Lease and development agreement

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(r) Incidental Remediation of Existing Condition.

Notwithstanding any other term or condition of this Agreement, it is hereby understood and agreed that the Lessee’s obligations under this Agreement shall not be diminished or relieved in any way in the event that the Existing Condition, or any portion thereof, is or will be wholly or partially Remediated in consequence of or incidental to the Lessee’s performance of any of its obligations under this Agreement, whether due to the fact that the Lessee cannot Remediate one or more Hazardous Substances for which it is responsible to Remediate without also Remediating one or more Analyzed Items for which it is not responsible, or due to cost or expedience or for any other reason; and in no event shall the Port Authority have any responsibility to participate in, or share in the cost of, any such Remediation. Without limitation as to the generality of the foregoing, the Lessee acknowledges and agrees that the proper removal and disposal of asbestos from the Premises constitutes a part of the Lessee’s Construction Work hereunder, with respect to which the Lessee is solely responsible for all costs and expenses.

(s) Similarly Situated Persons.

The Port Authority has advised the Lessee that it is the intention of the Port Authority with respect to the application of pollution prevention programs, “best management practices plans” and other voluntary programs adopted and agreements made by the Port Authority with any governmental agencies, departments, commissions, boards, bureaus or instrumentalities of the United States, states and political subdivisions thereof constituting Environmental Requirements that the Port Authority will treat the Lessee in a similar manner as similarly situated Persons at the Airport.

(t) Remediation to Existing Condition at End of Term.

The Lessee hereby covenants and agrees that it shall, on or before the cessation of the letting hereunder or any portion thereof (whether such cessation be by termination, expiration or otherwise), Remediate each Analyzed Item, as necessary, to a level not exceeding the level of such Analyzed Item constituting a part of the Existing Condition (subject in all events, however, to the provisions of paragraph (q) of this Section).

(u) Exit Baseline.

(1) Without limiting any other term or provision hereof, all the obligations of the Lessee under this Section shall survive the expiration or termination of the letting of the Premises or any portion thereof, provided, however, the Lessee shall not be responsible for any Hazardous Substances in, on, under or about the Premises which the Lessee can prove occurred after the date that the Lessee shall have surrendered the Premises to the Port Authority and were not due to the acts or omissions of the Lessee.

(2) Between the eighth (8th) and sixth (6th) months immediately preceding the Expiration Date or within three months after the effective date of the termination the letting hereunder, as the case may be, the Lessee shall at its sole cost and expense and subject to the terms and provisions of the Article hereof entitled “Construction”, sample and test the soil and ground water in, on and under the Premises in accordance with such standards, methods, protocol and procedures as shall be required by the Port Authority in it sole discretion after consultation with the Lessee in such locations as specified by the Port Authority (such sampling and testing of the soil and groundwater, the “Exit Baseline”). All such sampling, testing and the preparation of any associated report shall be performed by a New York State approved independent consultant and laboratory, said sampling and testing shall produce a fair and representative sampling of the Premises and said sampling and testing shall be performed in accordance with methodology approved by the Port Authority.

(3) The Exit Baseline and the test results therefrom may be used by the Lessee to evidence that a Hazardous Substance in, on or under the Premises occurred after the date that the Lessee shall have surrendered the Premises to the Port Authority.


(a) Definitions.

The following terms shall have the respective meanings set forth as follows:

Discharge” shall mean the presence, pumping, pouring, venting, emitting, emptying, leakage, deposit, spill, discharge or other release of Hazardous Substances from Tanks or in connection with their use, operation, maintenance, testing or repair, but shall not include the Existing Condition.

Tanks” shall mean all underground storage tanks and all above ground storage tanks installed in the Premises as of the commencement of the Lessee’s occupancy of the Premises or any portion thereof, together with all underground storage tanks and all above ground storage tanks installed in the Premises during the Term, and their appurtenances, pipes, lines, fixtures and other related equipment.

(b) Lessee to Have Responsibility for All Tanks.

Notwithstanding any other facts or circumstances to the contrary, including without limitation any vesting of title to the Tanks in the City of New York pursuant to any construction or alteration application or otherwise, the Lessee hereby agrees that title and ownership of the Tanks shall be and remain in the Lessee, that all Tanks shall be registered by the Lessee in the name of the Lessee as operator and owner and that the Lessee shall have full and sole responsibility for all the Tanks, and shall release and relieve the Port Authority from all costs and responsibility for the Tanks. The Port Authority has made no representations or warranties with respect to the Tanks or their location and shall assume no responsibility for the Tanks. All Tanks installed by the Lessee shall be installed pursuant to the terms and conditions of this Agreement including without limitation the Article hereof entitled “Construction”, and nothing in this Section shall be deemed to be permission or authorization to install any Tanks.

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