Lease and development agreement



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ARTICLE 20A. JOINT PERIODIC CONDITION SURVEY

(a) Definitions.

As used herein the following terms shall have the following meanings:


Condition Survey” shall mean an inspection by the Condition Survey Contractor of the Premises, including without limitation the then current state of cleaning, maintenance and repairs, janitorial services, painting, structural and nonstructural conditions, surface and subsurface conditions, environmental conditions, lighting of building areas, ramp and apron areas, and the condition of utilities and utility systems, fire-fighting and fire protection equipment and systems, communications and communications systems, antipollution systems and devices, fuel facilities and systems, and the Lessee’s fixtures, equipment and personal property.

Condition Survey Contract” shall mean a contract awarded to a Condition Survey Contractor, or entered into between the Port Authority and a Condition Survey Contractor, for the performance by such Condition Survey Contractor of a Condition Survey at any of the applicable times specified in paragraph (b) hereof;

Condition Survey Contractor” shall mean a reputable engineering firm, licensed or authorized to do business in the State of New York, to whom a Condition Survey Contract is awarded pursuant to paragraph (b) hereof.

Condition Survey Costs” shall mean, with respect to each Condition Survey, all amounts paid and expenses incurred by the Port Authority, including all interest, costs, damages and penalties, for, relating to or in connection with Condition Survey work to be performed under the Condition Survey Contract.

Condition Survey Report” shall mean the report prepared by the Condition Survey Contractor after its completion of the Condition Survey, including without limitation any and all recommendations for repair, maintenance, rebuilding and cleaning of all items or areas covered by a Condition Survey.

Report Date” shall mean the date of the Port Authority’s written notice to the Lessee by which the Port Authority delivers to the Lessee the Condition Survey Report.


(b) Condition Survey.

In addition to any inspection of the Premises which may be made under any other Section of this Agreement or otherwise, a Condition Survey of the Premises shall be conducted by a Condition Survey Contractor (x) not more frequently than once every five (5) years (a “Periodic Condition Survey”), and (y) once within the last year of the Term (the “Final Condition Survey”), subject to and in accordance with the terms and conditions provided below.

(c) Time Period and Notice Procedure.

From time to time, the Port Authority may notify the Lessee of a proposed Condition Survey (which may include all or particular portions of the items enumerated above in the definition of “Condition Survey”) and including the name of the proposed Condition Survey Contractor who will perform the Condition Survey and the proposed scope and fee structure of the proposed Condition Survey Contract. Such notices of proposed Condition Survey shall, in the case of Periodic Condition Surveys, not be made more than once in every five (5) years, and in the case of the Final Condition Survey, not be made earlier than sixty (60) days preceding the last day of the month which constitutes the twelfth month preceding the Expiration Date. Within thirty (30) days after the Port Authority’s notice to the Lessee, the Lessee shall advise the Port Authority in writing of its concurrence or objection to the proposed Condition Survey Contract. In the event the Lessee fails to respond within such thirty-day period, such non-response shall be deemed a concurrence and the Port Authority shall proceed with the said Condition Survey Contract. In the event the Lessee notifies the Port Authority of its objections to the proposed Condition Survey Contract or Condition Survey Contractor, the parties shall consult with each other in good faith to resolve such dispute. If such resolution is not reached within thirty (30) days, then the Port Authority, if it so elects, shall make a determination as to the issue or issues in dispute. The parties hereby agree that the Port Authority’s determination of said issues, including the Condition Survey Contract and the Condition Survey Contractor, shall be final.

(d) Port Authority Policies and Practices.

It is hereby expressly understood and agreed that the selection of each Condition Survey Contractor and the award of any Condition Survey Contract shall be subject to and consistent with the Port Authority’s policies and practices for the selection and award of similar contracts and the Port Authority shall have as full a right to require the use of competitive bidding and award, or other basis of award, for any such Condition Survey Contract as if the work on such contract were being performed solely for the Port Authority; and, further, that the Condition Survey Contract shall contain terms and conditions which are standard to Port Authority contracts or consistent with such standard provisions.

(e) Costs.

With respect to each Condition Survey, all Condition Survey Costs shall be shared equally between the Port Authority and the Lessee. Accordingly, the Lessee hereby agrees to pay to the Port Authority fifty percent (50%) of the Condition Survey Costs with respect to each Condition Survey as follows:

  1. The Lessee shall pay to or reimburse the Port Authority for the Condition Survey Costs as follows: The Port Authority shall after the completion of the Condition Survey under a Condition Survey Contract and, if it elects, also from time to time during the course of the performance of such Condition Survey, submit to the Lessee a certificate or certificates setting forth the Condition Survey Costs at the date of each such certificate. Within thirty (30) days after the delivery of each such certificate, the Lessee shall pay to the Port Authority an amount representing fifty percent (50%) of the amount of the Condition Survey Costs set forth in such certificate. Upon its final determination of the Condition Survey Costs, the Port Authority shall submit to the Lessee a certificate marked “Final”, setting forth the final determination of the Condition Survey Costs with respect to each Condition Survey Contract as reduced by any previous payment with respect to such Condition Survey Contract, and the Lessee shall and hereby agrees to pay to the Port Authority within thirty (30) days of the date of such certificate an amount representing fifty percent (50%) of the amount of the Condition Survey Costs set forth in such certificate; provided, however, that neither the foregoing nor any certificate delivered by the Port Authority, nor any payment made by the Lessee shall waive or impair any right of the Port Authority of review and audit with respect to the Condition Survey Costs with respect to each Condition Survey Contract; and provided, further, that in the event any such review or audit by the Port Authority requires an adjustment of the Condition Survey Costs, the Lessee promptly shall be credited with, or shall pay, as the case may be, all amounts required by such adjustment.


(2) Any and all amounts required to be paid by the Lessee hereunder may be added to any installment of rental thereafter due hereunder and each and every part of the same shall be and become additional Rental, recoverable by the Port Authority in the same manner and with like remedies as if it were part of the Rental as set forth in the Article hereof entitled “Rental”.
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