Lease and development agreement



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Section 5.12 Insurance.


(a) Liability Insurance.

(1) In addition to all policies of insurance otherwise required in this Agreement, the Lessee in its own name as insured and with the Indemnified Parties as additional insureds shall procure and maintain a policy or policies of Commercial General Liability Insurance, including without limitation coverage with a broad form property damage endorsement, premises-operations, products liability/completed—operations (for a minimum of three (3) years after the Construction Completion Date) and explosion, collapse and underground property damages coverage, personal injury and independent contractors and providing for the coverage in the limit set forth below; Commercial Automobile Liability Insurance covering owned, non-owned and hired vehicles, automatically covering newly acquired vehicles, and providing for coverage in the limit set forth below; at any time that the removal of asbestos-containing materials is being performed at the Premises, Asbestos Abatement Liability Insurance providing for coverage in the limit set forth below; at any time that Remediation (including without limitation removal of asbestos-containing materials) is being performed at the Premises, Environmental Impairment Liability Insurance, including lead abatement, if relevant, and removal operations, and providing for coverage in the limit set forth below; and during the performance of any Remediation at the Premises, Transportation Pollution/Hazardous Waste Haulers Insurance (Form MCS90), providing for coverage in the limit set forth below; with contractual liability endorsements covering the obligations assumed by the Lessee hereunder, including without limitation the Lessee’s indemnification obligations and the indemnification obligations required of the Lessee’s contractors pursuant to Section 5.11.

(2) The foregoing insurance shall be in not less than the following amounts:

Type of Coverage

Minimum Limits

Commercial General Liability




Combined single limit per occurrence for death, bodily injury and property damage liability:

$100,000,000.00

Commercial Automobile Liability




(covering owned, non-owned and hired vehicles) combined single limit per occurrence for death, bodily injury and property damage liability:

$2,000,000.00

Asbestos Abatement Liability




Combined single limit per occurrence for death, bodily injury and property damage liability:

$2,000,000.00

Environmental Impairment Liability




Combined single limit per occurrence for death, bodily injury and property damage liability:

$2,000,000.00

Transportation Pollution/Hazardous Waste Haulers (MCS90)




Combined single limit per occurrence for death, bodily injury and property damage liability:

$2,000,000.00 or
statutory minimum


(3) In addition to the foregoing, the Lessee shall provide the foregoing insurance by requiring each contractor engaged by it for the Construction Work to procure and maintain such insurance in the contractor’s name as insured and with the Port Authority, the City, EDC and the Lessee as additional insureds, including contractual liability endorsements referred to in paragraph (a) above.

(4) The foregoing insurance shall not contain any care, custody or control exclusions, or any exclusion for bodily injury to or sickness, disease or death of any employee of the Lessee or of any of its contractors that would conflict with or in any way impair the coverages resulting from the Indemnified Parties’ status as additional insureds or coverage under the contractual liability endorsement.

(5) Each policy of liability insurance shall also provide or contain an endorsement providing that the protections afforded the named insured thereunder with respect to any claim or action against the named insured by a third person shall pertain and apply with like effect with respect to any claim or action against the Lessee by an Indemnified Party, but such endorsement shall not limit, vary, change, or affect the protections afforded the Indemnified Parties thereunder as additional insureds. In addition, each policy of insurance shall also provide or contain an endorsement providing that the protections afforded the Indemnified Parties thereunder with respect to any claim or action against any Indemnified Party by the Lessee or its contractor(s) shall be the same as the protections afforded the named insured thereunder with respect to any claim or action against the named insured by a third person, as if the Indemnified Parties were the named insureds thereunder.

(6) Each policy of liability insurance shall also provide or contain an endorsement providing that the insurer shall not, without obtaining express advance permission from the General Counsel of the Port Authority, raise any defense involving in any way the jurisdiction of any tribunal over the person of the Port Authority, the immunity of the Port Authority, its Commissioners, officers, agents or employees, the governmental nature of the Port Authority or the provisions of any statutes respecting suits against the Port Authority.

(b) Workers’ Compensation Insurance. The Lessee shall procure and maintain Workers’ Compensation Insurance in accordance with the requirements of law, provided, however, that in the event any class of employees under any contract or subcontract for work to be performed on the Premises is not protected under the Workers’ Compensation statute, the Lessee shall provide, and cause any additional employers to provide, Employer Liability insurance for the protection of such of its employees as are not otherwise protected. Limits of Employer Liability Insurance shall be as follows:

$1,000,000 each accident


$1,000,000 each employee – disease
$1,000,000 policy limit – disease.

(c) Builder’s Risk Insurance. The Lessee shall procure and maintain, or cause to be procured and maintained, Builder’s Risk (All Risk) Completed Value Insurance, including coverage for terrorism, flood and earthquake, on a complete value form covering the Construction Work during the performance thereof including material intended to be incorporated in the finished improvements, whether stored off-Premises or delivered to the Premises but not attached to the realty, or existing property, until the Construction Work is completed. Such policy shall name the Recognized Mortgagee and the Indemnified Parties as insureds, as their interests may appear, with loss payable to the Recognized Mortgagee and adjusted by the Recognized Mortgagee. If there is no Recognized Mortgagee, losses shall be payable to the Port Authority, and the policy shall provide that the loss shall be adjusted with the Port Authority and the Lessee. The proceeds of such insurance shall be used solely for the repair, replacement, rebuilding or other performance of the Construction Work.

(d) General Requirements.

(1) The insurance required hereunder shall be maintained in effect during the performance of the Construction Work and shall be in compliance with and subject to the provisions of Article 10 hereof, entitled “Insurance”.

(2) Any property insurance policy provided for in this Section may be carried in blanket form and any liability insurance may be carried in the form of a primary and one or more umbrella policies.

Section 5.13 Pollution to be Minimized; Safety.

Prior to and during the performance of the Construction Work the Lessee shall take appropriate measures to prevent erosion of the soil and the blowing of sand or materials and if necessary shall erect fencing or partitioning and cover open areas with asphaltic emulsion or similar materials. The Construction Work shall be performed in such a manner that there will be at all times during construction a minimum of air pollution, water pollution or any other type of pollution and a minimum of noise emanating from, arising out of or resulting from such construction. Subject to the provisions of this Agreement, the Lessee shall construct such customary structures, fences, equipment, dewatering systems and other devices and facilities as the Port Authority shall deem necessary or appropriate to accomplish the objectives set forth in this Section. In addition to its other obligations under this Section, the Lessee shall take appropriate measures to (x) safeguard the work so as to avoid, to the extent possible, injury or damage to persons or property and (y) control rodents and insects during the performance of the Construction Work, and shall provide extermination services as required.

Section 5.14 Compliance with Sustainable Design Guidelines.

The Lessee shall, in the performance of all Construction Work, comply with the Port Authority’s policy on sustainable design as set forth in the sustainable design guidelines promulgated by the Port Authority Engineering Department from time to time.


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