Lease and development agreement



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Section 5.15 Disposition of Matter.

Subject in all events to the Environmental Requirements, any soil, dirt, sand or other matter (collectively, the “Matter”) excavated by the Lessee during the course of the Construction Work and not used at the Premises shall be managed in accordance with the Environmental Management Plan (as defined below). The Lessee shall submit to the Port Authority all manifests and bills of lading covering any Matter transported from the Premises, and in addition shall prepare and submit to the Port Authority all documentation that the Lessee is required to submit to the disposal site or the Governmental Authority having jurisdiction with respect to any Matter.

Section 5.16 Specific Environmental Requirements
relating to Construction


(a) Compliance with Environmental Requirements.

(1) The Construction Work shall be performed in compliance with all Environmental Requirements, and in connection therewith the Lessee shall duly procure all additional permits applicable permits of Governmental Authorities required pursuant thereto.

(2) Notwithstanding the foregoing, where the other terms and provisions of this Agreement, including without limitation Article 20B, entitled “Environmental Obligations”, provide requirements that are stricter than or additional to Environmental Requirements, the Construction Work shall comply with such stricter or additional requirements, and references in this Article 5 to “Environmental Requirements” shall be interpreted accordingly.

(3) Without limitation as to the foregoing, but subject to paragraph (h)(1) below of this Section 5.16, all Construction Work shall be performed in compliance with Permit No. GP-0-10-001, SPDES General Permit for Stormwater Discharges from Construction Activities, issued by the DEC on January 29, 2010, and JFKIA SPDES Number NY 0008109 renewed effective March 1, 2012, including without limitation the Storm Water Pollution Prevention Plan which shall be filed pursuant thereto by the Lessee in connection with the Construction Work (including any extension or successor to such permit, the “JFK SPDES Permit”).


(b) No Exacerbation. In the performance of the Construction Work, the Lessee shall not exacerbate the existing environmental condition of the Premises, the Airport or any natural resource, including without limitation any ground water or aquifer.

(c) Environmental Management Plan. The Lessee shall submit to the Port Authority for its approval prior to the commencement of the Construction Work an environmental management plan setting forth in detail the Lessee’s plans for all handling, excavation, depositing, testing, screening, backfilling, removal, storage, transportation, disposal and other handling of soil and the treatment of ground and wastewater in the performance of the Construction Work (such plan, as approved by the Port Authority, the “Environmental Management Plan”). The Construction Work shall be performed in accordance with the Environmental Management Plan.

(d) Remediation of Spills.

(1) In the event that any Hazardous Substances are discovered, uncovered, exposed, spilled, released, discharged or disposed on the Airport in the performance of the Construction Work (any such event, a “Spill”), the Lessee shall immediately (w) notify the Port Authority of such Spill, (x) excavate all soil containing any such Hazardous Substances, (y) pump and treat all ground water containing any such Hazardous Substances, and (z) delineate such Spill to the satisfaction of the Port Authority. Such pumping and treatment, or excavation, shall continue until all such Hazardous Substances have been removed in accordance with Environmental Requirements. No Construction Work that would interfere or delay such Remediation shall be performed in the area of such Spill until all such Hazardous Substances have been so removed. Notwithstanding the foregoing, however, with respect to any Hazardous Substances discovered, tested or sampled in connection with any excavation, such responsibility for Remediation shall apply only with respect to such Hazardous Substances existing within each excavated area plus a ten (10) foot-wide (measured from the widest extent, surface or subsurface, of the excavation) strip of land around the perimeter of the entirety of such excavated area.

(2) All such testing or sampling shall be performed by a laboratory duly approved or certified by a governmental agency having jurisdiction. Prior to final disposition of any such Hazardous Substance, the Lessee shall submit to the Port Authority certifications stating the type and amount of material disposed, the method of disposal, the owner and the location of the proposed disposal facility and the name and address of the transporter. The format of such certifications, including the appropriate operating permits of the disposal facility and the transporter, shall follow the requirements of the governmental agencies having jurisdiction.

(e) Reporting to Governmental Authority.

In reporting a Spill, the Lessee shall follow all Environmental Requirements and shall direct such report to the attention of such individual at the relevant Governmental Authority as the General Manager of the Airport may require, in order to assure consistency in the environmental management of the Airport.

(f) Certificate of Final Disposal. Promptly upon final disposition of any Hazardous Substance, the Lessee shall submit to the Port Authority a “Certification of Final Disposal” stating the type and amount of material disposed, the method of disposal and the owner and location of the disposal facility. The format of such certification shall follow the requirements, if any, of Governmental Authorities having jurisdiction as if the Port Authority were a private organization, provided, however, that in all events the name of the Port Authority shall not appear on any certificate or other document as a generator or owner of such material.

(g) Responsibility to Obtain NFA Status. In all events, the Lessee shall be fully responsible for obtaining a No Further Action (“NFA”) status from the DEC with respect to all Spills reported to the DEC, and the Lessee shall complete all necessary remedial actions, monitoring and reporting necessary to obtain such NFA status. The Lessee shall be fully responsible for all costs associated with any long-term monitoring, reporting and closure activities relating to or resulting from such reported Spills both before and after the Completion Date.

(h) Dewatering and Discharge of Wastewater.


(1) The Port Authority hereby grants its permission to the Lessee to perform dewatering and discharge of wastewater in connection with the Construction Work under the JFK SPDES Permit, provided, however, that the Port Authority shall approve all dewatering plans and practices prior to any discharge, and the Lessee shall comply with all the terms and conditions of the JFK SPDES Permit and with all additional requirements of the DEC with respect to such dewatering activities and discharge of wastewater. The foregoing permission may be revoked by the Port Authority upon twenty-four (24) hours’ notice to the Lessee if the Lessee fails, within five (5) days after the Lessee’s receipt of notice of default from the Port Authority identifying the breach(es) of this paragraph (h), entitled “Dewatering and Discharge of Wastewater”, to cure any such breach(es).

(2) The Lessee shall design and implement appropriate engineering practices and controls for all dewatering activities in the performance of the Construction Work to comply with Environmental Requirements.

(3) Dewatering and discharges shall be monitored and reported separately for each individual discharge point that comprises the Construction Work. Accordingly, separate monitoring systems shall be used to track dewatering and discharge activities performed in connection with the Construction Work. Upon the Port Authority’s request at any time and from time to time, the Lessee shall provide additional samples and tests relating to the dewatering system. The Lessee shall keep full documentation of all ground water volumes treated, sampled and discharged, and shall provide all such documentation to the Port Authority.

(4) The Lessee shall install any and all treatment items requested or required by the DEC, the General Manager of the Airport or any approved Construction Application and/or indicated by water quality sampling results. All effluent shall meet the JFK SPDES Permit limits.

(5) In the event that the projected zone of influence of the Lessee’s dewatering system is found to extend into any area outside of the Premises, the Lessee shall notify the Port Authority by submitting to the Resident Engineer for his review and approval the proposed dewatering design, which shall identify potentially affected non-pile supported structures and pavements which may be impacted by drawdown effects during dewatering operations.

(6) In the event that the Lessee’s dewatering activities hereunder involve the use of wells, the Lessee shall, not later than ten (10) days after completion of dewatering activities and receipt of any approvals of a Governmental Authority, perform and complete a closure of all such wells in conformance with DEC requirements. The Lessee shall promptly notify both the Port Authority and the DEC of this action.


(i) Lessee’s Environmental Professionals.

(1) The Lessee shall designate, by written notice to the Port Authority given not later than five (5) days after the Lessee’s execution of this Agreement, a duly authorized representative of the Lessee (the “Lessee Environmental Representative”) who shall be responsible for the Lessee’s compliance with the JFK SPDES Permit.

(2) Upon notice to the Lessee by the Port Authority, which may be given at any time upon any indication of non-compliance or potential non-compliance by the Lessee with the JFK SPDES Permit, the Lessee shall at its own expense immediately retain under contract, independent of the Lessee’s construction contractor, a qualified environmental consultant approved by the Port Authority (the “Lessee Environmental Consultant”). The Lessee Environmental Consultant shall provide liaison with the Port Authority, and shall have the obligation to submit any and all reports, and any other requested information, directly to the Port Authority and to oversee installation, if applicable, of dewatering wells by a licensed driller, and to monitor contractor compliance with all dewatering operations. The Lessee Environmental Consultant shall at all times be an independent contractor of the Lessee. The Port Authority shall not be responsible for any act or omission or fault or neglect of the Lessee’s Environmental Consultant, nor shall the Port Authority have any liabilities or obligations of any kind to the Lessee Environmental Consultant, or any responsibility for any payments due or alleged to be due thereto.

(3) The Lessee Environmental Representative and/or the Lessee Environmental Consultant shall promptly notify the Port Authority’s Resident Engineer of the progress of scheduled activities, including initiation of dewatering activities, and shall provide weekly updates (by facsimile or email) on the activities at the Premises, including the status of dewatering activities (e.g. volumes removed, condition of waters).


(j) Lessee’s Responsibility.

In addition to and without limitation as to the following paragraph (k) or any other term or provision of this Agreement, the Lessee shall be solely responsible for any and all fines, penalties, assessments, or levies assessed due to deviation from or violation of the JFK SPDES Permit or of the Lessee’s authorization to discharge stormwater in the performance of the Construction Work during construction or of any other applicable permit, plan, authorization or permission. All design planning shall be in conformance with the requirements and conditions of the JFK SPDES Permit and applicable Environmental Requirements and of any other applicable permit, plan, authorization or permission, and the Lessee shall be responsible for complete compliance therewith.

(k) Lessee’s Assumption of Risk.



The Lessee shall assume all risks arising out of its performance of dewatering and discharging of wastewater at any portion or area of the Premises under the JFK SPDES Permit or of any other applicable permit, plan, authorization or permission and, without limitation as to the generality of any other term or provision contained in this Agreement, the Lessee shall indemnify, hold harmless and reimburse the Port Authority, its Commissioners, officers, employees and representatives from and against (and shall reimburse the Port Authority for the Port Authority’s costs and expenses, including without limitation legal costs and expenses incurred in connection with the defense of) all claims and demands, penalties, fines, liabilities (including without limitation strict liability), settlements, attorney and consultant fees, investigation and laboratory fees, cleanup and remediation costs, court costs and litigation expenses, damages, judgments, losses, costs and expenses, including without limitation claims for personal injury, including death, property damage and natural resources damage, of whatsoever kind or nature and whether known or unknown, contingent or otherwise, just or unjust, groundless or foreseeable or otherwise arising or alleged to arise out of, or in any way related to the Lessee’s performance of dewatering or any discharging at any portion of the Premises or the Airport or the use of the JFK SPDES Permit by the Lessee or of any other applicable permit, plan, authorization or permission. If so directed, the Lessee shall at its own expense defend any suit based upon the foregoing, and in handling such it 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 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 provisions of any statutes respecting suits against the Port Authority.

Section 5.17 Relocation Work.

The Lessee understands that there may be communications and utility infrastructure located on or under the Premises which do not, and may not in the future, serve the Premises but which may be affected by the Construction Work. The Lessee agrees, if directed by the Port Authority so to do, to relocate and reinstall such communications and utility infrastructure on the Premises or off the Premises and to restore all affected areas (such work, collectively, the “Relocation Work”), the Port Authority agreeing not to act unreasonably herewith. The Lessee shall perform the Relocation Work subject to and in accordance with all the terms and provisions of this Section, and the Relocation Work shall be and become a part of the Construction Work, it being understood, however, that the Relocation Work shall not be or become a part of the Premises.

Section 5.18 No Disruption of Airport Operations;


Public Safety Radio System
.

(a) Airport Operations. The Construction Work shall be performed in a manner that does not disrupt or unreasonably disturb ongoing operations elsewhere at the Airport, including without limitation at Terminal 5.

(b) Public Safety Radio System. The Lessee acknowledges that the public safety radio system installed in the Premises must remain in full service before and during the period the Construction Work is in progress, as well as following completion of construction of the Project. The Lessee accordingly agrees to provide, in consultation with the Port Authority, such additional antennas or supporting equipment as may be appropriate to effectuate the foregoing.

Section 5.19 Staging Area.

The Port Authority shall make available to the Lessee, by separate agreement, a material and staging area for the Lessee’s exclusive use in connection with the prosecution and completion of all Construction Work.

Section 5.20 Title to Construction Work.

Title to all the Construction Work shall pass to The City of New York as the same or any part thereof is erected, constructed or installed, and shall be and become part of the Premises if located within the Premises.

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