Lease and development agreement

(b) Certified MBEs and WBEs

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(b) Certified MBEs and WBEs.

(1) List. The Port Authority has compiled a list, which may be supplemented and revised from time to time by the Port Authority, of the firms the Port Authority has determined satisfy the criteria for MBE and WBE certification. Such list shall be made available to the Lessee upon request. The Port Authority makes no representation as to the financial responsibility of such firms, their technical competence to perform or any other performance-related qualifications. Only listed MBEs and WBEs and such firms as are not so listed but as are certified by the Port Authority, the State of New York or the State of New York as MBEs and WBEs hereunder and the MBEs and WBEs listed on Schedule annexed hereto will count toward the MBE and WBE goals.

(2) Certification. Certification of MBEs and WBEs hereunder shall be made by the Office of Business and Job Opportunity of the Port Authority. If the Lessee wishes to utilize a firm not listed with the Port Authority but which the Lessee believes should be certified as an MBE or WBE, the Lessee may encourage such firm to complete an application for certification by completing and forwarding such forms as may be required by the Port Authority from time to time. All such applications shall be submitted to the Office of Business and Job Opportunity, the Port Authority of New York and New Jersey, 233 Park Avenue South, New York, NY 10003. If any such firm is determined eligible for certification it shall only be by a writing over the name of the Director in charge of such Office. The determination of the Port Authority shall be final and binding on the Lessee.

(c) Replacement of Cancelled MBEs and WBEs.

In the event that the participation of any MBE or WBE selected by the Lessee to participate in any construction contracts entered into with respect to the development of the Premises is cancelled or terminated for any reason, the Lessee agrees to make every good faith effort, to the maximum extent feasible, and consistent with the Lessee’s exercise of good business judgment, including, without limitation, the consideration of cost competitiveness, to utilize other MBEs and WBEs so as to maintain appropriate participation by Minority Business Enterprises (MBEs) and Women-owned Business Enterprises (WBEs) in such contracts.

(d) Goals For Minority and Female Participation.

Without limiting the provisions of the previous Sections of this Agreement, and without limiting any of the other terms and conditions of this Agreement, the Lessee agrees, and agrees to require its construction contractors and subcontractors at each tier of any construction undertaken pursuant to the provisions of this Agreement, to make good faith efforts to achieve the goals for minority and female participation set forth below. The Lessee agrees to appoint a project representative as a contact person for the implementation of the contractors’ good faith efforts to achieve minority and female participation in the work force. The goals for minority and female participation, expressed in percentage terms for the aggregate workforce on an average basis for all trades on all construction work, are as follows:

Journey Level Trade Workers

Minority participation: 30%

Female participation: 6.9%

Laborers and other unskilled workers

Minority participation: 40%

Female participation: 6.9%

These goals are applicable to all the Lessee’s construction work performed in and for the Premises. Compliance with such goals will be measured against the total work hours performed.

(e) Notification of Contract Awards.

The Lessee agrees to require its contractors and subcontractors to provide written notification to the Lessee and the Lessee agrees to provide written notification to the Office of Business and Job Opportunity of the Port Authority within ten (10) working days of the award of any construction contract or subcontract in excess of One Hundred Thousand Dollars ($100,000.00) at any tier for Construction Work. The notification shall list the name, address, telephone number and employer identification number of the contractor or subcontractor and the estimated starting and completion dates of the contract or subcontract. As used herein, “employer identification number” shall mean the Federal Employer Identification Number used on the Employer’s Quarterly Federal Tax Return, U.S. Treasury Department Form 941.

(f) Inclusion of Goals in Subcontracts.

The Lessee agrees to require its contractors and subcontractors, at any tier, whenever they subcontract a portion of the construction work involving any construction trade, to physically include in each subcontract in excess of One Hundred Thousand Dollars ($100,000.00) those provisions which include the applicable goals for minority and female participation.

(g) Implementation of Affirmative Action Standards.

The Lessee agrees to require its contractors and subcontractors to implement the specific affirmative action standards provided in subparagraphs (1) through (16) of paragraph (j) below. The goals set forth above are expressed as percentages of the total hours of employment and training of minority and female utilization the Lessee’s contractors and subcontractors should reasonably be able to achieve in each construction trade in which it has employees on the Premises. The Lessee agrees, and agrees to require its contractors and subcontractors, to use good faith efforts to make substantially uniform progress toward such goals in each craft during the period specified.

(h) Non-Effect of Union Contracts.

The Lessee agrees to provide in its construction contracts that neither the provisions of any collective bargaining agreement, nor the failure by a union with which any contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the contractor’s obligations thereunder unless the union itself has made good-faith efforts to achieve the goals set forth herein in its membership ranks.

(i) Apprentices and Trainees.

The Lessee further agrees to provide in its agreements with its contractors that in order for the nonworking training hours of apprentices and trainees to be counted in meeting the goals set forth herein, such apprentices and trainees shall be employed by the contractors during the training period, and the contractors shall have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees shall be trained pursuant to training programs approved by the U. S. Department of Labor or by or other appropriate governmental agency.

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