Lease and development agreement



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(t) Clarifying Provisions.


Notwithstanding any provision of this Article 21 to the contrary, it is understood that the Lessee’s obligations pursuant to this Article 21 are to make good faith efforts to perform the obligations set forth herein and to include in its direct construction contracts provisions requiring its contractors to do the same and provisions requiring such contractors to include in its direct subcontracts provisions requiring its subcontractors to do the same. Whenever the word “ensure”, “require” or words of similar meaning are used in Article 21, it shall be deemed to mean to make good faith efforts to achieve the stated goals of this Article. The provisions of this Article 21 shall apply only to the initial construction of the Building and shall not apply to “fit out” of interior tenant spaces or to subsequent alterations. The requirements set forth in this Article 21 shall apply to direct contractors of the Lessee and to subcontractors of said direct contractors, but not to subcontractors of any further tier; provided, however, that the hiring of MBEs and/or WBEs by any subcontractors at any such further tier shall be counted towards the achievement of the goals set forth herein.

Section 21.4 The Lessee’s Local Business Enterprise Commitment.


In addition to the foregoing provisions of Section 21.3, the Lessee in connection with any construction work on the Premises, or any portion thereof, shall throughout the Term commit itself to and use good faith efforts to implement an extensive program to utilize Local Business Enterprises in accordance with and as set forth in Schedule F.

Section 21.5 Airport Concession Disadvantaged Business Enterprise (ACDBE) Participation.


The Lessee agrees that it will not discriminate against any business owner because of the owner’s race, color, national origin, or sex in connection with the award or performance of any concession agreement or any management contract, or subcontract, purchase or lease agreement or other agreement covered by 49 CFR Part 23. The Lessee agrees to include the above statements in any concession agreement or contract covered by 49 CFR Part 23 that it enters and cause those businesses to similarly include the statements in any further agreement. Further, the Lessee agrees to comply with the terms and provisions of Schedule G, attached hereto and hereto made a part hereof.

ARTICLE 22. LESSEE’S REPRESENTATIONS

Section 22.1 Lessee’s Due Formation and Ownership Structure.


The Lessee hereby represents that (x) it is a limited liability company, duly organized and existing under the laws of the State of Delaware and (y) the members of the Lessee and their respective interests in the Lessee, as well as the Persons owning interests in such and their respective ownership percentages, are correctly and completely shown on the diagram attached hereto as Exhibit O.

Section 22.2 Certain Certifications.


(a) Indictments, etc. The Lessee hereby certifies as to the truth and accuracy of the following statements:

(i) neither the Lessee, nor any of its officers, directors, general partners, members , management employees or significant equity participants has (x) been indicted for, or convicted of, a crime in any jurisdiction, or been the target of a grand jury investigation therefor, or (y) been suspended or otherwise disqualified from entering into contracts with any governmental agency; and

(ii) neither the Lessee, nor any Affiliate, has (x) had a development agreement between itself and the Port Authority terminated by the Port Authority due to its willful breach or default, or (y) had a contract terminated by a governmental agency of the States of New York or New Jersey for willful breach or default, or (z) had a contract terminated for any cause relating to an indictment or conviction of itself or its principals.


  1. Prior Representations. The Lessee hereby certifies and affirms, as of the date of this Agreement, the representations that it made in the documents set forth below:

RFP issued [ ], 2014:

Lessee’s Submission: [ ], 2014


Applicable documents:

[ ]

Section 22.3 Brokerage.


The Lessee represents and warrants that no broker, finder or similar agent has been involved in the negotiation of this Agreement and the letting hereunder, and that there is no broker, finder or similar agent who is or may be entitled to be paid a commission or other compensation in connection therewith, as a result of dealings or other acts of the representing party. The Lessee shall indemnify and save harmless the Port Authority from any claims for commissions, brokerage fees or other compensation made by any Person for services in connection with the negotiation or execution of this Agreement, together with all expenses (including without limitation attorneys’ fees and disbursements) incurred by the Port Authority in resisting any such claim.

ARTICLE 23. PAYMENTS; RECORDKEEPING AND AUDITS


Section 23.1 Payments.

(a) Payment of Rental. Except as otherwise specifically provided herein, all Rental shall be paid without notice or demand. All Rental (except Impositions, if the rules and regulations of the City governing such payment are to the contrary) shall be paid by good checks drawn on an account at a bank that is a member of the New York Clearing House Association (or any successor body of similar function) or in currency that at the time of payment is legal tender for public and private debts in the United States of America.


(b) Nature of Payments; No Waiver. No payment by the Lessee, or receipt by the Port Authority, of a lesser amount than that which is due and payable under the provisions of this Agreement at the time of such payment shall be deemed to be other than a payment on account of the earliest amount then due, nor shall any endorsement or statement on any check or in any letter accompanying any check or payment be deemed an accord and satisfaction, and the Port Authority may accept such check or payment without prejudicing in any way its right to recover the balance of such amount or to pursue any other remedy provided in this Agreement or by law.

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