Lease and development agreement

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(f) Required and Recommended Actions.

Within ninety (90) days after the Report Date, the Lessee shall commence all required or recommended items and actions contained in each Condition Survey Report that are necessary or required to meet the Lessee’s maintenance, repair or other obligations, duties or responsibilities under this Agreement, unless the Port Authority expressly advises the Lessee to the contrary as to any particular item(s), and the Lessee shall diligently continue the same to completion; provided, however, that the Lessee shall promptly commence any and all items, action or work related to or affecting or involving fire safety, health, structural integrity, life safety, security and other emergency response.

(g) Rights of Entry.

The Condition Survey Contractor shall have all rights of entry to the Premises during all reasonable times as appropriate or required to perform or complete the Condition Survey and the Condition Survey Report under the Condition Survey Contract.

(h) No Waiver, etc.

Neither the provisions of this Section, including without limitation the right of the Port Authority to have the Lessee perform and complete the work recommended or required by the Condition Survey Report, the obligation of the Lessee so to perform and complete such work, nor any such performance thereof by the Lessee, any failure of the parties to select a Condition Survey Contractor, any failure of any Condition Survey Contractor to perform and complete a Condition Survey Contract, nor any failure by the Lessee or the Port Authority to pay the Condition Survey Costs with respect to any Condition Survey Contract or any portion thereof, shall be deemed to release, waive, diminish, limit or impair any of the obligations, duties, responsibilities or liabilities of the Lessee under any term, provision, covenant or condition of this Agreement or to limit, waive, affect, restrict or impair any right or remedy of the Port Authority, including without limitation any right of the Port Authority to terminate the letting hereunder, whether before or after the Report Date. Without limitation as to the foregoing, it is expressly understood and agreed that the Lessee shall not postpone or delay any action, maintenance, rebuilding or repair or other item or thing required to be taken by the Lessee under any other section of this Agreement.


(a) Definitions.

The following terms shall have the respective meanings provided below:

Analyzed Items” shall mean, with respect to the ground water and soil, respectively, the constituents for which the ground water samples and the soil samples described in the Environmental Report were tested.

Environmental Report” shall mean the Initial Environmental Report and all Remediation Completion Reports, if any.

Existing Condition” shall mean the levels of Analyzed Items in the soil and ground water for all portions of the Premises as derived by applying the methodology set forth in paragraph (j) below to the test results in the Initial Environmental Report, as such test results may be superseded and supplemented by the test results in each Remediation Completion Report in accordance with the provisions of paragraph (m) of this Section. The Lessee hereby specifically acknowledges that the “Existing Condition” does not include any condition of or within the Building, or above-ground elsewhere on the Premises, including without limitation the presence of asbestos, the remediation of which shall be solely the Lessee’s obligation.

Initial Environmental Report” shall mean the report attached hereto as Exhibit G, as it may be supplemented by pre- or post-construction sampling, performed in accordance with methodologies approved in advance by the Port Authority.

Remediate” or “Remediation” shall mean the investigation (including any feasibility studies or reports), cleanup, removal, abatement, transportation, disposal, treatment (including in situ treatment), management, stabilization, neutralization, collection or containment of a Hazardous Substance or contamination, that may be required to satisfy Environmental Requirements, in each case including without limitation any closure, restoration or monitoring operations and maintenance activities that may be required by any Governmental Authority after the completion of such investigation, cleanup, removal, transportation, disposal, treatment, neutralization, collection or containment activities as well as the performance of any and all obligations imposed by any Governmental Agency in connection with such investigation, cleanup, removal, transportation, disposal, treatment (including in situ treatment), management, stabilization, neutralization, collection or containment (including any such obligation that may be imposed pursuant to an environmental permit or a consent order).

Remediation Completion Report” shall have the meaning set forth in paragraph (m) of this Section.

(b) Lessee’s Assumption of Environmental Liability.

(1) Without limiting the generality of any of the other terms and provisions of this Agreement, but subject to the provisions of paragraph (b)(2) below, the Lessee hereby expressly agrees to assume all responsibility for, relieve the Port Authority from, and reimburse the Port Authority for, any and all risks, claims, penalties, costs and expenses of any kind whatsoever caused by, arising out of or in connection with, the condition of the Premises, whether any aspect of such condition existed prior to, on or after the Lease Commencement Date, including without limitation all Environmental Requirements and all Environmental Damages, and to indemnify and hold harmless the Indemnified Parties against all such risks, claims, penalties, responsibilities, costs and expenses.

(2) Notwithstanding the foregoing, it is hereby agreed and understood that except as set forth in paragraphs (k), (q) and (r) of this Section, the Lessee shall not be responsible for the following:

  1. the Remediation of the Existing Condition;

the Remediation of Hazardous Substances in the soil or ground water in, on or under the Premises caused by the sole acts or omissions of the Port Authority (or its agents conducting activities on or near the Premises) on or after the Lease Commencement Date;

the Remediation of any Spill that is not caused or exacerbated by the Construction Work or other acts or omissions of the Lessee, its agents, contractors or sublessees, outside of any area excavated during the Construction Work, plus a ten (10)-foot wide strip of land around the perimeter of such excavated area;

fines and penalties arising out of the Existing Condition if the fines and penalties are imposed due to the failure to have the Existing Condition Remediated, but only so long as the Lessee shall not in any material manner have obstructed or interfered with the performance of the Remediation of the Existing Condition, and

any Hazardous Substance that has migrated (x) onto the Premises from outside the Premises or (y) outside the Premises from the Premises, the migration of which is not a result of or in connection with any act or omission, including without limitation any non-negligent act or omission, of the Lessee or of Persons other than the Lessee which use, occupy or are on the Premises with the consent of the Lessee.

(3) The Lessee agrees that in any legal action or proceeding in which the Port Authority and the Lessee are opposing parties, the Lessee shall have the burden of proof, as hereinafter defined, as to any and all issues of fact with respect to: (1) whether the presence of any Hazardous Substance on, about or under the Premises occurred prior or subsequent to the Lease Commencement Date; (2) whether any Hazardous Substance disposed of or released from the Premises or which migrated from the Premises came to be present on, about or under the Premises prior or subsequent to the Lease Commencement Date; and (3) whether the Lessee exacerbated any pre-existing environmental condition so as to cause a Hazardous Substance to first become regulated during the Term. “Burden of proof” shall mean both the legal burden of going forward with the evidence and the legal burden of establishing the truth of any fact by a preponderance of the evidence.
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