Lease and development agreement



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Section 5.10 Studies and Forecasts.


(a) Engineering Studies. Prior to the commencement of construction and at all times during construction, the Lessee shall submit to the Port Authority all engineering studies with respect to construction and samples of construction materials as the Port Authority may require at any time and from time to time. In addition, except under emergency circumstances or as required by applicable Requirements, the Lessee shall notify the Port Authority prior to the Lessee’s reporting to any governmental authority any Hazardous Substances discovered in connection with or arising out of the performance of the Construction Work.

(b) Construction Period Forecasts. Prior to the commencement of construction and upon the Port Authority’s request from time to time thereafter, the Lessee shall submit to the Port Authority its forecasts of the number of people who will be working at various times during the period of construction and the term of the letting hereunder at the Premises, the expected utility demands, noise profiles and such other information as the Port Authority may require. The Lessee shall keep the Port Authority currently advised as to any material changes in the foregoing information.


Section 5.11 Risk of Loss, Indemnification.


(a) Indemnification. The Lessee hereby assumes the risk of loss or damage to all of the Construction Work prior to the completion thereof and the risk of loss or damage to all property of the Port Authority and others and injury (including death) to persons directly or indirectly arising out of or in connection with the performance of the Construction Work, including without limitation any and all Environmental Requirements and Environmental Damages, except to the extent expressly otherwise provided in this Agreement. Except as otherwise expressly provided in this Agreement, the Lessee shall itself and shall also require its contractors to indemnify the Indemnified Parties against the following damages and claims or losses arising out of the performance of the Construction Work, whether such risks and claims or losses arise from the acts or omissions of the Lessee, any contractors of the Lessee, any Indemnified Party, third persons, acts of God or the public enemy or otherwise, excepting only risks, claims or losses which result solely from the intentional misconduct or gross negligence of any Indemnified Party with respect to the Construction Work:

(i) risks of loss or damage to all or any part of the Construction Work prior to the completion thereof, it being understood and agreed that in the event of any such loss or damage, the Lessee shall forthwith repair, replace and make good the work without cost or expense to the Port Authority; and

(ii) risk of loss or damage to any property of the Port Authority arising out of or in connection with the performance of the Construction Work, it being understood and agreed that the Lessee shall indemnify the Indemnified Parties and hold each of them harmless from all such loss or damage; and

(iii) risk of all claims and demands, just or unjust, of third Persons arising or alleged to arise out of the performance of the Construction Work, it being understood and agreed that the Lessee shall indemnify and hold harmless each Indemnified Party against and from all such claims and demands, and for all expenses (including attorneys’ fees) incurred by any Indemnified Party in the defense, settlement or satisfaction thereof, including without limitation claims and demands for death, for personal injury or for property damage, direct or consequential, and including claims and demands of the City, from which the Port Authority derives its rights in the Airport, for indemnification, arising by operation of law or through agreement of the Port Authority with the City.

(b) Defense of Claims.

(1) If so directed, the Lessee (or its contractor) shall at its own expense defend any suit based upon any such claim or demand (even if such suit, claim or demand is groundless, false or fraudulent), and in handling such it shall not, without obtaining the express advance permission from the General Counsel of the Port Authority, raise any defense involving in any way the jurisdiction of the tribunal over the person of the Port Authority, the immunity of the Port Authority, its Commissioners, officers, agents or employees, the governmental nature of the Port Authority or the provision of any statutes respecting suits against the Port Authority.

(2) In the event that any action or proceeding is brought against the Port Authority by reason of any claims covered by the foregoing indemnity, the Lessee shall, upon notice from the Port Authority (as applicable), resist or defend such action or proceeding by counsel satisfactory to the Port Authority (as applicable). Notwithstanding the foregoing, if such claim is covered by insurance, then defense counsel appointed by the applicable insurer shall be deemed to be satisfactory so long as the insurer has not reserved rights or disclaimed coverage as to part or all of such claim.

(3) In no event shall any Indemnified Party have the right independently to settle any such claim without the consent of the Lessee; provided, however, that upon at least ten (10) days’ prior written notice from any Indemnified Party to the Lessee, such Indemnified Party may settle any such claim if (x) the Port Authority, on behalf of itself and all other Indemnified Parties, releases the Lessee in writing of its obligation to indemnify the Indemnified Parties in respect of such claim and (y) within such ten (10) day period the Lessee does not give written notice to the Port Authority objecting to such settlement on the ground that it will prejudice the Lessee in the defense of such claim on its own behalf. The Lessee shall have the right to settle any such claim without the approval of any Indemnified Party provided that the Lessee (where such claim is not covered by insurance) demonstrates that it has the financial ability to pay such settlement in full and that it has made adequate provision for the payment of such settlement. Any such settlement must fully release the Indemnified Parties from any liability for or in respect of the claim in question. In the case of any such claim which is not covered by insurance, the Lessee shall keep the Port Authority apprised of any such settlement negotiations.


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