating to the use, operation and maintenance of the
Airport, and that this Lease shall be subordinate to such rights and to the
provisions of any existing or future agreement between the United States
Government and the Port affecting said Airport, provided always, however, that,
subject to Paragraph 31 of this Agreement ("Eminent Domain Proceedings")
nothing herein shall prejudice any right of Lessee to obtain just compensation
from the United States Government for the taking of Lessee's interests under
this Lease, or any part thereof.
29. AIRPORT SECURITY: It is understood and agreed that, if the
Premises afford access onto apron, taxiways, runways, or other restricted air
operations areas of the Airport, or if all or part of the Premises consist of
such areas, Lessee shall, at its own cost and expense, take whatever steps are
reasonably necessary to prevent or deter persons and vehicles from unauthorized
access to such areas from any portion of the Premises or from any area or
through any entryway over which Lessee has control or temporary control, and
take such further actions as may be required to ensure compliance with all
regulations of the Federal Aviation Administration or other governmental
agencies having jurisdiction, including the Port, relative to airport security
regarding the Premises, including but not limited to employee screening
requirements. Lessee shall at all times exercise reasonable control over any
person or vehicle visiting the Premises or escorted by Lessee in the Premises
or in any said air operations areas, and all the hold harmless and indemnity
provisions contained in Paragraphs 3 and 17 of this Lease shall apply in
respect to any act or omission of any said person or vehicle or any act or
omission of any persons issued an access badge by or at the request of Lessee.
Lessee shall promptly reimburse the Port the amount of any civil penalty or
fine that may be assessed against the Port by any governmental agency for
violation of airport security rules or regulations which violation is caused by
Lessee's failure to comply with this paragraph.
30. FORCE MAJEURE: In the event that Lessee or the Port is
delayed, directly or indirectly, from the performance of any act or
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thing required to be done or performed under the terms or conditions hereof by
acts of God, accidents, fire, floods, inclement weather, governmental action,
restrictions, priorities or allocations of any and all kinds, strikes or labor
difficulties of any and all kinds, shortages of or delay in the delivery of
materials, acts of war, riot and civil commotion, or by any other cause beyond
the control of Lessee or the Port, as the case may be, such failure shall not
be deemed to be a breach of this Lease or a violation of any such covenants or
conditions and the time within which Lessee or the Port must perform any such
act shall be extended by a period of time equal to the period of delay arising
from any of such causes. It is understood and agreed that there shall be no
abatement of, or delay in the commencement of, payment of any sum due to the
Port under this Lease except as expressly provided in this Lease.
31. EMINENT DOMAIN PROCEEDINGS:
31.1. TOTAL TAKING: If the whole of the Premises should be
taken by any public or quasi-public authority under the power or threat of
eminent domain for any public use or purported public use, then, in such event,
on the earlier of the date title to the Premises vests in such public or
quasi-public authority, or the date on which said public or quasi-public agency
takes possession of the Premises, this Lease shall terminate with respect to
the Port's and Lessee's future obligations hereunder, but said termination
shall not affect the Port's and Lessee's rights to any compensation or damages
for, on the account of, or arising out of such taking. For any period of time
prior to termination during which Lessee (involuntarily on account of such
taking or any proceedings related thereto) does not have full use of the
Premises, the Monthly Rent due hereunder shall be equitably reduced. In the
event of such a taking, the Port shall be entitled to receive all sums in the
award of damages and compensation arising by reason of such taking except that
Lessee shall be entitled to receive an amount therefrom equal to the fair
market value of Lessee's leasehold interest in the Premises (as of the date of
valuation of said taking).
31.2. PARTIAL TAKING; TERMINATION: If a substantial portion
of the Premises should be taken so as to impair materially the use of the
Premises as contemplated by the Lease, then on the earlier of the date title to
such portion of the Premises vests in such public or quasi-public agency, or
the date on which such public or quasi-public agency takes possession of such
portion of the Premises and Lessee no longer has full possession of such
portion, this Lease shall terminate with respect to the Port's and Lessee's
future obligations hereunder, but said termination shall not affect the Port's
or Lessee's rights to any compensation or damages for, on account of, or
arising out of such taking. For any period of time prior to termination during
which Lessee (involuntarily on account of such taking or any proceedings
related thereto) does not have full use of the Premises, the Monthly Rent due
hereunder shall be equitably reduced. In the event of such a
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taking, the Port shall be entitled to receive all sums in the award of damages
and compensation arising by reason of such taking except that Lessee shall be
entitled to receive an amount therefrom equal to the fair market value of
Lessee's leasehold interest in the Premises. "Compensation and damages" for
the purpose of this Paragraph 31.2 shall include all compensation and damages
including severance damages without and before any reduction for any benefit to
the remainder.
31.3. PARTIAL TAKING; NO TERMINATION; RECONSTRUCTION: If a
taking shall occur which does not result in termination of this Lease as
provided in Paragraphs 31.1 and 31.2 above, but which requires the portion of
the Premises not so taken to be reconstructed and restored so as to be
constituted an architecturally complete unit suitable for use by Lessee, all
compensation and damages payable for or on account of such taking shall be
payable to Lessee and shall be used to reconstruct and restore the portion of
the Premises not so taken to an architecturally complete unit suitable for use
by Lessee; provided, however, that the Lessee's and/or Lender's obligation so
to reconstruct and restore the Premises shall be limited solely to the amount
of such compensation and damages made available to them pursuant to this
Paragraph 31.3, and the Monthly Rent payable by Lessee hereunder shall be
equitably reduced during the time Lessee does not have full use of the Premises
as a result of such taking to account for the reduced economic value to Lessee,
if any, occasioned by reason of such taking. The balance of any compensation
and damages remaining after the reconstruction and restoration contemplated by
this Paragraph 31.3 shall be distributed to the Port, except that Lessee shall
be entitled to receive an amount therefrom equal to the fair market value of
Lessee's leasehold interest in the portion of the Premises taken.
31.4. PARTIAL TAKING; NO TERMINATION; NO RECONSTRUCTION: If
a taking shall occur which does not result in a termination of this Lease as
provided in Paragraphs 31.1 and 31.2 above, and which does not require any
portion of the Premises not so taken to be reconstructed and restored so as to
constitute an architecturally complete unit suitable for use by Lessee, the
proceeds shall be distributed as per the last sentence of Paragraph 31.3.
31.5. TAKING OF LEASEHOLD ESTATE: No taking of Lessee's
leasehold estate in the Premises or any part thereof without a taking of the
fee shall terminate or give Lessee the right to surrender this Lease, nor
excuse the taker of such leasehold estate, including any successor in interest
thereto, from full performance of the covenants for the payment of rent and
other charges or any other obligations hereunder capable of performance by the
taker of such leasehold estate, including any successor in interest thereto,
after any such taking, but in such case, all compensation and damages payable
for or on account of such taking shall be payable to and be the sole property
of Lessee. During any period of time that Lessee is not in possession of the
Premises, or
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any portion thereof, as a result of the taking of any portion of its leasehold
estate hereunder, but only during such period of time, (1) Lessee shall not be
obligated to pay or in any way be liable for the payment of any rental or to
perform any of the other obligations or covenants otherwise to be performed by
it hereunder with respect to, but only with respect to the portion of the
Premises affected by such taking, (2) the Port shall look solely to the taker of
such leasehold interest, including the successors in interest thereto and any
party then in possession of all or such portions of the Premises affected by
such taking for the payment of rental and the performance of the other
obligations and covenants hereunder with respect to such portion of the
Premises, and (3) as between Port and Lessee, Port shall not forfeit or
terminate this Lease for breach by the taker of such leasehold interest,
including its successors in interest thereto and any party then in possession,
of any obligation or covenant hereunder, including the obligation to pay rental.
In the event any such taking of Lessee's leasehold estate in the entire Premises
for a period less than the then remaining term of this Lease, Lessee shall have
the right upon giving ninety (90)days' prior written notice to the Port (such
notice to be given within ninety (90) days' after the effective date of such
taking) to cancel its remaining rights and obligations under this Lease which
cancellation shall not effect the rights and obligations of the taker of such
leasehold estate; provided that this right of Lessee to so cancel its rights and
obligations under this Lease shall only exist and apply in the event the
remaining term of this Lease available to Lessee following the conclusion of the
period of said taking is less than years including the option periods
available to Lessee under Paragraph 2.3 hereof.
31.6. RELOCATION BENEFITS AND GOODWILL: Anything contained
in this Paragraph 31 to the contrary notwithstanding, all compensation,
damages, reimbursements or other benefits payable to Lessee or Lessee's
subtenants, licensees and concessionaires for or in connection with any
relocation, displacement, inability to relocate, loss of business or loss of
goodwill resulting from or in connection with any taking covered by this
Paragraph 31 shall be payable to and be the sole property of Lessee or Lessee's
subtenants, licensees and concessionaires, as appropriate.
31.7. TRADE FIXTURES AND EQUIPMENT: In the event of any
taking of all or any portion of the Premises, Lessee shall be entitled to
receive all compensation and damages arising from such taking and payable for
or on account of Lessee's trade fixtures and equipment at any time located on
the portion of the Premises so taken, except that compensation and damages for
those trade fixtures that pursuant to Paragraph 9 are to remain with the
Premises on surrender shall be distributed the same as distribution of
compensation and damages for improvements under Paragraphs 31.1 through 31.5.
31.8. REDUCTION IN MONTHLY RENT; ARBITRATION: If the
parties cannot agree upon the amount of any reduction of Monthly Rent, as may
be contemplated by this Paragraph 31, the same shall
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be determined by arbitration conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association (the "Arbitration
Rules"), and judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction. The arbitration shall be by a panel of three
(3) arbitrators chosen in accordance with the Arbitration Rules, one of whom
must be an attorney at law actively engaged in the practice thereof for at least
ten (10) years. The arbitrators shall have no power to modify any of the
provisions of this Lease and their jurisdiction is limited accordingly. Each
party hereby consents to the entry of judgment by any court having jurisdiction
in accordance with the decision of the arbitration panel. No change in the
Arbitration Rules which would deprive a party of the rights to be represented by
counsel, to present evidence, or to cross-examine witnesses presented by the
other party shall be effective in any arbitration proceeding arising out of this
agreement. Any arbitration provided for herein shall be conducted in the County
of Alameda.
31.9. PORT'S RESERVATION OF POWER OF EMINENT DOMAIN: Lessee
acknowledges the Port's reserved power upon payment of just compensation to
exercise its power of eminent domain as to the leasehold estate created
hereunder; provided, however, that the foregoing acknowledgment shall not be
deemed or construed to prejudice or waive any rights of Lessee to challenge or
object to any attempt by the Port so to exercise such power.
32. WAIVER OF CLAIMS: The Lessee hereby waives any claim against
the City of Oakland, and the Board of Port Commissioners, its officers, agents
or employees, for damage or loss caused by any claim, suit or proceedings
directly or indirectly attacking the validity of this Lease or any part thereof
or right granted thereby or asserting any right or interest in the Premises
inconsistent with rights granted to Lessee by this Lease, or by any judgment or
award in any suit or proceedings instituted by a party other than the Port
directly or indirectly attacking the validity of this Lease, or any part
thereof, or by any judgment or award in any suit or proceeding declaring this
Lease null, void or voidable, or delaying the same, or any part thereof, from
being carried out; provided, however, that such waiver shall not apply or run to
any damage or loss in any way caused by any suit or proceeding directly or
indirectly attacking the validity of this Lease which suit or proceeding is
based in whole or in part upon an alleged "conflict of interest" of any elected
or appointed official, officer, agent or employee of the City of Oakland or the
Board of Port Commissioners of the Port of Oakland, including any "conflict of
interest" or other matter alleged to violate or violating California Government
Code Sections 1090 or 1092. The Port and Lessee each agree that it shall not in
any way attempt to have this Lease declared null or void, and that it shall
reasonably cooperate with the other to defend the validity of this Lease and of
the rights and obligations granted by this Lease.
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33. RESERVATION OF AIRCRAFT EASEMENT: Lessee releases from any
present or future liability whatsoever and covenants not to xxx the Port for
damages or any other relief based directly or indirectly upon noise, light,
vibrations, smoke, air currents, electronic or other emissions or lawful flight
(including overflight of the Premises) occurring as a result of lawful aviation
or airport operations at or otherwise associated with the Metropolitan Oakland
International Airport, said release and covenant to include, but not be limited
to claims (known or unknown) for damages for physical or emotional injuries,
discomfort, inconvenience, property damage, death, interference with use and
enjoyment of property, nuisance, or inverse condemnation or for injunctive or
other extraordinary or equitable relief. It is further agreed that the Port
shall have no duty to avoid or mitigate such damages by, without limitation,
setting aside or condemning buffer lands, rerouting air traffic, erecting sound
or other barriers, establishing curfews, noise or other regulations, relocating
airport facilities or operations or taking other measures, except to the
extent, if any, that such actions are validly required by governmental
authority.
The Port reserves from the Premises an easement for flight of
aircraft in or adjacent to the airspace above the Premises and for the
existence and imposition over, on and upon said Premises of noise , light,
vibrations, smoke, air currents, electronic or other emissions, discomfort,
inconvenience, interference with use and enjoyment, and any consequent
reduction in market value which may occur directly or indirectly as a result of
aviation, airport or operations at or otherwise associated with use of the
Metropolitan Oakland International Airport. Lessee accepts the Premises
subject to the risks and activities hereinabove described.
34. EXTENSIONS OF TIME: The Port shall have the right to grant
reasonable extensions of time to Lessee for any purpose or for the performance
of any obligation of Lessee hereunder.
35. SUCCESSORS: Each and every of the provisions, agreements,
terms, covenants and conditions herein contained to be performed, fulfilled,
observed and kept shall be binding upon the successors and assigns of the
parties hereto, and the rights hereunder, and all rights, privileges and
benefits arising under this Lease and in favor of either party shall be
available in favor of the successors and assigns thereof, respectively;
provided no assignment by or through Lessee in violation of the provisions of
this Lease shall vest any rights in such assignee or successor.
36. BOARD OF PORT COMMISSIONERS: The term "Board of Port
Commissioners" as used in this Lease shall mean the department of the City of
Oakland presently operating under such name and as presently constituted, or
any successor thereof.
37. TIME OF ESSENCE: Time is hereby expressly declared to be of
the essence of this Lease.
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38. NOTICES: Any notice required or permitted to be given Lessee
may be given to it at X.X. Xxx 0000, Xxxxxxx, XX 00000-0000; provided,
however, that if Lessee shall give notice in writing to the Port of any change
in said address, then and in such event such notice shall be given to Lessee at
the changed address specified in such notice. Any notice permitted or required
to be served upon the Port may be served upon it at X.X. Xxx 0000, Xxxxxxx,
Xxxxxxxxxx 00000, Attn: Manager of Airport Properties; provided, however, that
if the Port shall give notice in writing to Lessee of any change in said
address, then and in such event such notice shall be given to the Port at such
substituted address. Any notices, statements and xxxxxxxx hereunder may be
served upon a party personally or by United States mail and shall be deemed to
be given and received, except where a specific provision expressly provides
that a notice shall be actually received, on the earlier of the date of actual
receipt or the fifth business day following the mailing.
39. EQUAL OPPORTUNITY; NONDISCRIMINATION: In furtherance of the
Port's long-standing policy to insure that equal employment opportunity is
achieved and nondiscrimination is guaranteed in all Port-related activities it
is expressly understood and agreed with respect to Lessee's activities upon the
premises.
(a) That Lessee shall not discriminate against any
employee or applicant for employment because of race, color, religion, sex,
national origin, age, physical handicap, or veteran's status. Lessee shall
take affirmative action to ensure that applicants and employees are treated
fairly. Such action shall include, but not be limited to the following:
employment, upgrading, demotion, or transfer; recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. Lessee
agrees to post in conspicuous places, available to employees and applicants for
employment, notices to be provided by the Port's Equal Opportunity Employment
Officer setting forth the provisions of this paragraph.
(b) That Lessee shall, in all solicitations or
advertisements for employees placed by or on behalf of Lessee state that all
qualified applicants will receive consideration for employment without regard
to race, color, religion, sex, national origin, age, physical handicap, or
veteran's status.
(c) That Lessee will send to each labor union or
representative of workers with which he has a collective bargaining agreement
or other contract or understanding, a notice, to be provided by the Port's
Equal Opportunity Employment Officer, advising the labor union or workers'
representative of Lessee's commitments under this paragraph, and shall post
copies of the notice in conspicuous places available to employees and
applicants for employment.
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(d) That Lessee shall not discriminate by segregation or
otherwise against any person or persons because of race, color, religion, sex,
age, national origin, physical handicap, or veteran's status in furnishing, or
by refusing to furnish, to such person or persons the use of any public
facility upon the demised premises, including any and all services, privileges,
accommodations, and activities provided thereby.
(e) Lessee assures that it will undertake an affirmative
action program as required by 14 CFR Part 152, Subpart E, to insure that no
person shall on the grounds of race, creed, color, national origin or sex be
excluded from participating in any employment activities covered in 14 CFR Part
152, Subpart E, as issued on February 7, 1980, or as subsequently amended by
the United States Department of Transportation, Federal Aviation
Administration. Lessee further assures that no person shall be excluded on
these grounds from participating in or receiving the services or benefits of
any program or activity covered by this Subpart. Lessee assures that it will
require that its covered suborganizations provide assurances to Lessee that
they similarly will undertake affirmative action programs and that they will
require assurances from their suborganizations, as required by 14 CFR Part 152,
Subpart E, to the same effect.
(f) That Lessee shall maintain work force records showing
male, female and minority employees by job category and similar information
with respect to new hires and shall permit the Port's Equal Opportunity
Employment Officer to inspect such records at all reasonable times and not less
than annually and shall submit a summary of such information annually on a form
provided by the Port.
(g) That if Lessee has fifteen (15) or more employees,
Lessee shall within ninety (90) days of the effective date of this Agreement
provide the Executive Director or his designee with a copy of its affirmative
action program outlining the steps the tenant will undertake to promote
effective utilization of minorities, women, handicapped persons, and veterans
approved by an appropriate federal or state agency or by the Port or an
affirmative action program required as a result of a court ordered consent
decree. Thereafter any change(s) in Lessee's affirmative action program shall
be forwarded to the Port within thirty (30) days of its adoption. Such
submissions shall be accorded the same level of confidentiality as provided for
by the state or federal regulations or court order under which it was
originally submitted.
(h) That Lessee's noncompliance with the provision of
this clause shall constitute a material breach of this Agreement. In the event
of a breach of any of the above-stated nondiscrimination and affirmative action
covenants, the Port shall have the right to consider but not be limited to the
following:
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(i) Terminate this Agreement and to re-enter and possess
said land and the facilities thereon, and to hold the same as if this Agreement
had never been made without liability therefor; or
(j) Seek judicial enforcement of said covenants.
(k) The Port shall assist Lessee in preparing the
required affirmative action program to secure equal employment opportunities
whenever such assistance would be beneficial, and shall be available to advise
and counsel Lessee in the implementation of Lessee's Affirmative Action Program.
40. EMPLOYMENT RESOURCES DEVELOPMENT PROGRAM: Lessee shall
cooperate in implementing the goals of the Port's Employment Resources
Development Program, hereinafter called the "ERDP", as set forth in Port
Resolution No. 26291, as amended. Lessee understands the Port's ERDP seeks to
address the needs of Port tenants for a qualified work force and the needs of
Oakland's chronically unemployed and underemployed for employment, by
identifying employment opportunities, by providing employment training and
counselling for persons seeking such opportunities and by facilitating the
employment of those persons qualified to fill the jobs identified.
The Port shall assist tenants and businesses operating on
Port property with the identification of qualified Oakland residents for
employment opportunities developed by the ERDP.
41. QUIET POSSESSION: Lessee, upon performing its obligations
hereunder, and subject to the provisions of Paragraph 32 of this Lease, shall
have the quiet and undisturbed possession of the demised Premises through the
term of this Lease.
42. ATTORNEYS' FEES AND COSTS: If the Lessee or the Port commences
any action or proceeding against the other arising out of or in connection with
this Lease, the prevailing party shall be entitled to have and recover from the
losing party reasonable attorneys' fees and costs of suit.
43. LEASE THE ENTIRE AGREEMENT; OTHER AGREEMENTS: The Lessee
agrees that as of the effective date of this Lease the provisions of this
written Lease constitute the entire agreement between the Lessee and the Port
regarding the demised Premises and the parties' rights and obligations with
respect thereto. The parties hereto agree that any other leases or agreements
regarding the demised premises existing as of the effective date of this Lease
are hereby terminated as of said effective date; provided, however, that any
obligations or liabilities arising prior to the termination shall survive such
termination. No representation, covenant or other matter oral or written, that
is not expressly set forth in this Lease shall be a part of, modify or affect
this Lease; provided, however, that this Lease may be modified if the
modification is in writing and authorized by ordinance or resolution of the
Board of Port Commissioners.
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44. SEVERABILITY: The unenforceability, invalidity or illegality
of any provision of this Lease shall not render the other provisions
unenforceable, invalid or illegal, except when the rights of the Port or Lessee
are materially affected.
45. APPLICABLE LAW AND VENUE: This Lease shall be construed and
interpreted in accordance with the laws of the State of California. All
disputes that cannot be settled amicably by the parties shall be determined by
a competent state court in California, which state court shall be the only
agency with any authority to determine any such dispute; provided that this
provision is not intended to preclude access to appropriate Federal Courts in
disputes involving exclusive Federal Court jurisdiction.
46. REAL ESTATE BROKERS: Lessee and the Port each represent that
it has not had dealings with any real estate broker, finder or other similar
person, with respect to this Lease in any manner. Lessee and the Port each
shall hold harmless the other from all damages resulting from any claims that
may be asserted against the other by any broker, finder or other similar person
with whom it has or purportedly has dealt.
47. AGREEMENT IN MULTIPLE COPIES: This Lease is executed in
multiple copies, each copy of which shall be deemed an original.
48. COVENANT AGAINST CONTINGENT FEES: Lessee warrants that no
person or agency has been employed or retained to solicit or obtain the
contract upon an agreement or understanding for a contingent fee, except a bona
fide employee or agency. For breach or violation of this warranty, the Port,
at its option, may annul the contract or deduct from the contract price or
otherwise recover from Lessee the full amount of the contingent fee.
"Bona fide agency," as used in this Section means an
established commercial or selling agency, maintained by Lessee for the purpose
of securing business, that neither exerts nor proposes to exert improper
influence to solicit or obtain Port contracts nor holds itself out as being
able to obtain any Port contract or contracts through improper influence.
"Bona fide employee," as used in this Section, means a person,
employed by Lessee and subject to Lessee's supervision and control as to time,
place, and manner of performance, who neither exerts nor proposes to exert
improper influence to solicit or obtain Port contracts nor holds itself out as
being able to obtain any Port contract or contracts through improper influence.
"Contingent Fee," as used in this Section, means any
commission, percentage, brokerage, or other fee that is contingent upon the
success that a person or concern has in securing a Port contract.
"Improper influence," as used in this Section, means any
influence that induces or tends to induce a Port Commissioner,
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employee or officer to give consideration or to act regarding a Port contract
on any basis other than the merits of the matter.
IN WITNESS WHEREOF, the parties hereto have caused these presents to
be executed the day and year first above written.
CITY OF OAKLAND, a municipal corporation,
acting by and through its
Board of Port Commissioners,
By /s/ SIG
-----------------------------------------
President
Attest /s/ SIG
-----------------------------------------
Secretary
NATIONAL AIRMOTIVE CORPORATION,
a California corporation,
By /s/ XXXXXX X. XXXXXX
-----------------------------------------
XXXXXX X. XXXXXX
PRESIDENT AND CHIEF OPERATING OFFICER
-----------------------------------------
(Print Name and Title)
Attest /s/ XXXXXXX X. XXXXXXXX
-----------------------------------------
XXXXXXX X. XXXXXXXX
EXECUTIVE DIRECTOR, ADMINISTRATION
-----------------------------------------
(Print Name and Title)
Approved as to form and
legality this 25th day
of January, 1991.
/s/ XXXXXXX X. XXXXXXX
----------------------------------
Port Attorney
Port Ordinance No. 3019
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X-000
Xxxxxxxxxxx--Xxxxxxxxx/Xxxxxxxxx
XXXXX XX XXXXXXXXXX )
) SS.
COUNTY OF ALAMEDA )
On this 27th day of December, in the year 1990, before me, Xxxxx X.
Xxxxxxxx, a Notary Public in and for such County and State, personally appeared
XXXXXX X. XXXXXX, personally known to me to be the President and Chief
Operating Officer, and XXXXXXX X. XXXXXXXX, known to me to be the Executive
Director, Administration of National Airmotive Corporation, the Corporation
that executed the within Instrument, known to me to be the persons who executed
the within Instrument, on behalf of the Corporation herein named, and
acknowledged to me that such Corporation executed the within Instrument pursuant
to its by-laws or a resolution of its Board of Directors.
WITNESS my hand and official seal.
/s/ XXXXX X. XXXXXXXX
---------------------------------
[SEAL] NOTARY PUBLIC in and for said
County and State
51
MAP -- PORT OF OAKLAND
EXHIBIT A
52
March 5, 1990
8708122.45
Port of Oakland
LEGAL DESCRIPTION
TEST SITE
All that real property situate in the City of Oakland, County of Alameda, State
of California, being a portion of Tide Land Xxx 00, Xxxxxxx 00, X.0X., X.0X.,
X.X.X. & M., as shown on Sale Map No. 10 of the Salt Xxxxx and Tide Lands,
which is filed in Book 17 of maps at page 30, Alameda County Records, more
particularly described as follows:
COMMENCING at Port of Oakland Survey Control Monument A-27 (uncoordinated as of
3-5-90) thence, on an assumed bearing, N 29 degrees 53' 13" W, 1799.49 feet to
Port of Oakland Survey Control Monument A -29; thence N 42 degrees 47' 29" W,
226.23 feet to a one inch diameter steel pin, with a two inch by two inch square
head, designated as "Mon. B"; thence N 76 degrees 57' 11" E, 38.81 feet to the
corner of a cyclone fence, which is the Point of Beginning; thence around the
perimeter of the cyclone fence (as such fence existed in February 1990 and being
witnessed by the aerial photograph excluded herein as Exhibit "C") the following
courses:
N 34 degrees 20' 17" W, 225.0 feet;
N 55 degrees 39' 43" E, 2.0 feet;
N 34 degrees 20' 17" W, 290.0 feet;
S 55 degrees 39' 43" W, 209.0 feet;
S 34 degrees 20' 17" E, 100.0 feet;
S 55 degrees 39' 43" W, 30.0 feet;
S 34 degrees 20' 17" E, 10.0 feet;
N 55 degrees 39' 43" E, 30.0 feet;
S 34 degrees 20' 17" E, 155.0 feet;
N 55 degrees 39' 43" E, 40.0 feet;
S 68 degrees 01' 41" E, 10.8 feet;
S 34 degrees 20' 17" E, 213.0 feet;
N 55 degrees 39' 43" E, 27.0 feet;
S 34 degrees 20' 17" E, 28.0 feet;
N 55 degrees 39' 43" E, 134.0 feet to the Point of Beginning.
Containing 95,256 square feet, more or less.
TOGETHER with a 30 foot wide strip adjacent and contiguous to the northwestern
and southwestern boundaries of the hereinabove described area designated as the
Fire Safety Easement.
RESERVING to the Port or its assigns the rights of ingress-egress over the
northeastern 30 feet of the hereinabove described area for emergency vehicles
or airport maintenance, said area being a portion of the former Xxxxxxx Road
which is presently closed to traffic.
PORT.33
EXHIBIT B
[SEAL]
/s/ XXXXXXX X. XXXX
53
IRREVOCABLE LETTER OF CREDIT
Irrevocable and Transferable
Letter of Credit #__________
Amount: U.S. $______________
To: Port of Oakland Airport Properties
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000 _____________, 199__
Attention: Manager, Airport Properties Department
Gentlemen:
For the account of [Lessee's Name], a California __________________
Partnership, we hereby issue in your favor our Irrevocable Letter of Credit
for U.S. $___________.
The amount of this credit is available to you by your drafts on us at
sight accompanied by the following statement signed by you.
"I certify that the amount of our drawing is due the Port of Oakland
pursuant to the terms of the Lease dated _________, 198___ between the Port of
Oakland and [Lessee's Name], a [description of Lessee]."
Drafts must clearly specify the number of this credit and be presented
at our counters at _________________, in Oakland, California (or in San
Francisco, California) not later than the close of business on ____________,
19____, or such later date as this credit shall have been extended to.
This credit shall be deemed automatically extended without amendment
for additional periods of one year from the present or any future expiration
date unless thirty (30) days prior to any such date we notify you and [Lessee's
Name] by registered mail that we elect not to consider the letter of credit
renewed for any such additional period. You may then draw on us at sight with
your statement certifying that the amount drawn covers [Lessee's Name]S'
outstanding obligation to you.
NATIONAL AIRMOTIVE CORPORATION Exhibit "C"
TEST CELLS LEASE Page 1 of 2
54
This Letter of Credit is subject to the "Uniform Custom and Practice
for Documentary Credits" (1983 Revision), International Chamber of Commerce
Publication No. 290.
We engage with you that drafts drawn under and in compliance with the
terms of this credit will be duly honored by us on delivery of documents as
specified.
Very truly yours,
__________________________________
Authorized Signature and Title
NATIONAL AIRMOTIVE CORPORATION Exhibit "C"
TEST CELLS LEASE Page 2 of 2
55
HAZARDOUS AND TOXIC SUBSTANCES
(1) General
Lessee shall not cause or permit any Toxic Materials
(as hereinafter defined) to be brought upon, remain, kept or used in or about
the Premises or other Port property, by Lessee, its agents, employees,
contractors or invitees, without the prior written consent of Port. The Port
shall not unreasonably withhold such consent so long as Lessee demonstrates to
Port's reasonable satisfaction that such Toxic Materials, and the quantities
thereof, are necessary or useful to Lessee's business and will be used, kept
and stored in a manner that complies with all Laws (as hereinafter defined).
Lessee's obligations under the provisions in this Exhibit shall apply
notwithstanding the party, known or unknown, responsible for the Toxic
Materials, except solely in the case where the Toxic Materials are brought upon
the Premises by the Port or the Port's agents. Lessee shall be solely
responsible to assure that no person brings Toxic Materials onto the Premises.
(2) Compliance With Laws
Lessee shall comply, at its sole cost, with all
federal, state and local laws, statutes, ordinances, codes, regulations and
orders relating to the receiving, handling, use, storage, accumulation,
transportation, generation, spillage, migration, discharge, release and
disposal of any flammable, combustible, explosive, infectious, corrosive,
caustic, irritant, strong sensitizing, carcinogenic or radioactive materials,
hazardous wastes, toxic substances or related materials, including without
limitation, substances defined as "hazardous substances," "hazardous
materials," or "toxic substances" in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et
seq.; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et
seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section
6901 et seq.; the Clean Water Act, 33 U.S.C. Section 466, et seq.; the Safe
Drinking Water Act, 14 U.S.C. Section 1401, et seq.; the Superfund Amendment and
Reauthorization Act of 1986, Public Law 99-499, 100 Stat. 1613; the Toxic
Substances Control Act, 15 U.S.C. Section 2601, et seq., as amended; those
substances defined as "hazardous waste," "extremely hazardous waste,"
"restricted hazardous waste" or "hazardous substance" in the Hazardous Waste
Control Act, Section 25100 et seq. of the California Health and Safety Code; and
those materials and substances similarly described in the Federal
Hazardous Toxic Substances Exhibit "D"
NATIONAL AIRMOTIVE CORPORATION Page 1 of 6
56
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Section 136 et seq., as
amended; the Atomic Energy Act of 1954, 42 U.S.C. Section 2011 et seq., as
amended; the Xxxxxx Cologne Water Quality Control Act, Section 1300 et seq. of
the California Health and Safety Code; and in the regulations adopted and
publications promulgated pursuant to said laws (hereinafter collectively
referred to as the "Laws"). Such materials and substances are sometimes
collectively referred to in the Lease, including this Exhibit, as "Toxic
Materials." Lessee shall become aware of the content of such Laws and all other
laws regulating Toxic Materials as enforced by, but not limited to, the Bay Area
Air Quality Management District, Alameda County Health Department, California
Regional Water Quality Control Board, California Department of Health Services
and all state and Federal offices enforcing regulations concerning occupational
safety and health. It shall be the sole obligation of Lessee to obtain any
permits and approvals required pursuant to the Laws.
(3) Disclosure
In addition to Lessee's obligation pursuant to the
Lease and this Exhibit to secure Port consent, at the commencement of this
Lease and during the month of January of each year through and including the
year following the termination or expiration of this Lease, Lessee shall
disclose to Port, in writing, the names and amounts of all Toxic Materials,
whether solid, liquid or gaseous in form, which was stored, used or disposed of
on the Premises, or which Lessee intends to store, use or dispose of on the
Premises for the year prior to and following the date of each such disclosure.
(4) Business Plan
If Lessee's business conducted within the Premises
requires the establishment and implementation of a business plan pursuant to
California Health and Safety Code Section 25500 et seq. concerning the handling
of hazardous materials, Lessee shall, prior to occupying the Premises, give
written notification to Port that Lessee's business is subject to the business
plan requirement of the Code and that the business is in compliance with the
Code. A copy of the plan shall be delivered to Port with such notification.
(5) Indemnity
Lessee shall be solely responsible for and shall
indemnify, protect, defend and hold harmless Port and its agents, employees,
representatives directors and officers (collectively hereinafter referred to as
the "Indemnitees") from and against any and all claims, costs, penalties,
fines, losses (including without limitation, (i) diminution in value of the
Premises and
Hazardous Toxic Substances Exhibit "D"
NATIONAL AIRMOTIVE CORPORATION Page 2 of 6
57
of any other Port property; (ii) damages for the loss or restriction on use of
rentable or usable space or of any amenity of the Premises, or any other Port
property; (iii) damages arising from any adverse impact on marketing of space
in the Premises or other Port property; and (iv) sums paid in settlement of
claims, attorneys' fees, consultant fees and expert fees), liabilities,
attorneys' fees, damages, injuries, causes of action, judgments, taxes and
expenses which arise during or after the term of this Lease as a result of the
receiving, handling, use, storage, accumulation, transportation, generation,
spillage, migration, discharge, release or disposal of Toxic Materials in, upon
or about the Premises, or other Port property, by Lessee or its agents,
employees, contractors, licensees or invitees. This indemnification of the
Indemnitees by Lessee includes, without limitation, any and all costs incurred
in connection with any investigation of site conditions and any cleanup,
remediation, removal or restoration work required by any federal, state or
local governmental agency or political subdivision because of Toxic Materials
present in the soil, subsoils, groundwater or elsewhere in, on, under or about
the Premises or other Port property. This indemnification by Lessee under this
Paragraph shall survive the termination of this Lease.
(6) Cleanup
If Lessee or its agents, employees, contractors,
licensees, or invitees or any other parties (except the Indemnitees) causes
contamination or deterioration of water or soil resulting in a level of
contamination greater than the maximum levels established from time to time
during the term of this Lease by any governmental authority having jurisdiction
over such contamination, then Lessee shall promptly take any and all action
necessary to clean up such contamination in the manner as required by law. If
Lessee fails to take such action, Port may, but shall not be obligated to, take
such action. In such event, all costs incurred by Port with respect to such
cleanup activities shall be for the account of Lessee.
(7) Notices and Consent
Lessee shall immediately provide Port with telephonic
notice, which shall later be confirmed by written notice, of any and all
accumulation, spillage, discharge, release and disposal of Toxic Materials
onto or within the Premises or other Port property and any injuries or damages
resulting directly or indirectly therefrom. Prior to Lessee introducing any
Toxic Materials onto the Premises, and regardless of whether such introduction
is required to be reported to applicable governmental authorities, Lessee shall
request Port's written consent thereto as provided in item (1) hereinabove.
Further,
Hazardous Toxic Substances Exhibit "D"
NATIONAL AIRMOTIVE CORPORATION Page 3 of 6
58
Lessee shall deliver to Port each and every notice or order received from
governmental agencies concerning Toxic Materials and the possession, use
and/or disposal thereof promptly upon receipt of each such notice or order.
(8) Storage and Use of Toxic Materials
Subject to the Permitted Uses as defined elsewhere in
this Lease, Lessee shall store in appropriate leakproof containers, or in any
other manner approved or prescribed by law, any and all Toxic Materials
permitted within the Premises pursuant to this Lease, which if discharged or
emitted into the atmosphere, upon the ground or into or on any body of water
does or may (1) pollute or contaminate the same, or (2) adversely affect the
(a) health, safety or welfare of persons, whether on the Premises or elsewhere,
or (b) the condition, use or enjoyment of the Premises, or any real or personal
property whether on the Premises or anywhere else. There shall be no ponding
or surface storage whatsoever of Toxic Materials within the Premises or within
any other Port property.
(9) Disposal of Toxic Materials
Notwithstanding anything to the contrary contained in
this Exhibit or elsewhere in the Lease, Lessee shall not dispose of any Toxic
Material, regardless of the quantity or concentration, within the drains and
plumbing facilities within the Premises, or other property of Port. The
disposal of Toxic Material shall be in approved containers and removed from the
Premises only by duly licensed carriers. If Lessee becomes aware of or
suspects the presence of any hazardous substance existing within or coming onto
the Premises or other Port property, or of any release of a hazardous substance
that has come to be located on or beneath the Premises or other Port property,
Lessee shall immediately give written notice of such condition to Port as
required by California Health and Safety Code Section 25359.7
(10) Safety
Lessee shall maintain Material Safety and Data Sheets
for each and every Toxic Material brought into the Premises. Such information
shall be kept current at all times and shall be kept in a place accessible to
Port at any time for inspection and in the event of an emergency.
Hazardous Toxic Substances Exhibit "D"
NATIONAL AIRMOTIVE CORPORATION Page 4 of 6
59
(11) Fees, Taxes and Fines
Lessee shall pay, prior to delinquency, any and all
fees, taxes (including excise taxes) and fines which are charged upon or
incident to any activities on or related to Toxic materials, and shall not
allow such obligations to become a lien or charge against the Premises or upon
Port.
(12) Delivery of Documentation
Lessee shall deliver to Port true and correct copies
of the following documents (hereinafter referred to as the "Documents") related
to the handling, storage, disposal and emission of Toxic Materials,
concurrently with the receipt from or submission to a governmental agency:
Permits; approvals; reports and correspondence;
storage and management plans; documents relating to taxes for
toxic materials; notice of violations of any Laws; plans
relating to the installation of any storage tanks to be
installed in, under or around the Premises (provided, said
installation of tanks shall only be permitted after Port has
given Lessee its written consent to do so, which consent may
be withheld in Port's sole discretion); and all closure plans
or any other documents required by any and all federal, state
and local governmental agencies and authorities for any
storage tanks or other facilities installed in, on or under
the Premises.
Lessee is not required, however, to provide Port with
any portion(s) of the Documents containing information of a proprietary nature
which, in and of itself, does not contain a reference to any Toxic Materials or
hazardous activities which are not otherwise identified to Port in such
Document, unless any such Document names Port as an "Owner" or "Operator" of
the facility in which Lessee is conducting its business. It is not the intent
of this paragraph, unless necessary for the Port to comply with the law or to
enforce provisions of this Lease or otherwise secure the Port's rights, to
provide Port with information which could be detrimental to Lessee's business
should such information become possessed by Lessee's competitors.
Hazardous Toxic Substances Exhibit "D"
NATIONAL AIRMOTIVE CORPORATION Page 5 of 6
60
(13) Expiration of Term of Lease
On or before the expiration of this Lease, Lessee
shall take any and all action required to be taken under the Laws in order to
(i) surrender the Premises to Port in a condition which would be completely
free of any and all Toxic Materials, and (ii) close or remove, in accordance
with law, any storage tanks in, on or under the Premises. Lessee shall submit
to Port any and all closure plans relating to the closure or removal of any
storage tanks as required by law; provided however, that Lessee shall complete
such closure within a reasonable time after the delivery of such closure plans
to Port, but in no event shall completion of such closure or removal be later
than the termination date of this Lease.
(14) Prohibited Substances
The following substances are prohibited from being
brought into the Premises, the Building or onto the Improved Area:
Arsines Etching solutions
Asbestos Fluorocarbons
Chlorocarbons Freon
Dioxins, including dioxin precursors and
intermediates. Anything contained in
the California List of Extremely Hazardous
Chemicals.
Hazardous Toxic Substances Exhibit "D"
NATIONAL AIRMOTIVE CORPORATION Page 6 of 6
61
AFFIRMATIVE ACTION PLAN FOR LESSEE
I. AFFIRMATIVE ACTION POLICY STATEMENT
Lessee has issued the following policy statement delineating the
policy of Lessee regarding its commitment to equal employment opportunity,
nondiscrimination and affirmative action, and such policy will be fully
implemented to the extent practicable at the time of actual occupancy of the
building by Lessee.
Equal Employment Opportunity Statement
It is the policy of Lessee, personally subscribed to and supported by
its principals, that there shall be no unlawful discrimination against an
employee or applicant for employment, because of race, color, religious creed,
national origin, ancestry, sex, marital status, physical handicap, non
job-related medical condition, age or veteran status. This policy includes,
but is not limited to, the following: hiring, upgrading, recruitment,
recruitment advertising, selection, training, demotion, transfer, compensation,
lay-off or termination, or any other term or condition of employment. To
implement this policy, Lessee has an affirmative action program which is
supported by all of Lessee's managers and supervisors, and which Lessee shall
fully implement as appropriate during the Lease term. To assure that equal
opportunity and affirmative action efforts are properly carried out, Lessee at
all times shall have an Equal Opportunity Coordinator; provided, however, that
the principals of Lessee shall be responsible for proper implementation of the
Affirmative Action Plan.
II. RESPONSIBILITIES AND DUTIES OF EEO COORDINATOR
In addition to the Equal Opportunity Coordinator's regular duties, it
is the Coordinator's responsibility to: (1) develop equal opportunity and
affirmative action procedures and communication techniques; (2) assist
supervisors and managers in identifying and solving problems relating to equal
opportunity; (3) maintain an open-door policy to all employment problems which
may be raised by employees or applicants for employment; (4) design and
implement a system of periodic monitoring and reporting Lessee's equal
opportunity efforts, including monitoring of selection procedures and regular
review and validation of any selection requirements and tests which are found
to impact adversely on minorities or women; (5) keep informed, and keep senior
management informed, on equal opportunity developments; (6) act as a liaison
with equal opportunity enforcement agencies; (7) ensure that all managers and
supervisors comply with this
Affirmative Action Plan Exhibit "E"
NATIONAL AIRMOTIVE LEASE
62
policy and implement Lessee's nondiscrimination and affirmative action program;
(8) train employees, including supervisory and management personnel, to create
a favorable climate for an effective equal opportunity program; (9) ensure that
all of the Lessee's facilities are desegregated; (10) conduct a periodic audit
to ensure notices are properly displayed; (11) review the qualifications of all
employees to ensure that minority and female employees are given full
opportunity for promotions or transfer; (12) encourage employees including
minorities and females to participate in all company-sponsored social and
recreational events, educational and training programs; (13) communicate to
supervisors that their performance is being evaluated on their equal employment
opportunity and affirmative action efforts and results as well as other
criteria; (14) ensure that supervisors take action to prevent discriminatory
harassment of employees.
III. COMMUNICATION OF POLICY
Lessee is desirous of ensuring that all employees and other persons
are fully informed of its commitment to equal opportunity. Accordingly, Lessee
will undertake the following steps to disseminate the policy both internally
and externally:
Internal Dissemination
A. Lessee's Equal Employment Opportunity/Affirmative Action
Policy shall be contained in Lessee's policy guide books or employee handbook,
whichever may exist.
B. Lessee shall publicize at least once each year its EEO Policy
in newsletters and/or magazines which are intended for the general reading of
management and employees.
C. A policy statement and Federally-required Equal Employment
Opportunity notice will be posted on Lessee's bulletin boards in areas where
employees or applicants congregate.
D. Lessee shall communicate to all employees its EEO policy and
program through regular meetings during which managers and supervisors will
discuss Lessee's EEO policies and programs, individual responsibilities and
review progress.
E. Applications for employment shall include a statement
regarding non-discrimination.
Affirmative Action Plan E-2
NATIONAL AIRMOTIVE LEASE
63
External Dissemination
A. Recruiting services through which Lessee hires, and each labor
union or workers' representative with which it has a collective bargaining
agreement or other employment-related contract, shall be informed through
meetings or by written notification of the Lessee's policies regarding equal
opportunity. Lessee will encourage the above actively to recruit and refer
minority and female applicants.
B. All advertisements for employment will state that Lessee is an
equal opportunity employer.
C. When employees are featured in marketing campaigns, employee
handbooks or similar publications under Lessee's control, both nonminorities
and minorities will be pictured where practicable.
D. An Equal Opportunity clause will be inserted by Lessee in all
future labor union agreements, purchase orders and all other contracts relative
to this Lease.
IV. GOALS AND TIMETABLES
A. Identification of Underutilizations
For each of its EEO job categories, Lessee will identify any
underutilizations of minorities and women by:
1. Identifying the number and percentage of minority and
women employees by ethnic groups in division, office or department by job
classification and by EEO-1 categories for which Lessee has employees.
2. Analyzing the availability of promotable minority and
female employees and preparing a list of such persons, if any, by present job
classification.
3. Comparing the data described above with the most
recent relevant labor force availability data for persons in the particular job
group or comparable occupational category(ies) for County of Alameda.
4. Identifying those job categories where minorities
and/or women are present in Lessee's work force at levels below their
availability to the relevant labor force for County of Alameda.
Affirmative Action Plan E-3
NATIONAL AIRMOTIVE LEASE
64
B. Identification of Goals & Timetables
For each of its EEO job categories where minorities and/or
women are present in Lessee's work force at levels below their availability in
the County of Alameda, Lessee will establish annual goals to correct such
underutilizations. Goals will also be set to correct deficiencies in applicant
flow, hiring, promotions, training, etc.
Lessee's timetable for reaching its goals will be based on
realistic estimates of attrition and applicant availability. In addition,
consideration will be given to the following:
1. The availability of promotable and transferable
minorities and women within Lessee's work force;
2. The existence of training institutions capable of
training Lessee's minority and women employees to acquire requisite skills to
be qualified for promotions and/or transfers as they become available; and
3. The degree of training which Lessee is reasonably
capable of providing for its minority and women employees.
Upon achievement of parity with the relevant labor force in
Alameda County for each ethnic group, sex and EEO job category, Lessee shall
take the steps described in item A above and this item B with respect to the
long range goal described in item C below.
C. Long Range Goals
The long range goals are to achieve parity with the relevant
labor force in the City of Oakland for each ethnic group, sex and EEO-1 job
category.
D. Nature of Goals
The goals described in item A, B and C above are not
inflexible quotas, but rather are objectives to be pursued by mobilization of
available resources and by a good faith effort to fulfill the letter and spirit
of Lessee's equal opportunity employment policy. The anticipated expansion,
contraction, and turnover of and in the work force, along with the
qualifications for respective jobs, will be considered in determining goals.
Affirmative Action Plan E-4
NATIONAL AIRMOTIVE LEASE
65
V. PLAN OF ACTION
Lessee will make a good faith effort to achieve the goals timetable
indicated above. These efforts will include, but are not necessarily limited
to the following actions:
A. Lessee will make every good faith effort to ensure that all
job descriptions and job specifications accurately reflect job functions.
B. Every good faith effort will be made to ensure that the
qualifications do no constitute intentional or inadvertent discrimination
against minorities or women.
C. Prompt notice of all Lessee's job openings will be made to
Port's Employment Resources Development Program, employment agencies, clearing
houses, and referral groups. The notice shall state, among other things, the
nature of the job, general job qualifications, salary level when applicable,
and that minorities, women and Oakland residents are encouraged to apply.
D. Lessee will actively encourage minority and female employees
to refer applicants for its job openings.
E. Lessee will make every good faith effort to cooperate with
local community programs designed to improve the employment of minorities and
females.
F. Lessee will make every good faith effort to ensure that
pre-employment screening and selection procedures are not discriminatory and
that they do not have an adverse impact on the hiring of any minorities or
women.
G. Lessee will maintain applicant flow data to ensure minorities
and women are not being discriminated against.
H. Lessee will develop reports to monitor the progress of the
affirmative action program on a semi-annual basis.
I. Due to Lessee's size, it may generally be unable to conduct
internal job-related training and if so, then, as a result, Lessee will seek
the most qualified applicant to fill each available position within its
organization. However, Lessee in good faith will, as a part of its continuous
monitoring system, consider the feasibility of internal job-related training.
However, Lessee in good faith will, as a part of its
continuous monitoring system, consider the feasibility of internal job-related
training.
Affirmative Action Plan E-5
NATIONAL AIRMOTIVE LEASE
66
Lessee's affirmative action and nondiscriminatory plan
compliance will be updated and revised periodically (at least annually) in
light of experience, revised laws and regulations and their interpretations,
and better understanding of effective approaches which will assure truly equal
opportunity for all. The initial set of goals and timetables established
pursuant to this Plan shall be forwarded to the Executive Director within
ninety (90) days after Lessee's occupancy of the Premises for purposes of
Lessee's conducting management, leasing or general administrative functions.
Each updated plan, including each updated set of goals and timetables, will be
forwarded to the Executive Director within thirty (30) days after their
adoption. The initial set of goals and timetables, and each updated plan and
updated set of goals and timetables, shall be consistent with the goals and
objectives of this Plan.
Any questions relating to details of this Plan should be
referred to Lessee's Equal Opportunity Coordinator.
Affirmative Action Plan E-6
NATIONAL AIRMOTIVE LEASE
