SECOND AMENDMENT TO LEASE OF AIRPORT PREMISES BETWEEN THE CITY OF SAN JOSE AND SKY CHEFS, INC. This SECOND AMENDMENT TO LEASE OF AIRPORT PREMISES is entered into this day of, 2015, by the CITY OF SAN JOSE, a municipal corporation of the State of California ("City"), and SKY CHEFS INC., a Delaware corporation authorized to do business in California ("Tenant"). RECITALS WHEREAS, on May 9,1995, City and Caterair International Corporation entered into a lease entitled "LEASE BETWEEN THE CITY OF SAN JOSE AND CATERAIR INTERNATIONAL CORPORATION" (the "Master Lease"); and WHEREAS, on April 16, 1996, Caterair International Corporation subleased to Caterair International, Inc. all of the premises pursuant to the Master Lease; and WHEREAS, on May 28, 1998, Caterair International Corporation assigned all of it's right, title and interest in the Master Lease to Tenant; and WHEREAS, on January 11, 2008, City and Tenant entered into a First Amendment to the Master Lease to reduce the gross receipts rent payable for off-airport, non-airline catering; and WHEREAS, City and Tenant, desire to further amend the amended Master Lease to (i) clarify the definition of Gross Receipts; (ii) extend the term of the Master Lease through February 14, 2017, and provide that City and Tenant, upon mutual agreement, may further extend the term of the Master Lease for up to two (2) additional one (1) year Sky Chefs, Inc. 1 T-885.005 / 1264888.docx DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
periods; (iii) modify the Rent Calculation for the period commencing on January 1, 2009; (iv) increase the Minimum Annual Guarantee to Five Hundred Fifty Thousand Dollars ($550,000.00) effective February 15, 2016; (v) require an irrevocable stand by letter of credit as the form of Faithful Performance Bond; (vi) modify City's requirements in the event of City's audit of Tenant's Records; and (vii) add nondiscrimination requirements as required under federal law and regulations. NOW, THEREFORE, the parties agree to further amend the amended Master Lease as follows: SECTION 1. SECTION 1.12, "GROSS RECEIPTS," is amended to read as follows: "SECTION 1.12 GROSS RECEIPTS "Gross Receipts" includes, but is not limited to, all monies or other consideration generated or received by Tenant for the conduct of its business pursuant to this Master Lease or for any other use of the Leased Premises or the Airport by any person or entity, unless specifically excluded below. Such monies or other consideration shall include, without limitation, transactions entered into or finalized at the Airport, whether or not the Leased Premises were used at any point in the transaction, and transactions made at an off-airport location if the Leased Premises were used for any aspect of such transaction. Such monies or other consideration are considered Gross Receipts even though payment and/or delivery of the food or other items occurs or the service is performed off-airport. Gross Receipts shall include all such transactions, whether for cash or for credit, regardless of whether a final collection is made in credit transactions, and shall also include orders taken by mail, telephone, facsimile transmission, or other methods of communication, regardless of whether actual delivery of the food or other items is made or the service is performed at the Airport. Gross Receipts equals the total money or other consideration arising from the final transaction and is not limited to the value directly attributable to on-airport operations. All money or other consideration shall be deemed received at the time of the transaction, whether for cash or credit, and not at the time of billing or payment Volume discounts or other discounts, credits or rebates given after the close of the transaction shall not be subtracted from Gross Receipts. For sales to Tenant's subcontractors, subtenants, subsidiaries, agents, employees, representatives, concessionaires or other customers, joint venture paiiner(s), and/or equity partner(s), notwithstanding Tenant's actual receipts, Gross Receipts shall be not less than the cost that the Tenant incurred to produce such food and other items sold. For the purposes of this definition of Gross Receipts, Tenant shall include (i) any entity or person that, directly or indirectly, controls Tenant; (ii) any Sky Chefs, Inc. 2 T-885.005 DRAFT--Contact / 1264888.docx the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
successor to Tenant's rights and obligations hereunder, whether through merger or consolidation or sale or purchase of stock; and (iii) any assignee or transferee of all or any portion of Tenant's rights and obligations under this Master Lease. For illustration purposes, such monies or other consideration specifically shall include without limitation: Amounts generated by the sale, storage, delivery, shipping, preparation of or provision of food, beverages (including alcoholic beverages), dishware, glassware, utensils, and/or linens and/or all other personal property of any kind or provision of any service: (i) (ii) (iii) for any Airport user, whether or not the sale, storage, delivery, shipping, preparation of or provision of such items or service occurs on-airport; or if any aspect of the sale, storage, delivery, shipping, preparation of or provision of such items or provision of such service occurs on- Airport; or if by vending machine or other mechanical device if the vending machine or mechanical device is located on-airport or if any aspect of the sale, storage, delivery, shipping, preparation of or provision of such items or provision of such service occurs on-airport; Amounts generated from pick-up and/or delivery of any item at the Airport, whether done directly by Tenant or its agents or indirectly through any third person or entity and from any services performed in relation to such pick-up or delivery, whether or not such items are prepared or made partially or entirely off- Airport; Amounts generated from pick-up of any item at the Airport by any person or entity or delivery of any item from the Airport to any person or entity for the purpose of (directly or indirectly) delivering such item to any off-airport location and from any services performed in relation to such pick-up or delivery whether or not such items are prepared or made entirely on-airport or are made or prepared partially on-airport and receive further preparation elsewhere; Amounts generated from any order received or taken on-airport, notwithstanding that such order is filled or completed off-airport; Amounts generated from contracted services with other Airport tenants and users, or other third parties; and Sky Chefs, Inc. 3 T-885.005 DRAFT--Contact / 1264888.docx the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
Other amounts and rentals arising from the Leased Premises or Tenant's rights under this Master Lease, including, but not limited to, amounts generated by allowing use of space, fixtures, improvements or equipment on the Leased Premises by any other person or entity. Such monies or other consideration specifically shall not include: The amount of any federal, state, or local sales tax separately stated and collected from customers; The sale of uniforms or clothing, at Tenant's cost, when such uniforms or clothing are required to be worn by Tenant's employees; Amounts received to provide meals to Tenant's employees; Amounts which Tenant is entitled due to the sale or trade-in of any furniture, fixtures or equipment used on the Leased Premises; or Amounts allocated to the value of furniture, fixtures or equipment transferred to or from the Leased Premises. SECTION 2. ARTICLE 3., "TERM OF LEASE", is hereby amended to read as follows: "A. Term This Master Lease shall be binding upon execution, and the term and rentals shall commence on the date of approval by the City (the "Commencement Date"), and the term shall continue through February 14, 2017, unless sooner terminated as provided for herein. B. Extension Periods City and Tenant may, upon mutual agreement, extend the extended term of this Master Lease beyond February 14, 2017, for up to two (2) additional one (1) year extension periods (each an "Extension Period"). Sky Chefs, Inc. 4 T-885.005 DRAFT--Contact / 1264888.docx the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
SECTION 3. SECTION 6.01.A., "RENT CALCULATION", is amended to read as follows: Tenant shall pay to the City on a monthly basis as Base Ground Rental, the greater of one-twelfth (1/12) of the MAG or the sum of the following percentages of monthly Gross Receipts: (a) ten percent (10%) of Gross Receipts from in-flight food and beverage catering services provided by Tenant from the Leased Premises to airlines and other aircraft operators at the Airport or any other airport location; (b) two percent (2%) of Gross Receipts from off-airport food and beverage catering services provided by Tenant from the Leased Premises; and (c) two percent (2%) of Gross Receipts from Tenant's subcontractors, subsidiaries, subtenants, agents, employees, representatives, concessionaires or other customers, joint venture partner(s), and/or equity partner(s)." SECTION 4. SECTION 6.01.B.2, "MAG CALCULATION", is amended to read as follows: "2. Annual MAG Adjustment. The first day of the first full calendar month occurring after the Completion Date shall be the referred to as the "Annual Adjustment Date". On the second Annual Adjustment Date and on each Annual Adjustment Date thereafter, the MAG shall be adjusted to equal eighty-five percent (85%) of the rent actually paid to the City during the previous twelve (12) months; provided that in no event shall the MAG be less than Five Hundred Thousand Dollars ($500,000) per year through February 14, 2016., Commencing on February 15, 2016, in no event shall the MAG be less than Five Hundred Fifty Thousand Dollars ($550,000) per year." SECTION 5. SECTION 6.01.B.3, "O&D MAG REDUCTION", is amended to read as follows: Sky Chefs, Inc. 5 T-885.005 DRAFT--Contact /1264888.docx the Office of the City - Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
"3. O&D MAG Reduction. Among other passenger related statistics, the Airport calculates the number of origin and destination ("O&D") enplaned passengers at the Airport. If the O&D enplaned passengers from January 1 through June 30 or from July 1 through December 31, as calculated by the Airport, falls below seventy-five percent (75%) of the number of O&D enplaned passengers at the Airport during the same six months during FY 1993-94, there shall be a reduction in the MAG as described in this Section, which shall supersede the initial MAG and the annual MAG adjustment described in Section 6.01 B1 and B2, above. There shall be no reduction in the MAG pursuant to this provision unless the number of O&D enplaned passengers drops more than 25% during the applicable six (6) month periods. However, if there is a reduction of the MAG due to such 25% decrease in O&D enplaned passengers, the reduction shall continue for each subsequent six month period until there is an increase in the O&D enplaned passenger levels to equal or exceed 80% of the O&D enplaned passenger levels during either January 1-June 30 or July 1-December 31, as applicable. The total O&D enplaned passengers during FY 1993-1994 was 3,777,526 passengers per year, amounting to 1,878,673 passengers from July 1-December 31 and 1,898,853 passengers from January 1 through June 30. Seventy-Five Percent (75%) of the O&D enplaned passengers during these periods equals 1,409,004.7 passengers from July 1-December 31 of FY 1993-94 and 1,424,139.7 passengers from January 1 through June 30 of FY 1993-94. Thus if, during the term of this Master Lease, the number of O&D passengers from January 1 through June 30 are less than 1,424,139.7, or if the number of O&D passengers are less than 1,409,004.7 from July 1 through December 31, then the MAG will be subject to reduction for a six (6) month period. The reduction of the MAG shall be effective on the earlier of the next Annual Adjustment Date, or the date occurring six Sky Chefs, Inc. 6 T-885.005 / 1264888.docx DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
months after the Annual Adjustment Date ("Mid Year O&D Adjustment Date"), whichever occurs first. The Airport shall calculate such O&D numbers no later than 60 days after the end of each applicable six month period. The amount of the reduction shall be determined by dividing the number of O&D passengers enplaning during the applicable six month period, divided by the number of passengers enplaning during January-June or July-December (as applicable), of FY 93 94, as set forth above. This fraction shall be multiplied by the MAG in effect immediately preceding the O&D MAG reduction; provided that, in no event, shall the MAG be less than $550,000. For example, if the first full month after the Completion Date is April, 1996, and the amount of O&D passengers from January 1-June 30 of 1998 is 1,200,000 and the MAG then in effect is $500,000, the MAG shall be reduced for six (6) months, effective October 1, 1998. The new MAG is equal to an annualized amount of $505,600 per year, which is calculated as follows: $800,000 x [1.200.0001-ACTUAL NUMBER OF O&D PASSENGERS [1,898,853] - NUMBER OF O&D PASSENGER JAN-JUNE FY 93-94 If the MAG is reduced pursuant to this Section, the Airport thereafter will calculate the number of O&D enplaned passengers every six months, in January and July for the preceding six-month periods. Should the number of O&D enplaned passengers thereafter increase so that the number of O&D enplaned passengers at the Airport exceeds eighty percent (80%) of O&D enplaned passengers at the Airport during such six (6) month period of FY 1993 94, then, effective on the next Annual Adjustment Date or Mid Year O&D Adjustment Sky Chefs, Inc. 7 T-885.005 DRAFT--Contact /1264888.docx the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
Date, whichever occurs first, the MAG will no longer be subject to the reduction described in this Section. The MAG in effect immediately prior to the O&D MAG reduction shall then be in effect until the next date on which a MAG adjustment or reduction occurs." SECTION 6. SECTION 6.03, "FAITHFUL PERFORMANCE BOND", is amended to read as follows: "SECTION 6.03. LETTER OF CREDIT. Tenant shall deposit and maintain with City upon execution of this Master Lease a Letter of Credit in an amount and form as determined by the Director, against which the City may draw any delinquent or unpaid fees, costs or charges (including but not limited to employee parking and badging fees and any late payment fees and the charges stated in this Master Lease) resulting from Tenant's operations at the Airport, to ensure prompt payment of required rent, fees and charges. The initial amount of the Letter of Credit shall be $500,000. The Letter of Credit shall be in the form of an irrevocable standby letter of credit in substantially the same form as the sample attached to this Master Lease as Exhibit D. The Letter of Credit shall have an expiration date no earlier than the expiration of the term of this Master Lease. The Letter of Credit shall be adjusted on each Annual Adjustment Date to an amount not less than the greater of (i) $500,000 or (ii) thirty-three and one-third percent (33-1/3%) of the then current MAG. The Director may adjust the Letter of Credit requirement from time to time upon a determination that such additional amount is warranted to protect the City and the Airport. If the Director adjusts the amount of the Letter of Credit requirement or deducts any delinquent or unpaid rent, fees, costs or charges (including late payments) from the Letter of Credit, Tenant shall promptly replenish the Letter of Credit to the full amount required by the Director, within thirty (30) days of a written demand by Director. Sky Chefs, Inc. 8 T-885.005 DRAFT--Contact / 1264888.docx the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
Tenant's failure to so replenish the Letter of Credit shall constitute an Event of Default, which entitles the City to terminate this Master Lease as provided in Section 30.02 of this Master Lease. Tenant shall not be entitled to interest on the Letter of Credit. Any amounts remaining from the Letter of Credit (after deductions for delinquent or unpaid rent, fees, costs, or charges as specified above) at the expiration or earlier termination of this Master Lease (as it may be extended or renewed) shall be returned to Tenant, without interest, after a determination by the Director that all amounts owed to City under this Master Lease have either been paid in full or have been deducted from the Letter of Credit." SECTION 7. ARTICLE 8.A, "RECORDS", is amended to read as follows: "A. RECORDS. (1) Tenant shall maintain for a period of not less than four (4) years, or in the event of a claim by the City for payments hereunder, until such claim shall have been fully ascertained, fixed and paid, separate and accurate daily records of Gross Receipts derived from its operations subject to this Master Lease, and in accordance with generally accepted accounting principles, showing in detail ail business done or transacted in, on, about or from the Airport or pertaining to Tenant's operations under this Master Lease, and Tenant shall enter all receipts arising from such business in regular books of account, and all entries in any such records or books shall be made at or about the time the transactions respectively occur. The revenue control system used shall incorporate sufficient internal controls to ensure and provide an adequate audit trail. (2) In addition, Tenant shall maintain monthly and annual reports of Gross Receipts derived from its operation under this Master Lease using a form and method as approved by the Director of Aviation. Such forms and methods shall be employed by Tenant throughout the Master Lease Term. Books and records shall be Sky Chefs, Inc. 9 T-885.005 / 1264888.docx DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
maintained at Tenant's principal place of business in San Jose unless otherwise permitted by the Director of Aviation in writing. Upon the Director of Aviation's written request, Tenant shall make available immediately at the Airport or at an alternate mutually acceptable location any and all books, records and accounts pertaining to its operations under the Master Lease. The intent and purpose of the provisions of this Section are that Tenant shall keep and maintain records which will enable the City and the City's Auditor to ascertain, determine and audit, if so desired by the City, clearly and accurately, the Gross Receipts of Tenant, and that the form and method of Tenant's reporting of Gross Receipts will be adequate to provide a control and test check of all revenues derived by Tenant under this Master Lease. (3) Within twenty (20) days after the end of each calendar month, Tenant shall provide or cause the provision of, at its sole cost and expense, a written monthly report of all Gross Receipts for the prior month, in form and detail satisfactory to the Director of Aviation. If the report relates to any month in which fees are prorated, the report shall detail Gross Receipts for such prorated portion. Each written report shall contain detailed information on the Gross Receipts to provide an accurate control and test check of all revenues received by Tenant. In the event that exclusions, deductions or allocations reducing gross receipts are not supported or substantiated by such records, all such amounts shall be deemed Gross Receipts for purpose of determining amounts payable to the City. A delinquent report fee of $25.00 will be assessed for each day the monthly report of Gross Receipts is not timely received by the City. Such statement shall be signed by an authorized Tenant Representative. Each year during the term of this Master Lease, Tenant shall deliver to the City a report, certified by an independent Certified Public Accountant to be true and correct, of the annual Gross Receipts derived by Tenant from its operations permitted hereunder, the MAG (as defined in Section 6.01 hereof) for such year and the rent actually paid for such year. Prior to the Completion Date, such annual report shall cover Tenant's Sky Chefs, Inc. 10 T-885.005/ DRAFT--Contact 1264888.docx the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
operations for the twelve (12) full calendar months preceding the Completion Date, and may include, in part, results of Tenant's operations under the prior lease between the City and Tenant. Receipts accruing under the prior lease may be included so the report covers twelve (12) full calendar months of Gross Receipts. Such report shall be delivered no later than ninety (90) days after the earlier of (i) twelve full calendar months after the Commencement Date, or the Completion Date, whichever occurs earlier. After the Completion Date occurs, such annual report shall cover Tenant's operations for the first twelve (12) full calendar months occurring after the Completion Date, and shall cover each twelve (12) month period occurring thereafter during the term of the Master Lease. Such report shall be delivered no later than ninety (90) days after the first day of the end of such twelve (12) calendar month period. For any portion of a month covered by such payment, including any portion of a month caused by the Commencement Date or the Completion Date occurring on a date other than the first date of a month, such report shall contain a report of such Gross Receipts and applicable MAG and rent for such partial month. Said report shall not be made public by the City except as required by law or pursuant to a request under the California Public Records Act. The report shall state that (1) Gross Receipts have been accurately reported, and (2) the rentals, fees and charges have been accurately calculated in accordance with the terms and provisions contained in this Master Lease. Material variances from the monthly report of Gross Receipts received from Tenant should be explained in detail satisfactory to the City. (4) No later than thirty (30) days after receipt of a request from the Director, Tenant shall furnish the City with such other financial or statistical reports as the Director of Aviation, from time to time, may reasonably require, including but not limited to the purpose of determining the accuracy of the Gross Receipts, Labor Compliance, and FAA requirements. Unless Tenant has requested additional time to Sky Chefs, Inc. 11 T-885.005 DRAFT--Contact / 1264888.docx the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
produce any such reports and the Director has approved any such request, a delinquent report fee of $25.00 will be assessed for each day any such additional records are not timely received by the City SECTION 8. ARTICLE 54, "TITLE VI CLAUSES FOR COMPLIANCE WITH NONDISCRIMINATION REQUIREMENTS," is hereby added as follows: "(Source: Appendix A of Appendix 4 of FAA Order 1400.11, Nondiscrimination in Federally-Assisted Programs at the Federal Aviation Administration) Compliance with Nondiscrimination Requirements. During the performance of the Master Lease, as amended, the Tenant, for itself, its assignees, and successors in interest (hereinafter referred to in this ARTICLE 54 as the "Tenant") agrees as follows: 1. Compliance with Regulations: The Tenant (hereinafter includes consultants) will comply with the Title VI List of Pertinent Nondiscrimination Statutes and Authorities, as they may be amended from time to time, which are herein incorporated by reference, set forth in ARTICLE 55 of this Second Amendment, and made a part of the Master Lease. 2. Non-discrimination: The Tenant, with regard to the work performed by it during the Master Lease, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Tenant will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the Master Lease covers any activity, project, or program set forth in Appendix B of 49 CFR part 21. 3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made Sky Chefs, Inc. 12 T-885.005 DRAFT--Contact / 1264888.docx the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
by the Tenant for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Tenant of the Tenant's obligations under the Master Lease and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, or national origin. 4. Information and Reports: The Tenant will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City or the Federal Aviation Administration to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of the Tenant is in the exclusive possession of another who fails or refuses to furnish the information, the Tenant will so certify to the City or the Federal Aviation Administration, as appropriate, and will set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance: In the event of Tenant's noncompliance with the Non-discrimination provisions of the Master Lease, the City will impose such Master Lease sanctions as it or the Federal Aviation Administration may determine to be appropriate, including, but not limited to: a. Withholding payments to the Tenant under the Master Lease until the Tenant complies; and/or b. Cancelling, terminating, or suspending the Master Lease, in whole or in part. 6. Incorporation of Provisions: The Tenant will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The Tenant will take action with respect to Sky Chefs, Inc. 13 T-885.005/1264888.docx DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
any subcontract or procurement as the City or the Federal Aviation Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Tenant becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the Tenant may request the City to enter into any litigation to protect the interests of the City. In addition, the Tenant may request the United States to enter into the litigation to protect the interests of the United States." SECTION 9. ARTICLE 55 "TITLE VI LIST OF PERTINENT NONDISCRIMINATION AUTHORITIES," is hereby added as follows: "(Source: Appendix E of Appendix 4 of FAA Order 1400.11, Nondiscrimination in Federally-Assisted Programs at the Federal Aviation Administration) During the performance of the Master Lease, the Tenant, for itself, its assignees, and successors in interest (hereinafter referred to in this ARTICLE 55 as the "Tenant") agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); 49 CFR part 21 (Non-discrimination In Federally-Assisted Programs of The Department of Transportation Effectuation of Title VI of The Civil Rights Act of 1964); The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); Sky Chefs, Inc. 14 T-885.005 DRAFT--Contact / 1264888.docx the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR part 27; The Age Discrimination Act of 1975, as amended, (42 U.S.C. 6101 et seq.), (prohibits discrimination on the basis of age); Airport and Airway Improvement Act of 1982, (49 USC 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not); Titles II and III of the Americans with Disabilities Act of 1990, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. 12131-12189) as implemented by Department of Transportation regulations at 49 CFR parts 37 and 38; The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); Sky Chefs, Inc. 15 T-885.005 / 1264888.docx DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures nondiscrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq)." SECTION 10. "Exhibit D," entitled "LETTER OF CREDIT EXEMPLAR," is hereby attached and incorporated into this Second Amendment. SECTION 11. All of the terms and conditions of the amended Master Lease not modified by this Second Amendment shall remain in full force and effect. Sky Chefs, Inc. 16 T-885.005 DRAFT--Contact / 1264888.docx the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
WITNESS THE EXECUTION HEREOF on the day and year first written above. "CITY- APPROVED AS TO FORM: CITY OF SAN JOSE, a municipal corporation of the State of California KEVIN FISHER Senior Deputy City Attorney TONI J. TABER, CMC City Clerk "TENANT" SKY CHEFS INC., a Delaware corporation authorized to do business in California Signature Print Name Title Date Sky Chefs, Inc. 17 T-885.005/1264888.docx DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
CORPORATE SECRETARY CERTIFICATE corporation. This certificate shall be executed by the secretary or assistant secretary of the I, certify that Name of Secretary or Assistant Secretary am the MSecretarv or M Assistant Secretary of the corporation named in the attached agreement; that Name of Person that Signed Agreement signed the agreement on behalf of the corporation as the Titie of Person that Signed the Agreement of the corporation; and that the agreement was duly signed for and on behalf of the corporation by authority of its Board of Directors, and is within the scope of its corporate powers. Signature of Secretary or Assistant Secretary Corporate Seal Date DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
RD;KWF:CAG 11/03/15 EXHIBIT D LETTER OF CREDIT EXEMPLAR [BANK NAME AND ADDRESS] STANDBY LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF [Date] CREDIT NO. BENEFICIARY: CITY OF SAN JOSE, CALIFORNIA SAN JOSE INTERNATIONAL AIRPORT 1701 Airport Blvd., Suite B-1130 San Jose, CA 95110 APPLICANT: Gentlemen: We hereby open our irrevocable standby letter of credit no. in your favor for account of the applicant for an amount not to exceed in the aggregate U.S. dollars ($) available by your draft(s) drawn at sight on us accompanied by: Your written statement purportedly signed by an authorized representative of City of San Jose, California showing the name and title of the signer and reading as follows: "The undersigned, a duly authorized representative of City of San Jose, California does hereby certify that has been in default of contractual obligations with respect to payments due City of San Jose, California". This letter of credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reason of our reference to any agreement or instrument referred to herein or in which this letter of credit is referred to. Any such agreement or instrument shall not be deemed incorporated herein by reference. Draft(s) must be marked "drawn under [BANK NAME] Letter Of Credit No. " Sky Chefs, Inc. EXHIBIT D-1 T-885.005 /1264888.docx. DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.
11/03/15 Draft(s) must be presented to [BANK NAME] located At [BANK ADDRESS] not later than [date] (the "expiration date") or any such automatically extended expiration date as provided herein below. Partial draws are allowed. It is a condition of this standby letter of credit that the expiration date shall be automatically extended, without amendment, for periods of one year from each successive expiration date, unless, no less than thirty (30) days before the then current expiration date, we notify you in writing by registered mail (return receipt) that this letter of credit will not be extended beyond the then current expiration date. Any such notice shall be deemed received by you on the date such notice is deposited in the U.S. mails, registered (return receipt), postage prepaid. We hereby agree with you that draft(s) drawn under and in compliance with the terms and conditions of this letter of credit shall be duly honored on due presentation to [BANK NAME]. Except as otherwise expressly stated herein, this credit is issued subject to the Uniform Customs And Practice For Documentary Credits (1993 Revision), International Chamber Of Commerce Publication No. 500. Communications to us with respect to this letter of credit must be in writing and shall be addressed to us at [BANK ADDRESS], specifically referring thereon to this letter of credit by number. Very truly yours Authorized signature Sky Chefs, Inc. EXHIBIT D-2 T-885.005 DRAFT--Contact /1264888.docx the Office of the City Clerk at (408) 535-1260 or CityClerk@sanjoseca.gov for final document.