ALAMEDA POINT
LEASE AGREEMENT
Between
ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY,
a Joint Powers Authority established by the City of Alameda and the City Improvement Commission under the California Joint Exercise of Powers Act as set forth in Title 1, Division 7, Chapter 5,
Article 1 of Government Code of the State of California (Government Code §6500 et seq.) as
LANDLORD
and
AIRCRAFT CARRIER HORNET FOUNDATION
a California non-profit corporation
as
TENANT
Exhibit 1
1 ALAMEDA POINT
LEASE AGREEMENT
THIS ALAMEDA POINT LEASE AGREEMENT ("Lease"), dated for reference purposes as March 15, 2009 ("Lease Execution Date"), is made by and between the ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY, a Joint Powers Authority established by the City of Alameda and the City Improvement Commission under the California Joint Exercise of Powers Act as set forth in Title 1, Division 7, Chapter 5, Article 1 of Government Code of the State of California (Government Code §6500 et seq.) ("Landlord") and AIRCRAFT CARRIER HORNET FOUNDATION, a California non-profit corporation ("Tenant").
Recitals
A. The United States of America, acting by and through the Department of the Navy ("Government"), is the owner of real and personal property commonly referred to as the former Naval Air Station Alameda ("Station" or "Property"), which was closed as a military installation and is subject to disposal pursuant to and in accordance with the Defense Base Closure and Realignment Act of 1991, as amended (Pub. Law No. 101-5 10).
B. Landlord and Government have agreed upon a method of conveyance of said property as set forth in the Economic Development Conveyance Memorandum of Agreement ("EDC MOA") dated June 6, 2000.
C. Prior to the conditions for a deed transfer of the property to Landlord being met, immediate possession of all or portions of the Station has been granted by Government to Landlord pursuant to a Lease in Furtherance of Conveyance ("LIFOC") dated June 6, 2000.
D. Government has determined that it will be in the public interest to lease the Premises (as hereinafter defined) to Landlord upon the terms and conditions set forth in the LIFOC.
E. Landlord and Tenant have agreed to make and enter into this Lease, whereby Tenant will lease from Landlord the Premises, which leasehold interest is junior to and subject to the provisions of the LIFOC. As a result thereof, this Lease is a "sublease" in accordance with applicable laws, statutes and ordinances.
F. No individual premises on the Station has been surveyed and assigned an Assessor's Parcel Number (APN) by any State of California agency, including the County of Alameda and the City of Alameda.
Any previously used Legal Description is not applicable to this or any future Agreements as they may pertain to any premises located on the Station. Tenant may, at its sole expense, have the premises surveyed by competent authority, in order to obtain a Legal Description of the Premises. Any survey shall be subject to review and approval by Landlord. Any approved Legal Description shall not be deemed to be a legally described parcel, nor shall it be assigned an identifying Assessor's Parcel Number.
G. Landlord has entered into an exclusive agreement with its chosen developer ("Developer") for the Property. Landlord and Developer have agreed to meet and confer and reach consensus on the Term of all future leasing at the Property. The agreed upon Term shall be valid for the Term of this Lease only. Any future lease for the premises shall be decided under the same or similar process and agreed to under the terms of agreement in place between Landlord and Developer at the time of the requested Lease.
NOW, THEREFORE, in consideration of the terms, covenants and conditions hereinafter set forth, Landlord and Tenant hereby agree as follows:
2000000.3262 -1- 12/15/05.V6
Exhibit 1
2 Agreement
1. PREMISES. Landlord does hereby lease, rent, and demise to Tenant and Tenant does hereby hire and rent from Landlord, the following:
1.1. Premises. Those certain premises known as a portion of Pier 3, commonly known as Pier 3 North, located at 1399 Ferry Point, Alameda, California, containing approximately Ninety Two Thousand (92,000) rentable square feet (which measurement is binding and conclusive on the parties), more particularly described on Exhibit A-I attached hereto, together with the improvements and fixtures situated therein (the "Premises"). The Premises may only be utilized for the purposes set forth in the Conditional Use Permit Issued by the City of Alameda and the storage of any materials shall be subject to Landlord's fencing and screening requirements as such exist from time to time
1.2. [Intentionally Deletedi
1.3. Land. That certain Two Hundred Seventy Six Thousand (276,000) rentable square feet of submerged real property ("Land") (which measurement is binding and conclusive on the parties), more particularly described on Exhibit A-2 attached hereto. The Land is not within the definition of "Premises" hereunder and Tenant is only granted a license to use the Land in accordance with and subject to the provisions of this Lease. Tenant's rights and obligations concerning the Premises as contained in this Lease shall be applicable to the Land and Landlord shall not interfere with Tenant's use of the Land except as otherwise provided in this Lease. The Land may only be utilized for the purposes set forth in the Conditional Use Permit issued by the City of Alameda.
1.4. Parking Areas. In addition to the Premises, subject to the Rules and Regulations (as hereinafter defined), Tenant and Tenant's employees, agents, suppliers, customers and patrons, in common with Landlord and all other tenants of the Station and all such other persons to whom Landlord has previously granted, or may hereinafter grant, rights of usage, shall have the non-exclusive right to use, for parking purposes, the parking area ("Parking Area") identified in Exhibit A-3 attached hereto, contained in Two Hundred Forty One Thousand Five Hundred Ninety (241,590) rentable square feet of real property, as such may be adjusted from time to time by Landlord.
1.5. Common Areas. In addition to the Premises, subject to the Rules and Regulations, Tenant shall have the use of those certain common areas to be designated by Landlord from time to time on the Station (collectively, the "Common Areas"). The use of the Common Areas shall be for the non-exclusive use of Tenant and Tenant's employees, agents, suppliers, customers and patrons, in common with Landlord and all other tenants of the Station and all such other persons to whom Landlord has previously granted, or may hereinafter grant, rights of usage; provided that such nonexclusive use shall be expressly subject to such Rules and Regulations which may be amended by Landlord from time to time. Tenant shall not be entitled to use the Common Areas for storage of goods, vehicles, refuse or any other items. Landlord reserves the right to alter, modify, enlarge, diminish, reduce or eliminate the Common Areas from time to time in its sole discretion. If Tenant shall use any of the Common Areas for storage of any items, Tenant shall pay all fines and other charges imposed upon either Landlord or Tenant by any fire, building or other regulatory body, and Tenant shall pay all costs incurred by Landlord to clear and clean the Common Areas and dispose of such items, including but not limited to, a disposal fee of Twenty-Five and No/i 00ths Dollars ($25.00) for each pallet or other container and Fifty and No/lOOths Dollars ($50.00) for each drum, together with any additional costs for testing and special disposal, if required.
1.6. Sublease Status. Notwithstanding anything otherwise stated herein, the obligation of Landlord to lease the Premises under this Lease, and to perform the covenants of Landlord under this Lease, and the obligation of Tenant to so hire and lease the Premises under this Lease, and to perform the covenants of Tenant under this Lease, are subject to and junior to the LIFOC. The parties hereto understand that Government, as Lessor, and Landlord, as Lessee, have entered into the LIFOC attached hereto as Exhibit B, 2000000.3262 -2- 12115/05.V6
Exhibit 1
3 and Tenant acknowledges that Landlord's rights to the Premises arise solely under the LIFOC and the EDC MOA.
1.7. Compliance with LIFOC. Notwithstanding any provision of this Lease, Landlord and Tenant hereby agree as follows: (i) Tenant will not do or permit anything to be done in or on the Premises which will cause the occurrence of a default by Landlord under the LIFOC, (ii) if the LIFOC expires or is terminated for any reason, then this Lease shall thereupon terminate, without any liability to Landlord, as if such date were the scheduled expiration date of the Term, as defined in Section 2 below, and (iii) this Lease shall be terminable by Landlord without penalty on sixty (60) days advance written notice.
1.8. Default under LIFOC. Landlord shall have no liability to Tenant for Government's default under the LIFOC. Tenant agrees that Landlord shall not be obligated to perform any of Government's obligations under the LIFOC, except to the extent that such obligations are expressly made obligations of Landlord under this Lease. Tenant further agrees that neither this Lease nor any obligation hereunder, including the payment of Base Rent or Additional Rent, shall be affected by Government's default under the LIFOC, except to the extent that the LIFOC is terminated, or unless such default causes Landlord to breach the covenant of quiet enjoyment in favor of Tenant contained herein. Landlord reserves all rights to enforce the LIFOC, but agrees to make reasonable and diligent efforts to enforce Government's obligations under the LIFOC, to the extent that Tenant is a material beneficiary thereof.
1.9. Interpretation. In the event of any conflict in the rights of Tenant under this Lease and the rights of Landlord under the LIFOC, the terms, conditions and covenants of the LIFOC shall control.
1.10. LIFOC. Tenant represents that it received, read and is familiar with the terms of the copy of the LIFOC attached as Exhibit B and agrees to comply with all obligations of Lessee under the LIFOC as such relates to the Premises.
1.11. Pier Change. Keeping in mind that the Station is a redevelopment area, Tenant agrees that there may be a future need to move the xUSS HORNET (the "Ship") from its current location on Pier 3 North to a berth at Pier I South.
2.1. Term. The term of the Lease shall be for Five (5) years and Zero (0) months beginning on the Lease Commencement Date and Expiring on March 14, 2014 (the "Term"), unless extended or sooner terminated pursuant to the terms of this Lease. The term "Lease Year" as used herein shall mean any three hundred sixty-five (365) consecutive day period beginning on the Commencement Date or any anniversary thereafter.
2.2. Lease Commencement Date. The term "Lease Commencement Date" as used herein shall mean:
2.2.1. The Lease Commencement Date shall be March 15, 2009 ("Lease Commencement Date").
2.2.2. Within thirty (30) days after the Lease Commencement Date, Landlord and Tenant shall execute an amendment to this Lease ("Declaration of Lease Commencement") setting forth the Lease Commencement Date and the expiration date of the term of the Lease, which shall be in the form attached hereto as Exhibit C. For the purpose of this Lease, "Force Majeure Events" shall mean (i) any delays beyond the reasonable control of Landlord, such as acts of God, fire, earthquake, acts of a public enemy, riot, insurrection, unavailability of materials, governmental restrictions on the sale of materials or supplies or on the transportation of such materials or supplies, strike directly affecting construction or transportation of materials or supplies, shortages of materials or labor resulting from government controls, weather conditions, unavailability of possession of the Premises due to governmental action or inaction, or any other cause or 2000000.3262 -3- 12115105.V6
Exhibit 1
4 events beyond the reasonable control of Landlord. The parties agree that if Landlord is unable to deliver possession of the Premises by the Anticipated Lease Commencement Date, plus any extension thereto due to a Force Majeure Event(s), this Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for any loss or damage resulting therefrom, and the expiration date of the Term of this Lease shall be extended for such delay; but in such event, Tenant shall not be liable for any Rent until the Lease Commencement Date; provided, however if such delays were caused or attributable to Tenant, Rent shall commence as of the scheduled Lease Commencement Date.
2.2.3. In the event that Landlord permits Tenant to occupy the Premises prior to the Lease Commencement Date, such occupancy shall be subject to all the provisions of this Lease.
2.2.4. Prior to the Lease Commencement Date, Landlord and Tenant shall conduct a walk-through inspection of the Premises and acknowledge the results of such inspection by signing a physical condition report ("Condition Report"), in a form prepared by Landlord, setting forth the agreed physical appearance and condition of the Premises as of such time. To the extent that the Condition Report approved by Landlord and Tenant requires Landlord to repair, replace or perform any maintenance obligations (provided that such report shall not create any obligations of Landlord except as expressly set forth in this Lease), Landlord shall complete such tasks within thirty (30) days thereafter; provided, however, to the extent such matters cannot be completed within such period, Landlord shall use its due diligence to complete such matters on an expeditious basis thereafter, subject to delays caused by Force Majeure Events.
CONSIDERATION.
3.1 Base Rent. Tenant shall pay to Landlord as "Base Rent" the amount of Thirty Six Thousand and No/lOOths Dollars ($36,000) per year. The Base Rent shall be paid without prior notice or demand, and without any setoff, counterclaim or deduction whatsoever. The Base Rent shall be paid at ARRA offices, or such other place as Landlord shall direct.
3.2 [Intentionally Deleted]
3.3 Security Deposit The Security Deposit has been waived.
3.4 Default Rate. If any portion of Rent shall be due and unpaid for more than one (1) day after the anniversary of the Lease Commencement Date, it shall thereafter bear interest at the per annum rate equal to 2% per annum greater than the prime rate of interest announced from time to time by the Wall Street Journal, as the same may change from time to time (the "Default Rate"), from the due date until the date of payment thereof by Tenant.
3.5 Late Charge. If any payment of Rent or any part thereof to be made by Tenant to Landlord pursuant to the terms of this Lease shall become overdue for a period in excess of one (1) day after the anniversary of the Lease Commencement Date, a late charge of five cents for each dollar overdue shall be paid by Tenant for the purpose of defraying the expense incident to handling such delinquent payment, together with interest from the date such payment or part thereof was due, at the Default Rate. Nothing herein or in the imposition or acceptance of a late charge by Landlord shall be construed as a waiver of any rights of Landlord arising out of any default of Tenant; the right to collect any late charge or interest is separate and apart from any rights or remedies of Landlord relating to any default by Tenant.
3.6 Survival. The obligation of Tenant with respect to the payment of Rent shall survive the termination of this Lease.
3.7 Net Lease. Tenant hereby acknowledges and agrees that this Lease is intended to be a triple net lease to Landlord, as such term is commonly used for the leasing of industrial/commercial properties, except as expressly herein set out, such that Landlord is not responsible for any costs, charges, expenses and 2000000.3262 -4- 12/15/05.V6
Exhibit 1
5 outlays of any nature whatsoever arising from or relating to the Premises, or the use and occupancy thereof, or the contents thereof or the business carried on therein, and that Tenant shall pay all charges, impositions, costs and expenses of every nature and kind relating to the Premises except as expressly otherwise agreed herein. As set forth in this Lease, all costs of maintenance and repair of the Premises, all costs of insuring the Premises, and all taxes allocated to the Premises shall be paid by Tenant.
3.8 Rent Arrears. Tenant acknowledges that it is currently in arrears to Landlord for the sum of Five Hundred Fifty Five Thousand Three Hundred Thirty-Five and No/i OOths Dollars ($555,335) ("Rent Arrears"). Landlord has agreed to write down the Rent Arrears to the sum of Two Hundred Seventy Seven Thousand Six Hundred Sixty-Eight and No/I OOths Dollars ($277,668) ("Rent Arrears Reduction"), provided Tenant repays the full amount of the Rent Arrears Reduction by the end of the Term. For every dollar Tenant pays to the Rent Arrears, Landlord will reduce the amount owed in kind, and shall report the reduced amount in future financial reports prepared by, or for, Landlord. Should Tenant fail to repay the full amount of the Rent Arrears Reduction by the end of the Term, Landlord shall void the write down of the Rent Arrears and Tenant shall owe to Landlord the full amount of the Rent Arrears as described herein above.
3.9 Audited Financials. Tenant shall provide to Landlord annually a financial statement which have been prepared and certified by a Certified Public Accountant and certified by the Certified Public Accountant that the financial statement meet the requirements of the U.S. GAAP.
3.10 Business Plan. Tenant shall prepare and deliver to Landlord a business plan detailing the past, present, and forecasted performance of the foundation (the "Business Plan"). The Business Plan shall contain a pro-forma balance sheet, income statement, and cash flow statement, to illustrate how the financing being sought will affect the firm's financial position. Tenant shall deliver the Business Plan to Landlord no later than September 15, 2009. Failure to deliver the Business Plan by September 15, 2009 shall result in termination of this Lease.
4. USE OF PREMISES. The sole purpose for which the Premises may be used by Tenant or authorized contractors, subcontractors or licensees of Tenant, is for museum operation of the decommissioned Aircraft Carrier Hornet and related uses, including parking. ("Permitted Use").
4.1 No Other Uses. The Premises shall not be used for any other purposes other than the Permitted Use without the prior written approval of Landlord.
4.2 Compliance With ROD and Other Governmental Documents. Any use or uses of the Premises shall comply with all terms and conditions of the LIFOC and the Alameda Reuse and Redevelopment Plan, subject to the uses being consistent with the National Environmental Protection Act (NEPA) Record of Decision ("ROD") for the disposal and reuse of the former Naval Air Station Alameda, and all conditions expressed therein as well as all conditions expressed in any other environmental action with respect to the uses of the Premises prepared for compliance with the National Environmental Protection Act. A copy of the ROD is available for review at Landlord's offices during normal business hours.
4.3 No Commitment for Future Conveyance. Tenant understands and acknowledges that this Lease is not and does not constitute a commitment by Landlord or Government to create any priority with regard to the ultimate disposal of the Premises, in whole or in part, to Tenant.
4.4 Compliance with Law. Tenant shall comply with all laws, ordinances, rules, regulations and codes, which includes, but is not limited to, the Americans With Disabilities Act, of all municipal, county, state and federal authorities (collectively, "Law") pertaining to Tenant's use and occupation of the Premises.
Tenant shall not commit, or suffer to be committed, any waste upon the Premises or any public or private nuisance, or other act or thing which disturbs the quiet enjoyment of any other tenant in the buildings, nor shall Tenant store any materials on the Premises which are visible from areas adjacent to the Premises, unless otherwise specifically set forth in this Lease. Tenant shall also specifically not permit any objectionable odor 2000000.3262 -5- 12/15/05.V6
Exhibit 1
6 to escape or be emitted from the Premises and shall insure sanitation and freedom from odor, smell and infestation from rodents or insects. Tenant, at its expense, shall provide (and enclose if required by codes or Landlord) a dumpster or dumpsters for Tenant's trash in a location and manner approved by Landlord, and shall cause its trash to be removed at intervals reasonably satisfactory to Landlord. In connection therewith, Tenant shall keep the dumpster(s) clean and insect, rodent and odor free.
4.5 Use Permit. Tenant and any of its subtenants shall obtain a City of Alameda Use Permit and other applicable City permits and approvals for any intended use of the Premises (collectively, "Use Permit").
4.6 Historic or Archeological Station. Tenant shall not undertake any activity that may affect an identified historic or archeological property, including excavation, construction, alteration, maintenance or repairs of Premises, Historic Buildings, or sites in a manner that is inconsistent with the Memorandum of Agreement Among the United States Navy, the Advisory Council on Historic Preservation, the California State Historic Preservation Officer, and the City of Alameda regarding historic properties on the former Naval Air Station Alameda ("Historic Preservation Agreement"), set forth as Exhibit D. Buried cultural materials may be present on the Premises. If such materials are encountered, Tenant shall stop work immediately and notify Government and Landlord.
ASSIGNMENT AND SUBLETTING.
5.1 Tenant shall not, without Landlord's prior written consent, (i) assign, convey, mortgage, pledge, encumber or otherwise transfer (whether voluntarily or otherwise) this Lease or any interest under it; (ii) allow any transfer of or any lien upon Tenant's interest by operation of law; (iii) sublet the Premises or any part thereof; or (iv) permit the use or occupancy of the Premises or any part thereof by anyone other than Tenant and its employees.
5.2 Tenant's request for consent to any sublet or assignment shall be in writing and shall contain the name, address, and description of the business of the proposed assignee or subtenant, its most recent financial statement and other evidence of financial responsibility, its intended use of the Premises, and the terms and conditions of the proposed assignment or subletting. Within thirty (30) days from receipt of such request, Landlord shall either: (1) grant or refuse consent; or (2) elect to require Tenant to: (a) as to a proposed sublease, execute an assignment of Tenant's interest under this Lease to Landlord, upon terms and conditions reasonably required by Landlord, together with an assignment of Tenant's interest as landlord in any such proposed Lease, or (b) as to a proposed assignment, terminate this Lease and the term hereof effective as of the last day of the third (3rd) month following the month in which the request was received.
5.3 Without affecting any of its other obligations under this Lease, Tenant shall pay Landlord as additional rent one-half of any sums or other economic considerations that (a) are received by Tenant as a result of an assignment or subletting (other than the rental or other payments that are attributable to the amortization over the term of this Lease of the cost of non-building standard leasehold improvements that are part of the assigned or sublet portion of the Premises and have been paid for by Tenant), whether or not denominated rental under the assignment of sublease, and (b) exceed in total the sums which Tenant is obligated to pay Landlord under this Lease (prorated to reflect obligations allocable to that portion of the Premises subject to such assignment or sublease). The failure or inability of the assignee or subtenant to pay Tenant pursuant to the assignment of sublease shall not relieve Tenant from its obligations to Landlord under this Section. Tenant shall not amend the assignment or sublease in such a way as to reduce or delay payment of amounts that are provided in the assignment or sublease approved by Landlord.
5.4 For purposes of this section, any transfer or change in control of Tenant by operation of law or otherwise shall be deemed an assignment hereunder, including, without limitation, any merger, consolidation, dissolution or any change in more than fifty percent (50%) of the interests of Tenant, whether in a single transaction or a series of related transactions. 2000000.3262 -6- 12/15/05.V6
Exhibit 1
7 5.5 If, with the consent of Landlord, this Lease is assigned or if the Premises or any part thereof is sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant, or occupant, and apply the net amount collected to the Rent herein reserved. If Landlord consents to any such subletting or assignment, it shall nevertheless be a condition to the effectiveness thereof that a fully executed copy of the Lease or assignment be furnished to Landlord and that any assignee assumes in writing all obligations of Tenant hereunder. No consent to any assignment, subletting or occupancy shall be deemed a waiver of any of Tenant's covenants contained in this Lease nor the acceptance of the assignee, subtenant or occupant as Tenant, nor a release of Tenant from further performance of any covenants and obligations under this Lease.
5.6 Any consent given by Landlord to an assignment or subletting of this Lease shall not constitute a waiver of the necessity of such consent to any subsequent assignment or subletting.
6. CONDITION OF PREMISES. The Premises are delivered to Tenant by Landlord "as is, where is," and, as such, Landlord makes no warranty as to such facilities and property either as to their usability generally or as to their fitness for any particular purpose. Upon the expiration or earlier termination of this Lease, Tenant shall turn over to Landlord the Premises in the same condition in which they were received, reasonable wear and tear excepted. Tenant's taking possession of the Premises shall be conclusive evidence that the Premises were in satisfactory condition when Tenant took possession. No promises of Landlord to alter, remodel, repair or improve the Premises and no representation respecting the condition of the Premises have been made by Landlord to Tenant, except as expressly stated in this Lease.
ALTERATIONS.
7.1. Tenant shall not make any alterations, improvements, or additions to the exterior or interior of the Premises (collectively the "Alterations"), without Landlord's prior written consent in each and every instance, which consent may be conditioned upon criteria and/or requirements deemed necessary by Landlord, which may include, but not be limited to, approval by the Government and compliance with the Alameda Use Documentation. Any Alterations which adds to, removes, or otherwise alters, the structural components of the Building, including the roof, any support structures, foundations, the exterior of the Building, and the fire retardant and other life safety systems of the Building, shall require Landlord's prior consent, which may be withheld in Landlord's sole discretion. In the event Tenant desires to perform any Alterations, Tenant shall first submit to Landlord a written description of the proposed Alterations, and, if Landlord requires, plans and specifications relating thereto, and obtain Landlord's written approval prior to commencing it. Approval of Alterations may be conditioned upon providing Landlord with a performance and payment bond satisfactory to Landlord in all respects in addition to other requirements deemed reasonably necessary to protect the interests of Landlord.
7.2. Prior to undertaking any Alterations, to the extent required by applicable laws, statutes and/or ordinances, Tenant agrees to submit an application to the applicable governmental authorities, for review and obtaining approval of such plans and proposals for such Alterations to the Premises. In addition, Tenant shall also submit to Landlord a narrative description of all proposed Alterations on the Premises, with the projected schedule and costs thereof, and an analysis as to how and why such Alterations will or will not be visible from the exterior of the Building, or affect any historically significant features, or be substantially likely to adversely affect the environmental cleanup of the Station, human health, or the environment, or adversely impact the structure of the Building. All Alterations shall be done at the expense of Tenant without any costs or obligation to Landlord. No Alterations shall be undertaken by Tenant on the Premises, unless such Alterations has been approved by all applicable governmental authorities and all requisite permits have been obtained.
7.3. In the event Tenant intends to perform Work requiring excavation below the surface of the Premises (whether inside or outside of the Building) or construction of a permanent structure on the Premises, Tenant must determine actual location of utilities using standard methods (i.e., potholing, metal fish line, etc.) and submit this information with an application to excavate or application to build a permanent structure to 20000003262 -7- 12115/05.V6
Exhibit 1
8 Landlord for approval (which shall also include the approval of applicable governmental authorities). The application should include a site plan showing the location of utilities and that construction will not take place above the utility line or within the utility easement, specifically showing that no permanent structures will be constructed in these areas. Tenant shall be responsible for complying with the provisions of the City of Alameda's Marsh Crust Ordinance, and if required, shall obtain a Marsh Crust Permit.
7.4. At the termination of this Lease, all improvements, whether temporary or permanent in character, made by Landlord or Tenant in or upon the Premises shall become Landlord's property upon conveyance of the Land and Premises to Landlord (or shall become the Government's property if the Land and Premises are not conveyed to Landlord) and shall remain upon the Premises at the termination of this Lease without compensation to Tenant (excepting only Tenant's movable office furniture, trade fixtures, and manufacturing, office and professional equipment, and any Work approved by Landlord as to which, at the time of such approval, Landlord stated, in writing, that such Work had to be removed at the termination of the Lease).
7.5. The Government has provided to Landlord an asbestos survey for the Premises. Before Tenant undertakes any Alterations which will disturb any known friable or non-friable asbestos in the Premises, the Tenant, as part of its improvement plan submittal, shall set forth a plan stating how it will handle any such asbestos, which plan must be reviewed and approved by Landlord and the Government, before any such work which will disturb the asbestos in the Premises can commence. The Government's asbestos survey for the Premises is available for review by Tenant at Landlord's offices during normal business hours.
7.6. Landlord, at its option and without any form of representation or warranty, shall have the right to modify, repair, refurbish and/or repaint the exterior of the Premises (and the Building containing the Premises) as determined in Landlord's sole discretion. Such right shall not cause any form of eviction, constructive or otherwise, and Tenant shall not be entitled to any abatement of amounts owning under this Lease; provided, however, Landlord shall use its good faith efforts to minimize disruption to Tenant's building operations.
8. ACCESS BY GOVERNMENT AND LANDLORD. In addition to access provided by this Lease, Government and Landlord shall be allowed access to the Premises at all reasonable times throughout the term of this Lease, for any reasonable purposes upon prior written notice to Tenant. The Government and Landlord will normally give Tenant a minimum 24-hour prior notice of an intention to enter the Premises, unless the entry is required on an emergency basis for safety, environmental, operations or security purposes. Unless an emergency situation, all such entry by Government shall be accompanied by a representative of Tenant.
Tenant shall ensure that a telephone roster is maintained at all times for on-call persons representing Tenant who will be available on short notice, 24 hours a day, 365 days per year, and possess and have authority to use all keys necessary to gain access to the Premises, to facilitate entry in time of emergency. Tenant shall ensure that Landlord has a current roster of such on-call personnel and their phone numbers. Tenant shall have no claim against Government or Landlord for exercise of their rights of access hereunder. Portions of the utilities systems serving the Station may be located within the Premises. Tenant agrees to allow Government, Landlord and their utility suppliers reasonable access to the Premises for operation, maintenance, repair and replacement of these utilities systems as may be required. In executing operation, maintenance, repair or replacement of these systems, Landlord agrees to take all reasonable steps to limit interference with the use of the Premises by Tenant.
9, UTILITIES
9.1. Utilities will not be furnished to Tenant by Landlord. The obtaining of such utility services is solely the responsibility of Tenant. Any separate metering of utilities required by any utility provider shall be the responsibility of Tenant. Tenant shall pay all service charges, and all initial utility deposits and fees, for water, electricity, sewage, janitorial, trash removal, gas, telephone, pest control and any other utility services furnished to the Premises and the improvements on the Premises during the entire term of this Lease ("Utilities"). Tenant shall pay for all Utilities in addition to rent. If any such Utilities are not separately metered or billed to Tenant for the Premises but rather are billed to and paid by Landlord, Tenant shall pay to 2000000.3262 -8- 12115/05.V6
Exhibit 1
9 Landlord, as Additional Rent, its pro rata share of the cost of such services, as reasonably determined by Landlord. If any Utilities are not separately metered, Landlord shall have the right to determine Tenants consumption by either submetering, survey or other methods designed to measure consumption with reasonable accuracy. Landlord shall not be liable for any reason for any loss or damage resulting from an interruption of any of these services. Landlord may designate the provider of Utilities and in such event Tenant shall use such designated provider; provided that Tenant shall have no claim against Landlord, of any type, for any failure of such provider to provide such service, and Tenant's remedy, if any, shall be limited to such provider.
9.2. Tenant acknowledges that the Station's pre-existing steam heating facilities will not be operable for the Premises during the entire Term of this Lease. Tenant acknowledges that Tenant will be responsible for providing heating to the Premises.
9.3. Tenant acknowledges that pursuant to the provisions of the LIFOC, Government in no way warrants the conditions or adequacy of its utility systems for the purposes intended by Tenant.
10. NO INTERFERENCE WITH GOVERNMENT OPERATIONS. Tenant shall not conduct operations, nor make any alterations, that would interfere with or otherwise restrict Government operations or environmental clean-up or restoration actions by Government, Environmental Protection Agency (EPA), State of California, or their contractors. Environmental clean-up, restoration, or testing activities by these parties shall take priority over Tenant's use of the Premises in the event of conflict. Government has agreed in the LIFOC to make every reasonable effort to develop a plan to conduct any remediation of environmental contamination in a manner that minimizes interference with Landlord's or Tenant's use of the Premises, and to provide reasonable and timely prior written notice of Government operations that may or will interfere with Landlord's or Tenant's use of the Premises. Any work by Landlord or Tenant in the proximity of operable units that are part of a National Priorities List (NPL) site may require written approval by Government's Remedial project Manager.
11. MAINTENANCE SERVICES.
11.1. Repairs By Landlord. Landlord shall maintain only the foundations and structural soundness of the pier in good repair, except repairs rendered necessary by the negligence or intentional acts of Tenant, its employees, invitees or representatives which shall be repaired by Tenant. Tenant shall promptly report, in writing, to Landlord any defective condition known to Tenant to be defective which Landlord is required to repair and failure to so report such condition shall make Tenant responsible to Landlord for any liability incurred by Landlord by reason of such condition. Landlord shall be required to commence such repairs within a reasonable period of time from receipt of Tenant's notice.
11.2. Repairs By Tenant Tenant accepts the Premises in its present "As-Is," "Where Is" condition, and specifically acknowledges that the Premises is suited for the uses intended by Tenant. Landlord shall not be liable for any latent or patent defects in the Premises. Except as expressly set forth in this Lease, Tenant acknowledges that Landlord has made no representation or warranty concerning the condition and state of repair of the Premises to the extent not constructed by Landlord. Tenant shall, at its own cost and expense, keep and maintain the Premises in good order and repair, promptly making all necessary repairs and replacements, including, but not limited to, resurfacing and/or restriping the parking lot, security lighting in the Premises, including but not limited to the parking lot, and damage to common areas caused by Tenant, excluding only those repairs expressly required to be made by Landlord hereunder. Any and all construction, maintenance and/or repairs to be done by Tenant, its agents, employees, contractors and/or subcontractors pursuant to this Section which would be deemed Alterations, as reasonably determined by Landlord, shall comply with the requirements of this Lease. Tenant, in keeping the Premises in good order, condition and repair, shall exercise and perform good maintenance practices. Tenant shall maintain, and shall provide Landlord with proof thereof, an annual service maintenance contract (which shall be upon a form acceptable to Landlord and with a service provider designated by Landlord (which may be an affiliate thereof)) and any and 2000000.3262 -9- 12/15/05.V6
Exhibit 1
10 all required permits for the fire sprinkler system (if applicable), and any other such systems and life-safety systems, in a form and with a contractor reasonably satisfactory to Landlord. Tenant shall maintain the grounds surrounding the Premises, including paving, care of shrubs and general landscaping. Tenant's obligations shall include restorations, replacements or renewals when necessary to keep the Premises and all improvements thereon or a part thereof in good order, condition and state of repair.
11.3. The Equipment shall not be removed by Tenant, or any of its employees or agents, from the Premises, without the prior written consent of Government and Landlord. Tenant shall be responsible for preparing and maintaining an accurate and current inventory of all such Equipment. If Tenant desires to cease use of any Equipment during the Term of this Lease and cause it to be removed from the Premises, Tenant shall so advise Landlord in writing and shall obtain written approval for moving or disposing of such Equipment from Landlord.
11.4. At the termination of this Lease, the Equipment shall be returned to Landlord or, at Landlord's direction to Government, in as good condition as when Tenant took possession, ordinary wear and tear excepted; provided, however, that it is understood that Tenant shall not have any obligation to maintain or repair any personal property which has become functionally obsolete, or if such personal property is not reasonably capable of being repaired because of an inability to reasonably obtain parts, or the cost of such repair or maintenance is unreasonable.
11.5. Debris and unused materials shall be promptly removed from the Premises, and the area of work shall be kept reasonably clean and free of unused materials at all times. At completion of the Lease, the area of work and the Premises shall be left without containers, Tenant's equipment, and other undesirable materials, and in an reasonably acceptable clean condition.
11.6. Tenant shall provide for all security and safety within the Premises. Any crimes or other offenses, involving damage to or theft of Government property shall be reported to the appropriate authorities for their investigation and disposition and to Government and Landlord as property owner and lessor, respectively.
11.7. The Tenant shall be responsible, at its cost and expense, for obtaining and providing any and all other services which may be required in connection with Tenant's use or occupancy of the Premises.
12. ENVIRONMENTAL PROTECTION PROVISIONS.
12.1. Environmental Compliance\Hazardous Materials
12.1.1. "Hazardous Materials" shall mean any material, substance or waste that is or has the characteristic of being hazardous, toxic, ignitable, reactive, flammable, explosive, radioactive or corrosive, including, without limitation, petroleum, solvents, lead, acids, pesticides, paints, printing ink, PCBs, asbestos, materials commonly known to cause cancer or reproductive problems and those materials, substances and/or wastes, including wastes which are or later become regulated by any local governmental authority, the state in which the Premises are located or the United States Government, including, but not limited to, substances defined as "hazardous substances," "hazardous materials," "toxic substances" or "hazardous wastes" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §1801, et seq.; the Resource Conservation and Recovery Act; all environmental laws of the state where the Station is located, and any other environmental law, regulation or ordinance now existing or hereinafter enacted. "Hazardous Materials Laws" shall mean all present and future federal, state and local laws, ordinances and regulations, prudent industry practices, requirements of governmental entities (including without limitation the U.S. Navy) and manufacturer's instructions relating to industrial hygiene, environmental protection or the use, analysis, generation, manufacture, storage, presence, disposal or transportation of any Hazardous Materials, including without limitation the laws, regulations and ordinances referred to in the preceding sentence. 2000000.3262 -10- 12/15/05.V6
Exhibit 1
11 12.1.2. Except as permitted in this Section 12, Tenant hereby agrees that Tenant and Tenant's officers, employees, representatives, agents, contractors, subcontractors, successors, assigns, subtenants, concessionaires, invitees and any other occupants of the Premises (for purposes of this Section 12, referred to collectively herein as "Tenant Representatives") shall not cause or permit any Hazardous Materials to be used, generated, manufactured, refined, produced, processed, stored or disposed of, on, under or about the Premises or Station or transport to or from the Premises or Station without the express prior written consent of Landlord, and Government, which consent may be limited in scope and predicated on strict compliance by Tenant of all applicable Hazardous Materials Laws and such other reasonable rules, regulations and safeguards as may be required by Landlord (or any insurance carrier, environmental consultant or lender of Landlord, or environmental consultant retained by any lender of Landlord) in connection with using, generating, manufacturing, refining, producing, processing, storing or disposing of Hazardous Materials on, under or about the Premises or the Station. In connection therewith, Tenant shall, at its own expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals required for the storage or use by Tenant or any of Tenant's Representatives of Hazardous Materials on the Premises or the Station, including without limitation, discharge of (appropriately treated) materials or wastes into or through any sanitary sewer serving the Premises or the Station.
12.1.3. If at any time during the Term, any contamination of the Premises by Hazardous Materials shall occur where such contamination is caused by the act or omission of Tenant or Tenant's Representatives ("Tenant's Contamination"), then Tenant, at Tenant's sole cost and expense, shall promptly and diligently remove such Hazardous Materials from the Premises or the groundwater underlying the Premises to the extent required to comply with applicable Hazardous Materials Laws. Tenant shall not take any required remedial action in response to any Tenant's Contamination in or about the Premises or enter into any settlement agreement, consent, decree or other compromise in respect to any claims relating to any Tenant's Contamination without first obtaining the prior written consent of Landlord, which may be subject to conditions imposed by Landlord as determined in Landlord's sole discretion. Such prior written consent shall not be required to the extent the delay caused by the requirement to obtain consent may increase the damage to the Premises or the risk of harm to human health, safety or security caused by the Tenant Contamination.
Landlord and Tenant shall jointly prepare a remediation plan in compliance with all Hazardous Materials Laws and the provisions of this Lease. In addition to all other rights and remedies of Landlord hereunder, if Tenant does not promptly and diligently take all steps to prepare and obtain all necessary approvals of a remediation plan for any Tenant's Contamination, and thereafter commence the required remediation of any Hazardous Materials released or discharged in connection with Tenant's Contamination within thirty (30) days after all necessary approvals and consents have been obtained, and thereafter continue to prosecute such remediation to completion in accordance with the approved remediation plan, then Landlord, at its sole discretion, shall have the right, but not the obligation, to cause such remediation to be accomplished, and Tenant shall reimburse Landlord within fifteen (15) business days of Landlord's demand for reimbursement of all amounts reasonably paid by Landlord (together with interest on such amounts at the highest lawful rate until paid), when such demand is accompanied by proof of payment by Landlord of the amounts demanded. Tenant shall promptly deliver to Landlord, copies of hazardous waste manifests reflecting the legal and proper disposal of all Hazardous Materials removed from the Premises as part of Tenant's remediation of any Tenant's Contamination.
12.2. Tenant, its contractors, assigns or subtenants shall be solely responsible for obtaining, at their cost and sole expense, any environmental permits required for Tenant's operations under the Lease, independent of any existing permits held by Landlord or Government. Tenant shall not conduct operations or activities under any environmental permit that names Landlord or Government as a secondary discharger or co-permittee. Tenant shall provide prior written notice to Landlord and Government of all environmental permits and permit applications required for any of Tenant's operations or activities. Tenant acknowledges that neither Landlord nor Government will consent to being named a secondary discharger or co-permittee for any operations or activities of Tenant, its contractors, assigns or subtenants. 2000000.3262 -11- 12/15105.V6
Exhibit 1
12 12.3. Tenant acknowledges that Government's rights under the LIFOC specifically include the right for Government officials to inspect, upon reasonable notice, the Premises for compliance with environmental, safety and occupational health laws and regulations, whether or not Government is responsible for enforcing them. Such inspections are without prejudice to the right of duly constituted enforcement officials to make such inspections. Landlord shall also have the right to inspect, upon reasonable notice, the Premises for compliance with environmental, safety, and occupational health laws and regulations, regardless of whether Government or Landlord is responsible for enforcing or complying with them. Government or Landlord normally will give Tenant twenty-four (24) hours' prior notice of its intention to enter the Premises unless it determines the entry is required for exigent circumstances related to health, safety, or security. Tenant shall have no claim against Landlord, Government, or any officer, agent, employee, contractor or subcontractor of Landlord or Government by reason of entrance of such Landlord or Government officer, agent, employee, contractor or subcontractor onto the Premises.
12.4. Tenant acknowledges that the Station has been identified as a National Priorities List (NPL) Site under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) of 1980, as amended, and acknowledges that Landlord has provided Tenant with a copy of the Installation Federal Facility Agreement (FFA) entered into by the United States Environmental Protection Agency (EPA) Region, the state equivalent, and the Military Department. Landlord will provide Tenant with a copy of any amendments thereto. Tenant agrees that should any conflict arise between the terms of such agreement as it presently exists or may be amended ("FFA," "Interagency Agreement" or "lAG") and the provisions of this Lease, the terms of the FFA or TAG will take precedence. Tenant further agrees that notwithstanding any other provision of this Lease, Government assumes no liability to Tenant or its assigns or subtenants should implementation of the FFA interfere with Tenant's use of Premises. Tenant shall have no claim on account of any such interference against Landlord or Government or any officer, agent, employee, contractor or subcontractor thereof, other than for abatement of Rent, where applicable.
12.5. Government, EPA (for NPL sites), and the State (for non-NPL sites), and their officers, agents, employees, contractors and subcontractors have the right, upon reasonable notice to Landlord and to Tenant, to enter upon Premises for the purposes enumerated in this subparagraph and for such other purposes consistent with any provisions of the cleanup program (including, but not limited to, the BRAC Cleanup Plan, IRP, FFA, or JAG):
12.5.1. to conduct investigations and surveys, including, where necessary, drilling, soil and water sampling, testpitting, testing soil borings and other activities related to the cleanup program;
12.5.2. to inspect field activities of Government and its contractors and subcontractors in implementing the cleanup program;
12.5.3. to conduct any test or survey required by EPA or applicable state equivalent relating to the implementation of the cleanup program;
12.5.4. to construct, operate, maintain or undertake any other response or remedial action as required or necessary under the cleanup program, including but not limited to monitoring wells, pumping wells and treatment facilities.
12.6. Tenant agrees to comply with the provisions of any health or safety plan in effect under the IRP or the FFA during the course of any of the above-described response or remedial actions. Any inspection, survey, investigation or other response or remedial action will, to the extent practicable, be coordinated with representatives designated by Landlord and Tenant. Neither Landlord nor Tenant shall have any claim on account of such entries against Government or any officer, agent, employee, contractor or subcontractor thereof. In addition, Tenant shall comply with all applicable Federal, state and local occupational safety and health regulations.
2000000.3262 -12- 12115105.V6
Exhibit 1
13 12.7. Tenant shall provide to Landlord, in the event of any assignment or further Lease of the Premises, in order that Landlord may provide to EPA, and applicable state equivalent, by certified mail a copy of the agreement or Lease of Premises (as the case may be) within fourteen (14) calendar days after the effective date of such transaction. Landlord and Tenant may delete the financial terms and any other proprietary information from the copy of any agreement of Lease furnished pursuant to this condition.
12.8. Tenant shall strictly comply with the hazardous waste permit requirements under the Resource Conservation and Recovery Act or its applicable state equivalent. Except as specifically authorized by Government in writing, Tenant must provide at its own expense such hazardous waste management facilities complying with all laws and regulations. Government hazardous waste management facilities will not be available to Tenant. Any violation of the requirements of this condition shall be deemed a material breach of this Lease.
12.9. DoD component accumulation points for hazardous and other waste will not be used by Tenant. Neither will Tenant permit its hazardous wastes to be commingled with hazardous waste of the DoD component.
1110. Tenant shall be solely responsible for any dredging and/or dredge disposal requirements associated with the berthing of vessels under this Lease, including any permits required for dredging. Tenant shall be responsible for verifying the water depth prior to moving vessels to any berthing or pier facilities.
Tenant shall periodically verify the depth of the water and consider the effects of siltation rates to insure that vessels can be safely berthed and removed from berthing space.
12.11. Tenant shall maintain copies of any permit applications made to any Federal, State or local regulatory agencies and shall provide copies to Landlord or Government on reasonable request. Tenant shall promptly notify Landlord and Government of any notices of violation or noncompliance received by Tenant from any such agency, concerning environmental matters or hazardous substances or hazardous waste on, about, or pertaining to the Premises.
12.12. Tenant shall not conduct or permit any subtenant, contractor, agent or employee to undertake any subsurface excavation, digging, drilling or other disturbance of the surface without the prior written approval of Landlord and Government, and compliance with the City of Alameda's Marsh Crust Ordinance, including a Marsh Crust Permit.
12.12.1. If Tenant intends to make any improvements or repairs that require the removal of asbestos, an appropriate asbestos disposal plan must be incorporated into the plans and specifications and submitted to Landlord and Government. The asbestos disposal plan will identify the proposed disposal site for the asbestos, or in the event the site has not been identified, will provide for disposal at a licensed facility authorized to receive it.
12.12.2. Asbestos containing materials ("ACM") which, since the commencement of the Lease, became damaged or deteriorated through the passage of time, as the result of a natural disaster or as a consequence of Tenant's activities under this Lease, including but not limited to any emergency, will be abated by Tenant at its sole cost and expense. In an emergency, Tenant will notify Landlord and Government as soon as practicable of its emergency ACM responses. Tenant shall be responsible for monitoring the condition of existing ACM on Premises for deterioration or damage and accomplishing repairs or abatement pursuant to the applicable conditions of this Lease.
12.12.3. Tenant is hereby advised that the buildings and other painted structures in the Premises are potentially painted with lead-based paints (LBP). Such buildings and structures shall not be suitable for occupancy for residential purposes until any inspections and abatement required by applicable law have been completed. Subject to Section 7 of this Lease, Tenant may, at its sole cost and expense, have a State Certified LBP Inspector complete a LBP inspection and abatement and provide an abated certification to 2000000.3262 -13- 12/15105.V6
Exhibit 1
14 Landlord and Government, at which time with written Landlord and Government approval, the specified premises can be used for residential purposes.
12.12.4. Subject to the provisions of Paragraphs 12.12.2 and 12.12.3, Tenant shall manage at its sole cost and expense any ACM and LBP, and comply with all applicable Federal, State and local laws.
12.13. Prior to the execution of this Lease, Tenant shall complete, execute and deliver to Landlord an Environmental Questionnaire Disclosure Statement (the "Environmental Questionnaire"), in the form of Exhibit F attached hereto. To the extent Tenant intends to store, use, treat or dispose of Hazardous Materials on the Premises, Tenant shall prepare and submit together with the Environmental Questionnaire a Hazardous Materials Handling Plan (the "Hazardous Materials Handling Plan"). For a period of fifteen (15) days following Landlord's receipt of the Environmental Questionnaire and Hazardous Materials Handling Plan, if applicable, Landlord and, to the extent required by Paragraph 12.14 or 10 U.S.C. Sec. 2692 the Government, shall have the right to approve or disapprove such documents. The failure of Landlord or Government to approve such documents shall be deemed Landlord's disapproval thereof. Landlord and Government's approval of the Environmental Questionnaire and the Hazardous Materials Handling Plan shall constitute approval for Tenant's use of the Hazardous Materials set forth therein in compliance with Hazardous Materials Laws and the Hazardous Materials Handling Plan. Following approval of the Hazardous Materials Handling Plan, Tenant shall comply therewith throughout the Term. To the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, such use shall be limited to the items set forth in the Environmental Questionnaire, shall comply with Hazardous Materials Laws and the Hazardous Materials Handling Plan and Tenant shall promptly provide Landlord with complete and legible copies of all the following environmental items relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for hazardous materials; orders, reports, notices, listing and correspondence of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of hazardous materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage or disposal of hazardous materials. If, in conjunction with Tenant's Permitted Use of the Premises, Tenant desires to commence the use, treatment, storage or disposal of previously undisclosed Hazardous Materials, prior to such usage thereof, Tenant shall notify Landlord thereof, by written summary detailing the scope of such proposed usage and updating the Hazardous Materials Handling Plan to the extent required by such proposed usage. For a period of fifteen (15) days following Landlord's receipt of such notice, Landlord and, to the extent required by Paragraph 12.14 or 10 U.S .C.
Sec. 2692 the Government, shall have the right to approve or disapprove of such documents. The failure of Landlord or the Government to approve of such documents within such time period shall be deemed Landlord's disapproval thereof.
12.14. Tenant shall at all times and in all respects comply with all Hazardous Materials Laws. All reporting obligations imposed by Hazardous Materials Laws are strictly the responsibility of Tenant. Tenant and Landlord have been informed that certain California judicial decisions have held that, notwithstanding the specific language of a lease, courts may impose the responsibility for complying with legal requirements and for performing improvements, maintenance and repairs on a landlord or tenant based on the courts assessment of the parties' intent in light of certain equitable factors. Tenant and Landlord have each been advised by their respective legal counsel about the provisions of this Lease allocating responsibility for compliance with laws and for performing improvements, maintenance and repairs between Tenant and Landlord. Tenant and Landlord expressly agree that the allocation of responsibility for compliance with laws and for performing improvements, maintenance and repairs set forth in this Lease represents Tenant's and Landlord's intent with respect to this issue.
12.15. In addition to any other provisions of this Lease, Tenant shall, and does hereby agree, to, indemnify and hold harmless Government and Landlord from any costs, expenses, liabilities, fines or penalties resulting from discharges, emissions, spills, storage or disposal arising from Tenant's occupancy, use or 2000000.3262 -14- 12/15/05.V6
Exhibit 1
15 operations, or any other action by Tenant or its contractors, employees, agents, assigns, invitees, or subtenants giving rise to liability, civil or criminal, or any other action by Tenant or its contractors, employees, agents, assigns, or subtenants giving rise to responsibility under Federal, state or local environmental laws. Tenant's obligations hereunder shall apply whenever Government or Landlord incurs costs or liabilities for Tenant's activities or for the activities of Tenant's contractors, employees, agents, assigns, invitees, or subtenants as provided hereunder. This provision shall survive the expiration or termination of this Lease.
12.16. Storage, treatment or disposal of toxic or hazardous materials on the Premises is prohibited excepted as authorized by Government in accordance with 10 U.S.C. § 2692.
12.17. The responsibility of Government to indemnify and hold harmless the Landlord and Tenant against toxic torts and other environmental claims shall be in accordance with Public Law 102-484, Section 330, as amended.
12.18. Tenant and Landlord are prohibited from interfering with any predator management or animal control activities.
13. TERMINATION.
13.1. Termination by Government of the LIFOC for Breach. The Government has the right to terminate the LIFOC on account of the breach by Tenant thereof of any of the terms and conditions of the LIFOC. In the event of a breach involving the performance of any obligation under the LIFOC, the LIFOC provides that Landlord, as the Tenant thereunder, shall be afforded thirty (30) days from the receipt of Government's notice of intent to terminate, to complete the performance of the obligation or otherwise cure the subject breach and avoid termination of the LIFOC. Landlord agrees to immediately, and in any event within 24 hours after Landlord's receipt, except when it arrives on a weekend or holiday, in which event it shall be delivered by the next business day, provide a copy of any such notice to Tenant. In the event that any such notice is delivered to Landlord as the Tenant under the LIFOC, for any such breach occasioned or caused by the action, negligence or inaction of Tenant, or any party acting on behalf of or through Tenant, for an obligation, covenant or undertaking of Tenant under this Lease, then Tenant shall complete the performance of the obligation or otherwise cure the subject breach and avoid termination of this Lease and the LIFOC. Tenant shall cure such breach within thirty (30) days from the date of receipt of Government's notice of intent to terminate by Landlord. If Tenant should fail to cure within the grace periods provided above, then Landlord shall have the option to terminate this Lease, without the necessity of providing further notice or rights of cure to Tenant.
13.2. In the event that Government shall elect to terminate the LIFOC on account of the breach by Tenant of any of the terms and conditions hereof or of the LIFOC to be performed by Tenant, Tenant shall indemnify Landlord against any claims Government may have against Landlord for any of the following under the LIFOC:
13.2.1. The costs incurred by Government in resuming possession of the Premises.
13.2.2. The costs incurred in performing by Government of any of Tenant's obligations under this Lease.
13.2.3. An amount equal to the aggregate of any maintenance obligations, and charges assumed hereunder and not therefore paid or satisfied, which amounts shall be due and payable at the time when such obligations, and charges would have accrued or become due and payable under this Lease.
13.3. Termination by Government for Other Than Breach. In addition to the right to terminate the LIFOC for breach, Government is entitled to terminate the LIFOC for its convenience under the following terms and conditions:
2000000.3262 -15- 12/15/05.V6
Exhibit 1
16 13.3. 1. Upon reasonable determination that the interim uses of Tenant under the LIFOC or the interim uses of Tenant under this Lease for the remaining duration of the Lease term are incompatible with Government's final disposal decision as embodied in the ROD, with respect to the required subsequent uses of the Premises, which subsequent uses must be effected during the balance remaining on the term of this Lease, and a finding is made that the continued use and occupation of the Premises through the end of the remaining Term cannot be permitted because of such irreconcilable incompatibility, unless the parties to this Lease make such modifications to this Lease as are reasonably required to make the uses compatible for the period of time remaining on the Lease term.
13.3.2. In the event of a National Emergency as declared by the President or the Congress of the United States and Government makes a reasonable determination that such National Emergency requires the use by the United States of America of the Premises, or such National Emergency otherwise necessitates the use of the Station and such use will materially interfere with Tenant's use under the LIFOC or any tenant's use of the Premises.
13.3.3. In the event of a termination for Government's convenience as set forth in the LIFOC, Landlord, as Tenant under the LIFOC, is to be provided with no less than thirty (30) days written notice of such termination and shall immediately provide Tenant with a copy of any notification it receives from Government relative to such termination. Landlord shall meet and confer with Tenant and Government to determine what is a reasonable time for Tenant to vacate the Premises, considering the factors of the nature of the exiting uses of Tenant, the consequences which would be affected if such termination is required and the losses and penalties which would be engendered if such termination is required. Landlord shall provide Tenant with as long and reasonable time as are under the facts and circumstances acceptable to Government relative to such termination. In the event of such termination, Tenant and Landlord, as Tenant under the LIFOC, shall have only such remedies as are otherwise available under the law with respect to compensation from Government for such termination. Tenant shall not seek and shall not have any claim against Landlord for any such termination for convenience by Government.
13.4 Termination by Landlord. In addition to any conditions contained herein which give Landlord the right to terminate this Lease, Landlord shall be entitled to terminate this lease if Tenant does not provide Landlord with a Business Plan described in Section 3 contained herein above, by September 15, 2009, at which time Tenant shall be required to remove the Aircraft Carrier Hornet from the Premises, as well as the Land and Parking, as described in Section 1 contained herein above.
14. VACATION OF PREMISES. In the event environmental contamination is discovered on the Premises which creates, in Government's determination, an imminent and substantial endangerment to human health or the environment which necessitates evacuation of Premises, then notwithstanding any other termination rights and procedures contained in this Lease, Government may require Landlord to require that Tenant vacate the Premises immediately upon notice from Government of the existence of such a condition.
The Government shall not be liable for the exercise of authority, which is in conformity with this subsection, except as detailed in Section 15 of the LIFOC. Government's exercise of this right herein to order the Premises immediately vacated does not alone constitute a termination of the LIFOC, but such right may be exercised in conjunction with any other termination rights provided for in the LIFOC or by law.
15. INDEMNIFICATION BY TENANT.
15.1. Indemnification By Tenant of Landlord and Government Tenant shall indemnify, defend and save Landlord and Government harmless and shall pay all costs, expenses and reasonable attorneys' fees for all trial and appellate levels and post judgment proceedings in connection with any fines, suits, actions, damages, liability, causes of action of every nature whatsoever arising or growing out of, or in any manner connected with, the occupation or use of the Premises by Tenant and Tenant's employees, agents, servants, guests, invitees, contractors or sublessees. These include, but are not limited to, any fines, claims, demands and causes of action of every nature whatsoever which may be made upon, sustained, or incurred by Landlord 2000000.3262 -16- 12/15!05.V6
Exhibit 1
17 and/or Government by reason of any breach, violation, omission or non-performance of any term, covenant or condition hereof on the part of Tenant or Tenant's employees, agents, servants, guests, invitees and sublessees.
However, this indemnity shall not extend to damages due to the sole fault or negligence of Government or Landlord or their contractors. This covenant shall survive the termination of this Lease.
15.2. Waiver. Landlord shall not be liable to Tenant and Tenant hereby waives all claims against Landlord or its affiliates for any injury or damage to any person or property occurring or incurred in connection with or in any way relating to the Premises, the Building or the Station from any cause. Without limiting the foregoing, neither Landlord nor any of its affiliates shall be liable for and there shall be no abatement of rent for (i) any damage to Tenant's property stored with or entrusted to affiliates of Landlord, (ii) loss of or damage to any property by theft or any other wrongful or illegal act, or (iii) any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water or rain which may leak from any part of the Premises or Station or from the pipes, appliances, appurtenances or plumbing works therein or from the roof, street or subsurface or from any other place or resulting from dampness or any other cause whatsoever or from the acts or omissions of other tenants, occupants or other visitors to the Premises or Station or from any other cause whatsoever, (iv) any diminution or shutting off of light, air or view by any structure which may be erected on lands adjacent to the Premises, or (v) any latent or other defect in the Premises or the Station. Tenant agrees that in no case shall Landlord ever be responsible or liable on any theory for any injury to Tenant's business, loss of profits, loss of income or any other form of consequential damage. Tenant shall give prompt notice to Landlord in the event of (a) the occurrence of a fire or accident in the Premises or in the Station, or (b) the discovery of any defect therein or in the fixtures or equipment thereof.
16. INSURANCE.
16.1. Tenant's Insurance. Tenant shall procure and maintain for the duration of the Lease, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the Tenant's operation and use of the leased premises. The cost of such insurance shall be borne by the Tenant. Tenant shall maintain the following types of insurance with limits no less than the following as set forth below.
16.1.1. Commercial General Liability Coverage:
$3,000,000 per occurrence for bodily injury, personal injury and property damage. The policy shall be endorsed to provide Fire Legal Liability or Damage to Rented Premises coverage, as well as for Products and Completed Operations;
16.1.2. Automobile Liability Coverage:
Coverage for owned, hired, leased and rented vehicles, with limits of not less than $1,000,000.00 for combined bodily injury and property damage, on a per occurrence basis;
16.1.3. Property Insurance Coverage:
Coverage against all risks of loss (excluding flood and earthquake). Coverage shall include full replacement cost of the rented Premises with no coinsurance penalties, and coverage shall extend to include any tenant improvements or betterments. The Alameda Reuse and Redevelopment Authority shall be listed on all settlement checks as the Loss Payee;
16.1.4. Workers Compensation Coverage:
As required by law, with Employer's Liability coverage with limits of not less than $1,000,000. 2000000.3262 -17- 12115/05.V6
Exhibit 1
18 16.2. Subrogation Waiver. Tenant agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Tenant shall look solely to its insurance for recovery. Tenant hereby grants to the ARRA, on behalf of any insurer providing insurance to either Tenant or ARRA with respect to the services of Tenant herein, a waiver of any right to subrogation which any such insurer of said Tenant may acquire against ARRA by virtue of the payment of any loss under such insurance. Tenant's insurance carriers shall provide endorsements to the insurance policies accordingly.
16.3. Additional Insured. The Alameda Reuse and Redevelopment Authority, the City of Alameda, Alameda Power and Telecom, City of Alameda Housing Authority, Community Improvement Commission, the City Council, its Boards, Commissions, Officers, Employees, Agents and Volunteers, PM Realty Group, the United States Navy and any other party designated by Landlord (as determined in Landlord's sole discretion), and at Landlord's request any mortgagee of Landlord, shall be named as an additional insured under all insurance coverage's, except on worker's compensation and professional liability insurance policies.
The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy.
16.4. Notice of Cancellation. Tenant's insurance polices shall be endorsed to require the insurer to provide the Alameda Reuse and Redevelopment Authority with at least thirty days' written Notice of Cancellation.
16.5. Sufficiency of Insurance. The insurance limits required by the Alameda Reuse and Redevelopment Authority are not represented as being sufficient to protect Tenant. Tenant is advised to consult Tenant's insurance broker to determine adequate coverage for Tenant. Tenant's insurance policies shall be endorsed stipulating that Tenant's insurance is primary, and that the Alameda Reuse and Redevelopment Authority's self-insurance program and excess insurance policies shall not be called upon to contribute to a loss that should otherwise be paid by the Tenant's insurer.
16.6. Self-Insurance and Deductibles. Tenant's self-insurance programs and insurance deductibles or self-insurance retention's are subject to the approval of the Alameda Reuse and Redevelopment Authority's Risk Manager.
16.7. Insurer Acceptability. Tenant's insurers must be domiciled in the United States of America.
They must meet a minimum A.M. Best & Co. rating of A:VII and a Standard and Poors Rating (if rated) of at least BBB. In the event that a proposed insurance company is not rated by A.M. Best & Co. or Standard and Poors, said insurance carrier must be domiciled in the State of California and approved by the Alameda Reuse and Redevelopment Authority's Risk Manager.
17. DESTRUCTION OF BUILDINGS
17.1 Partial Destruction. In the event of a partial destruction of the building containing the Premises during the Term of this Lease from any cause, Landlord may elect to (in its sole discretion) repair the same, provided such repair can reasonably be made within one hundred eighty (180) days from the happening of such destruction under applicable laws and regulations. During such period, Tenant shall be entitled to a proportionate reduction of Rent to the extent such repairs unreasonably interfere with the business carried on by Tenant in the Premises. If Tenant fails to remove its goods, wares or equipment within a reasonable time and as a result the repair or restoration is delayed, or if such damage or destruction is caused primarily by the negligence or willful act of Tenant, or its employees, invitees or agents, there shall be no reduction in rent during such delay. In the event that (i) Landlord elects not to make such repair, or (ii) such repair cannot reasonably be made within one hundred eighty (180 days from the happening of such destruction under applicable laws and regulations, Landlord shall have the right to terminate this Lease by notifying Tenant in writing.
2000000.3262 -18- 12115105.V6
Exhibit 1
19 17.2 Total Destruction. A total destruction of the building containing the Premises shall terminate this Lease. A total destruction of such building means the cost of repairing such building exceeds seventy-five percent (75.00%) of the replacement cost of such building.
18. LABOR PROVISIONS.
18.1. Equal Opportunity. During the Term of this Lease, and with respect only to employment or employees at the Premises, Tenant agrees as follows:
18.1.1. Tenant will not discriminate against any employee of Tenant or applicant for employment because of race, color, religion, sex, or national origin. The employees of Tenant shall be treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising, layoff or termination, rate of pay or other forms of compensation, selection for training, including apprenticeship. Tenant agrees to post in conspicuous places, notices to be provided by the applicable government agencies, setting forth the provisions of this nondiscrimination provision.
18.1.2. Tenant will, in all solicitations or advertisements for employees placed by or on behalf of Tenant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin.
18.1.3. Tenant will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding a notice to be provided by Government, advising the labor union or worker's representative of Tenant's commitments under this Equal Opportunity Clause and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
18.1.4. Tenant will comply with all provisions of Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, and of the rules, regulations, and relevant orders of the Secretary of Labor of the United States of America.
18.1.5. Tenant will furnish all information and reports required by Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, and by the rules, regulations, and orders of the Secretary of Labor or pursuant thereto, and will permit access to its books, records, and accounts by Government and the Secretary of Labor for purposes of investigating to ascertain compliance with such rules, regulations, and orders.
18.1.6. In the event of Tenant's noncompliance with the Equal Opportunity Clause of this Lease or with any said rules, regulations, or orders, this Lease may be canceled, terminated or suspended in whole or in part and Tenant may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
18.1.7. Tenant will include the above provisions in every Lease or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, so that such provisions will be binding upon each sublessee or vendor. Tenant will take such action with respect to any sublessee or purchase order as Government may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, that in the event Tenant becomes involved in, or is threatened with, litigation with the sublessee or vendor as a result of such direction by Government, Tenant may request the United States to enter into such litigation to protect the interests of the United States. 2000000.3262 -19- 12/15/05.V6
Exhibit 1
20 18.2. Convict Labor. In connection with the performance of work required by this Lease, Tenant agrees not to employ any person undergoing a sentence of imprisonment at hard labor.
19. SUBMISSION OF NOTICES. All notices, demands, requests, consents, or approvals which may or are required to be given by either party to the other shall be in writing and shall be deemed given when sent by United States Certified or Registered Mail, postage prepaid, or by reputable overnight delivery service or personal delivery as follows:
19.1. If for Tenant, addressed to Tenant at the Building, or at such other place as Tenant may from time to time designate by notice to Landlord.
19.2. If for Landlord, addressed to Landlord at:
Executive Director
Alameda Reuse and Redevelopment Authority
Alameda City Hall
2263 Santa Clara Avenue
Alameda, CA 94501-4566
Telephone: (510) 748-4505
Facsimile: (510) 748-4504
With a copy to:
Commanding Officer
Southwest Division
Engineering Field Division
Naval Facilities Engineering Command
1220 Pacific Highway
San Diego, CA 92132-5189
Facsimile: (619) 532-3830
19.3. If to Tenant, addressed to Tenant at:
Aircraft Carrier Hornet Foundation
P0 Box 460
Alameda, CA 94501
Attention: Chief Operating Officer
Telephone: (510) 521-8448
Facsimile: (510) 521-8327
19.4. Notwithstanding the addresses provided in subsections 19.1 through 19.3 of this section, any party may from time to time designate an alternate and/or additional address by notice.
20. AUDIT. This Lease shall be subject to audit by Landlord and by any and all cognizant Government agencies. The Tenant shall make available to such agencies for use in connection with such audits all records, which it maintains with respect to this Lease and copies of all reports required to be filed hereunder. The Tenant will make these materials available for a period of three years after termination or expiration of this Lease.
21. AGREEMENT. This Lease agreement shall not be modified unless in writing and signed by both parties. No oral statements or representation made by, for, or on behalf of either party shall be a part of this 2000000.3262 -20- 12/15/05.V6
Exhibit 1
21 Lease. Should a conflict arise between the provisions of this Lease and any exhibit hereto, or any other agreement between Landlord and Tenant, the provisions of this Lease shall take precedence.
22. FAILURE TO INSIST ON COMPLIANCE. The failure of Landlord to insist, in any one or more instances, upon performance of any of the terms, covenants, or conditions of this Lease shall not be construed as a waiver or relinquishment of Landlord's right to the future performance of any such terms, covenants, or conditions and Tenant's right to the future performance of any such terms, covenants, or conditions and Tenant's obligations in respect of such future performance shall continue in full force and effect.
23. DISPUTE RESOLUTION. Any disputes arising under this Lease that involve or relate to Government or Government's interpretation of the LIFOC that are subject to resolution under the Contracts Disputes Act, 431 U.S.C. section 601 et seq. pursuant to the provisions of section 23 of the LIFOC shall be resolved under that Act. All other disputes that may arise under this Lease shall be resolved in accordance with the provisions of the laws of the State of California.
24. COVENANT AGAINST CONTINGENT FEES. Tenant warrants that no person or agency has been employed or retained to solicit or secure this Lease upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial agencies maintained by Tenant for the purpose of securing business. For breach or violation of this warranty, Landlord shall have the right to annul this Lease without liability or in its discretion to require Tenant to pay, in addition to the rental or consideration, the full amount of such commission, percentage, brokerage, or contingent fee.
25. OFFICIALS NOT TO BENEFIT. No member of or delegate to Congress, or Resident Commissioner, shall be admitted to any share or part of this Lease or to any benefit to arise therefrom, but this proviso shall not be construed to extend to this Lease if made with a corporation for its general benefit.
26. LIENS. The Tenant shall promptly discharge or cause to be discharged any valid lien, right in claim, or demand of any kind on the Premises, except one in favor of Government, or Landlord, which at any time may arise or exist with respect to the Premises or materials or equipment furnished therefor, or any part thereof, and if the same shall not be promptly discharged by Tenant, or should Tenant be declared bankrupt or make an assignment on behalf of creditors, or should the leasehold estate be taken by execution, Landlord reserves the right to take immediate possession without any liability to Tenant or any subtenant thereof. If Tenant breaches the foregoing, Tenant and any subtenant thereof shall be responsible for any costs incurred by Government in securing clear title to its property.
27. TAXES. Tenant shall pay all Taxes (as hereinafter defined) levied or imposed against the Premises during the Term. Taxes shall mean all taxes, assessments and governmental charges, whether federal, state, county or municipal, and whether general or special, ordinary or extraordinary, foreseen or unforeseen, imposed upon the Rent, the Premises, the Building, any possessory interest therein, or their operation, whether or not directly paid by Landlord. Taxes shall not include income taxes, excess profit taxes, franchise taxes, or other taxes imposed or measured on or by the income of Landlord from the operation of the Premises; provided, however, that if, due to a future change in the method of taxation or assessment, any income, profit, franchise or other tax, however designated, shall be imposed in substitution, in whole or in part, for (or in lieu of) any tax, assessment or charge which would otherwise be included within the definition of Taxes, such other tax shall be deemed to be included within Taxes as defined herein to the extent of such substitution. There shall be added to Taxes the expenses of any contests (administrative or otherwise) of Taxes incurred during the taxing year, but only to the extent such contests result in a reduction of Taxes for such year or any other year during the Term. Tenant shall pay to the appropriate governmental authority any use, possessory interest, and/or occupancy tax applicable to the Premises. In the event that Landlord is required by law to collect such tax, Tenant shall pay such use and occupancy tax to Landlord as Additional Rent within ten days of demand and Landlord shall remit any amounts so paid to Landlord to the appropriate governmental authority. 2000000.3262 -21- 12/15/05.v6
Exhibit 1
22 27.1. The interest created by this Lease may at some time be subject to property taxation under the laws of the State of California. If property taxes are imposed, the party in whom the possessory interest is vested may be subject to the payment of the taxes levied on such interest. This notice is included in this Lease pursuant to the requirements of section 107.6 (a) of the Revenue and Taxation Code of the State of California.
27.2. Tenant shall pay the Taxes directly imposed upon it in accordance with the instructions of the taxing entity. Tenant shall pay the Taxes originally imposed upon Landlord, upon Landlord's election, either (i) annually within thirty (30) days after the date Landlord provides Tenant with a statement setting forth in reasonable detail such Taxes (which statement shall not be provided to Tenant more than sixty (60) days before such Taxes are due), or (ii) monthly in advance based on estimates provided by Landlord based upon the previous year's tax bill.
27.3. All Taxes originally imposed upon Landlord and payable by Tenant with respect to the Premises shall be prorated on a per diem basis for any partial tax year included in the Term. Tenant's obligation to pay Taxes during the last year of the Term shall survive the termination of this Lease.
28. ADMINISTRATION. Except as may be otherwise provided in the LIFOC or this Lease, Government shall, under the direction of the Command described in addendum (a) to the LIFOC, have complete charge of the administration of the LIFOC and any interests Government has under this Lease, and shall exercise full supervision and general direction thereof insofar as the interests of Government are affected.
29. SURRENDER. Upon the expiration of this Lease or its prior termination by Tenant, Tenant shall quietly and peacefully remove itself and its property from the Premises and surrender the possession thereof to Landlord. The Landlord or Government may, in its discretion, declare any property which has not been removed from the Premises upon termination provided for above, as abandoned property upon an additional thirty (30) calendar days' notice.
30. QUIET POSSESSION. Upon Tenant paying the Rent reserved hereunder and observing and performing all of the covenants, conditions and provisions on Tenant's part to be observed and performed hereunder, Tenant shall have quiet possession of the Premises for the entire Term hereof, subject to all the provisions of this Lease.
31. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves the following rights:
31.1. To hold copies of all keys and passkeys to the Premises, other than to vaults, safes, or restricted areas within the Premises.
31.2. On reasonable prior written notice to Tenant, no less than 48 hours in advance, to show the Premises to prospective tenants during the last nine months of the Term, and to any prospective purchaser, mortgagee, or assignee of any mortgage or ground lease on the Premises and to others having a legitimate interest in the Premises at any time during the Term.
31.3. At any time in the event of an emergency, and otherwise at reasonable times, to take any and all measures, including making any inspections, repairs, alterations, additions, and improvements to the Premises, as may be necessary or desirable for the safety, protection, or preservation of the Premises, or Landlord's interests, or as may be necessary or desirable in the operation or improvement of the Premises, or in order to comply with all laws, orders, and requirements of governmental or other authorities, using reasonable efforts not to interfere with the use and occupancy of the Premises by Tenant. Landlord shall not be in default hereunder nor have any liability to Tenant, nor shall Tenant have any right to terminate this Lease or claim an offset against or reduction in Rent payable hereunder, due to any damage, annoyance or inconvenience resulting from any such inspections, repairs, alterations, additions or improvements, or the failure of Landlord to make any such inspections, repairs, alterations, additions or improvements; provided however that Landlord shall be liable for its gross negligence or willful misconduct. Tenant shall reasonably cooperate with Landlord 2000000.3262 -22- 12/15/05.V6
Exhibit 1
23 or Landlord's agents or contractors in carrying out any such inspections, repairs, alterations, additions or improvements.
32. COVENANTS OF TENANT
32.1. Use of the Premises. Tenant shall not make or permit to be made any use of the Premises or any part thereof (i) which would directly or indirectly violate any federal, state or local law, ordinance, rule or governmental regulation; (ii) which would invalidate or unreasonably increase the premium cost of any policy of insurance carried on the Premises or covering its operation (unless such increase is paid for by Tenant); or (iii) which will suffer or permit the Premises or any part thereof to be used in any manner or permit anything to be brought into or kept therein which, in the reasonable judgment of Landlord, shall unreasonably impair or interfere with any of the services required to be performed by Landlord, if any, for the Premises.
32.2. Locks. Tenant shall not change any existing locks, or attach any additional locks or similar devices to any door or window, change any locks, without providing to Landlord one set of keys therefore. All keys must be returned to Landlord at the expiration or termination of this Lease.
32.3. Overloading. Tenant shall not overload any floor.
32.4. Machinery. Tenant shall not install or operate any machinery, refrigerating or heating device or air-conditioning apparatus in or about the Premises which would impose unreasonable substantial additional loads on the facilities of the buildings.
32.5. No Obstruction. The exits, entrances, elevators and stairways of the Buildings shall not be obstructed by Tenant or used for any purpose other than for ingress to and egress from the Premises. Tenant and its employees or invitees shall not go upon the roof of the Building without Landlord's prior consent.
32.6. No Animals. Tenant shall not permit any animals, except those required to be allowed by law, such as guide dogs, to be brought in or kept in or about the Premises without Landlord's prior written consent.
32.7. Applicable Rules and Regulations. Tenant shall comply with all Federal, State and local laws, regulations and standards that are applicable or may become applicable to Tenant's activities on the Premises, including those rules and regulations promulgated by Landlord pursuant to Section 35 of this Lease.
These include, but are not limited to, laws and regulations on the environment, construction of facilities, health, safety, food service, water supply, sanitation, use of pesticides, and licenses or permits to do business (e.g., wetlands [EO I 1990] and floodplains [EQ 11988], Section 106 consultation under the National Historic Preservation Act and air quality conformity determinations under the Clean Air Act). Tenant is responsible for obtaining and paying for permits required for its operations under the Lease.
32.8. Outside Storage Prohibited. Outside storage or activities are not permitted unless expressly authorized in writing by Landlord. Any outside storage authorized by Landlord shall be properly screened.
33. DEFAULT. It shall constitute an event of default ("Event of Default") under this Lease if any of the events describes in the following subsections occurs.
33.1. Tenant fails to pay when due Base Rent, Additional Rent, or other amounts due hereunder and such failure continues for a period of five (5) days after the due date.
33.2. Tenant assigns or sublets, or purports to assign or sublet the Premises or any part thereof other than in the manner and upon the conditions set forth herein.
33.3. Tenant fails to perform or observe any of its other obligations, covenants, or agreements hereunder within ten (10) working days after written notice of any such failure has been given by or on behalf 2000000.3262 -23- 12/15/05.V6
Exhibit 1
24 of Landlord, or, if more than ten (10) working days is required to cure such failure, within said ten (10) working days, Tenant shall advise Landlord in writing of Tenant's intended course of action to cure and the estimated date as to when said action will be completed, and if Tenant fails to commence such cure as promptly as practical as stated in its notice to Landlord and thereafter diligently to pursue such cure and thereafter fails to diligently pursue such a cure and complete such cure within a reasonable time thereafter, or within the period of time as may be otherwise required under the LIFOC.
33.4. Tenant liquidates its business, becomes insolvent, makes an assignment for the benefit of creditors, files or has filed against it a petition of bankruptcy, bill in equity, or other proceedings for the appointment of a receiver or other custodian for its property, or if proceedings for reorganization or composition with creditors under any law are instituted by or against Tenant or if any levy or sale or execution of any kind is made upon or of any property of Tenant in the Premises.
33.5. Tenant abandons or vacates the Premises or Tenant removes or attempts to remove or manifests an intention to remove Tenant's goods or property from or out of the Premises otherwise than in the ordinary and usual course of business.
33.6. Tenant fails to vacate the Premises at the end of the Term of this Lease unless this Lease is otherwise renewed or extended.
34. LANDLORD'S REMEDIES
34.1. If an Event of Default hereunder shall have occurred, Landlord may, at its option, exercise any one or more of the following remedies:
34.1.1. Terminate Tenant's right to possession of the Premises by written notice by any lawful means, in which case this Lease shall terminate and Tenant shall immediately surrender possession of the Premises to Landlord. In such event, Landlord shall be entitled to recover from Tenant:
(1) the worth at the time of the award of any unpaid rent which had been earned at the time of such termination; plus
(2) the worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus (3) the worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(4) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom (including, without limitation, the cost of recovering possession of the Premises, expenses of reletting including necessary renovation and alteration of the Premises, reasonable attorneys' fees, and real estate commissions actually paid and that portion of the leasing commis- sion paid by Landlord and applicable to the unexpired portion of this Lease); plus (5) such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable California law.
As used in Subsections (1) and (2) above, the "worth at the time of the award" shall be computed by allowing interest at the lesser of ten percent (10%) per annum, or the maximum rate permitted by law per annum. As used in Subsection (3) above, the "worth at the time of award" shall be computed by 2000000.3262 -24- 12/15/05.V6
Exhibit 1
25 discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%).
34.1.2. Continue this Lease in full force and effect, and the Lease will continue in effect, as long as Landlord does not terminate Tenant's right to possession, and Landlord shall have the right to collect Rent when due. During the period Tenant is in default, Landlord may enter the Premises and relet them, or any part of them, to third parties for Tenant's account. Tenant shall be liable immediately to Landlord for all costs Landlord reasonably incurs in reletting the Premises, including, without limitation, brokers' commissions, expenses of remodeling the Premises required by the reletting, and like costs. Reletting can be for a period shorter or longer than the remaining term of this Lease. Tenant shall pay to Landlord the Rent due under this Lease on the dates the Rent is due, less the rent Landlord receives from any reletting. In no event shall Tenant be entitled to any excess rent received by Landlord. No act by Landlord allowed by this paragraph shall terminate this Lease unless Landlord notifies Tenant in writing that Landlord elects to terminate this Lease.
After Tenant's default and for as long as Landlord does not terminate Tenant's right to possession of the Premises, if Tenant obtains Landlord's consent, Tenant shall have the right to assign or sublet its interest in this Lease, but Tenant shall not be released from liability.
34.1.3. Cause a receiver to be appointed to collect Rent. Neither the filing of a petition for the appointment of a receiver nor the appointment itself shall constitute an election by Landlord to terminate the Lease.
34.1.4. Cure the default at Tenant's cost. If Landlord at any time, by reason of Tenant's default, reasonably pays any sum or does any act that requires the payment of any sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord at the time the sum is paid, and if paid at a later date shall bear interest at the lesser of ten percent (10.00%) per annum, or the maximum rate an individual is permitted by law to charge from the date the sum is paid by Landlord until Landlord is reimbursed by Tenant.
The sum, together with interest on it, shall be additional Rent.
34.2. The foregoing remedies are not exclusive; they are cumulative, in addition to any remedies now or later allowed by law, to any equitable remedies Landlord may have, and to any remedies Landlord may have under bankruptcy laws or laws affecting creditors' rights generally. The waiver by Landlord of any breach of any term, covenant or condition of this Lease shall not be deemed a waiver of such term, covenant or condition or of any subsequent breach of the same or any other term, covenant or condition. Acceptance of Rent by Landlord subsequent to any breach hereof shall not be deemed a waiver of any preceding breach other than a failure to pay the particular Rent so accepted, regardless of Landlord's knowledge of any breach at the time of such acceptance of Rent. Landlord shall not be deemed to have waived any term, covenant or condition unless Landlord gives Tenant written notice of such waiver.
34.3. No early expiration or termination of this Lease (except as expressly provided herein) and no repossession of the Premises or any part thereof shall relieve Tenant of its liabilities and obligations to pay Rent hereunder, all of which shall survive such expiration, termination or repossession, and Landlord may, at its option, sue for and collect all Rent and other charges due hereunder at any time as when such charges accrue.
34.4. In the event that Landlord commences suit for the repossession of the Premises, for the recovery of Rent or any other amount due under the provisions of this Lease, or because of the breach of any other covenant herein contained on the part of Tenant to be kept or performed, and a breach shall be established, Tenant shall pay to Landlord all expenses incurred in connection therewith, including reasonable attorneys' fees. In the event that Tenant commences suit because of the breach of any covenant herein contained on the part of Landlord to be kept or performed, and a breach shall be established, Landlord shall pay to Tenant all expenses incurred in connection therewith, including reasonable attorneys' fees. 2000000.3262 -25- 12115105.V6
Exhibit 1
26 35. SEVERABILITY. If any of the provisions of this Lease or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such provision or provisions to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and every provision of this Lease shall be valid and enforceable to the fullest extent permitted by law.
36. HOLDING OVER. Should Tenant hold over and remain in possession of the Premises after the expiration of this Lease, without the written consent of Landlord, such possession shall be as a month-to-month tenant. Unless Landlord agrees otherwise in writing, Base Rent during the hold-over period shall be payable in an amount equal to one hundred fifty percent (150.00%) of the Base Rent paid for the last month of the term hereof until Tenant vacates the Premises and the Security Deposit shall increase to an amount equal to the increased monthly Base Rent. All other terms and conditions of this Lease shall continue in full force and effect during such hold-over tenancy, which hold-over tenancy shall be terminable by either party delivering at least one (1) month's written notice, before the end of any monthly period. Such hold-over tenancy shall terminate effective as of the last day of the month following the month in which the termination notice is given.
37. RELOCATION. At any time after Tenant's execution of this Lease, Landlord shall have the right, upon providing Tenant ninety (90) days' written notice, ten (10) days if Tenant has not yet taken possession of the Premises, to provide Tenant with reasonably similar space elsewhere within the Station of approximately the same size as the Premises and to move Tenant to such space. In the event Landlord moves Tenant to such new space, then this Lease and each and all of the terms, covenants and conditions hereof shall remain in full force and effect and thereupon be deemed applicable to such new space except that a revised floor plan shall become part of this Lease and shall reflect the location of the new space. Tenant shall be solely responsible for the payment of all moving and relocation expenses of Tenant as are actually incurred in connection with such relocation. In the event that Landlord and Tenant have not reached agreement upon a satisfactory relocation space within sixty (60) days following Tenant's receipt of such notice, Landlord shall have the right to terminate this Lease by providing Tenant with sixty (60) days' notice.
38. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS
38.1. Estoppel Certificate. Tenant shall, at any time and from time to time, upon not less than ten (10) days' prior request by Landlord, execute, acknowledge and deliver to Landlord, or to such other persons who may be designated in such request, a statement in writing certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications) and, if so, the dates to which the rent and any other charges have been paid in advance, and such other items requested by Landlord, including without limitation, the lease commencement date and expiration date, rent amounts, and that no offsets or counterclaims are present. It is intended that any such statement delivered pursuant to this Paragraph may be relied upon by any prospective purchaser or encumbrancer (including assignee) of the Premises.
38.2. Financial Statements. Upon the request of Landlord, Tenant shall deliver to Landlord such financial information regarding Tenant, as may reasonably be required to establish Tenants' creditworthiness.
All financial information provided by Tenant to Landlord shall be held in confidence and may not be used or disclosed by the recipient except for the purpose of determining Tenants' creditworthiness in connection with Tenants' obligations under this Lease.
39. SHORT FORM OF LEASE. Tenant agrees to execute, deliver and acknowledge, at the request of Landlord, a short form of this Lease satisfactory to counsel for Landlord, and Landlord may in its sole discretion record this Lease or such short form in the County where the Premises are located. Tenant shall not record this Lease, or a short form of this Lease, without Landlord's prior written consent. 2000000.3262 -26- 12/15/05.V6
Exhibit 1
27 40. SIGNS. Tenant shall not place any sign upon the Premises without Landlord's prior written consent (all such signage shall comply with Landlord's signage design criteria, as such exists from time to time). In addition, the style, size, materials and attachment method of any such signage shall be subject to Landlord's prior written consent. The installation of any sign on the Premises by or for Tenant shall be subject to the provisions of this Lease. Tenant shall maintain any such signs installed on the Premises. Unless otherwise expressly agreed herein, Landlord reserves the right to install, and all revenues from the installation of, such advertising signs on the Premises, including the roof, as do not unreasonably interfere with the conduct of Tenant's business.
41. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with the nondiscriminatory rules and regulations that Landlord shall from time to time promulgate. Landlord reserves the right from time to time to make all nondiscriminatory modifications to said rules. The additions and modifications to those rules shall be binding upon Tenant upon delivery of a copy to them to Tenant (a copy of the present Rules and Regulations is attached hereto as Exhibit H). Landlord shall use its reasonable efforts to enforce compliance with such rules, but shall not be responsible to Tenant for the nonperformance of any of said rules by other tenants or occupants.
42. LIMITATION ON LIABILITY. In consideration of the benefits accruing hereunder, Tenant and all successors and assigns covenant and agree that, in the event of any actual or alleged failure, breach or default hereunder by Landlord: (1) Tenant's sole and exclusive recourse shall be against Landlord's interest in the Premises and Tenant shall not have any right to satisfy any judgment which it may have against Landlord from any other assets of Landlord; (2) no member, partner, stockholder, director, officer, employee, beneficiary or trustee (collectively, "Partner") of Landlord shall be sued or named as a party in any suit or action (except as may be necessary to secure jurisdiction over Landlord); (3) no service of process shall be made against any Partner of Landlord (except as may be necessary to secure jurisdiction over Landlord); (4) no Partner of Landlord shall be required to answer or otherwise plead to any service of process; (5) no judgment will be taken against any Partner of Landlord; (6) any judgment taken against any Partner of Landlord may be vacated and set aside at any time nunc pro tunc; (7) no writ of execution will ever be levied against the assets of any Partner of Landlord; and (8) these covenants and agreements are enforceable both by Landlord and also by any Partner of Landlord.
43. ATTORNEYS' FEES. If Tenant or Landlord shall be in breach or default under this Lease, such party (the "Defaulting Party") shall reimburse the other party (the "Non-Defaulting Party") upon demand for any costs or expenses that the Non-Defaulting Party incurs in connection with any breach or default of the Defaulting Party under this Lease, whether or not suit is commenced or judgment entered. Such costs shall include legal fees and costs incurred for the negotiation of a settlement, enforcement of rights or otherwise.
Furthermore, if any action for breach of or to enforce the provisions of this Lease is commenced, the court in such action shall award to the party in whose favor a judgment is entered, a reasonable sum as attorneys' fees and costs. The losing party in such action shall pay such attorneys' fees and costs. Tenant shall also indemnify Landlord against and hold Landlord harmless from all costs, expenses, demands and liability Landlord may incur if Landlord becomes or is made a party to any claim or action (a) instituted by Tenant against any third party, or by any third party against Tenant, or by or against any person holding any interest under or using the Station by license of or agreement with Tenant; (b) for foreclosure of any lien for labor or material furnished to or for Tenant or such other person; (c) otherwise arising out of or resulting from any act or transaction of Tenant or such other person; or (d) necessary to protect Landlord's interest under this Lease in a bankruptcy proceeding, or other proceeding under Title 11 of the United States Code, as amended. Tenant shall defend Landlord against any such claim or action at Tenant's expense with counsel reasonably acceptable to Landlord, or at Landlord's election, Tenant shall reimburse Landlord for any legal fees or costs Landlord incurs in any such claim or action.
44. COUNTERPARTS. This Lease may be executed simultaneously in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Each party may execute a facsimile counterpart signature page to be followed by an original counterpart. Each 2000000.3262 -27- 12115/05.V6
Exhibit 1
28 such facsimile counterpart signature page shall constitute a valid and binding obligation of the party signing such facsimile counterpart.
45. EXECUTION. Submission of this instrument for examination or signature by Tenant does not constitute a reservation of or an option for lease, and it is not effective as a lease or otherwise until execution and delivery by both Landlord and Tenant.
46. DEVELOPMENT OF STATION. Tenant acknowledges that, without any form of representation or warranty, Landlord (or its successor) my cause certain redevelopment activities to occur at the Station which may or may not include areas in or about the Premises. As a material inducement for Landlord to enter into this Lease, Tenant agrees not to take any actions, oral or in writing, in opposition to such activities (or the planning thereof) by Landlord (or its successor).
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and sealed this Lease as of the day and year first above written.
ALAMEDA REUSE AND REDEVELOPMENT
AUTHORITY, AN AGENCY OF THE CITY OF
ALAMEDA, a political subdivision of the State of
California
am Gallant
ye Director
APPROVAL:
Leslie Little
Development Services Director
Approved as to form:
Donna Mooney,
Senior Assistant ARRA Counsel
TENANT
Title:
2000000.3262 -28- 12/15/05.V6
Exhibit 1
29 EXHIBITS
Exhibit A- I - Premises
Exhibit A-2 - Land
Exhibit A-3 - Parking
Exhibit B - LIFOC
Exhibit C - Declaration of Lease Commencement
Exhibit D - Historic Preservation Agreement
Exhibit E - Environmental Questionnaire
Exhibit F - Rules and Regulations
2000000.3262 -29- 12115105.V6
Exhibit 1
30 W. HORNET AV E. ---" -
Exhibit 1
31 yr
E[] -- _.
Exhibit 1
32 W. HORNET AVE.'
Exhibit 1
33 THIS AMENDMENT N.O. 2 to the Lease in Furtherance of Conveyance is entered into this , day of , 2009 by and between THE UNITED STATES OF AMERICA acting by and through the Secretary of Navy (Government) and THE
ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY (LESSEE)
recognized as the local redevelopment authority by the Office of Economic Adjustment on behalf of the Secretary of Defense. Government and Authority may also be referred to collectively as the Parties. This Amendment No. 2 supersedes and replaces all changes made to the Lease through Amendment No. 1, executed on 28 November 2000.
RECITALS
WHEREAS, the Government is the owner of certain real and personal property commonly referred to as the former Naval Air Station Alameda (NAS Alameda) which was closed as a military installation and is subject to disposal pursuant to, and in accordance with, the Defense Base Closure and Realignment Act of 1991, as amended (Public Law no. 101-510); and
WHEREAS, prior to the conditions for a deed transfer being met, the Parties entered into a Lease in Furtherance of Conveyance granting the Authority immediate possession of portions of the NAS Alameda; and
WHEREAS, the Parties desire to amend Paragraphs 1, 17, and 19 of the Lease, all as set forth below.
NOW THEREFORE, in consideration of the forgoing premises and the respective representations, agreements, covenants and conditions herein set forth, and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:
Exhibit B
Exhibit 1
34 MIM
Delete Paragraph 1 .1 in its entirety and replace it with the following:
Government does hereby lease, rent, and demise to Lessee, and Lessee does hereby hire and rent from Government, those parcels of real property as identified on the Revised Exhibit "A", dated 2008-06-03, attached hereto and made a part of this lease, together with all personal property thereon, all of which remains as originally identified in Exhibit "F" to the EDC MOA, along with improvements thereon including elements of Government owned utility systems within the Premises and serving the Premises, all hereinafter called the "Leased Premises", and with the right of ingress and egress to said Leased Premises.
Delete Paragraph 1.3 in its entirety and replace it with the following:
The Government reserves the right to continued use of those portions of the Leased Premises identified as follows: (a) approximately 4,600 sf of space, on the second floor Northwest corner; within Building 114, including the adjacent restrooms and the associated courtyard for the non-exclusive use by Government. (ROICC) (b) the first floor of building 112, and approximately 6000 sf of fenced area on the North side of said building 112; (c) Building 338 C; Building 33813; Building 309; Building 400 the second and third floors; and Building 5.
Insert as new paragraph 1.4, the following:
The following buildings are scheduled for environmental investigation and each is currently occupied by a tenant pursuant to a sub-lease with Lessee with current sub-lease expiration dates as shown. For buildings 44, 66, and 113, the Lessee may extend each such sub-lease on a month to month basis with each to expire not later than May 31, 2009 with all premises to be vacant on that date. Upon May 31, 2009, for buildings 44, 66, and 113, and September 30, 2010 for building 163, or upon the earlier termination of any such sub-lease, each building shall then be reserved exclusively for use by the Government until the environmental investigation relating to that building is complete. At that time should the building be deemed safe for tenant occupancy and use, this Lease in Furtherance of Conveyance will be modified to place the building in the possession of Lessee, otherwise each such building shall remain reserved exclusively for Government use. These buildings, the current tenants and their current sub-lease expiration dates are as follows:
Building and Tenant Current Sub-Lease Expiration
Building 44 - Mariuz Lewando ski -dba- Woodmasters 12-31-08 Building 66 - Nelson's Marine, Inc. 02-28-09
Building 113 - HESCO 04-30-09
2 Exhibit 1
35 Building 163 - Sustainable Technologies 1 09-30-10 The use of all buildings reserved for Government use shall be provided to the Government without payment of rent for the term of this Lease. The Government will relinquish possession of the above identified space to Lessee at such time as Government no longer requires use of such space.
In addition, That area shown on Revised Exhibit "A", denominated as Seaplane Lagoon, including water, land and piers, shall be removed from the LIFOC and no longer available for Sub-Lease by the Lessee, subject however to a temporary "right of access" for boat launching and recovery hereby granted to Nelson Marine in connection with, and for the duration of, their current lease with Lessee said "Right of Access" shall consist of an area of water 100 feet wide as measured from the North edge of Pier # 1, as depicted on revised Exhibit "A" Nelson Marine shall be responsible for marking the designated area in a manner acceptable to the Government.
Paragraph 17 Insurance:
Delete Paragraph 17.4.1 in its entirety and replace it with the following:
Comprehensive commercial general liability insurance, in the amount of $2,000,000 per occurrence with respect to personal injury or death, and $1,000,000 per occurrence with respect to property damage.
Paragraph 19 Submission of Notices:
Delete Paragraph 1.9 in its entirety and replace it with the following:
Notices shall be sufficient under this Lease if made in writing and to the following addressees:
If to Authority Executive Director
Alameda Reuse and Redevelopment Authority
Alameda City Hall
2263 Santa Clara Avenue
Alameda, CA 94501-4456
(Facsimile: 510-748-4504)
with a copy to: General Counsel
Alameda Reuse and Redevelopment Authority
Alameda City Hall
2263 Santa Clara Avenue
Alameda, CA 94501-4456
(Facsimile: 510-748-4691)
and to: George R. Schlossberg, Esq.
Kutak Rock
3 Exhibit 1
36 1101 Connecticut Avenue, N. W.
10th Floor
Washington D.C.
(Facsimile: 202 828-2488)
If to Government: Director
Base Realignment and Closure
Program Management Office
1455 Frazee Road, Suite 900
San Diego, CA 92108-4310
(Facsimile: 619 532-0940)
Except as set forth herein, and unless specifically modified by this Amendment No.2, all terms and conditions contained in the Lease shall remain binding upon the Parties and their respective successors and assigns as set forth in the Lease.
IN WITNESS WHEREOF, the Parties hereto have duly executed this Amendment No.2 to the Lease in Furtherance of Conveyance as of the day and year first above written.
J t$iVDI ($Ji)
By
-'2 ~TERiESA IiI SMITH
City Attorney
11 Exhibit 1
37 0
- NAS Alameda Boundary
Properly Subject to LIFOC
Building 44 Buriduig I
Building Excluded from LIFOC /
Area Excluded from LIFOC
Leased Premises (Not reseed
Building
- for environmental activities)
Building 450
Building 400A flidUlldng 113 -
Building 66
Building 309 \
/
Building 113 Notes
Only ROICC 019cc space is excluded
LIFoc Lease in furtherance 01 conveyance
NAS Naval Air StationHI4 Building I 63A ROICC Resident Officer in Charge olConvlruction Pier 1
500 0 500 1,000
- Feel
Pier Z
Building 3338
SAN Building 335C- SulTLch FRANC/3C0
BAY
Alameda Point Alameda California
-. _O Omcnr or Inc ave BRAt PMO Lsan CaJdnrnl
-- REVISED EXHIBIT A TO THE LIFOC
H PROPERTY SUBJECT TO THE
-vcu'wArru uucc : LEASE IN FURTHERANCE
OF CONVEYANCE
axe-cane v avcoainonvsdi6 klovpinpnnyi,tnv as000 eta 01100 nicril-vI. aeon coo vain Exhibit 1
38 1 KUTAK ROCK LLP
2 EXECUTION VERSION 11/22/22
3 6
7 8
9 10 AMENDMENT NO. 1
11 TO THE
12 LEASE
13 IN FURTHERANCE OF CONVEYANCE
14 BETWEEN
15 THE UNITED STATES OF AMERICA
16 AND
17 THE ALAMEDA REUSE AND REDEVELOPMENT
18 AUTHORITY
19 FOR
20 THE FORMER NAVAL AIR STATION ALAMEDA
21 22
23 24
25 26
27 28
29 30 USE AND DISCLOSURE OF DATA
31 32 The data in this proposal shall not be disclosed outside the Government and shall not be
33 duplicated, used, or disclosed in whole or in part for any purpose other than to evaluate the 34 proposal; provided, that if a contract is awarded to this offeror as a result of or in connection with
35 thesubmission of these data, the Government shall have the right to duplicate, use, or disclose 36 the data to the extent provided in the contract This restriction does not limit the Government's 37 right to use information contained in the data if it is obtainable from another source without
38 restriction. The data subject to this *restriction are contained in Pages 1-4. 39 03-56773.03
Exhibit B
Exhibit 1
39 as i it$Ji )a'i
1 AMENDMENT NO. 1
2 TOThE
3 . LEASE
4 IN FURTHERANCE OF CONVEYANCE
5 BETWEEN
6 THE UNITED STATES OF AMERICA
7 AND
8 THE ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY
9 FOR
10 THE FORMER NAVAL AIR STATION ALAMEDA
11 12
13. .14 THIS AMENDMENT NO. 1 to the Lease in Furtherance of Conveyance. Between the 15 United States of America and the Alameda Reuse and Redevelopment Authoift jy fof the Former 16 Naval Air Station Alameda ("Lease") is entered into on this hr/h-day of 2000 by 17 and between THE UNITED STATES OF AMERICA, acting by and through the Secretary of 18 the Navy, ("Government"), and THE ALAMEDA REUSE AND REDEVELOPMENT 19 AUTHORITY ("Authority'), recognized as the local redevelopment authority by the Office of 20 Economic Adjustment on behalf of the Secretary of Defense. Government and Authority axe
21 sometimes referred to herein collectively as the "Parties."
22 . .
23 RECITALS
24 25 WHEREAS, the Government is the owner of certain real and personal property 26 commonly referred to as the former Naval Air Station Alameda, ("NAS Alameda") which was
27 closed as a military installation and is subject to disposal pursuant to and in accordance with the 28 Defense Base Closure and Realignment Act of 1991, as amended (Pub. L. No. 101-510);
29 . . . .
30 WHEREAS, the Authority and Government have agreed upon a method of conveyance 31 of said property as set forth in the Economic Development Conveyance Memorandum of 32 Agreement ("EDC MOA") dated June 6, 2000;
33 . .
34 WHEREAS, prior to the conditions for a deed transfer being met, the Parties entered into 35 the Lease granting the Authority immediate possession of all or portions of the NAS Alameda; 36 37 WHEREAS, the Authority desires to amend the lease to change certain insurance
38 requirements of its contractors or sublessees
39 40 NOW THEREFORE, in consideration of the foregoing premises and the respective
41 representations, agreements, covenants and conditions herein contained, and other good and 42 valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
43 Parties agree as follows:
03-56773.03 2
Exhibit 1
40 1
2 AGREEMENTS
3 4 Article 1. Insurance
5 6
Paragraph 17.4.1 of the Lease is hereby, amended to change the amount of 7 comprehensive general liability insurance, which the Authority is obligated to require its
8 contractors or sublessees to carry, with respect to personal injury or death, from $5,000,000.00 9 per occurrence to $3,000,000.00 per occurrence and with respect to property damage from
10 $3,000,000 per occurrence to $1,000,000 per occurrence. 11 12 Article 2. Survival and Benefit
13. .14 a. Unless defined separately, the terms used in this Amendment No. 1 shall be the
15 same as used and defined in. the Lease.
16 17 b. Except as set forth herein, and unless modified specifically by this Amendment 18 No. 1, all terms and conditions contained in the Lease shall remain binding upon the Parties and
19 their respective successors and assigns as set forth in. the Lease. 20 21
22 23
24 25 [SIGNATURE PAGES FOLLOW]
26 03-56773.03
3 Exhibit 1
41 I ahi $) I 2W ILIJYA I ) a
1 IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment No.
2 1 t the Lease as of the day and year first above written. 3 4
5 UNITED STATES OFJAMERICA,
6 acting by and throughj4e Department of the Navy,
7 1/
8 J4'
10 By:________________________
11 WJLLJM R. CARSILLO
.12 Real Estate Contracting Officer
13 14
is
16 17 ALAMEDA REUSE & REDEVELOPMENT AUTHORITY
18 .
21 By: .
22 JAMES M. FLINT
23 Executive Director
24 25 .
26 A 0
29 4L. (Municipal Seal)
tto
30 Cit-Att;rney
03-56773.03 . . 4
Exhibit 1
42 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of }
NOV. i w) , me, :1 4CTP( ?RAC->
Date Name and Title of Officer (e.g., Jane Doe, Notary Public) personally appeared -. -t "4D
Name(s) of Signer(s)
0 personally known to me
0 proved to me on the basis of satisfactory
evidence
to be the person) whose name) is/we
subscribed to the within instrument and
acknowledged to me that he/s1'(e/ty executed
the same in his/rJthir authorized
capacity(i), and that by his/h'r/thir
signature on the instrument the person(, or
Commission # the entity upon behalf of Which the person(?) ofary Public - COIifOtTlb acted, executed the instrument. !
San Mateo Courtly
Lip
My COMM . E)pi res Feb 9,2003 WITNESS my hand and official seal, -
Place Notary Seal Above 6t9najre of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Nt1 41O? Title or Type of Document:
Document Date: _______________________________________ Number of Pages: - Signer(s) Other Than Named Above:
Capacity(Ies) Claimed by Signer
Signer's Name:
O Individual Top of thumb here
0 Corporate Officer - Title(s):
O Partner 0 Limited 0 General
0 Attorney in Fact
O Trustee
D Guardian or Conservator
O Other:
Signer Is Representing:
© 1997 National Notary Association 9350 De Solo Ave., P.O. Box 2402 Chatsworth, CA 91313-2402 Prod. No. 5901 Reorder: Call Toll-Free 1-800-876-6827 Exhibit 1
43 CALIF ORNIA AI R J ;1 sIs [.11'
State of California
County of
EDGMENT
I
ss.
On RN 72,COC) , before me, (14 C 5fP- 11tL
Data Name and Title of Officer (ed., 'Jane Doe, Notary Public') personally appeared
Name(s) of Signer(s)
fl personally known to me
0 proved to me on the basis of satisfactory
evidence
to be the person(Lwhose name- is/#
subscribed to the within instrument and
acknowledged to me that he/st)/tcêy executed
the same in his/hfr.rItMir authorized
by capacity ie and that his/hr/thw
signaturdW. a the instrument the person7or
GACE I SAGUN the entity upon behalf of which the person( Comnlslon # 1210404 acted executed the instrument
Notary Public Coilfornia
WITNESS my hand and official seal
Place Notary Seal Above (nture of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above: VNA C$TY tkID(
Capacity(ies) Claimed by Signer
Signer's Name i;i I'(ii l 1lI
o Individual Top
u1tct 'liN
of thumb here
O Corporate Officer - Title(s):
o Partner - 0 Limited 0 General
o Attorney in Fact
o Trustee
O Guardian or Conservator
O Other:
Signer Is Representing:
1997 National Notary Association 9350 De Soto Ave., P.O. Box 2402' Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder; Call Toll-Free 1-800-876-6827 Exhibit 1
44 LEASE-IN FURTHERANCE
OF CONVEYANCE
BETWEEN
THE UNITED STATES OF AMERICA
0 AND
THE ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY
FOR
THE FORMER NAVAL AIR STATION ALAMEDA
-
Exhibit 1
45 TABLE OF CONTENTS
1. Leased Premises
2. Term
3. Consideration
4. Use Of Leased Premises
5. Subletting
6. Condition of Property
7. Environmental Baseline Survey and Finding of Suitability to Lease 8 Alterations
9. Access by Government
10 Utilities and Services . *
11 Non-Interference with Government Operations
12 Protection and Maintenance Services *.
13 Environmental Protection Provisions
14 Termination.
15 Environmental Contamination
16 Non-Environmental Indemnification by Lessee
17 Insurance :
18 Labor Provision
Exhibit 1
46 19 Submission of Notices
20 Audit
21 Agreement
22 - Failure to Insist on Compliance
23 Disputes
24 Covenant Against Contingent Fees
25 Officials Not to Benefit
26 Liens
27 Taxes
28 Subject to Existing and Future Easements and Rights-of-Way
29 Ingress-Egress
30 Administration
31 Surrender
32 Interest
33 Availability of Funds
34 Applicable Rules and Regulations
35 Storage
Exhibits
A Map depicting Leased Premises
Exhibit 1
47 ii i au 1:1 G,i'.i
11L'a!
: iiw 'i 'i 'iii 'i' ã'l IIXI1 I[.]I i'
THIS LEASE, made this day of 26O, by
and between THE UNITED STATES OF AMERICA, acting by and through the Department of the Navy, herein called "Government", and THE ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY, a Joint Powers Authority established by the City of Alameda and County of Alameda under the California Joint Exercise of Powers Act as set forth in Title 1, Division 7, Chapter 5, Article I of the Government Code of the State of California (Government Code Section 6500 et seq.), hereinafter called the called 'Lessee".
WITNESSETH:
WHEREAS, Government is the owner of -certain real and personal property, as more particularly described in Paragraph 1, commonly referred toss the former Naval Air Station Alameda, ("NAS Alameda") which was closed as a military installation and is subject to disposal pursuant to and in accordance with the Defense Base Closure and Realignment Act of 1991, as amended (Pub. L No. 101-510) and Lessee and Governmlent have agreed upon a method of conxeyance of said property as set forth in the Economic Development Co4eyance Memorandum of Agreement (EDC MOA) dated
4 ZDO ; and
WI 'EREAS, Prior to the conditions for a deed transfer being met, imniediate possession of all or portions of the NAS Alameda is granted to Lessee by this Lease; and
WHEREAS, the Secretary of the Navy, pursuant to the provisions of 10 U.S.C. § 2667 (f)(1), has determined that this Lease will facilitate state and local economic adjustment efforts pending final disposition of the real and personal property; and
Exhibit 1
48 WHEREAS, the Secretary of the Navy, pursuant to 10 U.S.C. § 2667 (f)(2) has determined that a public interest will be served as a result of this Lease, the fair market value of the Lease is either unobtainable or not compatible With such public benefit, and that consequently, consideration for this Lease will be at less than fair market value, and
WHEREAS, to the extent that this Lease involves storage, treatment and disposal of toxic or hazardous materials, the Secretary of the Navy has determined that the proposed use of the premises, subject to the terms and conditions of this Lease, meets the criteria of 10 U S C § 2692(b)(9) and (10), and
WHEREAS, the Secretary of the Navy, after consultation with the Environmental Protection Agency Administrator has determined that the Leased Premises is suitable for lease, and the uses contemplated for the Lease are consistent with protection of human health and the environment, and
WHEREAS, the Secretary of the Navy, pursuant to the National Environmental Policy Act, has issued a Record of Decision as to the disposal and reuse of the property; and
WHEREAS, Lessee is recognized by the Secretary of the Defense, through the Office of Economic Adjustment, as the local redevelopment authority with the responsibility for the redevelopment of the NAS Alameda, and WHEREAS, Lessee has the authority to acquire, lease and dispose of federal military installations, and Lessee desires to enter into this Lease NOW THEREFORE in consideration of the terms, covenants, and conditions hereinafter set forth, Government and Lessee hereby agree as follows I LEASED PREMISES
1.1 Government does hereby lease, rent, and demise to Lessee, and Lessee does hereby hire and rent from Government, leased premises identified as parcels 'EDC-1" through "EDC-19 and PBC IA and PBC 18" on Exhibit "A", attached hereto and made a part of this lease, together with all personal property identified in Exhibit "F" to the EDC MOA and improvements thereon including elements of Government-owned utility systems within the Premises and serving the Premises, hereinafter called the "Leased Premises", and with the right of ingress and egress to said Leased Premises. 5 Exhibit 1
49 1 2 The existing Large Parcel Lease (LPL) between the Government and Lessee shall terminate as of the commencement date of this Lease
1.3 The Government reserves the right to continued use of those portions of the Leased Premises identified as follows: (a) Suite 230 located on the second floor of Building I containing approximately 2,068 square feet of space, (b) approximately 4,600 of space within Building 114, (c) the first floor of Building 112, (d) Buildings 338 B and C, and (e) Building 346 Such use shall be provided to the Government without payment of rent for the term of this Lease. The GOvernment shall relinquish possession of the above identified space to Lessee at such time as Government no longer requires use of such space
2 TERM
2.1 The term of this lease shall be for the period of fifty (50) years commencing on the date of execution of this tease and ending on the date fifty (50) years thereafter, unless sooner terminated in accordance with the provisions of Paragraph 2.2 or Paragraph. 14, Termination.
2.2 Termination Upon Tender of Deed Ten (10) days after the Government tenders to Lessee, in accordance with the provisions of Article 3 of the EDC MOA and applicable law, a good and sufficient quitclaim deed conveying to Lessee any portion of the Leased Premises (each such portion hereinafter referred to as "Conveyed Portion"): (I) this Lease shall, automatically terminate with respect to the applicable Conveyed Portion as if such date were the stated expiration date contained herein and neither party hereto shall have any further obligations under this Lease with respect to the Conveyed Portion (other than any obligations which otherwise would survive termination of this Lease); (ii) all references to the Leased Premises shall be deemed to exclude such Conveyed Portion; and (iii) this Lease shall continue in full force and effect with respect to the remainder of the Leased Premises
3 CONSIDERATION
3.1 As consideration for this Lease, Lessee agrees to actively market and sublease those portions of the Leased Premises which are suitable for use or occupancy by potential sublessee's Lessee shall also provide protection and maintenance for all of the Leased Premises during the term of this Lease As additional consideration, Lessee shall apply any revenue received from IC
Exhibit 1
50 subleasing the Leased Premises for those purposes described in the EDC MOA under the Article 6, entitled 'Use of Proceeds from Sale or Lease.'
3.2 Lessee is fully responsible for operation, protection, maintenance and repair of the entire Leased Premises including, but not limited to: fire fighting; general perimeter and internal security; maintenance and repair of buildings, structures, fencing, paved areas, roads, streets, sidewalks, curbs and gutters; operation, maintenance and repair of street lighting and signage and alarm systems; operation, maintenance and repair of storm sewer, sanitary sewer and potable. water systems; pest control; grounds maintenance; and general administration of these services.
3.3 Lessee accepts the Leased Premises and all tangible Government property contained therein in its present state of repair and condition. The Lessee shall, at its own expense, and to its own standards, maintain the Leased Premises. All repairs, replacements, alterations, and improvements shall thereupon become part of the leased property. During the term of this agreement, Government shall have no responsibility except as otherwise described herein, financial or otherwise, with respect to protection and maintenance of the teased property.
3.4 Lessee shall be responsible for paying the cost of services incurred by Government and provided for the benefit of Lessee and sublessees including any costs incurred which are specifically attributable to an action (or inaction) of Lessee or sublessees.; however, nothing in this Lease commits Government to provide any services to the Leased Premises.
3.5 Consistent with accounting practices used by Lessee under the LPL, Lessee shall keep adequate records and books of account showing the actual cost to it of all items of labor, material, equipment, supplies, services and other items of cost incurred by it directly in the performance of any item of work or service in the nature of marketing and management; the repair, restoration, protection and maintenance of Leased Premises which is required by Paragraph 12; or otherwise approved or directed by Government. Lessee shall provide Government with access to such records and books of account and proper facilities for inspection thereof at all reasonable times.
USE OF LEASED PREMISES:
4.1 Lessee may use the Leased Premises (including the related personal property and fixtures) for the purposes set forth in the Alameda Reuse 7 Exhibit 1
51 and Redevelopment Plan subject to the uses being consistent with the National Environmental Policy Act (NEPA) Record of Decision (ROD) for the disposal and reuse of the former Naval Air Station Alameda. Lessee and it tenants shall obtain a City of Alameda Use Permit and other applicable City permits and approvals for any intended use of the Leased Premises The Lease may be terminated by Government as provided by the terms of the Lease pursuant to Paragraph 14, and Lessee agrees to and acknowledges such terms
4.2 Lessee shall not undertake any activity that may affect an identified historic or archeological property, including excavation, construction, alteration maintenance or repairs of Leased Premises, Historic Buildings, or sites in a manner that is inconsistent with the Memorandum of Agreement Among The United States Navy, The Advisory Council on Historic Preservation The California State Historic Preservation Officer, and the City of Alameda regarding historic properties on the former Naval Air Station Alameda, set forth as Exhibit "E" to the EDC MOA Buried cultural materials may be present on the premises If such materials are encountered, Lessee shall stop work immediately and notify Government
5 SUBLETTING:,
5.1 Lessee may enter into subleases Prior Government approval is not required if the terms and conditions of the sublease comply with or are included in the terms and conditions of this Lease In the event that the terms and conditions of the proposed sublease do not comply with or are not included in this Lease, then prior Government approval is required Any proposed sublease which involves the use of hazardous or toxic materials, including those of an explosive, flammable or pyrotechnic nature, as provided in 10 U S C § 2692, shall require prior approval Such consent shall not be unreasonably withheld or delayed Each sublease shall contain the environmental protection provisions set forth in Paragraph 13 herein Under no circumstances shall Lessee assign this Lease
52 Any sublease granted by Lessee shall contain a copy of this Lease as an attachment and be subject to all terms and conditions of this Lease and shall terminate immediately upon the expiration or any earlier termination of this Lease, without any liability on the part of Government to Lessee or any sublessee Under any sublease made, with or without consent, the sublessee shall be deemed to have assumed all of the obligations of Lessee under this Lease No sublease shall relieve Lessee of any of its obligations hereunder. 8 Exhibit 1
52 5.3 Upon iti execution, a copy of the sublease shall be furnished to Government within 30 calendar days. Should a conflict arise between the provisions of this Lease and a provision of the sublease, the provisions of this Lease shall take precedence. Any sublease shall not be taken or construed to diminish or enlarge any of the rights or obligations of either of the parties under this Lease.
6. CONDITION OF PROPERTY:
6.1 The JQint Inspection Reports executed as part of the LPL are made a part of this Leaseby reference, and shall be used to describe the condition of the Leased Premises and inventory of Government real property as of the commencement of this Lease.
6.2 Leased Premises shall be delivered to Lessee "AS IS", "WHERE IS". Government makes no warranty as to Leased Premises' usability generally or as to its fitness for any particular purpose. Any safety and/or health hazards identified shall be corrected, at Lessee's expense, prior to use and occupancy
6.3 In the event the Lease is terminated, Lessee shall return the Leased Premises to Government in the same or better condition in which it was received, reasonable wear and tear and acts of God excepted. The Lessee is not obligated to demolish or restore improvements to the Leased Premises once those improvements have been completed.
7. ENVIRONMENTAL BASELINE SURVEYS AND FINDINGS OF
SUITABILITY TO LEASE:
Environmental Baseline Surveys for Lease (EBSLs) and Findings of Suitability to Lease (FOSLs) are set forth as Exhibit "B" to the LPL and by reference are made part of this Lease. The EBSLs set forth the existing environmental conditions of Leased Premises as represented by the baseline surveys which have been conducted by Government. The FOSLs set forth the basis for the Government's determination that the Leased Premises are suitable for leasing. Lessee is hereby made aware of the notifications contained in the FOSLs and shall comply with lease restrictions set forth therein.
8. ALTERATIONS:
8.1 Lessee and sublessee(s) shall not begin excavation, construction, alteration, maintenance or repairs of the Leased Premises without the prior written consent of Government: Government will be deemed to have consented 9 Exhibit 1
53 to such excavation, construction, alteration, maintenance or repairs if a response is not received from the Government within 30 (thirty) days following receipt of the notice described in paragraph 82 of this Lease All work shall be done in a workmanlike manner and be subject to the requirements of all state and local building codes. No work shall commence prior to obtaining a City of Alameda Building Perthit and all other applicable City and State permits and approvals authorizing such work. Except s such written approval shall expressly provide otherwise, all work affixed to Lease Premises shall, become Government property if the Leased Premise as not conveyed to Lessee 82 Lessee shall provide Government with prior written notification and a full description of all proposed excavation, construction, alteration, maintenance or repairs of the Leased Premises, including information addressing whether the proposed excavation, construction, alteration, maintenance or repairs fall within the scope of the Alameda Reuse and Redevelopment Plan, the NEPA ROD, or the Memorandum of Agreement Among The United States Navy, The Advisory Council on Historic Preservation, The California State Historic Preservation Officer, and the City of Alameda regarding historic properties on the former Naval Air Station Alameda, set forth as Exhibit "E" to the EDC MOA, or may adversely affect the environmental cleanup of Leased Premises, human health, or the environment Such written notification shalt be delivered by Lessee to Government's representative as designated in Paragraph 19 of this Lease
8.3 All personal property and trade fixtures of Lessee or any third person may be removed and Lessee shalt repair any damages to Leased Premises resulting from such removal
9. ACCESS BY GOVERNMENT:
In addition to access required under Paragraph 13, at all reasonable times throughout the term of this Lease, Government shall be allowed access to Leased Premises for any purposes upon notice to Lessee Government will give Lessee or any sublessee twenty-four (24) hour prior notice of its intention to enter Leased Premises, unless it determines the entry is required for exigent circumstances related to health, safety or security. Lessee shall have no claim against Government or any officer, agent, employee, contractor or subcontractor of Government by reason of entry by such Government officer, agent, employee, contractor or subcontractor onto the Leased Premises All keys to the buildings and facilities occupied by Lessee or any sublessee shalt be made available to Government upon request.
in
Exhibit 1
54 I
10. UTILITIES AND SERVICES:
10.1 Procurement of utilities, i.e., electricity, water, gas, steam, sewer, telephone and trash removal will be the responsibility of Lessee
10.2 Lessee shall be fully responsible for operation, maintenance, repair, replacement and administration of all elements of Government-owned utility systems within the Premises and serving the Premises. The Government in no way warrants the adequacy of any of the existing utility systems serving the Leased Premises and will not be responsible during the term of this Lease for any maintenance, alteration repair or replacement of any part of said utility systems except as may be required for execution of environmental remediation work undertaken by the Government.
10.3 The Lessee shalt provide for uninterrupted continuation of electrical, water and sanitary sewer service on the Leased Premises by establishing necessary contracts with utility providers for commencement of service and billing as of the effective date of this Lease Lessee shall be fully responsible for installing meters, and the cost and expense thereof, as may be required to monitor utilities use on the Leased Premises as a whole or by any of its sublessees individually.
11. NON-INTERFERENCE WITH OPERATIONS:
Lessee shall not conduct opera
in Paragraph 8) on the Leased Premis
restrict operations, environmental clea
I '4 liii IãI I, L.I IV1I .#I II I II ItI I
uIators, or their contractors. Env
act
ises in the event of any conflict
r make any alterations (as defined
would interfere with or otherwise
r restoration actions by
cy (EPA), state environmental
al clean up, restoration or testing
ver Lessee's use of Leased
istanding that priority, the
ort to work with the Lessee and its
I..# &4 1.IL4II W WI II(.4'..I 4.1 M-1 I I.JIwI Lot . in g 'vii in ii pii iiai contamination, including investigation, inspections, survey and response or remedial actions, in a manner that minimizes interference with Lessee's and sublessee's use of Leased Premises. The Government shall provide reasonable and timely prior written notice of all intended Navy operations that may or will interfere with Lessee's or subtessee's use, occupancy or access to the Leased Premises. Government and Lessee agree to consult with one another on a regular basis to resolve any conflicts that may arise, between the Government's remedial efforts and Lessee's and sublessee's use of the Leased Premises, in a Exhibit 1
55 mutually agreeable manner. Any work by Lessee or sublessee in. the proximity of Operable Units that are part of a National Priorities List (NPL) Site may require written approval by the Government's Remedial Project Manager. 12 PROTECTION AND MAINTENANCE SERVICES
12.1- Government shall not be required to furnish any srvices or facilities to Lessee or to make any repair or alteration in or to Leased Premises Lessee hereby assumes the full and sole responsibility for the protection, maintenance (including trash and debris removal), and repair or alteration of Leased Premises, excluding properties and parcels occupied by the Government or an agent of the Government, at no cost or expense to the Government
12.2 Lessee shall provide or cause to be provided all fire and security services necessary to assure security and safety within the Leased Premises Any crimes or other offenses, involving damage to or theft of Government property shall be reported to the appropriate authorities for their investigation and disposition and to Government as property owner.
13 ENVIRONMENTAL PROTECTION PROVISIONS
13.1 Lessee, sublessees and contractors shall comply with all applicable Federal, state and local laws, regulations and standards that are or may become applicable to Lessee's activities on Leased Premises 132 The Lessee or any sublessee shall be solely responsible for obtaining at its cost and sole expense any environmental permits required for its operations under the Lease, independent of any existing permits held by the Government The Lessee shall not conduct operations or activities under any environmental permit that names the Government as a secondary discharger or co-permittee Lessee shall provide prior written notice to Government of all environmental permits and permit applications required for any of Lessee's or sublessee's operations or activities Lessee acknowledges that the Government will not consent to being named a secondary discharger or co-permittee for any operations or activities of the Lessee or any sublessee under the Lease 133 Government's rights under this Lease specifically include the right for Government officials to inspect upon reasonable notice Leased Premises for compliance with environmental, safety and occupational health laws and regulations, whether or not Government is responsible for enforcing them Such inspections are without prejudice to the right of duly constituted enforcement 1')
Exhibit 1
56 officials to make such inspections. Government norm , ally- give Lessee or , sublessee twenty-four (24) hours prior notice of its intention to enter Leased Premises unless it determines the entry is required for exigent circumstances related to health, safety, or security. Lessee shall have no claim against the Government or any officer, agent, employee, contractor or subcontractor of Government by reason of entrance by such Government officer, agent, employee, contractor or subcontractor onto the Leased Premises,
13.4 Government acknowledges that Inst Ilation has been identified as a National Priorities List (NPL) Site under the Corn rehensive Environmental Response Compensation and Liability Act (CERCL ) of 1980, as amended, Lessee acknowledges that Government has provic
Alameda Federal Facility Agreement (FFA) entere IfltO by the United States Environmental Protection Agency (EPA) Region, tl ie state equivalent, and the Government. Government will provide Lessee witi i a copy of any amendments thereto. Lessee agrees that should any conflict an se between the terms of such agreement as it presently exists or may be amendE d ("FFA," interagency Agreement or "lAG") and the provisions of this Le use, the terms of the FFA or lAG will take precedence. Lessee further agrees ti iat notwithstanding any other provision of this Lease, Government assumes no Ii ability to Lessee or its sublessees or licensees should implementation of the FFA interfere with Lessee's or any sublessee's and licensee's use of Leased Premises. Lessee shall have no claim on account of any such interfer ence against the United States or officer, agent, employee, contractor or su bcontractor thereof, other than for abatement of rent, where applicable.
13.5 Government, EPA (for NPL sites) and the State (for non-NPL sites) and their officers, agents, employees, contractors and subcontractors, have the right, upon reasonable notice to Lessee and/or any sublessee, to enter upon Leased Premises for the purposes enumerated in this subparagraph and for such other purposes consistent with any provisions of the cleanup program (including but not limited to the BRAC Cleanup Plan, IRP, FFA, or lAG):
13.5.1 to conduct investigations and surveys, including, where necessary, drilling, soil and water sampling, testpitting, testing soil borings and other activities related to the cleanup program;
13.5.2 to inspect field activities of Government and its contractors and subcontractors in implementing the cleanup program, 11 Exhibit 1
57 13.5.3 to conduct any test or survey required by EPA or applicable state equivalent relating to the implementation of the cleanup program,
13.5.4 to construct, operate, maintain or undertake any other response or remedial action as required or necessary under the cleanup program, including but not limited to monitoring wells, pumping wells and treatment facilities.
136 Lessee agrees to comply with the provisions of any health or safety plan in effect under the IRP or the FFA during the course of any of the above described response or remedial actions Any inspection, survey, investigation or other response or remedial action will, to the extent practicable, be coordinated with representatives designated by Lessee and any sublessee Lessee and sublessee shall have no claim on account of such entries against the United States or any officer, agent, employee, contractor or subcontractor thereof. In addition, Lessee shall comply with all applicable Federal, state and local occupational safety and health regulations
137 Lessee further agrees that in the event of any sublease of Leased Premises, Lessee shall provide to EPA and applicable state equivalent by certified mail a copy of the agreement or sublease of Leased Premises (as the case may be) within fourteen (14) calendar days after the effective date of such transaction Lessee may delete the financial terms and any other, proprietary information from the copy of any agreement of sublease furnished pursuant to this condition
138 Lessee shall strictly comply with the hazardous waste permit requirements under the Resource Conservation and Recovery Act or its applicable state equivalent Except as specifically authorized by Government in writing, Lessee must provide at its own expense such hazardous waste management facilities complying with all laws and regulations Government hazardous waste management facilities will not be available to Lessee Any violation of the requirements of this condition shall be deemed a material breach of this Lease
13.9 DoD component accumulation points for hazardous and other waste will not be used by Lessee or any sublessee. Neither will Lessee or sublessee permit its hazardous wastes to be commingled with hazardous waste of DoD Component.
1,1
Exhibit 1
58 13.10 Lessee shall have a Government-approved plan for responding to hazardous waste, fuel and other chemical spills prior to commencement of operations on Leased Premises. Such plan shall be independent of Installation plan and, except for initial fire response and/or spill containment, shall not rely on use of Installation personnel or equipment. Should Government provide any personnel or equipment whether for initial fire response and/or spill containment, or otherwise on request of Lessee, or because Lessee was not, in the opinion of Government, conducting timely cleanup actions, Lessee agrees to reimburse Government for its costs in association with such response or cleanup.
13.11 Lessee shall not conduct or permit its sublessees to conduct any subsurface excavation, digging, drilling or other disturbance of the surface without the prior written approval of Government.
13.12 To the extent required by law and regulation, Government shall abate, remove or otherwise remedy all friable, accessible and damaged asbestos containing material (ACM), except as provided in paragraph 13.12.2 below, lead based paint (LBP),and any polychlorinated biphenyls (PCBs) from Leased Premises. The presence of known ACM, LBP0r PCBs shall be fully identified in an Environmental Baseline Survey (EBS) and/or Supplemental Environmental Baseline Survey(SEBS), as set forth in Exhibit "B" to the LPL.
13.12. 1, If Lessee intends to make any improvements or repairs that require the removal of asbestos, an appropriate asbestos disposal plan must be incorporated into the plans and specifications and submitted to Government. The asbestos disposal plan will identify the proposed disposal site for the asbestos, or in the event the site has not been identified, will provide for disposal at a licensed facility authorized to receive it.
13.12.2 ACM which, since the commencement of the LPL, became damaged or deteriorated through the passage of time, as the result of a natural disaster or as a consequence of Lessee's activities under this Lease, including but not limited to any emergency, will be abated by Lessee at its sole cost and expense. Notwithstanding Paragraph 13.12.1 above, in an emergency, Lessee will notify Government as soon as practicable of its emergency ACM responses.
Lessee shall be responsible for monitoring the condition of existing ACM on Leased Premises for deterioration or damage and accomplishing repairs or abatement pursuant to the applicable conditions of this Lease.
13.12.3 Lessee is hereby advised that the buildings and other painted structures in the Leased Premises are potentially painted with Lead Based Paints (LBP). Such buildings and structures shall not be suitable for 15 Exhibit 1
59 occupancy for residential purposes until any inspections and abatement required by applicable law have been completed Lessee may, at its sole cost and expense, have a State Certified LBP Inspector complete a LBP inspection and abatement and provide an abated certification to the Government, at which time with written Government approval, the specified premises can be used for residential purposes
13 124 Subject to the provisions of Paragraphs 13 122 and
13.12.3, Lessee shall manage at its sole cost and expense any asbestos containing materials (ACM) and LBP property and comply with all applicable Federal, State and local laws
13.15 Lessee shall indemnify and hold harmless Government from any costs, expenses, liabilities, fines or penalties resulting from discharges, emissions, spills, storage or disposal arising from Lessee's occupancy, use or operations, or any other action by Lessee or any sublessee giving rise to Government liability, civil or criminal, or any other action by Lessee or any sublessee giving rise or responsibility under Federal, state or local environmental laws Lessee's obligations hereunder shall apply whenever Government incurs costs or liabilities for Lessee's activities or activities of any sublessee as provided hereunder. This provision shall survive the expiration or termination of this Lease
13.16 Storage, treatment or disposal of toxic or hazardous materials on the Leased Premises is prohibited excepted as authorized by Government in accordance with 10 U S C § 2692
13 17 The responsibility of the Government to indemnify and hold harmless the Lessee and any sublessees against toxic torts and other environmental claims shall be in accordance with Public Law 102-484, Section 330, as amended
13.18 Lessee be solely responsible for any dredging and/or dredge disposal requirements associated With the berthing of vessels under this Lease, including any permits required for dredging The Lessee shall be responsible for verifying the water depth prior to mbving vessels to any berthing or pier facilities The Lessee shall periodically verify the depth of the water and consider the effects of siltation rates to insure that vessels can be safety berthed and removed from berthing space
Exhibit 1
60 13.19 Lessee and its sublesse&s are prohibited from interfering with any predator management or animal control activities
13.20 Lessee or its' sublessee shall maintain copies of any permit applications made to any Federal, State or local regulatory agencies and shall provide copies to Government on reasonable request Lessee shall promptly notify Government of any notices of violation or noncompliance received by Lessee from any such agency, concerning environmental matters or hazardous substances or hazardous waste on, about, or pertaining to the Leased Premises.
13.21 Lessee shall be responsible for reporting, containment, removal and dean up of any land, air or water pollution that occurs on any Leased Premises as a result of Lessee or sublessee's use of the Leased Premises
14. TERMINATION:
14.1 Termination by Government. The Government shall have the right to terminate this lease, at any. time, (i) upon Lessee's failure to perform or fulfill any obligation, condition, term or agreement contained in this lease required on the part of the Lessee to be performed or fulfilled or, (ii) in the event that the use is incompatible with the ROD or, (iii) in the event of a national emergency as declared by the President or the Congress of the United States in accordance with the National Emergencies Act. The Government's right to terminate this Lease under subdivision (i) and (ii) above, may only be exercised if the Lessee does not cure such failure in a manner acceptable to the Government within thirty (30) days (or more if authorized in writing by the Government) after receipt of the written notice from the Government specifying the failure. Unless special circumstances justify a shorter period, the Lessee will be provided with no less than sixty (60) days notice. Unless special circumstances justify a shorter period, the Lessee will be provided with no less than thirty (30) days' notice that termination is necessary and will be provided a reasonable time to vacate the Leased Premises. In the event of termination for any reason not involving a breach by the Lessee of the terms and conditions of this lease, the Government shall make an equitable adjustment of any advance rentals paid by the Lessee hereunder. In the event that the Government shall elect to terminate this lease on account of the breach by the Lessee of any of the terms and conditions hereof, the Government shall be entitled to recover and the Lessee shall pay to the Government:
14. 1.1 The reasonable costs incurred in resuming possession of the Leased Premises.
1'7
Exhibit 1
61 14.l;2 The costs incurred inperforming any-obligation on the part of the Lessee to be performed hereunder.
14.1.3 An amount equal to the aggregate of any obligations and charges assumed hereunder and not therefore paid or satisfied, which amounts shall be due and payable at the time when such Rent, obligations, and charges would have accrued or become due and payable under this lease
15. ENVIRONMENTAL CONTAMINATION: S
In the event environmental contamination is discovered on Leased Premises which creates, in Government's determination, an imminent and substantial endangerment to human health or the environment which necessitates evacuation-of Leased Premises, and notwithstanding any other termination rights and procedures contained in this Lease,. Lessee shall vacate. or require any sublessee to vacate Leased Premises immediately upon notice from Government of the existence of such a condition Exercise of this right by Government shall be without liability, except that Lessee shall not be responsible for the payment of consideration, the amount of deduction to be determined on a daily pro-rata basis, during the period Leased Premises is vacated Government's exercise of this right herein to order the Leased Premises immediately vacated does not alone constitute .a termination of the Lease, but such right may be exercised in conjunction with any other termination rights provided in this Lease or by law.
16 NON-ENVIRONMENTAL INDEMNIFICATION BY LESSEE
Lessee shall indemnify, defend, and save Government harmless and shall pay all costs, expenses and reasonable attorney's fees for all trial and appellate levels and post judgment proceedings in connection with any fines, suits, actions, damages, liability, causes of action of every nature whatsoever arising or growing out of, or in any manner connected with, the occupation or use of the Leased Premises by Lessee and the employees, agents, servants, guests, invitees, contractors and sublessees of Lessee These include, but are not limited to, any fines, claims, demands and causes of action of every nature whatsoever which may be made upon, sustained or incurred by Government by reason of any breach, violation, omission or non-performance of any term, covenant or condition hereof on the part of Lessee or the employees, agents, servants,guests, invitees and sublessees of Lessee. This indemnification also applies to claims arising out of the furnishing of any utilities or services by 10 Exhibit 1
62 Government or any interruption therein or failure thereof, whether or not the same shalt be occasioned by the negligence or lack of diligence of Lessee, its officers, agents, servants, employees or sublessees However, this indemnity shall not extend to damages due to the sole fault or negligence of Government or its contractors This covenant shall survive the termination of this Lease
17. INSURANCE:
17.1 At the commencement of this Lease, Lessee shall provide, or cause to be provided,, from a reputable insurance company or companies, comprehensive general liability insurance. The insurance shalt provide an amount not less than the minimum combined single limit of $5,000,000.00 for any number of persons or claims arising from any one incident with respect to bodily injuries or death resulting therefrom, property damage or both, suffered or alleged to have been suffered by any person or persons resulting from the operations of Lessee, sublessees, contractors and invitees under the terms of this Lease. Lessee shalt require its insurance company to furnish Government a copy of the policy or policies, or if acceptable to Government, certificates of insurance evidencing the purchase of such insurance. The minimum amount of liability insurance coverage is subject to revision by Government every three years or upon renewal or modifloation of this Lease.
17.2 As to those structures and improvements on Leased Premises constructed by or owned by Government, Lessee shall procure and maintain at Lessee's cost a standard fire and extended coverage insurance policy or policies on Leased Premises in an amount not less than $5,000,000.00 to demolish damaged or destroyed structures and impovements, remove debris, and clear the Leased Premises. Lessee shall procure such insurance from a re' eputable company or companies. The insurance policy shall provide that in the event of loss thereunder, the proceeds of the policy or policies, at the election of Government, shall be payable to Lessee to be used solely for the demolition of damaged or destroyed structures and improvements, removal of debris and clearance of the Leased Premises or for repair, restoration, or replacement of the property damaged or destroyed. Any balance of the proceeds not required for such purposes shall be paid to Government. If Government does not elect, by notice in writing to the insurer within thirty (30) calendar days after the damage or destruction occurs, to have the proceeds paid to Lessee for the purposes herein above set forth, then such proceeds shall be paid to Government, provided however that the insurer, after payment of any proceeds to Lessee in accordance with the provision of the policy or policies, shall have no obligation or liability with respect to the use or disposition of the proceeds by Exhibit 1
63 Lessee Nothing herein contained shall be construed as an obligation upon Government to repair, restore or replace Leased Premises or any part thereof.
17.3 If and to the extent required by law, Lessee shall provide workmen's compensation Or similar insurance inform and amounts required by law.
174 During the entire period this Lease shall be in effect, Lessee shall require its contractors or sublessees or any contractor performing work at Lessee's or sublessee's request on Leased Premises to carry and maintain the insurance required below.
17.4.1 Comprehensive general liability insurance, in the amount of $5,000,000.00 per occurrence with respect to personal injury or death, and $3,000,000.00 per occurrence with respect to property damage
17.4.2 Workman's compensation or similar insurance in form and amounts required by law.
17.5 All insurance which this Lease requires Lessee or sublessee to carry and maintain or cause to be carried or maintained shall be in such form, for such periods of time, and with such insurers as Government may reasonably require or approve All policies or certificates issued by the respective insurers for public liability and property insurance will name Government as an additional insured, provide that any losses shall be payable notwithstanding any act or failure to act or negligence of Lessee or Government or any other person, provide that no cancellation, reduction in amount or material change in coverage thereof shall be effective until at least thirty (30) calendar days after receipt by Government of written notice thereof, provide that the insurer shall have no right of subrogation against Government, and be reasonably satisfactory to Government in all other respects In no circumstances will Lessee be entitled to assign to any third party, rights of action which Lessee may have against Government
176 Lessee and sublessees shall deliver or cause to be delivered promptly to Government a certificate of insurance evidencing the insurance required by this Lease and shall also deliver prior to expiration of any such policy, a certificate of insurance evidencing each renewal policy covering the isks same r
Exhibit 1
64 18. LABOR PROVISION:
During the term of this Lease, Lessee agrees as follows:
18.1 Lessee will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. Lessee shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employriient, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rate 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 Government setting forth the provisions of this nondiscrimination clause.
18.1.1 Lessee shall, in all solicitations or advertisements for employees placed at Leased Premises by or on behalf of Lessee, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin.
18.1.2 Lessee shall send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding a notice to be provided by Government, advising the labor union or worker's representative of Lessóe's commitments under this equal opportunity clause and shall post copies of the notice in conspicuous places available to employees and applicants for employment:
18.1.3 Lessee shall comply with all provisions of Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, and of the rules, regulations and relevant orders of the Secretary of Labor.
18.1.4 Lessee shall furnish all information and reports required by Executive order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, and of the rules, regulations and relevant orders of the Secretary of Labor or pursuant thereto, and will permit access to his books, records and accounts by Government and the Secretary of Labor for purposes of investigating to ascertain compliance with such rules, regulations and orders.
Exhibit 1
65 18.1.5 In the event-of Lessee's noncompliance with the equal opportunity clause of this Lease or with any of said rules, regulations or orders, this lease may be canceled, terminated or suspended in whole or in part and Lessee may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, as amended by Executive order 11375 of October 13, 1967, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, or by rule, regulation or order of the Secretary of Labor, or otherwise provided by law.
18.1.6 Lessee will include the above provisions in every sublease unless exempted by rules, regulations or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, so that such provisions will be binding upon each sublessee Lessee will take such action with respect to any sublessee as Government may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that in the event Lessee becomes involved, or is threatened with litigation with sublessee as a result of such direction by Government, Lessee may request the United States to enter into such litigation to protect the interest of the United States
182 This Lease, to the extent that it is a contract of a character specified in the Contract Work Hours and Safety Standards Act (40 U S C 327-330) and is not covered by the Walsh-Healy Fublid Contracts Act (41 U S C 35-45), is subject to the following provisions and exceptions of said Contract Work Hours and Safety Standards Act and to all other provisions and exceptions of said law. .18.2.1 Lessee shall not require or permit any laborer or mechanic in any workweek in which he is employed on any work under this Lease to work in excess of 40 hours in such work week on work subject to the provisions of the Contract Work Hours and Safety St?ndards Act unless such laborer or mechanic receives compensation at a rate not less than one and one-half times his basic rate of pay for all such hours worked in excess of 40 hours in such work week The "basic rate of pay", as used in this clause, shall be the amount paid per hour, exclusive of Lessee's contribution or cost for fringe benefits and any cash payment made in lieu of providing fringe benefits or the basic hourly rate contained in the wage determination, whichever is greater.
Exhibit 1
66 I 8.2.2 In the eventof any violatiôn of the provision of Paragraph
18.2. 1 Lessee shall be liable to any affected employee for any amounts due, and to the United States for liquidated damages Such liquidated damages shall be computed with respect to each individual laborer or mechanic employed in violation of the provisions of paragraph I 8 2 1 in the sum of ten $10.00 for each calendar day on which such employee was required or permitted to be employed on such work in excess of the standard work week of 40 hours without payment of the overtime wages required by Paragraph 18.2.1.
183 In connection with the performance of work required by this Lease, Lessee agrees not to employ any person undergoing a sentence of imprisonment at hard labor.
19 SUBMISSION OF NOTICES
19.1 Notices shall be sufficient under this Lease if made in writing and to the following addressees
If to Authority James M Flint, Executive Director
Alameda Reuse and Redevelopment
Authority Alameda City Hall
2263 Santa Clara Avenue
Alameda, CA 94501-4456
(Facsimile: 510-7484504)
with a copy to Carol Korade, General Counsel
Alameda Reuse and Redevelopment
Authority Alameda City Hall, Room 280
2263 Santa Clara Avenue
Alameda, California 94501-4456
(Facsimile: 510-748-4691)
and to George R Schlossberg, Esq.
Kutak Rock
1101 Connecticut Avenue, N W
I 0th Floor
Washington, D C 20036
(Facsimile: 202-828-2488)
Exhibit 1
67 If to Government Commanding Officer
Southwest Division
Engineering Field Division
Naval Facilities Engineering Command
1220 Pacific Highway
San Diego, CA 92132-5189
(Facsimile 619-532-3830)
The individuals identified above shall be the representatives of the parties and the points of contact during the period of this Lease
19.2 From time to time during the lease term, Lessee may designate one or more additional parties (each, an "Additional Notice Party" and collectively the "Additional Notice Parties") to receive a copy of every notice sent to Lessee hereunder. Such designation shall be made in writing in accordance with Section 19.1 above, and shall include the name of the Additional Notice Party, a complete mailing address (including street address), telephone number and contact person Following Lessors receipt of such designation, Lessor shall cause a copy of any notice given to Lessee to be given simultaneously to all Additional Notice parties Lessee may remove an Additional Notice Party or change an address or contact person by giving notice of the same in accordance with Section 19.1 above
20. AUDIT:
This Lease shall be subject to audit by any and all cognizant Government agencies Lessee shall.make available to such agencies for use in connection with such audits all records, which it maintains with respect to this Lease and copies of all reports required to be filed hereunder.
21. AGREEMENT:
This Lease shall not be modified unless in writing and signed by both parties No oral statements or representation made by, for or on behalf of either party shall be a part of this Lease Should a conflict arise between the provisions of this Lease and any exhibit hereto, or any other agreement between Government and Lessee, the provisions of this Lease shall take precedence Exhibit 1
68 22. FAILURE TO INSIST ON COMPLIANCE:
The failure of Government to insist, in any one or more instances, upon performance of any of the terms, covenants or conditions of this Lease shall not be construed as a waiver or relinquishment of Government's right to the future performance of any such terms, covenants or conditions and Lessee's obligations in respect to such future performance shall continue in full force and effect.
23. DISPUTES:
23.1 This lease is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613) (the Act).
23.2 Except as provided in the Act, all disputes arising under or relating to this lease shall be resolved under this clause.
23.3 "Claim", as used in this clause, means a written demand or written assertion by Lessee or. Government seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of lease terms, or other relief arising under or relating to this Lease. A claim arising under this Lease, unlike a claim relating to this Lease, is a claim that can be resolved under a lease clause that provides for the relief .sought by the claimant. However, a written demand or written assertion by Lessee seeking the payment of money. exceeding $100,000 is not a claim under the Act until certified as required by subparagraph 23.4 below. A voucher, invoice or other routine request for payment that it not in dispute when submitted, is not a claim under the Act. The submission may be converted to a claim under the Act, by complying with the submission and certification requirements of this clause, if it is disputed either as to liability or amount or is not acted upon in a reasonable time. uC ommandn used in this clause means the Command described in Addendum (a).
23.4 A claim by Lessee shall be made in writing and submitted within six (6) years after accrual of the claim, to the Command, for a written decision. A claim by the Government against Lessee shall be subject to a written decision by the Command.
23.4.1 Lessee shall provide the certification specified in subparagraph 23.4.3 of this clause when submitting any claim:
(a) Exceeding $100,000; or
25 Exhibit 1
69 (b) Regardless of the amount claimed, when using:
(1) Arbitration conducted pursuant to 5 U S C 5757580, or (2) Any other alternative means of dispute resolution (ADR) technique that the agency elects to use in accordance with the Administrative Dispute Resolution Act (ADRA).
23.4.2 The certification requirement does not apply to issues in controversy that have not been submitted as all or part of a claim
23.4.3 The certification shall state as follows: "I certify that the claim is made in good faith, that the supporting data are accurate and complete to the best of my knowledge and belief, that the amount requested accurately reflects the contract adjustment for which Lessee believes Government is liable, and that I am duly authorized to certify the claim on behalf of Lessee"
23.4.4 The certification maybe, executed by any person duly authorized to bind Lessee with respect to the claim
235 For Lessee claims of $100,000 or less, the Command, must, if requested in writing by Lessee, render a decision within 60 calendar days of the request For Lessee-certified claims over $100,000, the Command, must, within 60 calendar days, decide the claim or notify Lessee of the date by which the decision will be made
236 The Command's, decision shall be final unless Lessee appeals or files a suit as provided in the Act
237 At the time a claim by the Lessee is submitted to Command or a claim by Government is presented to Lessee, the parties, by mutual consent, may agree to use ADR When using arbitration conducted pursuant to 5 U S C 575-580, or when using any other ADR technique that the agency elects to employ in accordance with the ADRA, any claim, regardless of amount, shall be accompanied by the certification described in Paragraph 23.4.3 of this clause, and executed in accordance with Paragraph 23.4.4 of this clause.
23.8 Government shall pay interest on the amount found due and unpaid by Government from (1) the date the Command receives the claim (properly certified if required), or (2) the date payment otherwise would be due, if that date is later, until the date of payment. With regard to claims having defective Exhibit 1
70 certifications, as defined in FAR 33201, interest shall be paid from the date that the Command initially receives the claim. Simple interest on claims shall be paid at the rate, fixed by the Secretary of the Treasury, as provided in the Act, which is applicable to the period during which the Command receives the claim and then at the rate applicable for each 6-month period as fixed by the Treasury Secretary during the pendency of the claim.
23.9 Lessee shall proceed diligently with the performance of Lease, pending final resolution of any request for relief, claim, appeal or action arising under Lease, and comply with any decision of the Command.
24. COVENANT AGAINST CONTINGENT FEES:
Lessee warrants that no person or agency, has been employed or retained to solicit or secure this Lease upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, excepting bona fide employees or bona fide established commercial agencies maintained by Lessee for the purpose of securing business. For breach or violation of this warranty, Government shall have the right to annul this Lease without liability or in its discretion, to require Lessee to pay, in addition to the rental or consideration, the full amount of such commission, percentage, brokerage or contingent fee.
25. OFFICIALS NOT TO BENEFIT:
No member of or delegate to Congress or Resident Commissioner, shall be admitted to any share or part of this Lease or to any benefit to arise therefrom, but this provision shall not be construed to extend to this Lease if made with a corporation for its general benefit.
26. LIENS:
Lessee shall promptly discharge or cause to be discharged any valid lien, right in rem, claim or demand of any kind, except one in favor of Government, which at any time may arise or exist with respect to the Leased Property or materials or equipment furnished therefor, or any part thereof, and if the same shall not be promptly discharged by Lessee, or should Lessee or sublessee be declared bankrupt or make an assignment on behalf of creditors, or should the leasehold estate be taken by execution, Government reserves the right to take immediate possession without any liability to Lessee or any sublessee. Lessee and any sublessee shall be responsible for any costs incurred by Government in securing clear title to its property.
77 Exhibit 1
71 27. TAXES:
Lessee shall pay to the proper, authority, when and as the same become due and payable, all taxes, assessments and similar charges which, at any time during the term of this Lease, may be imposed upon Lessee with respect to Leased Premises Title 10 United States Code, Section 2667(e) contains the consent of Congress to the Taxation of Lessee's interest in Leased Premises, whether or not the Leased Premises are in an area of exclusive federal jurisdiction. Should Congress consent to taxation of Government's interest in the property, this Lease will be renegotiated
28 SUBJECT TO EXISTING AND FUTURE EASEMENTS AND RIGHTS- OF-WAY
This Lease is subject to all outstanding easements and rights-of-way for location of any type of facility over, across, in and upon Leased Premises or any portion thereof and to the right of Government to grant such additional easements and rights-of-way over, across, in and upon Leased Premises as it shall determine to be in the public interest; provided that any such additional easement or right-of-way shall be conditioned on the assumption by the grantee thereof of liability to Lessee for such damages as Lessee shall suffer for property destroyed or property rendered unusable on account of the grantee's exercise of its rights thereunder. There is hereby reserved to the holders of such easements and rights-of-way as are presently outstanding or which may hereafter be granted, to any workers officially engaged in the con' struction, installation, maintenance, operation, repair or replacement of facilities located thereon, and to any Federal, state or local official engaged in the official inspection thereof, such reasonable rights of ingress and egress over Leased Premises as shall be necessary for the performance of their duties with regard to such facilities
29 INGRESS-EGRESS
Government will be granted reasonable access to Leased Premises under this Lease Such access will be coordinated with Lessee
Exhibit 1
72 30. ADMINISTRATION:
Except as otherwise provided for under this Lease, Government shall, under the direction of the Command described in addendum (a), have complete charge of the administration of this Lease, and shall exercise full supervision and general direction thereof insofar as the interests of Government are affected.
31 SURRENDER
If Leased Premises is not conveyed to Lessee at time of termination of Lease, Lessee shall quietly and peacefully remove itself and its property from Leased Premises and surrender the possession thereof to Government Government may, in its discretion, declare any property which has not been removed from Leased Premises upon expiration or termination provided for above, as abandoned property upon an additional 30 calendar days notice 32 INTEREST
32.1 Notwithstanding any other provision of this Lease, unless paid within thirty (30) calendar days, all amounts that become payable by Lessee to Government under this. Lease (net any applicable tax credit under the Internal Revenue Code) shall bear interest from the date due The rate of interest will be the Current Value of Funds rate published by the Secretary of Treasury pursuant to 31 U S C 3717 (Debt Collection Act of 1982)
32 11 Amounts shall be due upon the earliest of
32 1. 1.(a) the date fixed pursuant to this Lease,
32.1.1(b) the date of the first written demand for payment, consistent with this Lease, including demand consequent upon default termination,
32.1.1(c) the date of transmittal by Government to Lessee of a proposed supplemental agreement to confirm completed negotiations fixing the amount,
32.1.1(d) if this Lease provides for revision of prices, the date of written notice to Lessee stating the amount of refund payable in connection with a pricing proposal or in connection with a negotiated pricing agreement not confirmed by Lease supplement.
Exhibit 1
73 33. AVAILABILITY OF-FUNDS:
The Government's obligations under this Lease are subject to the availability of funds appropriated for such purposes Nothing in this Lease shall be interpreted to require obligations or payments by Government which are in violation of the Anti-Deficiency Act (31 USC 1341).
34. APPLICABLE RULES AND REGULATIONS:
Lessee and any sublessees shall comply with all Federal, State and local laws, regulations and standards that are applicable or may become applicable to Lessee's or sublessee' activities on the Leased Premises These include, but are not limited to, laws and regulations on the environment, construction of facilities, health, safety, food service, water supply, sanitation, use of pesticides, and licenses or permits to do business (eg., wetlands [EO 119901 and floodplains [EO 11988], Section 106 consultation under the National Historic Preservation Act and air quality conformity determinations under the Clean Air Act). Lessee and any sublessee are responsible for obtaining and paying for permits required for its operations under the Lease.
35 STORAGE
Any Government property which must be removed to permit exercise of the privilege granted by this Lease shall be stored, relocated or removed from the site and returned to a specified location designated by Government within the confines of the Installation, upon termination of this Lease, at the sole cost and expense of Lessee.
[Signature Page Follows]
Exhibit 1
74 IN WITNESS WHEREOF, the parties hereto have duly executed this Lease as of the day and year first above written
As Government
UNITED STATES OF ERICA,
acting by and throu the Department of the Navy,
By -
WIL AM R. CARSILLO
Real Estate Contracting Officer
As Lessee
ALAMEDA REUSE & RE EV OPMENT AUTHORITY
By:
IJAMSM. PLINT
Executive Director
APPROVED AS TO FORM
,frd
B __________________________ (Municipal Seal)
City Attorney
(7
Exhibit 1
75 CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of ____________
County-of
On JWQ (I 00 before me, '(xe ji-o
Date Name and Title of r (e., Jane Doe, Nota,' Public)
- 1 - I f - i' a
personally appeared \_./(4 " -r i I fl
Name(s) of Signer(s)
personally known to me - OR - D proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), Commission 1151 643
or the entity upon behalf of which the person(s) acted,
Notary Public - California executed the instrument.
Z 7 Alameda County
Comm ExpwesAug 16 ,2001 WITNESS my hand and official se* eal Signature of NotJUblic
OPTIONAL
Though the Information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
oIndividual
Corporate Officer
Title(s): -
Partner 0 Limited 0 General
Attorney-in-Fact
0 Trustee
0 Guardian or Conservator
0 Other: Top of thumb here
Signer Is Representing:
Number of Pages
Signer's Name:
oIndividual
Corporate Officer
Title(s):
oPartnerD Limited DGèneral
Attorney-in-Fact
O Trustee
~Top" thumb
O Guardian or Conservator
o Other:
Signer Is Representing:
Exhibit 1
76 CALIFORNIA ALL -PURPOSE ACKNOWLEDGMENT
State of CAW-
County of
On 2b1)b beforeme, _L&rv t\.oh14
Dale Name and Title otOffloefe.g.,Jane Doe. NO9Y Public') in
personally appeared
D personally known to me OR 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
LAM WEISIGER or the entity upon behalf of which the person(s) acted, Commission # 1151643 z executed the instrument.
Lip-
swature
Notary Public - California
nec County
o
WITNESS my hand and official seal.
of Notary Publk
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: ____________________________________________ Number of Pages:
Signer(s) Other Than Named Above:
Capaclty(les) Claimed by Signer(s)
Signer's Name:
0 Individual
O Corporate Officer
Title(s):
0 Partner 0 Limited 0 General
0 Attorney-in-Fact
0 Trustee
o Guardian or Conservator
o Other:
Signer Is Representing:
Signer's Name:
Individual
I Corporate Officer
Title(s):
Partner 0 Limited 0 General
Attorney-in-Fact
Trustee
Guardian or Conservator
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80 EXHIBIT C
DECLARATION OF LEASE COMMENCEMENT
This is to confirm that the Commencement Date, as defined in Section 2.2 of the attached lease, for the property commonly known as Building , and containing approximately square feet pursuant to the lease dated ,20 the ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY, a Joint Powers Authority established by the City of Alameda and the City Improvement Commission under the California Joint Exercise of Powers Act as set forth in Title 1, Division 7, Chapter 5, Article I of Government Code of the State of California (Government Code §6500 et seq.) ("Landlord") and a ___________________ ("Tenant") is, for all purposes, agreed to be 20_, and the Expiration Date of the Lease is agreed to be , 20.
LANDLORD:
ALAMEDA REUSE AND REDEVELOPMENT
AUTHORITY, AN AGENCY OF THE CITY OF
ALAMEDA, a political subdivision of the State of
California
Name:
Ann Marie Gallant
Interim Executive Director Title:
Date:
RECOMMENDED FOR APPROVAL:
Leslie Little
Development Services Director
Approved as to form:
Donna Mooney, Assistant City Attorney
2000000.3262 -1- 12/15/05.V6
Exhibit 1
81 MOA on Historic Preservation
Exhibit D
MEMORANDUM OF AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
ACTING BY AND THROUGH
THE SECRETARY OF THE NAVY
UNITED STATES DEPARTMENT OF THE NAVY
AND
THE ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY
FOR CONVEYANCE OF PORTIONS OF THE NAVAL AIR STATION ALAMEDA FROM
THE UNITED STATES OF AMERICA
TO
THE ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY
Exhibit 1
82 MemQrndum f ent
The Vnitad State Navy The Muaxy Curcil on fl.stOrio
- liforii*. State Hito.c V*tion
Le.eixq and
I
- Naval Air Station
WHEREAS, the Depaz=ent of the Navy (Navy) has been directed to close, layaway, place in caretaker maintenance, and subsequently lease, sell, transfer, or otherwise dispose of properties at the former Naval Air 5tatior, (NAS), Alameda by the ease Realignment and Closure Act, as amended in 1993, and this undertaking will affect builctigs and structures within the NA Alameda Historic District, a property eligible for inclusion in the Nationa,1.
Register of Historic Places (Register) and
WHEREAS, the south jetty of the Oakland Inner Harbor Jetties and Federal Charrne3. Historic District, a property determined to qualify for listing on the National Register by the Army Corps of Engineers in consultation with the Calif o,nia State historic Preservation Officer (SHPO), is on land under the jurisdiction and control of the former. NAS Alameda; and WHEREAS, the NP5 Alameda Historic District and the south jetty of the Oakland Inner Barer Jetties and Federal Channel Historic Di3tric.t are historic properties located within the limits of the City of Alameda (City), a certified Local coverient under section 101(c) of the national Historic Preservation Act (Act), as amended and
WHEREAS, the Navy has consulted with the Advisory Council on Historic Preservation (Council) and the California SHPO pursuant to 36 CFR Parr. 800, regulations inlemant,ing Section 106 of the National ILitoric Preservation Act of' 1966, as amended (1EU.S.C. 470f); and
WHEREAS, upon disposal of the historic properties from the Navy to a non- federal entity, any Federal jurisdiction ceases and the jurisdiction of the historic property reverts exclusively to the City, and therefore, the City was invited to participate in the developnent of this agreement and has been invited to concur;
NOW, THEREFORE, the Navy, the Council and the California S{2O agree the layaway, caretaker maintenance, lease, sale, transfer, and disposal of the property included in the N?.$ Alameda gistorc District and that portion of the Oakland Inner Harbor Jetties and Federal Channel Historic District shall be irip1emer.ed in accordance with the following stipulations in order to take into account the effect of the undertaking on historic properties.
Stitlation
The Navy will ensure that the following measures are carried out:
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83 Krafllm of Aqrent
.S Alaid to Digtrit
page 2
Nati on*l !nis"r Nomination,
The Navy shall prepare the National Register Nomination Form for the NAB Alameda Historic District and submit it to the Keener of the National Register within one year from the date of execution of this agreement, 2 Hiateria Arttfacts *nd Pecrd*
a The Navy has collected the items in the Naval Historical Center's (NHC) inventory of historic artifacts and otherhisto- rically siqnificant materials from the former NM and Naval Air Depot, Alameda and secured then in temporary storage in Building 29 at NAS Alameda
b The items collected in 2.a. above that are listed on the NE C's inventory APPNDIX A) will rereain Navy property under the jurisdiction and control of the Director of the Naval Historical Center, Washington Naval Yard, District of COiithlbia, and will be placed either on perittanent loan with a on Alameda or in the greater San Fzanci3co Bay area, or will be transported to other appropriate instit1tiOfl5 where they will be permanently cura ted
c The Navy has Coordinated the disposal of NAS Alameda's records, drawings, plans, and photographs with and transferred them to the National Archives Pacific-Siexra Pacific-Sierra Region, San Bruno, CA. 3 way and Caxe#aXer Maiteri*nee
a Prior to layaway and placement of historic properties into a caretaker maintenance status, the Navy shall follow the "Maintenance and Repair Guidelines for the NAs Alameda Historic District" (APPENDIX W regarding routine repair and maintenance of historic properties within the NAS Alameda Historic Distract, and all actions taken in accordance with APNDIX B may proceed without further consultation with $HPO or Council, except as specified in that document
b. Until disposal or transfer, as the contributing historic properties are vacated, the Navy shall layaway atid pzoide caretaker maintenance of the historic properties at the minimum levels described in APPENDIX C. c Prior to initiating any action which would irreversibly alter, namage or demolish a contributing historic building or structure which has been classified for Layaway Level 6 (No Reuse Likely) the Navy shall contact the ?aific-Great Basin Service Center, N?S, $an Francisco, California to determine what level and kind of recordation as required for the property, Unless otherwise agreed to by NPS, the Navy shall ensure that all documentation as complete and accepted by the Historic American Buildings Survey/Historic American Engineering Record (HABS/}tAZ) prior to 4ny irreversible alteration or demolition, and that copies of the documentation are provided to the California ZVO, the City and the Alameda library and historical museum(s)
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Exhibit 1
84 of Agreement,
$ Alameda Historic Diatrict
page 3
4. Leasing- of
a. Prior to the transfer, sale or conveyance by some other rneana from the control and jurisdiction of the Navy, the Navy may enter into interim leases which will pernit tenants to adaptively reuse, contributing properties thin th e NAS Alameda Historic District, provided that the lease agreements require tenants to follow AZNDIX b in naintainrg or adapting these historic procxtiea for use.
b. The Navy shall inspect the leased contributing historic properties semi-annually to ensure that the conditioDs of APPENDIX B are followed in maintaining or adapting the historic property for other uses and shall take appropriate remedial action to assure compliance with APPENDIX B where deviati.ons are observed. Appropriate remedial action shall include totification of SHPO and Council
c Where the City of Alameda requires modification to those buildings listed as contributing to the WAS Alameda Historic District to meet tire- Safety or Americans with Disabilities Act requirements as a condition of occupancy, the Navy shall encourage the tenant or prospective subtenant to have the required modifications, designed by an architect trained and experienced in the rehabilitation' of historic buildings using the 'State Historical Building Code, ?art B, Title 24 of the California Code of Regulations.
d. To avoid intrusiveness and inappropriate signing within the Historic District tenants shall be required to follow the 'policy included in APPENDIX D governing the size, location, color, and lettering style of new sighs to he installed within the Historic District-
5 ez PUenPl*nna
a. The Navy shall make an application to the City Council to place that portion of the Oakland Inner Harbor .Dettiss and Federal Channel Historic District on its "Historic Buildings Study List" and afford it the protection provided to listed properties.
b. The Wavy has prepared a Guide tc' Pxarg the aAactez of the NAvz2 .A.iz Station ALiaeda Ristaric District to assist the City and its Historical Advisory board in administering the Historic District in accordance with the City's Building and Housing Ordinance Article VII, Historical Preservation, 1-21, reservation of Historical Monuments." C. Within a calendar year from the execution of this agreement the City shall adopt an amendment to its Building and Housing ordinance Article VII, Historical Preservation, 13-21, Preservation'of Historical Monuments" to Include review of exterior modifications to historic structures consistent with the Secretary of the Interior's.Standerds for Rehabilitation and GUideljn:.q !or Rehabilitating Ei.gtcrjc Buildings, and shall designate the NAB Alameda Historic District a Historical Morwzient and afford it all the protection and privileges provided such designated properties pursuant to the City's historic preservation ordinance.
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85 VAm=zancb= of Aqrent
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d. The City will ensure that the Alameda Historical Advisory Board shall c ontinue in its present role as described in the Alameda ordinance 13-21, preservation Of Historical Monuments, icreasthg its area of resPonsibilitY to include the t-{AZ A1aeda Historic District
e When title to property located within the NA Alameda Historic District, arid that on wliicb the South Jetty of the Oakland Inner Nathcr jetties and Federal Charini. Historic District is located, i traziferred from the Navy to a non-federal entity all undertakings affecting these properties w.1l be administered exclusively in accordance with City codes and ordinances f. The City shall apprise prospective Historic District tenants and property owners of the financial tools and eccomic incentives that are available, including but not limited to the State Historical building Code and Thderal and State tax incentives, for the preservation and adaptive rehabilitation of historic properties
g Within 30 calendar days of execution of this agreement City shall seek the assistance of the National Trust for Historic reservation for guidance on marketing the historic properties in the NAS Alameda Nistoric District
6 Docu ment Rtiew and cnt
The California SBPO shall be afforded thirty (30) clays after receipt to couaent on any documentation submitted by the Navy as a result of con Itation efforts or otherwise the result of implementation of this agreement. thould the California 5HPO decline to participate or fail to respond within thirty (30) days to a written reqtest for conex1t5, the Navy shall continue to consult with the Council to complete its respo.bilitaes for the specific action
7 Arn.a2, Repe=t and
on or before Deceiuer 15 of each year, until the terms of this agreement have been fulfilled, or title to the historic properties have been transferred to non-federal entities, the Navy shall provide an annual report to the Council, California SNPO, and City addressing following topics
a status of the curation of artifacts,
h. identification of historic properties leased, transferred or conveyed to others,
C Status of the City's efforts to market and preserve the historic properties, and
d. list and explain any problems or unexpected iSS$ encountered during the previous year,
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ashould any party to this agreement object to any action carried out or Y the Navy with respect to the iepleinentation of this agreement, the Navy shall consult with the object-;L party to resolve the objection. If, after entering into such consultation, the Navy deteTflifle$ that the abjection cannot be resolved through coniultation directly with the objecting party, the Navy shall forward all relevant documentation to the Council, including the Navy's proposed response to the objection. The Council shall exercise one of the following options within 30 calendar days of receipt of all pertinent documentation
W advise the Navy in writing that the Cuncil concurs with the Navy's proposed response and final decision, if so indicated, whereupon the Navy shall respond to the objecting party in writing, or (2) provide the Navy with written zecommendationa arid/or comments, which the Navy shall take into account in reaching its final decision regarding its response to the objection in acco:dancewi.tb. 36 CFRe006; or () notify the Navy in writing that the Council shall provide written comments within a specified time frame pursuant to 36 C'R 900.6. The resulting comments shall be taken into account by the Navy in accordance with 7t 800 6(c)
Should the Council fail to exercise one of the above options within 30 calendar days after receipt of all pertinent documentation o documentation the Navy may assume the Council concurrence in the Navy's proposed response. it considering any party's cartmeritz., the Navy shall take into account any recommendation or cOnent with reference only to the subject of the objection.
The Navy's responsibility to carry out all actions under this agreement that are not the subject of the objection shall remain unchanged and shall be executed accordingly.
b At any time duxing implementation of the stipulations of this agreement, should an objection(s) pertaining to this agreement be raised by a member of the public, the Navy shall notify in writing the signatory parties to this agreement and take the objection into account- 'the Navy shall consult with the objector and, if requested by the objector, consult with any or all of the signatory parties to this agreement with respect to the objection. 9,Amendments.-
Any party. to this agreement may propose, in writing, to the Navy that the terns and/or stipulations of this agreement be amended. The Navy shall consult with the other parties to this agreement to consider such an artendinent. 36 CR 800.5 shall govern the execution of any such amendment once agreed upon by all parties.
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87 Memorandum of Agre ement
NM A1a4a historic District
10. Anti-Deficiency Act-.
a. All requirements set frth in this agreement requiring the expenditure of Navy funds are expressly subject to the availability of appropriations and the requirements of the Anti-Deficiency Act (31 U.S.C.
Section 1341). No obligation undertaken by the Navy under the terms of this Agreement shall require or be interpreted to require a Commitment to expend funds not appropriated for a particular purpose.
b. If the Navy cannot perform any obligation set forth in this agreement because of the unavailability of funds,. the Navy, California SHPO, City, and Council intend that the remainder of the agreement be executed. Any obligation under the agreement which cannot be performed because of the unavailability of funds must be renegotiated between the Navy, California SHPO, City and Council.
Execution of this agreement by the Navy, Council, and California SHPO, and subsequent implementation of its terms, shall be evidence that the Navy has afforded the Council an opportunity to comment on the Navy's undertakings and its effects on historic properties in accordance with Section 106 of the National Historic Preservation Act and its implementing regulations contained in 36 CFR Part 800.
UNITED STATES NAVY, NAVAL FACILITIES ENGINEERING COMMAND, ENGINEERING rig= BY: Ji Date: SEP 01 1999
Print Name of Title of Signer: r., J. BT1c'h4np13, (APT TTcN ('', C"48_Qfficer
STATE HISTORIC PRESERVA TION OFFICER
BY: f 'W-' \
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Print Name &Nitle of signer:
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ADVISORY CO
BY: 6
Print Name &
CONCUR:
CITY
BY
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Exhibit 1
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89 NAVAL HISTORICAL NAVY DEPARTMENT CURATOR
CENTER ACCESSION NUMBER - - - - - - - -
CURATOR BRANCH
INVENTORY REPORT
DATE
MA$W/ACflVITT NAME NAVAL. AIR STATION - -
CA -
-
ALAMEDA, a- - -
_-
LOCATION HAS ALAMEDA 8LIILD1NC 29
_-i- - - -
-
---T - - -
JAv,r DIMENSIONS ITEM HA$fPEStRIPIO) REMARKS
DEPARTMENT
CURATOR
CATALOG NUMBER - - - - -
AA 18 17 8 KIT, C$APtAH U$W JEWISH FAITH METAL CONTAINER AIR 45 36 FLAG CHAPLAIN, USN, JEIJISH FAITH NYLON VITH FRflGE AC 82 45 FLAG ORGANIZATIONAL, USN, WAVES NAVAt. StA1IDi TREASURE ISLAND - a- - 5 - - - p - -
AD 48 24 SIGN, INFORMATION, AIR TERMINAl., 'rROM AIR TERMINAL -- "GATE -
12. 11- 5
-
HELMET, PROTECTIVE, COMBAT, M1917
-flr
SN ZA17E
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AF 18 16
2 PLAOLJE C4EMORATIVE NAOE.
-
5 - ILLfOHThNIF OOLLAR,C 1072
AG 7 4 1-? SET, DRILL 911 1 1/16TH TO 1/2 IN BLANK BITS / HARTU - - - - 5 - - - - - - -
AN 97. 31 1
-
DISPLAY BOARD, RUBBER PRODUCTS
- - -
NAVAL AVIATION DEPOT
25 - Q 38 45 DtSPLAY BOARD, COMMAND SIMA SAN FRANCISCO
A.J 8.7 5 1.2 WING FITTING ASSEMBLY POR A-3 SERIES AIRCRAFT At Z. 4 6.5. FLAP SUPPORT A5EN8LY FOR A-3 SERIES AIRCRAFT - - 5 - - - -1 - - -v- --- - -
Al. 14. 4 7.7 FAN DISK-ASSEMBLY, TF34 ENGINE FOR 5-3 SERIES AIRCRAFT - - - - -- - - - -a--
AM 13 6.2 5J
_-
CLOSING ARM, LANDING GEAR DOOR
- - - - fl---- __--,
FOR 5-3 SERIES AIRCRAFT
- a - - - - -.- -. -
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ENCLOSURE (I , )
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90 NAVAL HISTORICAL WAYT omwi CURATOR
CENTER
ACCESSION NUMBER
CURATOR BRANCH
INVENTORY REPORT
DATE
-
C4MAND/ACT1ViTT NAME NAVAL AIR STATION -
ALAMEDA, CA -
LQDA11OR WAS ALAMEDA BUILDING 29
--
NAVY
c--- -
DIMENSIONS illil NAME/DESCRrFTIDH
___
REMARKS
DEPARTMENT
CURATOR
CATALOG NUMBER
AO
-
13. --
6.2 -
7.5 - -
GYRO ASSEMBLY, WEAPON CONTROL,
- - - -r -
FOR A-3 AND A-4 SERIES AIRCRAFT
5 AIRCRAFT
AF 7.7 7 .5 FLOOR SECTION, AIRCRAFT FOR F3 SERIES k1RCRAF7 - - - - -r flr r - - -r- -
15 7 2.5 DIE, STAMP, MACHINE MOUNTED
AR 20 11 2 PLAOUE, AWARD, BENEFICIAl. WAS OVERHAUL AND REPAIR DEPT - - - - -
AS 25. 9
- -
DISPLAY, TOOL CHIT
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AT 9.5 6 METER, FREDUENC, CALIBRATION, SN FOR SHRIKE MISSILE 2684
AU 12 Si fl TEST SET, TORPEDO, HEAT AND FOR MK l4, MK 4, AND MK 48 5 CONTROL SYSTEM
AV 8.7 4 SIGN, LICENSE, "JAPANESE MUI4TUO" MADE BY CER DEPT C Wit All 5 3.7
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SIGN, PERMIT, PARKINQ, SW 1501
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NAVY DEPARTMENT CURATOR
- - - - -
NAVAL HISTORICAL
rt1J r t tEB
ACCESSION NUMBER 97'63
- - -'- -
CURATOR BRANCH
INVENTORY R.ORT
pMMAD/4CTTVITY NAME NAVAL AIR STA17104 - -
ALAMED& CA
-j
iQftflON WAS ALAMEDA BUILDING 29
r- - --- - - - --= -
WAVY DIMENSIONS
-
1EM NAME/DET1PT1t)N REMARKS
DEPARTMENT
cI.mATo
ATJ )LIJI4ER - - -
BA 5.7 6.5 1 PATTERN,' MOLD INSIGNIA MADE? ALAMEDA
5 SG 10 10 1.7 PATTERN, MOLD INSIGNIA NAOEP A)AMEDA
5 7.5 7 2 PATTERN, MOLD. UI4 USN MASTER MA UST A SSOC.' RD 10 3.5 7.2 KIT, HOLE BORING / CUTTER
BE 12. 11 1.5 PANEL, PATCH, ELECTRONIC POR PROCRAMMING MACHINERY of 28 22 13 CONSOLE, cPU1ER, C-3-DATA FOR 1ORk MANACEMEMT
SYSTEMS
18 17 5 PLAQUE, COMMEMORATIVE IM MEMORY Of 8I4C RAYMOI4tI BAKER
75 - - -- - - -a --- -- - - - -
9)4 19 12 75 PLADUE, AiIAP 2 SAFFTT C, 1989 -- - NAVAIRYSCC)I4 / NADP ADA - r-- -. -
3.7 4 5
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5 BJ 27 Z.5 3.5 G(LLIT, ALUI4INUM FOR FORCE OPERATIONS
SK 27 3, 5 3.5 BILLET ALUMINUM -_ _-___- - FOR FORGE OPERATIONS __fl I - _ LAW, FORGE - -
BM 46, 7 .5 SIGH, PATTERN 5140P
BN 83 22 3 CRADLE, FORCE METAL POT
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ENCLOSURE (1
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92 ItAVP.L HISTORICAL vy DEPARIMENT CURATOR -
CENTrR ACCESSION NUMBER -'--- - - ----- - ----: ------e- -
- -
CtJRTR BRANCH
INVENTORY REPORT
$MANPIACTIVTTY NAME
-
NAVAL AIR STATION -
ALAMEDA, CA - - -
LOCATION HA ALAMEPA BUILDING 29
NAVY DIMENSIONS I7-1 NAME/DESCRIPTION REMARKS
DEPARTMENT
CURATOR
CATALOG NUMBER - -
37 3 1.5 TONGS, FORCE -
El' $0.
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2 -
PLAQUE INSIGNIA, UNIT NAVAL AIR REWORK FACILITY
-
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11. 14. POT, METAL FORGE - FOR MOLTEN METAL
25 7S
ER 11. SET , MICROMETER FOR MEASURING WEAR
19 15 MASK ASSEMBLY, PROTECTIVE FOR AIRCRAFT CMEMCAL WASKOQWW ST 60 6.5 p14cUE, INSIGNIA, UNIT NASALAMEDA
EU 66. 56 FLAG, OGANIZATIONAL, UNIT NAVAIRSYCDM
- 5 - -
36 24 75 PLAQUE, COMMA ND, UNIT NARDACANVANCISO -
SW 2. 22. 38. CART, TOOL, MECHANIC, SW 8SM-625 NADEP ALAMEDA - -- ---
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DISPLAY, PRODUCT, INSTRUMENT.
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REWORKED AT NADEP ALAMEDA
25 SEARINGS
ST - 94. 62. 40 O1ORAMA, INSTALLATION NAVAL AVIATION DEPOT 75 75
SZ 24. 20 1.7 PLADLIE, A4&RD, SAFETY, C 1974 JAA7 ALAMEDA 25 5
CA 16. 13. 1 PLAQUE, AWARD, SAFETY, C1972 NAVAL AVIATION DEPOT - 75 75 ___________ -_-_._-_-----_-----_- =_-------_-
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NAVY DEPARTME97 CURA10 NAVAL HISTORICAL
CENTER ACCESSIONU
CtYATOR BRANCH DATE
INVENTORY REPORT_
CMMAHD1ACT1VIT NAME NAVAL AR STATION
p, Ut M U.SU .Up U U MaU -L pUtt_W
LOCATION: WAS ALAMEQA J1UIUG.2.
- - - -
NAVY DIMENSIONS
- - -
ITEM 4E/DESC!PT)ON REMARKS
QEPARThEHT
CUTA1OR
-- CATALOG NUMBER - - - - Sr
37 4 1.2 PLAOU, COMMEMORAI1VE á. / NAf ALAMEDP 141197 cc LI 4 LZ PLAQUE, COMMEMORATIVE A&k I NAOEP ALAMEDA 141 - 1997 - -
2 15. FLAStLIOHT, HAND, US, MX-993/U, USED Y TAXI .CRQUIID CREW / ITM - 25 - -r 'CDNE S(IELD - - - - p -
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61. 58 3 MAT, DECK, DUARTERDECK, UNIT CE! 41
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1D. 3 CLOCK, WALL, US, 24-iiot,!R HAS ALAMEDA AIR TERMINAL 25 c Ii. 4B RACK, EJECTOR, us, AERO 200 CUTAWAY TRAINING 410 5 - - - - -. SH486 - - -
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94 NAVAL HISTORICAL NAVY DEPARTMENT CURATOR
CENTZR ACESSON NUtI8ER
ctmATOR BRANCH
INVMaORY REPORT
-
MpI&C1iVlTY NAME NAVAL AIR STATION
ALAMEPA CA
LCATJON NAS ALAMEDA BUILDING 29
NAVY DIMENSIONS ITEM WAME1DESCRP110I4
DEPARTMENT
CURATOJ
CATALOG NURSER
co 22. 10. 17. JLATrJR/Ma,fl70R 8 AERCArr TIRE 75 25 75 SN L0E0OI8
C? 1. 10 7 CARBURETOR, AIRCRAFT ENGINE
CO 20 14. 16 TEST SEt, FLAP ACTUATOR, AIRCRAFT
CR 1.2 .25 COIN, COMMEMORATIVE, NAS ALAMEDA 257H ANNIVERSARY 5 - ___________ -
CS 5 2 TICKET, CLAIM CHECK, RAGGAGE, SW GENERAL PURPOSE S 2 'rIcET, CLAIM CNEC3çBACGAE, SN GENERAL PURPOSE 2282
CU
- -
5 2 TICKET CLAIM MCK, RACOACE. Sk MAS MIRAIIAR
15799
CV 5 2 TICKET, CLAIM CHECK, BAGGAGE, SN NAS MA4AR Cw 55.. 43 2 PAINTING, OIL, US! SAMUE.. GOMPERS ARTIST IORCJNA CANOE1.ARIAC 25 D 37) 1939. INCLUDES LJS !PRtJAMCZ
0D963_ AND _00975
cx 60. 41 4 PANTING, OIL, BATTLE OF MANILA ARTIST: F. ?AUR C 1910 - 5 RAY SN1090 _________ - =-=, . - -
ENCLOSURE (
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95 NAVAL HISTORICAL NAVY DEPARTMENT CURA10
cENTZR ACCESSI ON NUMBER - - ---------- ------- -.--- -.--.---- ctrP.ATOR BRANCH
INVENTOR REPORT
DATE
AWPIACTIVTTI NAME NAVAL AIR STATION
ALAMEDA, CA
LOCATION*. WAS ALAMEDA E1JILD1NG-29
- I
ITEM HAMLDESCRIP1ION REMARKS MAY? DIMENSIONS
DEPARTMENT
cURATOR
- - - - CATALOG NUM13ER -
CT 13 13 2 BOARD, £UXTCHIINDICATQR, FORGE 5140P SAMPLE
75 - 25 * - -- LETRDNIC ---
13 13 2 BoARb, JITC/INPICA1DR, ELEcTRIC FORGE SIOP SAMPLE DA 19 10 V. CASE, BISCUIT, SURVIVAL RATION CIVIL DEFENSE ITEM 5 - -- US, CIVIL DEFENST -
oa 19 16, 10 TEST 55T US AIRCRAFT FIRE USED WITH THE A-6 SES 5 75 75 CONTROL STSTEM SN AVO20 AIRCRAFT
DC 24 13. 17 TEST S!1 TRANSISTOR, TYPE 575 SN USED IN SHOP TESTS fOR 25 011057 . TRANSISTORS
DO 23 17 VEST, AVI7 IOU, GROUND CREWMANS. FROM AIR TERMINAL LARGE
DE 23 11 VEST, AVIATION GROUND CRE4I4AN5, FROM AIR TERMINAL LAP CE
NELM1. FLIGHT DECK CREw$AwS FROM AIR rPJqiHAL/ - MARKED OF 19.5 10 5.5 - - - - - "0. /HUGO BARHEYH -.
DO 9.5 10 5.5 HELM1, FLIGHT DECK CREJ$AW'S FROM AIR TERMINAL,/ MARZD - - - - -
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7.5 - 4.5 5.5 1 PROTCTO FOOT / TOE (1 PAIR) - a-- -. FROM AIR TERMINAL - ENCLOSURE.
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96 NAVAL HISTORICAL
CENTER
--
NAVY DEPARTMENT CURATOR
ACCESSION NUMBER -
DATE INVENTORY REPORT
UP.TOR BRANCH
lsAND/AC1IVTTT NAME NAVAL AIR STATION
ALAHOA, CA
0 0
LOCATION NAS At.AMEDA BUILDING 2
ITEM NAME/DESCRIPTION IEMARKS
-
DIMENSIONS
DI 10. 5.5 PATCH, ORGANIZATICMAL MARKED "N.A.S. ALAMEbA I AIR 5 TERMINAL"
Di 10. 5,5 PATCH, ORCANIZA710NAL MARKED "N.A.S. ALAMEDA / AIR / 5 TERMINAL"
DK
35
14 _
37. SIDEBOARD, QUARTERDECK, SKIP'S FROM USS SAMUEL CO$PEkS (AD 37) r -
5 -. -
OL 35 1 14 37, SIDEBOARD, QUARTERDECK, SHIP'S FROM USS SAMUEL OQMPSHS (AD 37) 5 ON 36 9, 39 MACHINE. PUNCH CARD, c,iPUTER, WITN INSTRUCTION 800K 5 IBM MODEL 20
ON 43. 20. 45 MACHINE, SORTING, PUNCH CARD, SN FROM NAVAL AVIATION DEPOT 5 5 2397
DC 22 1. 10, TEST UNIT, SEARCH RADAR, GRUMMAN FOR USE WITH A1/APQ-92 OR 5 5 (CASE i OF 3) AN/APO - A05 RADAR (Aó SERIES
AIRCRAFT)
OP Zi 18 10 TEST UNIT, SEARCH RADAR, GRUMMAN FOR USE WITH AN/APO92 DR (CASE 2 OF 3) AN/AP0105 RADAR -6 SERIES
AIRCRAFT)
00 22 19 ) TEST UNIT, SEARCH RADAR, GRUMMAN FOR USE WITH AN/APQ-92 DR (CASE 3 OF 3) AN/00105 RADAR (A-6 SERIES
AIRCRAFT)
DR DR h. 24. CAPSULE, TIME, COMMEMORATIVE FROM MARF MATERIALS ENGINEERING S 75 LABORATORY DD FEB 1986(DO NOT
OPEN UMITL 201) (COMMEMORATES
75TH ANNIVERSARY OF NAVAL
AVIAT I ON)
05 36 15 0 I SCALE, WEIGHT, 5N65555-190402 1FROM WARF ALAMEDA ENCLOSURE ( 1
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97 NAVAL HISTORICAL
CENTER
NAVY DEPAVMWT CURATOR
ACCESSION NVM9 97'-61
DATE CURATOR BRANCH
INVENTORY REPORT
-
ClMAND/ACTtVtt! NAME NAVAL AIR STATION
ALAMEDA CA
LOCATION- WAS ALAMEDA BU I LDING 29
WAVY DIMENSIONS 11 MAME/DESCRPTIOW REmARKS
DEPARIHENI
CUATD
- -
CATALOG NUMBER
01 3.8
-
30 95
-
LANDING GEAR ASSEMBLY, NOSE,, SM 93431
S AIRCRAFT,-.P-3 SERIES AIRCRAFT
DL)
-
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48 75 LANDING CZAR AtML'r MAIN SN 93115
25 AIRCRAFT, P-3 SE RIES AIRCRAFT -
Dv 2b, 38 2 PLAQUE, EULER', FACILJIF AIRCRAFT ENGINE QVERKAUI.
OW 39. 19 a PROPELLER, AIRCRAFT, FOR P-3 CUTAWAY SECTION FOR TRAINING - 25 SERIES AIRCRAFT
ENCLOSURE ( )
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98 Maintenance and Repair Guidelines for Naval Air Station Alameda Historic District DefipitinA at Terms
In ad&tion to the terms defixied here and unless otherwise indicated. all definitions given in 36 CPE 8OO.2 will lx accepted for the purpose of this agreerucnt
1. Routine maintenance: Routine maintenance will include only exterior maintenance and rpafr.
2 Manitenanee Maintenance is the recurring day-to-day or periodic work required to coxthnue current use of the facility. It includes work wdertakm to premt damage or deteriorzion.
3. Rrpairi Repair includes overhauling, refinishing or reprocessing constituent parts or material of a facility in o*cr to continue effective current i.lse It includes roplacemeni in kind when new materials and design match existing material and design Actions Not Requiring Further Cwisuftaturn Puriaot to the Rt uIi*tlon (36 CFR Part 800) A. Strucwral Fiemeuts
1, Repair or replacement of sdin& trim, or hardware when done in kind to inaich existing material and design
2 Replacement of glass when done in kind to match existing material and design. Window panes may be double or triple glazed as long as the glaring is clear and replacement does not alter e,osthig window material and feint This excludes the use of tinted gia which will consultion.
3. Maintenance of features such as frames, hoodnio1ds paneled or doratcdjarnbs and moldings through appropriate unfaces neatmenis such as cleaning. rust removal, limited paint romovul, and rc-alication of protective coating syems.
5. Repair or replacement of roofs or part of a roof that are deteriorated, when done in kind to match existing material and design, Adequate anchorage for roong material to guard against wind damage an moisture penetration sbll be pnrvldsd.
6. Repair or replacement of porches and stairs when done in .ldnd to match existing material and dmigm
7. Repair.of window frames by patchin& splicin& consolidathig, or otherwise reinforcing or replacing in Idrid those parts that are either extensively deteriorated or are missing. The sune configuration of pane will be retained.
B. Surfaces
1. Painting exterior surfaces when the new paint matches the existing or original color. If the existing paint color is desirable and the original color Is now kziawo., the color should be in keeping with apivveci historic color schcmcs. Damaged or deitcxiorated paint may be removed to next sound Layer by hand scrapuig or hand sanding. Abrasive methods, such as sanlasting or waterblasin& are not allowed.
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99 APPENDIX C
YAWAY AND CARETAKER MAITENANCET,ANDA
yway Leval 1 (property remains in continuous use): QeratonAl facilities, systss and equipment shala be maintained at normal operational levels All services, including, but not lititad to, installed utilities, mechanical systems, grounds maintenance, interior and exterior structural finishes and systeus shall continue in operation, Maintenance of historic properties will be carried out in accordance with the terms of A?P!NDIX L Maintenance and Repair Guidelines for MA9 Alameda Historic District.
Ia'awar Lee]. 2 (property expected to be reused within 6 months of operational closure)i Maintenance shall be performed to maintain the structural integrity, weather tightness and utility systems of the facility to limit deterioration.
Water shall be periodically turned on to faucets, toilets, urinals, etc., to keep drain'traps 'swet.I? Appliances shall be winterized and unnecessary. electrical shall be de-energized.. lteatinglair conditioning will be. turned: off except where heating/air conditioning is required to maintain the mechanical systems in working order, for humidity control. and to prevent freezing Historic properties previously heated/air conditioned will be inspected on a regular basis 'for mildew, mold and other evidence of deteiorat.ion. Whee deterioration is observed appropriate measures will be taken to arrest he deterioration arid prevent reoccurrence.. Maintenance of historic properties will be carried out in accordance with the terms of ADPcjIX L Mainten.rxce and Repair Guidelines for NI.S Ala=eda Historic District.
L&yaw*y Level 3 (property expected to be reused within 6-24 months of operational closure) i Same as Level 2 except that the heating/ air- comd!tioning will be turned off. Historic properties previously heated/air conditioned will be inspected on a regular basis for mildew, mold and other evidence of deterioration. Where deterioration is observed appropriate measures will be taken to arrest the deteriotjqn and prevent reoccurrence. Maintenance of historic properties will be carried out in accordance With the terms of A?X fl, Maintenance and Repair Guidelines for NAS Alameda Historic District,
Layaw*y Level 4 (pOtential reuse of property is beyond 24 months of operational closure): same as Level 2 except that no heat or air conditioning will be provided and all utilities will be turned off. Water lines and fire suppression systems will be drained. Sewer traps shall be routinely filled with a non-toxic antifreeze or other methane gas suppression system. Passive ventilation shall be used to control, humidity. Scheduled inspections shall be made to detect any damage from mold or mildew, Where damage is observed appropriate measures will be taken to arrest deterioration and prevent its reoccurrence. Maintenance of historic properties will be carried out in accordance with the terms of APPZNZIX E, Maintenance and Repair Guidelines for NAS Alameda Historic District.
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_l5(leased facility) Utilities shall be provided, to the lessee on a tee basis. Lessee will Provide or and fund maintenance, repair or services to the property(s) , Maintenance of historic properties will be carried oat in accordance with the taiins of APP IX B, Maintenance and Repair Guidelines for NA Alameda Historic District,
Layaway Level 6 (no reuse envisioned; abandoned in place); The property, related syterte aad eprtent shall be closed and secured- Windows and entrances shall be locked (or boarded up as necessary). Maintenance work shall be restricted to the prevention of unauthorized entry to the facility or grounds innediately adjacent. Basic entoniology services shall be continued to the grounds surrounding the facility. Only conditions adversely affecting public health, the environment and public safety shall be corrected. All utilities shall be shut off or disconnected.
/
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102
CITY OF ALAMbA PLANNING BOARD rJTy
RESOLUTION NO ?B98-
A RESOLUTION OF THE PLANNING BOARD OF THE CITY OF ALAMEDA APPROVING
A SIGN PROGRAM FOR ALAMEDA POINT(THE FORMER ALAMEDA NAVAL AIR
STATION)
WHEREAS, Alnteca Naval Air Station closed in May of 197; and WHEREAS, Alieda Naval Air Station 4 under an interitn leasing program bctwen the Navy, the Alameda Reuse and Redevelopment Authority and the City of Alameda; and WHEREAS, a portion of the base has been determined to be eligible for the National Register of Historic Places as an Historic District and thus, given federal protections and WHEREAS, the interim leasing area needs sign control to protect the historic character of the base; and
WHEREAS, the subject property is designated 'Federal Facilities on the General Plan Diagrzn; and
WHEREAS, the subject property is located lh an M-2-0, General Industrial (Manufacturing) Zoning District with a Special Government Combining District; and : WHEREAS, the Board held a public hearing on this applicatioA on August 11, 1997,, and examined pei-tinent maps, drawings, and documents; and
1 The proposed Sign Program is ecsistent with the Oeneral Plane athee it imptcmànt policy 33.d which states: New Construction, redevelopment and alterations should be compatible with hiatoric resources in the immediate area.
2. The proposed Alameda Point Sign Program will not adversely affect other property in, the vicinity since it does. not propose any construction, but only proposes standards for any signs to be placed withiit the former Alameda Naval Air Station (Alameda Point.)
3. Signs allowed under tb.e Sign Program are of a suitable design for the bistoric district and the safety restrictions of the unique street configuration of the base.
4. The standards in the poposed Alameda Point Sign Program are more appropriate for signage In Alameda Point than the City's Sian Regulations because they 1 /Z'd £S8# S0frt e0-0'00Et
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recognize the consistency of the building stzs design, and unique streetseape.
Alameda. Municipal Code Sign Regulations Section 30-6.3b2 provide the authority to adopt an individual sign prograttt for specific areas.
THEREFORE BE IT RESOI4VEt) that the proposal is Categorically Exempt under CEQA Qjj, Sectibn 15305 Minor alterations to lahci use limitations; and * TREREFORE BE rr FURTHER RESOLVED that the Planning Board of the Cy of Alameda hereby approves the Aismoda Point Sign Program, pursuant to Alameda Municipal Code Sign Regulations Section 10-6,3K, anctsubjet to the following cordltions:
1. Signs within Alameda Point shall follow standards found in Exiibit A, "Star4ard and Procedures for Signs within A.lame4a. Point", dated February 1.998. The area subject to the Sign Pt'ograzn Is delineated in Exhibit B.
2. If substantIal redeve1opnent of Alameda Point occurs, the Planning Board can adopt a new sign program that, would supersede this Sign Program.
NOTICE. No judicial proceedings subject to review pursuant to California Code of Civil Procednre Section 1094,5 may be pinseduted more than ninety (90) days following thç date of this decision or decision on any appeal plus extensions authnri2ed by California Code of Civil Procedure Section 1094.6,
PASSED AND ADOPTED by the Planning Board of the City of AlamedA on the 25th day of January,, 1998 by the following vote;
AYES; (6) Thomas, Bard,, Gottstein, Harris, Johnson, Piziali NOES: (0)
ABSENT: (1) Rossi
ATTESTr4g&
Meunier. Sec
annimg Board
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104
EXHIBIT A
CITY OF ALAMEDA
INTERIM STANDARDS XND PROCEDURES FOR SIGNS
WITHIN ALMEDA POINT
February 1998
The purpose of these standards and procedures is threefold. Firsts they establish the City's interim signa.ge requirements for Alameda ?omL (the former Alameda. Naval Air Station) Second, they are consistent with the preservation of Alareda Point's uzuquc historic resources and hanctcr and existing physical development ctaracteristics. Third, they provide tenants and interim lessees with clear rnzemems for signage and perriit processing Unless spccifled herein all sagnage sha'l comply with the City of Alazncdas Sign Regulations fl, ictrng SigM
Existing signs shall not be removed from any binldmg or area or altered unless such removal or alteration is approvedWough a sign permit issued by the Planning Director For a sign to be removed or altered, it must sect the following criteria' A. The sign does not ecn1bute to the historic character of the building or the area.
B. Th© sign is irrelevant to the present or proposed us,e of the building or area. Examples of this criteria include signs that identify a former tenant or use or that refer to the prior caretaker status of the building.
C. The sign is not the building number or area Identification sign, unless it will be replaced with an in-kind sign,
D. The sir's removal or alteration wiU not irreversibly damage the building or area, Any damage to a building or arzA resulting from the removal or alteration of a sign shall be repaired immediately by the tenant to meet the approval of the City Planning threetor.
Any a.lteration required to remove a sign must meet the Planning Dimetor Is approval.
The altered sign metsthe standards in Section LU, "New Signs".
The existing free-standing changeable copy sign located at the iznmiaus of Atlantic Avenue at Ferry Point Drive may be used only by the City of Alanieda for informational purposes.
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H. -
1 The purposes of signag in Alameda Point are to direct traffic to buildings and areas and to identify buildings and areas, and the businesses located within Signs shall not advertise products or services unless the product or service is part of a business 15
2 The sign copy on an individual sian face shall be limited to the name of the business, the sweet address and/or building number, and two design feattwes, such as logos, figures, or symbols
0 3. All signs shall respect the architecturat character of Alaneda Point, being Streamline Modem or Art Deco style generally, characterized by sans serif ,lettering and stylized forms where possible, The guide produced by the Navy for design reviews Guide to Buildings Preserving the Character of the Naval Air Station Alameda Historic District" shall be used in reviewing each proposal It is available for review at the City Planning Department 4 Signs shall be compatible with the building to which they are attached Size, height, location and material shalt strongly relate to building design and style Colors shall be compatible with the building's colors
S Signs shall comply with all applicable requirements of the City of Alameda Sian Ordthanee ixiciucling the requirement of a building permit 6 Signs shall not rove, alter or irreversibly damage distinctive materiis, featires finishes and construction techniques or examples of craftsmanship.
Mataria
1. Sign materials shall be consistent with the materials an4 characteristics of the historic archhccua1 kylm, Appropriate materiala ZmiJ iflthUde paiated or engraved wood and d renaiomal letters of cast or fabricated metal or painted plastic For buildings within the Hangar Area, the preferred signage is the tuge painted-on wail sign on the side or front corner of the building iii order to be consistent with the historic district within the standards contained In Section 1), below, Areas outside the historic district are not restricted to this type of sign Wall moilitted signs sheul. not project niore than 6' from the wall
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In addition to those signs prohibited by Section 30-6.5 of the City of Alameda's Sign- Ordinance, the following signs are not permitted at Alameda Point:
1. Any signs attached to trees, rocks, utility poles, street signs, except for public txtility, aff1c, or 5afety identification or information;
2. Any signs that constitute a traffic safety hazard, and
3. Preestaning signs, including monument style signs. except lawn signs as defined in section D.4, and only within the Historic District,
4. Sis that are affixed to or painted on a fenne, except for unenclosed uses that are not aoeiated with a building or where a thnldrn,g is located more than 100 feet ,from a street.
D Sin
'Building tenant may be only identified with wall signs, window signs, awning signs, or a eobthat1on of these three types Thi exception to this standard is for historic rcaidetia1 units, for the Qfflcrs's C1ib, the Chapel, and for cermin other historic sucnirea fronting on the mall (Buildings 1, 16, 1, 60, and 94) These buildings shall be idenned Only With small, freestanding lawn signs. Descriptions of these types of signs, specific standards for each, and the amounts of allowable sign area are as follows:
1. . Wall Signs
A wail atg is permanently affixed parallel to a wail or pruited on the wall of a building. Pai=d, engraved, or sandblaated signs and stns with individual letters are preferred. Eposcd neon signage and internally illuminated pan chatuie[ letters are allowed except along the frontages of the historic buildings listed above. 2 Window Signs
Any sign, picture, symbol, or combination thereof placed in a window is considered to be awmdow sign as defined in the City of Alameda Sign Ordinance Individual letters are preferred Exposed neon signage is allowed except along the frontages at the historic structures listed above Temporary paper signs are not allowed, Window signs shall not cover more than 25 percent of the total window area of the fixat floor of a huilding, Window signs are not allowed above the first floor,
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3: Awning Signs
An awning sign is a sign that is printed or painted on or attached to an awning, canopy, or other structural protective cover over a door, entrance, window, or outdoor servir.c area Backlit aitd illuminated awnings may be allowed. Awning signs are not allowed ori single- or duplexunit residential buUd.ing.
4. Lawn Signs
A lawn sign. Is a freestanding sign board supported by posts at either end, withi.tt a base Such a sign shall not exceed tour feet in height. It shall be located in the Lawn or landscaping in front of abuilding, unless and exception is granted by the Planning Dixettor because of unique circumstances at the building site. The City will determine where a lawn sign may be located on the site based on visibility from the street and the relationship with the building. The size, spacing provisions and landscaping shall coxfozui with Section. 30-64 Signs, of City $ign Regulations, and shall not exceed 30 square feet. No more that one free- tandlng aigri.will be allowed per lease hold. Lawn signs shall be allo.wed only in the historic district on existing landscaped areas.
5. Sit Area and Number of Signs
The amount of total allowed sign arèa.wiil be based on two criteria: ali original use of the building and the length of the principal building frontage adjacent to a street, as determined by the Plrni4ng Director. These criteria will be applied as fellows:
a, nti Buildings
For existing single-fanuly residential buildings, which have been converted to a nonresident1al use, in the area between Fan Am Way and Main St, the total allowed sign area shall not exceed one-half square foot per linear foot of pruteipal building frontage not to exceed 15 square feet.
Only one sign, either a wall sign or a lawn sign, rosy be permitted per building,
The fotmer barracks buildings, imbers 2, 4, and 17, are exempt from the residential standard and should be considered under whichever of the following categories meets their proposed use If the use coritfiwes to be residential, then theses structures shall be limited to the standard for cultural buildings, below.
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b. Cultural , Etha.tionaI arid Recreational Buildings The total allowed. sign area shall riot exceed one-half square foot per linear. foot of principal building frontage not to exceed 50 square feet per building, whichever is less Only one sign may be permitted per building frontage
C. office, Commercial and Industrial Buildings
The total allowed sign area shall not exceed one square foot per linear foot of principal building frontage with the total sign area not to exceed the following standards, whichever is less
1) For buildings under 25,000 square feet in total floor area two signs, the total of which may not exceed 100 square feet', f
2) For buildings between 23,000 and 100,000 square feet in total floor area two signs, the total of which may not exceed 200 square feet and
3) For buildings over 100,000 square feet in total floor area: 250 square feet an each of the following! Street frontage, and the two side faces of the building visible frora the street, with the total not exceed 70 square feet
E. DionalSi.gxt4
The City Engineer, in conultation with the City Planning Director, shall decide wtier and how many directional signs can be located to direct t'ac to a. building, set of buildings or =a. This axgnae shall be limited to traffic tenns such as Enter' or "Exit" and shall not ilude any btiness nntes The exception to this standard is the special cmszance of providing direction to a particular bwlthng or business whose location is not readily app=nt from the Street A directional sign shall not ed 4 square feet in total area.
This sign area Is in addition to the allowed sign area described in Section M.D, 'Sign Area", when used in conjunction with a particular business,
. Addrtssjg
Address signs as provided on each building by the Navy or City of Alameda shall not be counted against allowable sign area Other address signs will be counted if the tenants name appears as part of the sign.
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0. Bi1k
Building markers, which InQ'Iude mernortal signs or ttS flflflS of buildings, hiEori; sigruftcaiie, and date of nstruotrnn are allowed wheti construtC of bra=e, stone, or other similar material The maximum size 15 4 square feet This sign area Is in adltLon to the total allowed sign area described in Setiot UI D "Sign Area G amiets and Art 5is
No.-commerciai banners, flags, ar4 art s.gns may be used tprari1y for nd more Uiax. 30 days to decoratc the streetsape and to advertise public events and other similar special /eziXs subject to the approval of the City.
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110
CITY OF ALAMEDA RESOLUTION NO 13139
ADDING THE NAVAL AIR STATION ALAMEDA HISTORIC DISTRICT
TO THE CITY HISTORICAL AND CULTURAL MONUMENT LIST
WHEREAS, Section 106 of the 1966 National Historic Preservation Act requires that Federal Agericics recognize their historic properties that may be eligible for the National Register, and
WHEREAS, the Alameda Reuse and Redevelopment Authority, Alameda Point, initiated a request that the Naval Air Station Alameda Historic District (which is a National Register Eligible District) at Alameda Point (former Naval Air Station, Alameda) be designated as a City Monument; and
WHEREAS, the site is designated as Federal Facilities on the General Plan diagram; and WHEREAS, the site is classified as M2-G General industrial (Manufacturing) Special >. Government Combining District, and
LU
1REAS this is not .a project as defined by CEQA, Guidelines, Sections 15357, and WHEREAS, based upon the evaluation contained in the Historic Architectural Resources Jnvenwry for Alamedü NAS, the Naval Air Station Alameda Historic District would be eligible to be designated a City Monument under two criteria: a group of structures which are associated with broad cultural, political and social history of the United States and a site which embodies the distinguishing characteristics of an architectural type which is inherently valuable for study; and WHEREAS, the Naval Air Station Alameda Historic District would be eligible as an example of the development of U.S. Naval Bases in the San Francisco Bay Area for World War U, with 19384945 as the period of significance, and because the buildings have a continuity of style and a high degree of architectural integrity enhanced by the retention of landscaping and park-like open spaces, and
WI3EREAS, at the February 5, 1998 meeting of the Historical Advisory Board, the Board recommended that the Naval Air Station Alameda Historic District at Alameda Point be designated a Alameda Historical Monument
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Alameda that the Naval Air Station Alameda Historic District be recognized and be added to the City Historical and Cultural Monument List.
** * * * *
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I, the undersigned. hereby certify that the foregoing Resolution was duly and regularly adopted and passed by the Council of the City of Alameda in regular meeting assembled on the.,2&. day ofSepternber , 1999, by the following vote to wit:
AYES: Councilrnèmbers Daysog, DeWitt Johnson, Kerr and Mayor Appezzato - 5.
NOES: None,
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said C4' this day of Scmtember ., 1999.
Diane Felseh1 City Clerk
City of Alameda
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112
EXHIBiT E
ENVIRONMENTAL QUESTIONNAIRE
The purpose of this form is to obtain information regarding the use, if any, of hazardous substances in the process proposed on the premises to be leased. Any such use must be approved in writing by Landlord.
Prospective tenants should answer the questions in light of their proposed operations on the premises. Existing tenants should answer the questions as they relate to ongoing operations on the premises and should update any information previously submitted. If additional space is needed to answer the questions, you may attach separate sheets of paper to this form.
Your cooperation in this matter is appreciated. Any questions should be directed to, and when completed, the form should be mailed to:
Michael Hampen, Property Manager
PM Realty Group
2175 Monarch Street
Alameda, California 94501
(510) 749-0304; (510) 749-1095 fax
mhampenpmrealtygroup.com
1. General Information.
Name of Responding Company:
Check the Applicable Status:____________________
Prospective Tenant [] Existing Tenant LI
Mailing Address
Contact Person and Title:
Telephone Number: ()
Alameda Point Address of Proposed Premises to be Leased:
Length of Lease Term:,
Your Standard Industrial Classification (SIC) Code Number:
Describe the proposed operations to take place on the property, including principal products manufactured, services and a brief process flow description to be conducted. Existing tenants should describe any proposed changes to ongoing operations.
2. Use and/or Storage of Hazardous Materials.
2000000.3262 -1- 12/15/05.V6
Exhibit 1
113
2.1 Will an y hazardous materials be used or stored onsite? Hazardous Wastes Yes El No El
Hazardous Chemical Products Yes El No El
2.2 Attach the list of any hazardous materials/wastes to be used, stored, or generated the quantities that will be onsite at any given time, and the location and method of storage (e.g., 55-gallon drums on concrete pad).
2.3 Does your compan y handle hazardous materials in a quantity equal to or exceeding an aggregate of 500 pounds, 55 gallons, or 200 cubic feet? Yes F-1 No El
If yes please provide Material Safety Data Sheets (MSDS) on such materials.
2.4 Has your business filed for a Consolidated Hazardous Materials Permit from the Alameda County Environmental Management Department?
Yes [1 No El
If so, attach a copy of the permit application.
2.5 Are any of the chemicals used in your operations regulated under Proposition 65? Yes El No El
If so, describe the actions taken, or proposed to be taken, to comply with Proposition 65 requirements.
2.6 Do you store or use or intend to store or use acutely hazardous materials above threshold quantities requiring you to prepare a risk management plan (RIVIP)? Yes El No El
2.7 Describe the procedures followed to comply with 051-IA Hazard Communication Standard requirements.
3. Storage Tanks and Pumps.
3.1 Are any above or below ground storage of gasoline, diesel, or other hazardous substances in tanks or pumps being used as a part of your present process or proposed for use on this leased premises?
Yes El No El
If yes, describe the materials to be stored, and the type, size and construction of the pump or tank. Attach copies of any permits obtained for the storage of such substances.
2000000.3262 -2- 12/15/05.V6
Exhibit 1
114
3.2 If you have an above ground storage tank (AST), do you have a spill prevention containment and countermeasures (SPCC) plan?
Yes LI No LI Not Applicable [I]
3.3 Have any tanks, pumps or piping at you existing facilities been inspected or tested for leakage?
Yes jIj No E] Not Applicable LI
If so, attach the results.
3.4 Have any spill s or leaks occurred from such tanks, pumps or piping? Yes LI No LI Not Applicable LI
If so, describe.
3.5 Were any regulatory agencies notified of any spills or leaks? Yes LI No LI Not Applicable LI
If so, attach copies of any spill reports filed, any clearance letters or other correspondence from regulatory agencies relating to the spill or leak.
3.6 Hay e any underground storage tanks, sumps or piping been taken out of service or removed at the proposed facility or facilities that you operate? Yes LI No LI Not Applicable LI
If yes, attach copies of any closure permits and clearance obtained from regulatory agencies relating to closure and removal of such tanks.
4. Spills.
4.1 During the past year, have any spills occurred on any site you occupy? Yes LI No LI Not Applicable LI
If so, please describe the spill and attach the results of any process conducted to determine the extent of such spills.
4.2 Were any agencies notified in conne ction with such spills? Yes LI No El Not Applicable El
If no, attach copies of any spill reports or other correspondence with regulatory agencies.
4.3 Were any clean -up actions undertaken in connection with the spills? Yes LI No El Not Applicable LI
If so, briefly describe the actions taken. Attach copies of any clearance letters obtained from any regulatory agencies involved and the results of any final soil or 2000000.3262 -3- 12/15/05.V6
Exhibit 1
115
groundwater sampling done upon completion of the clean-up work.
5. Waste Management.
5.1 Has your business filed a Hazardous Material Plan with the Alameda County Environmental Management Department?
Yes Li No
5.2 Has your compan y been issued an EPA Hazardous Waste Generator I.D. Number? Yes No LI
If yes: EPA ID#
5.3 Has your compan y filed a biennial report as a hazardous waste generator? Yes 0 No LI
If so, attach a copy of the most recent report filed.
5.4 Are hazardous wastes stores in secondary containments? Yes F-1 No F]
5.5 Do you utilize subcontractors for lighting/electrical, plu mbing, HVAC, pest services, landscaping and/or building maintenance services?
Yes Li No [I]
If yes, do any of these subcontractors store, mix or utilize chemicals on site? Yes No El
If yes, what types and quantities?
Attach the list of the hazardous waste, if any, generated or to be generated at the premises, its hazard class and the quantity generated on a monthly basis.
Describe the method(s) of disposal for each waste. Indicate where and how often disposal will take place.
Indicate the name of the person(s) responsible for maintaining copies of hazardous waste manifests completed for offsite shipments of hazardous waste. 2000000.3262 -4- 12/15/05.V6
Exhibit 1
116
Is any treatment, processing and recycling of hazardous wastes currently conducted or proposed to be conducted at the premises:
Yes No
If yes, please describe any existing or proposed treatment, processing or recycling methods.
Attach copies of any hazardous waste permits or licenses issued to your company with respect to its operations on the premises.
6. Wastewater Treatment/Discharge.
6.1 Will your proposed operation require the discharge of wastewater to (answer Yes or No to each of the following)?
storm drain sewer
surface water no industrial discharge
6.2 Does your business have a S ewer Use Questionnaire on file with Alameda County Sanitation District?
Yes fl No LI
6.3 Is your wastewater treated before discharge?
Yes fl No LI Not Applicable LI
If yes, describe the type of treatment conducted.
6.4 Does your business cond uct operations outside the building or store materials outside? Yes El] No [] Not Applicable Eli
6.5 Do you have a Storm Water P ollution Prevention Plan (SWPPP)? Yes No LI Not Applicable LI
6.6 Does your business have a General Permit for storm water discharge associated with industrial activity?
Yes LI No LI Not Applicable LI
6.7 Does your business operate under a National Pollution Discharge Elimination System (NPDES) Permit?
Yes LI No LI Not Applicable LI
Attach copies of any wastewater discharge permits issued to your company with respect to its operations on the premises.
2000000,3262 -5- 12/15/05.V6
Exhibit 1
117
7. Air Discharges. 1
7.1 Do you have or intend to have any air filtration systems or stacks that discharge into the air?
Yes LI ,II1
7.2 Do you operate or plan to operate any of the following types of equipment, or any other equipment requiring an air emissions permit (answer Yes or No to each of the following)?
Spray booth Yes LI No LII
Dip tank Yes LII No LI
Drying oven Yes L No LI
Incinerator Yes LI No LI
Other (please describe) Yes LI No 11111
Boiler Yes No LI
I/C Engine Yes LI No LI
Emergency Backup Generator Yes LI No LI
Processes that apply coatings, inks, Yes LI No LI
adhesives or use solvents
7.3 Do you emit or plan to e mit any toxic air contaminates? Yes LI No LI
7.4 Are air emissions from your operations monitored?
Yes LI ME-
If so, indicate the frequency of monitoring and a description of the monitoring results.
Attach copies of any air emissions permits pertaining to your operations on the premises.
8. Enforcement Actions, Complaints.
8.1 Has your compan y, within the past five years, ever been subject to any agency enforcement actions, administrative orders, or consent decrees? Yes LI ME
If so, describe the actions and any continuing compliance obligations imposed as a result of these actions.
NOTE: Businesses will have to comply with prohibitory rules regardless of whether they have or need a permit.
2000000.3262 -6- 12/15/05.V6
Exhibit 1
118
8.2 Has your compan y ever received requests for information, notice or demand letters, or any other inquiries regarding its operations?
Yes No F-1
8.3 Have there ever been, or are there now pending, any lawsuits against the company regarding any environmental or health and safety concerns? Yes F-1 No F-1
8.4 Has any environ mental audit ever been conducted at your company's current facility? Yes No
If so, discuss the results of the audit.
8.5 Have there bee n any problems or complaints from neighbors at the company's current facility?
YesLi No F-1
Please describe:
The undersigned hereby certifies that all of the information contained in this questionnaire is accurate and correct.
a
Title:
Date:
2000000.3262 -7- 12/15/05.V6
Exhibit 1
119
EXHIBIT F
RULES AND REGULATIONS
1. Landlord shall have the right to control and operate the public portions of the Building and the public facilities, as well as facilities furnished for the common use of the tenants, in such manner as it deems best for the benefit of the tenants generally. No tenant shall invite to the Premises, or permit the visit of, persons in such numbers or under such conditions as to interfere with the use and enjoyment of the entrances, corridors, elevators and facilities of the Building by other tenants.
2. Landlord reserves the right to close and keep locked all entrance and exit doors of the Building outside of normal business hours as Landlord may deem to be advisable for the protection of the property.
Landlord may also require the provision of security systems or personnel to maintain security and safety within the Building.
3. Tenant shall not make any use of the Building or property which in any manner constitutes or results in any public or private nuisance within the meaning of California Civil Code Section 3479 et seq.
4. The entries, corridors, stairways and elevators shall not be obstructed by any tenant, or used for any other purpose than ingress or egress to and from its respective offices.
5. Freight, furniture, business equipment, merchandise and bulky matter of any description ordinarily shall be delivered to and removed from the demised Premises only in the designated freight elevator and through the service entrances and corridors, but special arrangements will be made for moving large quantities or heavy items of equipment and supplies into or out of the Building.
6. All entrance doors in the Premises shall be left locked when the Premises are not in use.
7. Tenant shall not attach or permit to be attached additional locks or similar devices to any door, transom or window of the Premises; change existing locks or the mechanism thereof; or make or permit to be made any keys for any door thereof other than those provided by Landlord, without providing to Landlord one set of keys therefore.
8. The drinking fountains, lavatories, water closets and urinals shall not be used for any purpose other than those for which they were installed.
9. No awnings or other projections over or around the windows or entrances of the Premises shall be installed by any tenant without the prior written consent of the Landlord.
10. Landlord is not responsible to any tenant for the non-observance or violation of the Rules and Regulations by any other tenant.
11. Landlord reserves the right by written notice to Tenant, to rescind, alter or waive any rule or regulation at any time prescribed for the Building when, in Landlords reasonable judgment, it is necessary, desirable or proper for the best interest of the Building and its tenants.
12. The Tenant shall not exhibit, sell or offer for sale on the Premises or in the Building any article or thing except those articles and things essentially connected with the stated use of the Premises by the Tenant without the advance consent of the Landlord.
13. The Tenant shall never use any picture or likeness of the Building in any circulars, notices, advertisements or correspondence without the Landlords consent 2000000.3262 -1- 12/15105.V6
Exhibit 1
120
14. The Tenant shall cooperate fully with the Landlord to assure the effective operation of the Building's air conditioning system. If Tenant shall so use the Premises that noxious or objectionable fumes, vapors and odors exist beyond the extent to which they are discharged or eliminated by means of the flues and other devices contemplated by the various plans, specifications and leases, then Tenant shall provide proper ventilating equipment for the discharge of such excess fumes, vapors and odors so that they shall not enter into the air conditioning system or be discharged into other vents or flues of the Building or annoy any of the tenants of the Building or adjacent properties. The design, location and installation of such equipment shall be subject to Landlord's approval.
15. All loading and unloading of merchandise, supplies, materials, garbage and refuse shall be made only through such entryways and elevators and at such times as the Landlord shall designate. In its use of the loading areas in the basement, the Tenant shall not obstruct or permit the obstruction of said loading area and at no time shall park or allow its officers, agents or employees to park vehicles therein except for loading or unloading.
16. There shall not be used or kept anywhere in the Building by any tenant or persons or firms visiting or transacting business with a tenant any hand trucks, except those equipped with rubber tires and side guards.
17. No curtains, blinds, shades or screens shall be attached to or hung in, or used in connection with any window or door of the Premises without the prior written consent of the Landlord.
18. No sign, advertisement notice or other lettering shall be exhibited, inscribed, painted or affixed by Tenant on any part of the outside or inside of the Premises or of the Building, without the prior written consent of Landlord. In the event of any violation of the foregoing by Tenant, Landlord may remove same without any liability, and may charge the expense incurred by such removal to Tenant.
19. The sashes, sash doors, skylights, windows and doors that reflect or admit light or air into the halls, passageways or other public places in the Building shall not be covered or obstructed by Tenant, nor shall any bottles, parcels, or other articles be placed on the window sills, or in the public portions of the Building.
20. Tenant shall not mark, paint, drill into any part of the Premises or the Building without the prior written consent of the Landlord. No boring, cutting or stringing of wires shall be permitted, except with the prior written consent of Landlord, and as Landlord may direct.
21. No animal or bird of any kind shall be brought into or kept in or about the Premises or the Building without the prior written consent of the Landlord, but in no event in violation of the federal Fish & Wildlife Biological Opinion.
22. Tenant's contractors shall, while in the Building or elsewhere in the complex of which the Building forms a part, be subject to and under the control and direction of the Tenant.
23. If the Premises is or becomes infested with vermin as a result of the use or any misuse or neglect of the Premises by Tenant, its agents, servants, employees, contractors, visitors or licensees, Tenant shall forthwith at Tenant's expense cause the same to be exterminated from time to time to the satisfaction of Landlord and shall employ such licensed exterminators as shall be approved in writing in advance by Landlord
24. Excepting bottled water utilized by Tenant, no water cooler, air conditioning unit or system or other apparatus shall be installed or used by Tenant without the written consent of Landlord. 2000000.3262 -2- 12115/05.V6
Exhibit 1
121
25. Tenant shall install and maintain, at Tenant's sole cost and expense, an adequate visibly marked (at all times properly operational) fire extinguisher next to any duplicating or photocopying machine or similar heat producing equipment, which may or may not contain combustible material, in the Premises.
26. Tenant shall not use the name of the Building for any purpose other than as the address of the business to be conducted by Tenant in the Premises, nor shall Tenant use any picture of the Building in its advertising, stationery or in any other manner without the prior written permission of Landlord. Landlord expressly reserves the right at any time to change said name without in any manner being liable to Tenant therefor.
2000000.3262 -3- 12!15/05.V6
Exhibit 1
122