1
EXHIBIT 10.16
LEASE
BETWEEN
PORT OF OAKLAND
AND
NATIONAL AIRMOTIVE CORPORATION
DATED
JANUARY 23, 1991
2
CONTENTS
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 . . . . . . . . . . . 4
2.1. Effective Date . . . . . . . . . . . . . . . . . . . . . 4
2.2. Term . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3. Option to Extend Term . . . . . . . . . . . . . . . . . 4
3. Use of Premises . . . . . . . . . . . . . . . . . . . . . . . . 7
3.1. Required and Permitted Uses . . . . . . . . . . . . . . 7
3.2. Compliance with Law; Indemnity . . . . . . . . . . . . . 7
4. Rental; Monthly Rental Adjustment; Performance Deposit . . . . . 8
4.1. Monthly Rent . . . . . . . . . . . . . . . . . . . . . . 8
4.2. Retroactive Rental . . . . . . . . . . . . . . . . . . . 12
4.3. Delinquency Charge . . . . . . . . . . . . . . . . . . . 12
4.4. Accord and Satisfaction . . . . . . . . . . . . . . . . 12
4.5. Performance Deposit . . . . . . . . . . . . . . . . . . 13
5. Standard of Service; Rates and Charges . . . . . . . . . . . . . 14
6. Condition of Property . . . . . . . . . . . . . . . . . . . . . 14
7. Improvements to the Premises . . . . . . . . . . . . . . . . . . 14
7.1. Improvements by the Port . . . . . . . . . . . . . . . . 14
7.2. Improvements by the Lessee . . . . . . . . . . . . . . . 14
8. Maintenance of Improvements . . . . . . . . . . . . . . . . . . 15
8.1. Prevailing Wage Requirements . . . . . . . . . . . . . . 16
9. Title to Improvements . . . . . . . . . . . . . . . . . . . . . 19
10. Signs; Outside Displays . . . . . . . . . . . . . . . . . . . . 20
11. Utility Easements . . . . . . . . . . . . . . . . . . . . . . . 20
12. Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
13. Taxes and Assessments . . . . . . . . . . . . . . . . . . . . . 21
14. Fire Insurance . . . . . . . . . . . . . . . . . . . . . . . . . 22
15. Damage or Destruction of Premises . . . . . . . . . . . . . . . 23
16. Fire Extinguishers . . . . . . . . . . . . . . . . . . . . . . . 23
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17. Indemnification, Hold Harmless and Liability Insurance . . . . . 23
17.1. Indemnification and Hold Harmless . . . . . . . . . . . 23
17.2. Liability Insurance . . . . . . . . . . . . . . . . . . 24
18. No Liens; Mortgage of Leasehold and Protection of
Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
19. Assignment and Subletting . . . . . . . . . . . . . . . . . . . 25
20. Hazardous Substances; Fumes and Odors; Disposal of
garbage; Annoying and Injurious Conduct . . . . . . . . . . . . 30
21. Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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 . . . . . . . . . . . . . . . . . . . 34
27. Agent for Service of Process . . . . . . . . . . . . . . . . . . 34
28. Rights of the United States of America . . . . . . . . . . . . . 34
29. Airport Security . . . . . . . . . . . . . . . . . . . . . . . . 34
30. Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . 35
31. Eminent Domain Proceedings . . . . . . . . . . . . . . . . . . . 35
31.1. Total Taking . . . . . . . . . . . . . . . . . . . . . . 35
31.2. Partial Taking; Termination . . . . . . . . . . . . . . 36
31.3. Partial Taking; No Termination; Reconstruction . . . . . 36
31.4. Partial Taking; No Termination; No Reconstruction . . . 36
31.5. Taking of Leasehold Estate . . . . . . . . . . . . . . . 37
31.6. Relocation Benefits and Goodwill . . . . . . . . . . . . 37
31.7. Trade Fixtures and Equipment . . . . . . . . . . . . . . 33
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
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35. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
36. Board of Port Commissioners . . . . . . . . . . . . . . . . . . 10
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
45. Applicable Law and Venue . . . . . . . . . . . . . . . . . . . . 43
46. Real Estate Brokers . . . . . . . . . . . . . . . . . . . . . . 43
47. Agreement in Multiple Copies . . . . . . . . . . . . . . . . . . 43
48. Covenant Against Contingent Fees . . . . . . . . . . . . . . . . 43
A Sketches of Property 1, 2, 3
B Legal Description 1, 2
C Irrevocable Letter of Credit 12
D Hazardous and Toxic Substances 29
E Affirmative Action Plan for Lessee 41
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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 293,377 square feet of land, said property being referred to
hereinafter as "the Property"; 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
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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:
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 Exhibits
"A" and "B" 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 listed 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 for all its
current leased properties 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
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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.
The Port agrees that it shall not lease, to any party other than
Lessee, an approximately one hundred thousand (100,000) square foot parcel
immediately adjacent to the north-east of Port Building L-815 shown in said
Exhibit "A" and hereinafter referred to as "Parcel A", or any portion
thereof during the first two (2) years of the term of this Lease, except in
accordance with this Paragraph 1.1. If during said two (2) year period the
Port desires to lease to a third party or parties all or any portion of Parcel
A, the Port shall give Lessee written notice thereof including the terms of the
proposed Lease for Parcel A, or a portion thereof. Within fifteen (15) days
after receipt by Lessee of such notice, Lessee shall notify the Port in writing
whether it is interested in leasing Parcel A, proposed for lease by the Port to
a third party or parties, at its fair rental value, or in the event the Port
has received a higher bona fide offer to lease Parcel A at such higher rental.
In the event that Lessee notifies the Port that it is interested in leasing
Parcel A at its fair rental value, or at such other bona fide offer to lease as
the Port may have received in the event the other offer is higher, the parties
agree that they shall have a period of fifteen (15) days from the date of
Lessee's notice to conclude an agreement with respect thereto which is
acceptable to the Port and Lessee. Such periods of time may be extended by
mutual agreement in writing. In the event that Lessee notifies the Port that
it is not interested in leasing Parcel A, or does not respond to the written
notice from the Port's during the initial fifteen (15) day period following the
Port's notice, the Port shall be free to proceed to lease Parcel A, or a
portion thereof, as the case may be, to others and all rights of Lessee in
regard of Parcel A shall cease; provided, that in the event the Port does not
thereafter finalize a lease or leases with a third party or parties upon the
terms and conditions stated in the Port's notice, within a period of one (1)
year from date of the Port's notice, Lessee's Option to Extend the Term of this
Lease as provided herein, as hereinabove set forth, shall be reinstated and any
subsequent offers by the Port to lease Parcel A or portions thereof to a third
party or parties shall be subject thereto. In any event all unexercised rights
of Lessee with regard to Parcel A, including this Option to Extend the Term of
this Lease to the extent the same has not been exercised by Lessee, shall
terminate at the end of the first two (2) years of the term of this lease.
All provisions of this Lease (including without limitation Lessee's
obligations to pay rent and to indemnify the Port), except for provisions that
are applicable by the terms of this Lease only to the Premises described in
Paragraph 1 of this Lease, and provision for additional rentals, shall become
effective as to Parcel A upon the date that the Port delivers to Lessee
possession of Parcel A and the Parties hereto shall execute a
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supplemental agreement to this Lease evidencing the addition of Parcel A. All
references to "Property" or "Premises" in this Lease shall be deemed to include
Parcel A on and after the date that the Port delivers possession of Parcel A to
Lessee pursuant to this Paragraph 1.1.
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 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: Lessee may exercise an option to extend
the term of this Lease in accordance with the provisions of this Paragraph 2.3
upon timely satisfaction or occurrence of all of the following 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. The Port hereby
grants to Lessee an option to extend the term of this Lease for three (3)
five-year periods commencing upon February 1, 2015, upon each and all of the
following terms and conditions:
(i) Lessee must commence and complete within two (2)
years from the effective date of this Lease (as specified in Section 2.1 above)
the acquisition of all necessary permits for the construction of a 60,000
square foot shop/warehouse building on Parcel A.
(ii) Lessee must commence and complete within four (4)
years from the effective date of this Lease (as specified in Section 2.1 above)
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 evidenced by
copies of paid invoices submitted to the Port at least 6 months before
expiration of the four-year period, but within 90 days of the works completion.
(iii) 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
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exercise of the option is not so given and received, this option shall
automatically expire.
(iv) 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.
(v) In the event that Lessee exercises its option and
extends the term of this Leasee, 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
(including land, buildings and leasehold improvements) for each option renewal
period; 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 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 of 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 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
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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 Estate Appraisers or its
successor organization.
(vi) 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 (iii) through (vi). 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 (iii) through (vi).
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.
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),
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(v) and (vi) and upon failure of timely satisfaction or occurrence of any one
or more of such terms and conditions particularly 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 facility and offices in connection
therewith, which service shall include but not be limited to the overhauling
and sale of both piston and jet type aircraft engines and the sale of related
components. The Property may also be used for other uses and purposes
incidental and reasonably related to such hereinabove specified uses.
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)).
3.2. 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
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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 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,
Nine Thousand Six Hundred Sixty-Eight and 80/100 ($9,668.80).
(ii) Monthly rent shall be adjusted effective the
the first day of February, 1995 by the percentage increase, if any, in the
Consumer Price Index published immediately prior to the Adjustment Date 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 of greater
than thirty-five percent (35%) for any Adjustment Date ("CPI Adjusted Minimum
Rent") of the preceding five year period.
"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, 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
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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 Index in accordance with the conversion factor published
by the United States 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 Property without percentage cap; 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 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
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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 Estate Appraisers or its
successor organization.
(iv) 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 Date 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 of greater than thirty-five percent (35%) for the
immediately preceding five-year period for any Adjustment Date ("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.
(v) During any extended term of this Lease the monthly
rent herein provided to be paid by Lessee on or before the first day of each
calendar month 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
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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 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 the highest and best 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.
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Monthly rent for the Premises shall be paid on or
before the first day of each and every month during the term of this Lease,
without setoff, in advance and without previous demand, commencing upon the
first day of the first full calendar month of this Lease.
4.2. RETROACTIVE RENTAL: As additional consideration to
the Port for entering this Lease, and not as security for Lessee's performance
under this Lease, Lessee shall unconditionally pay to the Port upon Lessee's
execution of this Lease, the following retroactive rentals on the parking lot
receipt of which will be acknowledged in writing by the Port:
1. For the period of November 1, 1987 through
and including October 31,1988 $14,238.00
2. For the period of November 1, 1988 through
January 31, 1990 $2,022.30 per month.
3. For the period of February 1, 1990 through
the commencement date of this lease $9,668.80
per month.
4.3. DELINQUENCY CHARGE: Any payment required to be made
by Lessee under this Lease (all such payments are hereby agreed to be rent)
that remains due and unpaid under the terms of this Lease for a period of 30
days after it becomes due and payable shall be subject to a delinquency charge,
for violation of this Lease, equal to ten percent (10%) per annum of such
delinquent payment from the date such payment became due and payable until
payment has 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 payments
then due hereunder. The delinquency charges provided by this Section are in
addition to all other remedies that the Port may have that are provided by this
Lease or otherwise by law or in equity with respect to any payment that has
become due and has not been paid.
4.4. 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 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.
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4.5. PERFORMANCE DEPOSIT: On February 1, 1990, Lessee
shall pay to the Port the sum of $16,000.00. 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 to
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 4.5.
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 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
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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.
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
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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 ordinance(s), rule(s) and regulation(s) 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 replacement 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
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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
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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 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".
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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 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
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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 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
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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.
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 the Lessee, and additions or improvements made thereto
by Lessee shall vest in and become the property of the Lessee upon completion
thereof. Title of the above structures, buildings and improvements shall be
vested in and become the property of the Port 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 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
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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 Executive Director. 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 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,
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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 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
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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.
Lessee shall further carry fire insurance for full replacement
cost with extended coverage endorsements thereto upon all trade fixtures,
equipment, furniture, furnishings and stock in trade located in and upon the
demised premises to the full amount of the replacement value thereof.
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 of all rights of subrogation
which the insurer may have against the 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
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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 and retain any insurance proceeds
attributable to the damage to said building or premises; provided, however,
that if 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 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:
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
NATIONAL AIRMOTIVE CORPORATION
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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 public liability and property damage insurance, including
premises and operations, blanket contractual, completed operations, broad form
property damage, personal injury, independent contractors coverage, 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
($5,000,000.00) combined single limit, except that the owned, nonowned and
hired automobile insurance shall have limits of not less than ONE MILLION
DOLLARS ($1,000,000.00); fire legal liability insurance in the amount of ONE
HUNDRED THOUSAND AND 00/100 DOLLARS ($100,000.00); and Lessee agrees that the
Port shall be named as an additional insured under such liability insurance
policy or policies.
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.
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
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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.
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
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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.
It is expressly understood and hereby agreed that if Lessee
sells the building or leases all or a portion of the building 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.
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 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
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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 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.
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
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a nonrefundable processing fee of not less than $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 $400.00, that said Manager 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 (as applicable) 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 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;
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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 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 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:
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 conditions 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.
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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 offensive or dangerous trade, business or
occupation shall be carried on within the Premises, and nothing shall be done
on the Premises, other than as is provided for in the use provisions of this
lease, which will increase the rate of or suspend the insurance on the Premises
or 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 Section shall preclude
Lessee from bringing, keeping or using on or about the Premises materials,
supplies, equipment and machinery as are appropriate customary in carrying on
its said business, or from carrying its business, in all respects as is
generally usual, so long as Lessee at all times is in full compliance with the
attached Hazardous and Toxic Substances Exhibit "D" and all laws, regulations,
permits, licenses and any other approvals or authorizations relating to Toxic
Materials.
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).
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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 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;
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(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 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 to 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
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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, 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 no one or
more instance. 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.
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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 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,
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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 29. 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 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 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
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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 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
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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 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 affect 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 two (2) 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
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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 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
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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.
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
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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.
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.
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(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.
(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 Chief Executive Officer 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
NATIONAL AIRMOTIVE CORPORATION
MAIN BUILDING LEASE - 41 -
46
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:
(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
(ii) Seek judicial enforcement of said covenants.
(iii) 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'
NATIONAL AIRMOTIVE CORPORATION
MAIN BUILDING LEASE - 42 -
47
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.
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
NATIONAL AIRMOTIVE CORPORATION
MAIN BUILDING LEASE - 43 -
48
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, employee or
officer to give consideration or to act regarding a Port contract on any basis
other than the merits of the matter.
NATIONAL AIRMOTIVE CORPORATION
MAIN BUILDING LEASE - 44 -
49
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 cor-
poration, acting by and through
its Board of Port Commissioners,
By_____________________________
President
Attest_________________________
Secretary
NATIONAL AIRMOTIVE CORPORATION,
a California corporation,
By_____________________________
XXXXXX X. XXXXXX
PRESIDENT AND CHIEF OPERATING OFFICER
(Print Name and Title)
Attest______________________________
XXXXXXX X. XXXXXXXX
EXECUTIVE DIRECTOR, ADMINISTRATION
(Print Name and Title)
Approved as to form and
legality this 25th day
of January, 1991.
______________________________
Port Attorney
Port Ordinance No. 3018
NATIONAL AIRMOTIVE CORPORATION
MAIN BUILDING LEASE - 45 -
50
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.
______________________________
NOTARY PUBLIC in and for said
County and State
51
[PORT OF OAKLAND EXHIBIT A MAP]
52
[PORT OF OAKLAND EXHIBIT "A1"]
53
March 5, 1990
8708122.45
Port of Oakland
LEGAL DESCRIPTION
PARCEL ONE
MAIN BUILDING
All that real property situate in the City of Oakland, County of Alameda State
of California, being portions of Tide Land Xxxx 00, 00, 00, 00, Xxxxxxx 20,
T.2S., R.3W., M.D.B. & 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:
PARCEL ONE
COMMENCING at the northwesterly building corner (the wall line intersection, not
the column line) of building L-815 which is situated in the easterly quadrant of
the intersection of Grumman Street and Lockhead Street, at the North Field Area
of the Oakland Metropolitan Airport (as both streets existed in January 1990)
thence, parallel with the southwesterly line of building L-815, N 33 degrees 53'
14" W, ten feet to the back of the sidewalk on the southerly side of Grumman
Street; thence, along the back of said sidewalk, S 56 degrees 06' 46" W, twenty
three feet to the intersection of the back of the northwesterly sidewalk line of
Lockhead Street with the back of the southeasterly sidewalk line of Grumman
Street, which is the Point of Beginning; thence, along the back of sidewalk line
of Lockhead Street, S 33 degrees 53' 14" E, 303.50 feet to intersect the
southwesterly prolongation of the southerly side of a concrete retaining wall;
thence, parallel with and ten feet southerly of the wall line of building L-815
and along said retaining wall, N 56 degrees 06' 46" E, 330 feet to intersect a
cyclone fence, thence along the cyclone fence, S 33 degrees 53' 14" E, 92.5 feet
to an angle point in the cyclone fence; thence continuing along the cyclone
fence N 56 degrees 25' 52" E, 270 feet to intersect the Port of Oakland fence
line that runs parallel with Xxxxxxxxx Drive, thence along said fence line, N 33
degrees 53' 14" W, 397.5 feet to intersect a cyclone fence which is on line with
the northeasterly prolongation of the back of sidewalk line of Grumman Street;
thence along said fence and along said back of sidewalk, S 56 degrees 06' 46" W,
600 feet to the Point of Beginning.
Containing 207,277 square feet more or less.
Secondary location reference to the Point of Beginning is hereby made in the
event some or all of the controlling monumentation within this description is
destroyed. Commencing at Port of Oakland Survey Control Monument A-29; thence S
29 degrees 53' 13" E, 1799.49 feet to Port of Oakland Survey Control Monument
A-27; thence N 1 degree 38' 52" E, 470.44 feet to, the Point of Beginning;
thence, along the back of sidewalk line of Lockhead Street, S 33 degrees 53' 14"
E, 303.50 feet, this reference being made to allow this description to be
incorporated within the California Coordinate System at such time as said Port
of Oakland Survey Control Monuments are integrated within said system.
Subject to a reservation for the existing water main and electrical conduits
that cross the hereinabove described parcel from a point on the southeastern
boundary of the parcel that is approximately 105 feet from the most eastern
corner to a point on the northwestern boundary approximately 98 feet from the
most northern corner.
PORT/31
NATIONAL AIRMOTIVE CORPORATION
MAIN BUILDING LEASE Exhibit "B"
54
March 5, 1990
8708122.45
Port of Oakland
LEGAL DESCRIPTION
PARCEL TWO
PARKING
PARCEL TWO
All that real property situate in the City of Oakland, County of Alameda, State
of California, being portions of Tide Land Xxxx 00, 00, 00, 00, Xxxxxxx 20,
T.2S., R.3W., M.D.B. & 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 the northwesterly building corner (the wall line intersection,
not the column line) of building L-815 which is situated in the easterly
quadrant of the intersection of Grumman Street and Lockhead Street, at the
North Field Area of the Oakland Metropolitan Airport (as both streets existed
in January 1990) thence, parallel with the southwesterly line of building
L-815, N 33 degrees 53' 14" W, ten feet to the back of the sidewalk on the
southerly side of Grumman Street; thence along said back of sidewalk and the
southwesterly projection thereof S 56 degrees 06' 46" W, 58 feet to the Point of
Beginning; thence N 33 degrees 53' 14" W, 33.00 feet, thence S 56 degrees 06'
46", W, 210.00 feet; thence S 33 degrees 53' 14" E, 410.00; thence N 56 degrees
06' 46" E, 210.00 feet; thence N 33 degrees 53' 14" W, 377.00 feet to the Point
of Beginning.
Containing 86,100 square feet more or less.
The Basis of Bearings for this description is Parcel One, as described herein.
PORT/32
[STATE OF CA SEAL]
NATIONAL AIRMOTIVE CORPORATION EXHIBIT "B"
MAIN BUILDING LEASE PAGE 2 of 2
55
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"
MAIN BUILDING LEASE PAGE 1 OF 2
56
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"
MAIN BUILDING LEASE PAGE 2 OF 2
57
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. S9601, et seq.;
the Hazardous Materials Transportation Act, 49 U.S.C. S1801, et seq.; the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. S6901, et seq.;
the Clean Xxxxx Xxx, 00 X.X.X. X000, et seq.; the Safe Drinking Xxxxx Xxx, 00
X.X.X. X0000, 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.
S2601, et seq., as amended; those substances defined as "hazardous waste" or
"extremely hazardous waste," "restricted hazardous waste" "hazardous substance"
in the Hazardous Waste Control Act, S25100 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
58
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
59
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
60
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
61
(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 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
62
(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
63
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
64
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
nondiscrimination.
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X. 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.
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B. Identification of Goals and 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.
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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 not 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
preemployment 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.
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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.
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