EXHIBIT 10.1(e)
THIS SUPPLEMENTAL AGREEMENT SHALL NOT BE
BINDING
UPON THE PORT AUTHORITY UNTIL DULY EXECUTED BY
AN EXECUTIVE OFFICER THEREOF AND DELIVERED TO
THE LESSEE BY AN AUTHORIZED REPRESENTATIVE
OF THE PORT AUTHORITY
Port Authority Lease No. XXX-170 Supplement No. 16
Port Authority Facility -Newark International Airport
SUPPLEMENTAL AGREEMENT
THIS AGREEMENT, made as of October 23, 1995, by and between
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY (hereinafter
referred to as "the Port Authority") and CONTINENTAL AIRLINES,
INC. (hereinafter referred to as "the Lessee"),
WITNESSETH, That:
WHEREAS, the Port Authority and People Express Airlines,
Inc. as of January 11, 1985 entered into an agreement of lease
covering certain premises, rights and privileges at and in
respect to Newark International (hereinafter called the
"Airport") as therein set forth (said agreement of lease as
heretofore supplemented and amended is hereinafter called the
"Lease");and
WHEREAS, the Lease was thereafter assigned by said People
Express Airlines, Inc. to the Lessee pursuant to an Assignment of
Lease with Assumption and Consent Agreement entered into among
the Port Authority, the Lessee and said People Express Airlines,
Inc. and dated August 15, 1987; and
WHEREAS, a certain Stipulation between the parties hereto
was submitted for approval of the United States Bankruptcy Court
for the District of Delaware ("the Bankruptcy Court") covering
the Lessee's assumption of the Lease as part of the confirmation
of its reorganization plan in its Chapter 11 bankruptcy
proceedings and as debtor and debtor in possession pursuant to
the applicable provisions of the United States Bankruptcy Code as
set forth in and subject to the terms and conditions of said
Stipulation (said Stipulation being hereinafter referred to as
the "Stipulation"); and
WHEREAS, the Stipulation and the Lessee's assumption of the
Lease was approved by the Bankruptcy Court by an Order thereof
dated the 1st day of October, 1993; and
WHEREAS, the Port Authority and the Lessee desire to amend
the Lease in certain respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the covenants and mutual
agreements herein contained, the Port Authority and the Lessee
hereby agree to amend the Lease, effective as of October 23,
1995, as follows:
1. (a) "By-pass Corridor Construction Work" shall mean
the construction work which shall be performed by the Lessee and
which shall consist generally of the construction of a pedestrian
corridor which will by-pass around the entrance/exit of the
monorail station at the premises under the Lease (Area M) and
which shall comply with all requirements for security clearance
and screening of individuals and their baggage in accessing the
secured areas of the premises under the Lease, together with all
other necessary, required or appropriate work related thereto;
all of said work to be more fully set forth in the plans and
specifications which are or shall be a part of the Construction
Application as hereinafter defined in subparagraph (b) (2) below.
(b) (1) The Lessee shall perform and complete, at its
sole cost and expense, the design and construction of the By-pass
Corridor Construction Work.
(2) The Lessee shall execute and submit for the Port
Authority's approval a Construction Application in the form
prescribed by the Port Authority covering the By-pass Corridor
Construction Work. The Lessee shall comply with all the terms and
provisions of the approved Construction Application (herein
referred to as the "Construction Application"). In the event of
any inconsistency between the terms of the Construction
Application and the terms of the Lease, as hereby amended, the
terms of the Lease, as hereby amended, shall prevail and control.
All By-pass Corridor Construction Work to be performed hereunder
shall be done in accordance with and subject to the Lease, as
hereby amended, the Construction Application and the final plans
and specifications as and when the same may have been approved by
the Port Authority, and subject to any conditions which may be
set forth therein or which may be imposed by the General Manager
of the Airport. All locations where the By-pass Corridor
Construction Work is to be performed shall be as specified in the
Construction Application. Notwithstanding any approval of the
Construction Application and notwithstanding any reference
therein to property lines or to space occupied by the Lessee it
is hereby understood and agreed that the areas upon which the
Lessee shall perform the By-pass Corridor Construction Work shall
only be on the premises under the Lease.
(c) All By-pass Corridor Construction Work shall be
done by the Lessee in accordance with the following further terms
and conditions:
(1) The Lessee hereby assumes the risk of loss
or damage to all or any part of the By-pass Corridor Construction
Work prior to the completion thereof and the risk of loss or
damage to all property of the Port Authority, the Lessee or
others arising out of or in connection with the performance of
the By-pass Corridor Construction Work. In the event of such loss
or damage, the Lessee shall forthwith repair, replace and make
good the Bypass Corridor Construction Work and any and all
property of the Port Authority, the Lessee or others, without
cost or expense to the Port Authority or others. The Lessee shall
itself and shall also require its contractors to indemnify and
hold harmless the Port Authority, its Commissioners, officers,
agents, representatives and employees from and against all claims
and demands, just or unjust, of third persons arising or alleged
to arise out of the performance of the By-pass Corridor
Construction Work and for all expenses incurred by it and by them
in the defense, settlement or satisfaction thereof, including
without limitation thereto, claims and demands for death, for
personal injury or for property damage, direct or consequential,
whether they arise from the acts or omissions of the Lessee, of
any contractors of the Lessee, of the Port Authority, or of third
persons, or from acts of God or of the public enemy, or
otherwise, including claims by the City of Newark against the
Port Authority pursuant to the provisions of the Basic Lease
whereby the Port Authority has agreed to indemnify the City
against claims, excepting only claims and demands which result
solely from affirmative willful acts done by the Port Authority,
its Commissioners, officers, agents, representatives and
employees with respect to the By-pass Corridor Construction Work.
If so directed, the Lessee shall at its own expense
defend any suit based upon any such claim or demand (even if such
suit, claim or demand is groundless, false or fraudulent), and in
handling such it shall not, without obtaining express advance
written permission from the General Counsel of the Port
Authority, raise any defense involving in any way the
jurisdiction of the tribunal, the immunity of the Port Authority,
its Commissioners, officers, agents, representatives or
employees, the governmental nature of the Port Authority, or the
provisions of any statutes respecting suits against the Port
Authority.
(2) Prior to engaging or retaining an architect
or architects for the By-pass Corridor Construction Work, the
name or names of said architect or architects shall be submitted
to the Port Authority for its approval. The Port Authority shall
have the right to disapprove any architect who may be
unacceptable to it. All By-pass Corridor Construction Work shall
be done in accordance with plans and specifications to be
submitted to and approved by the Port Authority prior to the
commencement of the By-pass Corridor Construction Work, and until
such approval has been obtained the Lessee shall continue to
resubmit plans and specifications as required. Upon approval of
such plans and specifications by the Port Authority, the Lessee
shall proceed diligently at its sole cost and expense to perform
the By-pass Corridor Construction Work. The Lessee shall complete
the By-pass Corridor Construction Work no later than December 31,
1996.
(3) Prior to entering a contract for any part
of the By-pass Corridor Construction Work, the Lessee shall
submit to the Port Authority for its approval the name(s) of the
contractor or contractors to whom the Lessee proposes to award
said contracts. The Port Authority shall have the right to
disapprove any contractor who may be unacceptable to it. The Port
Authority shall have the further right to disapprove any proposed
contract. The Lessee shall submit said contracts to the Port
Authority and shall include in all such contracts such provisions
and conditions as may be required by the Port Authority. Without
limiting the foregoing, all of the Lessee's contracts shall
provide as follows: "If (i) the Contractor fails to perform any
of his obligations under the Contract, including his obligation
to the Lessee to pay any claims lawfully made against him by any
materialman, subcontractor or xxxxxxx or other third person which
arises out of or in connection with the performance of the
Contract or (ii) any claim (just or unjust) which arises out of
or in connection with the Contract is made against the Lessee or
(iii) any subcontractor under the Contract fails to pay any
claims, lawfully made against him by any materialman,
subcontractor, xxxxxxx or other third persons which arises out of
or in connection with the Contract or if in the Lessee's opinion
any of the aforesaid contingencies is likely to arise, then the
Lessee shall have the right, in its discretion, to withhold out
of any payment (final or otherwise and even though such payments
have already been certified as due) such sums as the Lessee may
deem ample to protect it against delay or loss or to assume the
payment of just claims of third persons, and to apply such sums
in such manner as the Lessee may deem proper to secure such
protection or satisfy such claims. All sums so applied shall be
deducted from the Contractor's compensation. Omission by the
Lessee to withhold out of any payment, final or otherwise, a sum
for any of the above contingencies, even though such contingency
has occurred at the time of such payment, shall not be deemed to
indicate that the Lessee does not intend to exercise its right
with respect to such contingency. Neither the above provisions
for rights of the Lessee to withhold and apply monies nor any
exercise, or attempted exercise of, or omission to exercise such
rights by the Lessee shall create any obligation of any kind to
such materialmen, subcontractors, workmen or other third persons.
Until actual payment is made to the Contractor, his right to any
amount to be paid under the Contract (even though such amount has
already been certified as due) shall be subordinate to the rights
of the Lessee under this provision. The Lessee shall file with
the Port Authority a copy of its contracts with its contractors
prior to the start of the By-pass Corridor Construction Work.
(4) The Lessee shall furnish or require its
architect to furnish a full time resident engineer during the
period of its performance of the By-pass Corridor Construction
Work. The Lessee shall require certification by a licensed
engineer of all pile driving data and of all controlled concrete
work and such other certifications as may be requested by the
Port Authority from time to time.
(5) The Lessee agrees to be solely responsible
for any plans and specifications used by it and for any loss or
damage resulting from the use thereof, notwithstanding the same
have been approved by the Port Authority and notwithstanding the
incorporation therein of Port Authority recommendations or
requirements. Notwithstanding the requirement for approval by the
Port Authority of the contracts to be entered into by the Lessee
or the incorporation therein of Port Authority requirements or
recommendations, and notwithstanding any rights the Port
Authority may have reserved to itself hereunder, the Port
Authority shall have no liabilities or obligations of any kind to
any contractors engaged by the Lessee or for any other matter in
connection therewith and the Lessee hereby releases and
discharges the Port Authority, its Commissioners, officers,
representatives and employees of and from any and all liability,
claims for damages or losses of any kind, whether legal or
equitable, or from any action or cause of action arising or
alleged to arise out of the performance of any work pursuant to
the contracts between the Lessee and its contractors. Any
warranties contained in any contract entered into by the Lessee
for the performance of the Bypass Corridor Construction Work
hereunder shall be for the benefit of the Port Authority as well
as the Lessee, and the contract shall so provide.
(6) The Port Authority shall have the right,
through its duly designated representatives, to inspect the By-
pass Corridor Construction Work and the plans and specifications
thereof, at any and all times during the progress thereof and
from time to time, in its discretion, to take samples and perform
testing on any part of the By-pass Corridor Construction Work.
(7) The Lessee agrees that it shall deliver to
the Port Authority two (2) sets of "as built" microfilm drawings
of the By-pass Corridor Construction Work mounted on aperture
cards, all of which shall conform to the specifications of the
Port Authority (the receipt of a copy of said Specifications
prior to the execution of this Lease being hereby acknowledged by
the Lessee), and the Lessee shall during the term of this Lease
keep said drawings current showing thereon any changes or
modifications which may be made. (No changes or modifications
shall be made without prior Port Authority consent).
(8) The Lessee shall, if requested by the Port
Authority, take all reasonable measures to prevent erosion of the
soil and the blowing of sand during the performance of the By-
pass Corridor Construction Work, including but not limited to the
fencing of the area upon which the By-pass Corridor Construction
Work is to be performed or portions thereof and the covering of
open areas with asphaltic emulsion or similar materials as the
Port Authority may direct.
(9) Title to any soil, dirt, sand or other matter
(hereinafter in this Paragraph 9 collectively called "the
matter") excavated by Lessee during the course of the By-pass
Corridor Construction Work shall vest in the Port Authority and
the matter shall be delivered by Lessee at its expense to any
location on or off the Airport as may be designated by the Port
Authority. The entire proceeds, if any, of the sale or other
disposition of the matter shall belong to the Port Authority.
Notwithstanding the foregoing the Port Authority may elect by
prior written notice to Lessee to waive title to all or portions
of the matter in which event Lessee at its expense shall dispose
of the same without further instruction from the Port Authority.
(10) The Lessee shall pay the cost of the By-
pass Corridor Construction Work and the Lessee shall pay or cause
to be paid all claims lawfully made against it by its
contractors, subcontractors, materialmen and workmen, arising out
of or in connection with or because of the performance of the By-
pass Corridor Construction Work, and shall cause its contractors
and subcontractors to pay all such claims lawfully made against
them. Nothing herein contained shall be deemed to constitute
consent to the creation of any lien or claim against any part of
the Airport.
(11) The Lessee in its own name as insured and
including the Port Authority as an additional insured shall
procure and maintain Comprehensive General Liability insurance,
including but not limited to premises-operations, products
liability, completed operations, explosion, collapse, and
underground property damages, personal injury and independent
contractors, with a broad form property damage endorsement, and
with a contractual liability endorsement covering the obligations
assumed by the Lessee pursuant to subparagraphs (1) and (5) of
this Paragraph l(c), and Comprehensive Automobile Liability
insurance covering owned, nonowned and hired vehicles and
including automatic coverage for newly acquired vehicles. The
said Comprehensive General Liability insurance policy shall have
a limit of not less than $10,000,000 combined single limit per
occurrence for bodily injury and property damage liability, and
said Comprehensive Automobile Liability policy shall have a limit
of not less than $5,000,000 combined single limit per occurrence
for bodily injury and property damage liability. The Lessee may
provide such insurance by requiring each contractor engaged by it
for the By-pass Corridor Construction Work to procure and
maintain such insurance including such contractual liability
endorsement. Said insurance, whether provided by the Lessee or by
a contractor engaged by the Lessee for the By-pass Corridor
Construction Work shall not contain any care, custody or control
exclusions, and shall not contain any exclusion for bodily injury
to or sickness, disease or death of any employee of the Lessee or
of any of its contractors which would conflict with or in any way
impair coverage under the contractual liability endorsement. The
said policy or policies of insurance shall also provide or
contain an endorsement providing that the protections afforded
the Lessee thereunder with respect to any claim or action against
the Lessee by a third person shall pertain and apply with like
effect with respect to any claim or action against the Lessee by
the Port Authority, and shall also provide or contain an
endorsement providing that the protections afforded the Port
Authority thereunder with respect to any claim or action against
the Port Authority by the Lessee or its contractors shall be the
same as the protections afforded the Lessee thereunder with
respect to any claim or action against the Lessee by a third
person as if the Port Authority were the named insured
thereunder; but such provision or endorsement shall not limit,
vary or affect the protections afforded the Port Authority
thereunder as an additional insured.
The Lessee shall also procure and maintain
in effect or cause to be procured and maintained in effect
Worker's Compensation Insurance and Employer's Liability
Insurance, in accordance with and as required by law.
The insurance required hereunder and under
subparagraph (14) below shall be maintained in effect during the
performance of the By-pass Corridor Construction Work. With
respect to the insurance required hereunder and under
subparagraph (14) below, a certified copy of each of the policies
or a certificate or certificates evidencing the existence
thereof, or binders, shall be delivered to the Port Authority at
least fifteen (15) days prior to the commencement of any By-pass
Corridor Construction Work. In the event any binder is delivered,
it shall be replaced within thirty (30) days by a certified copy
of the policy or a certificate. Each such copy or certificate
shall bear the endorsement of or be accompanied by evidence of
payment of the premium thereof and, also, contain a valid
provision or endorsement that the policy may not be canceled,
terminated, changed or modified without giving fifteen (15) days'
written advance notice thereof to the Port Authority. Each such
copy and each such certificate with respect to the insurance
required under this Paragraph 1 shall contain an additional
endorsement providing that the insurance carrier shall not,
without obtaining express advance permission from the General
Counsel of the Port Authority, raise any defense involving in any
way the jurisdiction of the tribunal over the person of the Port
Authority, the immunity of the Port Authority, its Commissioners,
officers, agents or employees, the governmental nature of the
Port Authority or the provisions of any statutes respecting suits
against the Port Authority. The aforesaid policies of insurance
shall be written by a company or companies approved by the Port
Authority, the Port Authority agreeing not to withhold its
approval unreasonably. If at any time any of the insurance
policies shall be or become unsatisfactory to the Port Authority
as to form or substance or if any of the carriers issuing such
policies shall be or become unsatisfactory to the Port Authority,
the Lessee shall promptly obtain a new and satisfactory policy in
replacement, the Port Authority agreeing not to act unreasonably
hereunder.
(12) The Lessee shall be under no obligation to
reimburse the Port Authority for expenses incurred by the Port
Authority in connection with its normal review and approval of
the plans and specifications covering the By-pass Corridor
Construction Work submitted by the Lessee pursuant to this
Agreement.
(13) The Lessee shall prior to the commencement
of construction of the By-pass Corridor Construction Work and at
all times during construction of the By-pass Corridor
Construction Work submit to the Port Authority all engineering
studies with respect to construction and samples of construction
materials as may be required at any time and from time to time by
the Port Authority.
(14) The Lessee shall procure and maintain
Builder's Risk (All Risk) Completed Value Insurance covering the
By-pass Corridor Construction Work during the performance thereof
including material delivered to the ground area(s) in or on which
the Bypass Corridor Construction Work is to be performed but not
attached to the realty. Such insurance shall be in compliance
with and subject to the applicable provisions set forth herein
and shall name the Port Authority, the City of Newark, and the
Lessee and its contractors and subcontractors as additional
assureds and such policy shall provide that the loss shall be
adjusted with and payable to the Lessee. Such proceeds shall be
used by Lessee for the repair, replacement or rebuilding of the
By-pass Corridor Construction Work and any excess shall be paid
over to the Port Authority. The insurance required hereunder
shall be in compliance with and subject to the applicable
provisions of sub-paragraph 11 above.
(15) The By-pass Corridor Construction Work
which shall be performed strictly in accordance with the Lease,
as hereby amended. The Lessee shall remove, re-do, replace or
construct at its own cost and expense any and all portions of the
By-pass Corridor Construction Work not done in accordance with
the approved Construction Application, or the Lease or any
further requirements of the Port Authority. The Lessee agrees
that the By-pass Corridor Construction Work, including
workmanship and material, shall be of first-class quality.
(16) Nothing contained herein shall grant or be
deemed to grant to any contractor, architect, supplier,
subcontractor or any other person engaged by the Lessee or any of
its contractors in the performance of any part of the By-pass
Corridor Construction Work any right of action or claim against
the Port Authority, its Commissioners, officers, agents,
representatives and employees with respect to any work any of
them may do in connection with the By-pass Corridor Construction
Work. Nothing contained herein shall create or be deemed to
create any relationship between the Port Authority and any such
contractor, architect, supplier, subcontractor or any other
person engaged by the Lessee or any of its contractors in the
performance of any part of the By-pass Corridor Construction Work
and the Port Authority shall not be responsible to any of the
foregoing for any payments due or alleged to be due thereto for
any work performed or materials purchased in connection with the
By-pass Corridor Construction Work.
(17) Nothing contained herein or in the
Construction Application shall constitute a determination or
indication by the Port Authority that Lessee has complied with
the applicable governmental laws, ordinances, enactments,
resolutions, rules and regulations, including but not limited to
those of the City of Newark which may pertain to the By-pass
Corridor Construction Work.
(18) The Lessee shall not commence performance
of the By-pass Corridor Construction Work unless and until it has
met with the General Manager of the Airport and has given him at
least forty-eight (48) hours advance notice of its intention to
commence the By-pass Corridor Construction Work.
(19) In its performance of the By-pass Corridor
Construction Work, the Lessee shall at all times take all
necessary precautions, including without limitation compliance
with requirements of the Federal Aviation Administration and of
the Port Authority, to ensure the safety of its operations, to
protect all persons and property at the Airport and to ensure
that the Lessee shall not disrupt or interfere with normal
airport operations; and in connection with the foregoing the
Lessee shall construct and install as part of the By-pass
Corridor Construction Work such fences, equipment devices,
barricades and lighting and other facilities as may be necessary,
required or appropriate.
(20) (i) Without limiting any of the terms and
conditions hereof, the Lessee understands and agrees that it
shall put into effect prior to the commencement of any By-pass
Corridor Construction Work an affirmative action program and
Minority Business Enterprise ("MBE") program and Women-owned
Business Enterprise ("WBE") program in accordance with the
provisions of Schedule E, attached hereto and hereby made a part
hereof. The provisions of said Schedule E shall be applicable to
the Lessee's contractor or contractors and subcontractors at any
tier of construction as well as to the Lessee and the Lessee
shall include the provisions of said Schedule E within all of its
construction contracts so as to make said provisions and
undertakings the direct obligation of the construction contractor
or contractors and subcontractors at any tier of construction.
The Lessee shall and shall require its said contractor,
contractors and subcontractors to furnish to the Port Authority
such data, including but not limited to compliance reports
relating to the operation and implementation of the affirmative
action, MBE and WBE programs called for hereunder as the Port
Authority may request at any time and from time to time regarding
the affirmative action, MBE and WBE programs of the Lessee and
its contractor, contractors, and subcontractors at any tier of
construction, and the Lessee shall and shall also require that
its contractor, contractors and subcontractors at any tier of
construction make and put into effect such modifications and
additions thereto as may be directed by the Port Authority
pursuant to the provisions hereof and said Schedule E to
effectuate the goals of affirmative action and MBE and WBE
programs.
As used herein and in Schedule E the term
"construction work" or "construction" shall mean the By-pass
Corridor Construction Work approved by the Port Authority to be
performed by Lessee under the terms hereof; the term
"construction contracts" shall mean and refer to the contracts
covering or to cover the By-pass Corridor Construction Work and
the term "premises" shall mean the portions of the premises under
the Lease upon which the said By-pass Corridor Construction Work
is to be performed.
(ii) In addition to and without limiting any of
the terms and provisions hereof, the Lessee shall provide in its
contracts and all subcontracts covering the By-pass Corridor
Construction Work, or any portion thereof, that:
(aa) The contractor shall not discriminate
against employees or applicants for employment because of race,
creed, color, national origin, sex, age, disability or marital
status, and shall undertake or continue existing programs of
affirmative action to ensure that minority group persons are
afforded equal employment opportunity without discrimination.
Such programs shall include, but not be limited to, recruitment,
employment, job assignment, promotion, upgrading, demotion,
transfer, layoff, termination, rates of pay or other forms of
compensation, and selections for training or retraining,
including apprenticeships and on-the-job training;
(bb) At the request of either the Port Authority
or the Lessee, the contractor shall request such employment
agency, labor union, or authorized representative of workers with
which it has a collective bargaining or other agreement or
understanding and which is involved in the performance of the
contract with the Lessee to furnish a written statement that such
employment agency, labor union or representative shall not
discriminate because of race, creed, color, national origin, sex,
age, disability or marital status and that such union or
representative will cooperate in the implementation of the
contractor's obligations hereunder;
(cc) The contractor will state, in all solici-
tations or advertisements for employees placed by or on behalf of
the contractor in the performance of the contract, that all
qualified applicants will be afforded equal employment
opportunity without discrimination because of race, creed, color,
national origin, sex, age, disability or marital status;
(dd) The contractor will include the provisions
of subparagraphs (act) through (cc) of this paragraph in every
subcontract or purchase order in such a manner that such
provisions will be binding upon each subcontractor or vendor as
to its work in connection with the contract;
(ee) "Contractor" as used herein shall include
each contractor and subcontractor at any tier of construction.
(21) The Lessee shall give the Port Authority
fifteen (15) days' notice prior to the commencement of
construction of the By-Pass Corridor Construction Work. The Port
Authority will assign to the By-Pass Corridor Construction Work a
full time field engineer or engineers. The Lessee shall pay to
the Port Authority for the services of said engineer or engineers
the sum of Four Hundred Forty Dollars and No Cents ($440.00) for
each day or part thereof that the engineer or engineers are so
assigned. Nothing contained herein shall affect any of the
provisions of subparagraph (f) hereof or the rights of the Port
Authority hereunder. This agreement for the services of said
field engineer may be revoked at any time by either party on
thirty (30) days' written notice to the other.
(d) The By-pass Corridor Construction Work shall be
constructed in such a manner that there will be at all times a
minimum of air pollution, water pollution or any other type of
pollution and a minimum of noise emanating from, arising out of
or resulting from the operation, use or maintenance of any
portion thereof by the Lessee and from the operations of the
Lessee under the Lease. Accordingly, and in addition to all other
obligations imposed on the Lessee under the Lease, as hereby
amended, and without diminishing, limiting, modifying or
affecting any of the same, the Lessee shall be obligated to
construct as part of the Bypass Corridor Construction Work
hereunder such structures, fences, equipment, devices and other
facilities as may be necessary or appropriate to accomplish the
foregoing and each of the foregoing shall be and become a part of
the By-pass Corridor Construction Work it affects and all of the
foregoing shall be covered under the plans and specifications of
Lessee submitted hereunder and shall be part of the By-pass
Corridor Construction Work hereunder.
(e) Title to the By-pass Corridor Construction Work
which is located within the territorial limits of the City of
Newark shall pass to the City of Newark as the same or any part
thereof is erected upon or under or affixed to the land or to any
existing structures and said By-pass Corridor Construction Work
(including without limitation the By-pass Corridor) shall be and
become part of the premises under the Lease. Title to such part,
if any, of the By-pass Corridor Construction Work which is
located within the territorial limits of the City of Xxxxxxxxx
shall vest in the Port Authority as the same or any part of
thereof is erected upon or under or affixed to the land or to any
existing structures and said By-pass Corridor Construction Work
(including without limitation the By-pass Corridor) shall be and
become part of the premises under the Lease.
(f) (l) When the By-pass Corridor Construction Work
is substantially completed and ready for use, the Lessee shall
advise the Port Authority to such effect and shall deliver to the
Port Authority a certificate signed by an authorized officer of
the Lessee and also signed by the Lessee's licensed architect or
engineer certifying that the By-pass Corridor Construction Work
has been constructed strictly in accordance with the Construction
Application and the approved plans and specifications and the
provisions of the Lease, as hereby amended, and in compliance
with all applicable laws, ordinances and governmental rules,
regulations and orders. Thereafter, the By-pass Corridor
Construction Work will be inspected by the Port Authority and if
the same has been completed as certified by the Lessee and the
Lessee's licensed architect or engineer, as aforesaid, a
certificate to such effect shall be delivered to the Lessee,
subject to the condition that all risks thereafter with respect
to the construction and installation of the same and any
liability therefor for negligence or other reason shall be borne
by the Lessee. It is understood and agreed, however, that the
Lessee shall not use or permit the use of the Bypass Corridor
Construction Work or any portion thereof unless and until such
certificate is received from the Port Authority and the Lessee
shall not use or permit the use of the By-pass Corridor
Construction Work even if such certificate is received if the
Port Authority states in such certificate that the same cannot be
used until other work is completed by the Lessee.
(2) The term "Completion Date" for the purposes
of this Agreement shall mean the date appearing on the aforesaid
certificate issued by the Port Authority pursuant to subparagraph
(1) above after the substantial completion of the By-pass
Corridor Construction Work.
2. (a)-(1) As used herein: the term the "Cost of the By-
pass Corridor Construction Work" shall mean the sum of the
following actually paid by the Lessee (including all amounts paid
directly by the Port Authority to the Lessee's contractors as may
be elected by the Port Authority under subparagraph (c) (2) (ii)
below) to the extent that the inclusion of the same is permitted
by generally accepted accounting principles consistently applied:
(i) amounts actually paid or incurred by the
Lessee to its independent contractor(s) for work actually
performed and labor and materials actually furnished in
connection with the By-pass Corridor Construction Work; and
(ii) amounts actually paid and costs incurred by
the Lessee in connection with the By-pass Corridor Construction
Work for engineering, architectural, professional and consulting
services and supervision of construction for the By-pass Corridor
Construction Work; provided, however, that payments under this
item (ii) shall not exceed fifteen percent (15%) of the amounts
paid under item (i) above.
(2) Each reimbursement payment made by the Port
Authority to the Lessee for the Cost of the By-pass Corridor
Construction Work pursuant to subparagraph (c) of this Paragraph
2 and each direct payment paid directly by the Port Authority to
the Lessee's contractors for the Cost of the By-pass Corridor
Construction Work, as may be elected by the Port Authority
pursuant to subparagraph (c)(2)(ii) below, is referred to herein
as a "Construction Payment".
(b) It is specifically understood and agreed that
notwithstanding anything to the contrary herein, all costs and
expenses of the By-pass Corridor Construction Work shall be borne
solely by the Lessee without payment or reimbursement by the Port
Authority except to the extent provided for herein with respect
to, and properly included in a Construction Payment, and subject
to the limitation set forth in subparagraph (d) below.
(c) (1) The Port Authority shall make Construction
Payments for the Cost of the By-pass Corridor Construction Work,
as follows: On the twentieth day of the calendar month following
the full execution of this Supplemental Agreement by the Port
Authority and the Lessee and on the twentieth day of each
calendar month thereafter up to and including the calendar month
in which the last certificate described hereunder is delivered to
the Port Authority by the Lessee, the Lessee shall deliver to the
Port Authority a certificate which shall be signed by a
responsible fiscal officer of the Lessee, sworn to before a
notary public and which shall set forth a representation by the
Lessee that it will apply the Construction Payment only to the
Cost of the By-pass Corridor Construction Work and for no other
purpose whatsoever. Each such certificate shall certify the sum
of (i) the amounts of actual payments made by the Lessee and the
amounts due and payable from the Lessee to its contractors
(itemized by name and amount) for work actually performed and
labor and materials actually furnished for the By-pass Corridor
Construction Work; and (ii) the amounts of actual payments made
by the Lessee and the amounts due and payable from the Lessee in
connection with the By-pass Corridor Construction Work for
engineering, architectural, professional and consulting services
and supervision of construction (it being understood that, with
respect to the Cost of the By-pass Corridor Construction Work,
that payments under this item (ii) shall not exceed fifteen
percent (15%) of the amounts paid under item (i) above and shall
only apply to payments not included in a prior certificate). Any
Construction Payment by the Port Authority which may exceed the
limitation set forth in (ii) above shall be promptly refunded to
the Port Authority upon demand. Each such certificate for the By-
pass Corridor Construction Work shall also set forth all due and
payable amounts included by the Lessee in previous certificates
against which a Construction Payment has been made by the Port
Authority and which have been paid by the Lessee since the
submission of each such previous certificate and shall have
attached thereto or included thereon such verification as shall
be required by the Port Authority that such amounts have been
paid. Notwithstanding the foregoing, no Construction Payment
shall be made by the Port Authority until all due and payable
amounts included on all previously submitted certificates have
been paid by the Lessee and the payment thereof verified to the
satisfaction of the Port Authority (unless such amounts are being
withheld by the Lessee in accordance with the provision of sub-
paragraph (c)(3) below, and the amount of such withheld amount
shall have been deducted from the amount of a Construction
Payment). Each such certificate shall also set forth, in
reasonable detail, the amounts paid or due and payable to
specified independent contractors and the amounts paid or due and
payable to other specified persons and third parties which have
not previously been reported in certificates delivered to the
Port Authority. Each such certificate shall also (x) have
attached thereto reproduction copies or duplicate originals of
the invoices of the contractor(s) of the Lessee and for such
invoices an acknowledgment by the contractor(s) of the receipt by
them of such amounts and payments; (y) certify that the amounts,
payments and expenses therein set forth constitute portions of
the Cost of the By-pass Corridor Construction Work; and (z)
contain the Lessee's certification that the work for which a
Construction Payment is requested has been accomplished, and that
the amounts requested have been paid or are due and payable. Each
such certificate shall also set forth the total cumulative
payments made by the Lessee as aforesaid from the commencement of
the By-pass Corridor Construction Work to the date of the
certificate, and each such certificate shall also contain a
certification by the Lessee that each portion of the By-pass
Corridor Construction Work covered by said certificate has been
performed strictly in accordance with the terms of the Lease, as
hereby amended.
(2) (i) Within thirty (30) days after delivery of a duly
submitted certificate by the Lessee, the Port Authority shall
make a Construction Payment to the Lessee or, as provided in item
(ii) below, directly to the Lessee's contractors for the Cost of
the By-pass Corridor Construction Work during the period covered
by such certificate, as certified in such certificate (but only
to the extent that such amounts or any portion thereof have not
theretofore been included in a prior certificate). It is
understood that at the election of the Port Authority no
Construction Payment will be made if the Port Authority's
inspection, review or audit does not substantiate the contents of
any of said certificates and until such matters have been
resolved to the satisfaction of the Port Authority, but the Port
Authority shall have no obligation to conduct any such inspection
or audit at such time. The certificate shall also contain such
further information and documentation with respect to the Cost of
the Bypass Corridor Construction Work as the Port Authority from
time to time may require. It is hereby expressly understood and
agreed that nothing herein shall be or be deemed to be for the
benefit of any contractor of the Lessee.
(ii) After the delivery of each of the duly submitted
certificates by the Lessee to the Port Authority containing all
of the certifications and verifications in accordance with the
foregoing provisions of this subparagraph (c), the Port Authority
shall also have the right to elect, in its sole discretion, from
time to time to make any or all of the Construction Payments, or
portions thereof, called for under this subparagraph (c) directly
to any of the Lessee's independent contractors, as applicable; it
being expressly understood and agreed, without limiting any other
provision of this Paragraph 2, that each of the Lessee's
certificates to be delivered hereunder shall contain an
appropriate breakdown of costs separately listed for each of the
Lessee's independent contractors. In the event the Port Authority
elects to make any such direct Construction Payment or Payments
to the Lessee's independent contractor(s) each such Construction
Payment shall be deemed to have been made to the Lessee and to
the extent of such payment by the Port Authority, the Port
Authority shall be released of such obligation to the Lessee. The
Port Authority shall send the Lessee at the time of making such
direct payment a notice thereof setting forth the name of the
contractor to whom such payment was made and the amount of such
payment.
(3) The Lessee shall set forth in its final
certificate submitted pursuant to this subparagraph (c) its final
statement of the Cost of the By-pass Corridor Construction Work
and shall xxxx such statement "Final". The Lessee shall submit
said final certificate to the Port Authority no later than (i)
March 31, 1997, or (ii) a date which is sixty days following the
Completion Date, whichever is earlier; the date of said final
certificate being herein called the "Final Date". After
submitting said final certificate, Lessee shall submit no further
certificate hereunder with respect to the Cost of the By-pass
Corridor Construction Work.
(d) The entire obligation of the Port Authority under
this Supplemental Agreement to reimburse the Lessee for the Cost
of the By-pass Corridor Construction Work (including Construction
Payments made to the Lessee and Construction Payments made
directly to the Lessee's contractors) shall be limited in amount
to a total of One Million Dollars and No Cents ($1,000,000.00) to
be paid pursuant to certificates of the Lessee submitted in
accordance with subparagraph (c) above no later than the Final
Date.
(e) The Port Authority shall have the right by its
agents, employees and representatives to audit and inspect during
regular business hours after the submission of the final
certificate called for in subparagraph (c) hereof, the books and
records and other data of the Lessee relating to the Cost of the
By-pass Corridor Construction Work as aforesaid; it being
specifically understood that the Port Authority shall not be
bound by any prior audit, review or inspection conducted by it.
The Lessee agrees to keep such books, records and other data
within the Port of New York District, but the Lessee shall not be
required to maintain any such books, records and other data for
more than five (5) years after it has delivered the final
certificate called for under subparagraph (c) above.
3. As hereby amended, all the terms, provisions, covenants
and conditions of the Lease shall continue in full force and
effect.
4. The Lessee represents and warrants that no broker has
been concerned in the negotiation of this Agreement and that
there is no broker who is or may be entitled to be paid a
commission in connection therewith. The Lessee shall indemnify
and save harmless the Port Authority of and from all claims for
commission or brokerage made by any and all persons, firms or
corporations whatsoever for services in connection with the
negotiation or execution of this Agreement.
5. Neither the Commissioners of the Port Authority nor any
of them nor any officer, agent or employee thereof, shall be
charged personally by the Lessee with any liability, or held
liable to the Lessee under any term or provision of this
Agreement, or because of its execution or attempted execution, or
because of any breach, or attempted or alleged breach thereof.
6. This Agreement together with the Lease to which it is
supplementary constitutes the entire agreement between the Port
Authority and the Lessee on the subject matter, and may not be
changed, modified, discharged or extended except by an instrument
in writing duly executed on behalf of both the Port Authority and
the Lessee. The Lessee agrees that no representations or
warranties shall be binding upon the Port Authority unless
expressed in writing in the Lease or in this Agreement.
IN WITNESS WHEREOF, the Port Authority and the Lessee have
executed these presents as of the date first written above.
ATTEST THE PORT AUTHORITY OF NEW YORK
AND NEW JERSEY
__________________________ By: _______________________________
Secretary
(Title): __________________________
ATTEST: CONTINENTAL AIRLINES, INC.
___________________________ By: _______________________________
Secretary
(Title): __________________________
SCHEDULE E
AFFIRMATIVE ACTION-EQUAL OPPORTUNITY - MINORITY
BUSINESS ENTERPRISES - WOMEN-OWNED BUSINESS
ENTERPRISES REQUIREMENTS
PART I. Affirmative Action Guidelines - Equal Employment
Opportunity
I. As a matter of policy, the Port Authority hereby
requires the Lessee and the Lessee shall require the Contractor,
s hereinafter defined, to comply with the provisions set forth in
this Schedule E and Paragraph 1 (c)(20) of this Agreement. The
provisions set forth in this Part I are similar to the conditions
for bidding on federal government contracts adopted by the Office
of Federal Contract Compliance effective May 8, 1978.
The Lessee, as well as each bidder, contractor and
subcontractor of the Lessee and each subcontractor of a
contractor at any tier of construction (herein collectively
referred to as the "Contractor"), must fully comply with the
following conditions set forth herein as to each construction
trade to be used on the construction work or any portion thereof
(said conditions being herein called the "Bid Conditions"). The
Lessee hereby commits itself to the goals for minority and female
utilization set forth below and all other requirements, terms and
conditions of the Bid Conditions. The Lessee shall likewise
require the Contractor to commit itself to said goals for
minority and female utilization set forth below and all other
requirements, terms and conditions of the Bid Conditions by
submitting a properly signed bid.
II. The Lessee and the Contractor shall each appoint an
executive of their respective companies to assume responsibility
for the implementation of the requirements, terms and conditions
of the following Bid Conditions:
(a) The goals for minority and female participation,
expressed in percentage terms for the Contractor's aggregate work
force in each trade on all construction work, are as follows:
(1) Minority participation:
Minority, except laborers 30%
Minority, laborers 40%
(2) Female participation:
Female, except laborers 6.9%
Female, laborers 6.9%
These goals are applicable to all the Contractor's
construction work performed in and for the premises.
The Contractor's specific affirmative action obligations
required herein of minority and female employment and training
must be substantially uniform throughout the length of the
contract, and in each trade, and the Contractor shall make good
faith efforts to employ minorities and women evenly on each of
its projects. The transfer of minority or female employees or
trainees from contractor to contractor or from project to project
for the sole purpose of meeting the Contractor's goals shall be a
violation of the contract. Compliance with the goals will be
measured against the total work hours performed.
(b) The Contractor shall provide written notification to
the Lessee and the Lessee shall provide written notification to
the Manager of the Office of Business and Job Opportunity of the
Port Authority within ten (10) working days of awarding any
construction subcontract in excess of Ten Thousand Dollars and No
Cents ($10,000.00) at any tier for construction work. The
notification shall list the name, address and telephone number of
the sub-contractor; the employer identification number; the
estimated starting and completion dates of the subcontract; and
the geographical area in which the subcontract is to be
performed.
(c) As used in these specifications:
(1) "Employer identification number" means the
Federal Social Security number used on the Employer's Quarterly
Federal Tax Return, U.S. Treasury Department Form 941.
(2) "Minority" includes:
(i) Black (all persons having origins in any of
the Black African racial groups not of Hispanic origin);
(ii) Hispanic (all persons of Mexican, Puerto
Rican, Dominican, Cuban, Central or South American culture or
origin, regardless of race);
(iii) Asian and Pacific Islander (all persons
having origins in any of the original peoples of the Far East,
Southeast Asia, the Indian Subcontinent or the Pacific Islands);
and
(iv) American Indian or Alaskan Native (all
persons having origins in any of the original peoples of North
America and maintaining identifiable tribal affiliations through
membership and participation or community identification).
(d) Whenever the Contractor, or any subcontractor at any
tier, subcontracts a portion of the construction work involving
any construction trade, it shall physically include in each
subcontract in excess of Ten Thousand Dollars and No Cents
($10,000.00) those provisions which include the applicable goals
for minority and female participation.
(e) The Contractor shall implement the specific
affirmative action standards provided in subparagraphs (1)
through (16) of paragraph (II)(h) of Part I hereof. The goals set
forth above are expressed as percentages of the total hours of
employment and training of minority and female utilization the
Contractor should reasonably be able to achieve in each
construction trade in which it has employees in the premises. The
Contractor is expected to make substantially uniform progress
toward its goals in each craft during the period specified.
(f) Neither the provisions of any collective bargaining
agreement, nor the failure by a union with whom the Contractor
has a collective bargaining agreement to refer either minorities
or women shall excuse the Contractor's obligations hereunder.
(g) In order for the nonworking training hours of
apprentices and trainees to be counted in meeting the goals, such
apprentices and trainees must be employed by the Contractor
during the training period, and the Contractor must have made a
commitment to employ the apprentices and trainees at the
completion of their training subject to the availability of
employment opportunities. Trainees must be trained pursuant to
training programs approved by the Department of Labor.
(h) The Contractor shall take specific affirmative actions
to ensure equal employment opportunity ("EEO").
The evaluation of the Contractor's compliance with these
provisions shall be based upon its good faith efforts to achieve
maximum results from its actions. The Contractor shall document
these efforts fully, and shall implement affirmative action steps
at least as extensive as the following:
(1) Ensure and maintain a working environment free of
harassment, intimidation and coercion at all sites, and in all
facilities at which the Contractor's employees are assigned to
work. The Contractor, where possible, will assign two (2) or more
women to each phase of the construction project. The Contractor
shall specifically ensure that all foremen, superintendents and
other supervisory personnel at the premises are aware of and
carry out the Contractor's obligation to maintain such a working
environment, with specific attention to minority or female
individuals working at the premises.
(2) Establish and maintain a current list of minority and
female recruitment sources, provide written notification to
minority and female recruitment sources and to community
organizations when the Contractor or its unions have employment
opportunities available and maintain a record of the
organizations' responses.
(3) Maintain a current file of the names, addresses and
telephone numbers of each minority and female off-the-street
applicant and minority or female referral from a union, a
recruitment source or community organization and of what action
was taken with respect to each such individual. If such
individual was sent to the union hiring hall for referral and was
not referred back to the Contractor by the union or, if referred,
was not employed by the Contractor, this shall be documented in
the file with the reason therefor, along with whatever additional
actions the Contractor may have taken.
(4) Provide immediate written notification to the Lessee
when the union(s) with which the Contractor has a collective
bargaining agreement have not referred to the Contractor a
minority person or woman sent by the Contractor, or when the
Contractor has other information that the union referral process
has impeded the Contractor's efforts to meet its obligations.
(5) Develop on-the-job training opportunities and/or
participate in training programs for the area which expressly
include minorities and women, including upgrading programs and
apprenticeship and training programs relevant to the Contractor's
employment needs, especially those programs funded or approved by
the Department of Labor. The Contractor shall provide notice of
these programs to the sources compiled pursuant to subparagraph
(2) of paragraph II (h) of Part I hereof.
(6) Disseminate the Contractor's EEO policy by providing
notice of the policy to unions and training programs and
requesting their cooperation in assisting the Contractor in
meeting its EEO obligations; by including said policy in any
policy manual and collective bargaining agreement; by publicizing
said policy in the Contractor's newspaper, annual report, etc.;
by specific review of the policy with all management personnel
and with all minority and female employees at least once a year;
and by posting the Contractor's EEO policy on bulletin boards
accessible to all employees at each location where construction
work is performed.
(7) Review, at least every six (6) months, the Contractors
EEO policy and affirmative action obligations hereunder with all
employees having any responsibility for hiring, assignment,
layoff, termination or other employment decisions including
specific review of these items with onpremises supervisory
personnel such as Superintendents, General Foremen, etc., prior
to the initiation of construction work at the premises. A written
record shall be made and maintained identifying the time and
place of these meetings, persons attending, subject matter
discussed and disposition of the subject matter.
(8) Disseminate the Contractor's EEO policy externally by
including it in any advertising in the news media, specifically
including minority and female news media, and providing written
notification to and discussing the Contractor's EEO policy with
other Contractors and Subcontractors with whom the Contractor
does or anticipates doing business.
(9) Direct its recruitment efforts, both oral and written,
to minority, female and community organizations, to schools with
minority and female students and to minority and female
recruitment and training organizations and to State-certified
minority referral agencies serving the Contractor's recruitment
area and employment needs. Not later than one (1) month prior to
the date for the acceptance of applications for apprenticeship or
other training by any recruitment source, the Contractor shall
send written notification to organizations such as the above,
describing the openings, screening procedures and tests to be
used in the selection process.
(10) Encourage present minority and female employees to
recruit other minority persons and women and, where reasonable,
provide after school, summer and vacation employment to minority
and female youth both on the premises and in other areas of a
Contractor's work force.
(11) Tests and other selection requirements shall comply
with 41 CFR Part 60-3.
(12) Conduct, at least every six (6) months, an inventory
and evaluation at least of all minority and female personnel for
promotional opportunities and encourage these employees to seek
or prepare for such opportunities through appropriate training,
etc.
(13) Ensure that seniority practices, job classifications,
work assignments and other personnel practices do not have a
discriminatory effect by continually monitoring all personnel and
employment related activities to ensure that the EEO policy and
the Contractor's obligations hereunder are being carried out.
(14) Ensure that all facilities and company activities are
nonsegregated except that separate or single user toilet and
necessary changing facilities shall be provided to assure privacy
between the sexes.
(15) Document and maintain a record of all solicitations of
offers for subcontracts from minority and female construction
contractors and suppliers, including circulation of solicitations
to minority and female contractor associations and other business
associations.
(16) Conduct a review, at least every six (6) months, of
all supervisors' adherence to and performance under the
Contractor's EEO policies and affirmative action obligations.
(i) Contractors are encouraged to participate in voluntary
associations which assist in fulfilling one or more of their
affirmative action obligations (subparagraphs (1)-(16) of
paragraph (II)(h) of Part I above). The efforts of a contractor
association, joint contractor-union, contractor-community or
other similar group of which the Contractor is a member and
participant, may be asserted as fulfilling any one or more of its
obligations under paragraph (II)(h) of Part I hereof provided
that the Contractor: actively participates in the group, makes
good faith efforts to assure that the group has a positive impact
on the employment of minorities and women in the industry,
ensures that the concrete benefits of the program are reflected
in the Contractor's minority and female work force participation,
makes good faith efforts to meet its individual goals and
timetables, and can provide access to documentation which
demonstrates the effectiveness of actions taken on behalf of the
Contractor. The obligation to comply, however, is the
Contractor's and failure of such a group to fulfill an obligation
shall not be a defense for the Contractor's non-compliance.
(j) A single goal for minorities and a separate single
goal for women have been established. The Contractor, however, is
required to provide equal employment opportunity and to take
affirmative action for all minority groups, both male and female,
and all women, both minority and non-minority. Consequently, the
Contractor may be in violation hereof if a particular group is
employed in a substantially disparate manner (for example, even
though the Contractor has achieved its goals for women generally,
the Contractor may be in violation hereof if a specific minority
group of women is underutilized).
(k) The Contractor shall not use the goals and timetables
or affirmative action standards to discriminate against any
person because of race, color, religion, sex or national origin.
(l) The Contractor shall not enter into any subcontract
with any person or firm debarred from Government contracts
pursuant to Executive Order 11246.
(m) The Contractor shall carry out such sanctions and
penalties for violation of this clause including suspension,
termination and cancellation of existing subcontracts as may be
imposed or ordered by the Lessee. Any Contractor who fails to
carry out such sanctions and penalties shall be in violation
hereof.
(n) The Contractor, in fulfilling its obligations
hereunder, shall implement specific affirmative action steps, at
least as extensive as those standards prescribed in paragraph
(II)(h) of Part I hereof, as to achieve maximum results from its
efforts to ensure equal employment opportunity. If the Contractor
fails to comply with the requirements of these provisions, the
Lessee shall proceed accordingly.
(o) The Contractor shall designate a responsible official
to monitor all employment related activity to ensure that the
company EEO policy is being carried out, to submit reports
relating to the provisions hereof as may be required and to keep
records. Records shall at the least include for each employee the
name, address, telephone numbers, construction trade, union
affiliation if any, employee identification number when assigned,
social security- number, race, sex, status (e.g., mechanical
apprentice, trained, helper or laborer), dates of changes in
status, hours worked per week in the indicated trade, rate of pay
and location at which the work was performed. Records shall be
maintained in an easily understandable and retrievable form;
however, to the degree that existing records satisfy this
requirement, contractors shall not be required to maintain
separate records.
(p) Nothing herein provided shall be construed as a
limitation upon the application of any laws which establish
different standards of compliance or upon the application of
requirements for the hiring of local or other area residents
(e.g., those under the Public Works Employment Act of 1977 and
the Community Development Block Grant Program).
(q) Without limiting any other obligation, term or
provision under the Lease, the Contractor shall cooperate with
all federal, state and local agencies established for the purpose
of implementing affirmative action compliance programs and shall
comply with all procedures and guidelines established or which
may be established by the Port Authority.
PART III. MINORITY BUSINESS ENTERPRISES/WOMEN-OWNED BUSINESS
ENTERPRISES
As a matter of policy, the Port Authority requires the
Lessee and the Lessee shall itself and shall require the general
contractor or other construction supervisor and each of the
Lessee's contractors to use every good faith effort to provide
for meaningful participation by Minority Business Enterprises and
Women-owned Business Enterprises in the construction work
pursuant to the provisions of this Schedule E. For purposes
hereof, Minority Business Enterprise ("MBE") shall mean any
business enterprise at least fifty-one percent (51%) of which is
owned by, or in the case of a publicly owned business, at least
fifty-one percent (51%) of the stock of which is owned by
citizens or permanent resident aliens who are minorities and such
ownership is real, substantial and continuing. For the purposes
hereof, Women-owned Business Enterprise ("WBE") shall mean any
business enterprise at least fifty-one percent (51%) of which is
owned by, or in the case of a publicly owned business, at least
fifty-one percent (51%) of the stock of which is owned by women
and such ownership is real, substantial and continuing. A
minority shall be as defined in paragraph II(c) of Part I of this
Schedule E. "Meaningful participation" shall mean that at least
seventeen percent (17%) of the total dollar value of the
construction contracts (including subcontracts) covering the
construction work are for the participation of MBEs and WBEs, of
which at least twelve percent (12%) are for the participation of
MBEs and five percent (5%) for WBE's. Good faith efforts to
include meaningful participation by MBEs and WBEs shall include
at least the following:
(a) Dividing the work to be subcontracted into smaller
portions where feasible.
(b) Actively and affirmatively soliciting bids for
subcontracts from MBEs and WBEs, including circulation of
solicitations to minority and female contractor associations. The
Contractor shall maintain records detailing the efforts made to
provide for meaningful MBE and WBE participation in the work,
including the names and addresses of all MBEs and WBEs contacted
and, if any such ABE or WBE is not selected as a joint venturer
or subcontractor, the reason for such decision.
(c) Making plans and specifications for prospective
construction work available to MBEs and WBEs in sufficient time
for review.
(d) Utilizing the list of eligible MBEs and WBEs
maintained by the Port Authority or seeking minorities and women
from other sources for the purpose of soliciting bids for
subcontractors.
(e) Encouraging the formation of joint ventures,
partnerships or other similar arrangements among subcontractors,
where appropriate, to insure that the Lessee and Contractor will
meet their obligations hereunder.
(f) Insuring that provision is made to provide progress
payments to MBEs and WBEs on a timely basis.
(g) Not requiring bonds from and/or providing bonds and
insurance for MBEs and WBEs, where appropriate.
_______________________________
For the Port Authority
Initialed:
_______________________________
For the Lessee
