Lease and development agreement



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(l) Port Authority Right to Enter for Investigations.

Without limiting the foregoing and without limiting the generality of the provisions of the Section hereof entitled “Rights of Entry Reserved”, and subject to and in accordance with the provisions of such Section, the Port Authority and its designees shall have the right but not the obligation to enter upon the Premises upon forty-eight (48) hours’ notice to the Lessee to conduct testing and related activities from existing wells, if any, to make additional wells and borings and to conduct testing and related activities therefrom and to perform such activities as shall be necessary to Remediate the Existing Condition, including but not limited to conducting pumping operations from any such wells. In the exercise of the foregoing rights, the Port Authority and its designees shall not unreasonably interfere with the Lessee’s use and occupancy of the Premises.

(m) Remediation Completion Reports.

After any Person performs any Remediation on the Premises, such Person may, but shall not be obligated to, sample and test the soil and/or aquifer of the Premises or portions thereof and set forth the results of such samplings and tests in a report (any such report and test results, a “Remediation Completion Report”). Upon delivery of a Remediation Completion Report to the Lessee and the Port Authority, such Remediation Completion Report shall (x) supersede and replace the existing Environmental Report or the applicable portions thereof, to the extent such test results and report are of samples of Analyzed Items taken from the same well or boring or a new well or boring immediately adjacent to such well or boring, and (y) supplement the existing Environmental Report or the applicable portions thereof to the extent the test results and report would not supersede (pursuant to the foregoing clause (x)) any test results and reports in the existing Environmental Report, provided, however, that said sampling and testing shall produce a fair and representative sampling of the Premises, shall be analyzed by a New York State approved independent laboratory, and shall have been performed in accordance with a methodology approved by the Port Authority.

(n) Protection and Maintenance of Wells.

Without limiting the generality of the provisions of the Article hereof entitled “Maintenance and Repair”, the Lessee agrees to protect and maintain the wells referred to the Environmental Report and paragraph (m) of this Section and shall repair any damage thereto that may occur during the term of the letting hereunder that has not been caused by the activities of the Port Authority or its designee(s) (if any) or any prior occupant of the Premises.

(o) Survival of Obligations.

Without limiting the generality of any other term or provision of this Agreement, all of the obligations of the Lessee under this Section shall survive the expiration or earlier termination of the letting of the Premises or any portion thereof.

(p) No Waiver of Rights against Third Parties.

The terms and conditions of this Section are intended to allocate the obligations and responsibilities between the Lessee and the Port Authority, and nothing in this Section or elsewhere in this Agreement shall be deemed to limit, modify waive or otherwise alter the rights, claims and remedies which the Port Authority or the Lessee may have against third parties at law, equity or otherwise.

(q) Lessee Responsibility for Existing Condition.


(1) Notwithstanding any other term or provision of this Agreement, the Existing Condition shall in no event include any Hazardous Substance whose presence in, on or under the Premises was caused by or resulted from the use and occupancy of the Premises by the Lessee or by any Affiliate, or the performance of any work by any of them, or the acts or omissions of the Lessee, its officers, agents or employees, or the acts or omissions of any Affiliate of the Lessee or of any sublessees or others who occupied the Premises with the permission of the Lessee or an Affiliate of the Lessee or their officers, agents or employees.

(2) Notwithstanding any other term or provision of this Agreement, the Existing Condition shall in no event include any Hazardous Substance pre-existing in, on or under the Premises if such Hazardous Substance first becomes regulated during the Term by reason of the exacerbation of an existing condition caused by or resulting from the use and occupancy of the Premises by the Lessee or by any Affiliate, or the performance of any work by any of them, or the acts or omissions of the Lessee, its officers, agents or employees, or the acts or omissions of any Affiliate of the Lessee or of any sublessees or others who occupied the Premises with the permission of the Lessee or an Affiliate of the Lessee or their officers, agents or employees.



(3) The Lessee shall be responsible for the Remediation of the Existing Condition and for fines and penalties arising, in whole or in part, out of the inaccessibility at any time of the Premises for Remediation by any prior occupant of the Premises or by the Port Authority or its designees or others due to any act or omission, interruption, obstruction or hindrance by the Lessee or any of its agents, contractors or representatives, sublessees or subusers, including but not limited to, any refusal or failure by the Lessee or any of its agents, contractors or representatives, sublessees or subusers to grant or allow full and complete access to the Premises, or any portion thereof to any prior occupant of the Premises, the Port Authority or its designees. Neither said access nor any such work by any prior occupant of the Premises, the Port Authority or its designees, nor any approval or consent granted to any prior occupant of the Premises or any designee of the Port Authority to perform such work, shall result in or entitle the Lessee to any abatement, reduction, diminution or suspension of any of the rentals or charges under this Agreement.
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