Lease and development agreement

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(h) After Expiration or Termination. After the expiration of the letting and upon written request therefor by the Lessee, the Port Authority will return to the Lessee any valid letters of credit and any cash security delivered to the Port Authority by the Lessee hereunder, less the amount of any and all unpaid claims and damages of the Port Authority under this Agreement. Upon a termination of the letting, the Port Authority may, at its option, retain the letter of credit and any cash security until the date set forth in paragraph (b) of this Section (as such date may be extended in connection with any extended term of the letting hereunder) and shall thereafter upon demand of the Lessee return the same to the Lessee less the amount of any and all unpaid claims and damages, including but not limited to estimated damages of the Port Authority under this Agreement.

(i) Employer Identification Number. For purposes of the foregoing, the Lessee hereby certifies that its I.R.S. Employer Identification Number is - .


[Subject to revision as developer’s designs and construction plans are submitted]

Section 5.1. Construction Obligation.

The Lessee shall, at its own cost and expense, design, construct, install and equip the Project on the Premises in accordance with the terms and conditions set forth below, as follows:

(1) a hotel building, redeveloped to the standard of a “[X Brand] Hotel” and qualifying for “LEED” certification, containing (or such greater or lesser number as the Port Authority may approve) guest rooms, conference and meeting space, food and beverage service areas and retail space (such hotel building, together with all associated and related systems, fixtures, furnishings, equipment, areas and facilities, and any permitted additions, modifications, and replacements, the “Building”);

(2) all lines, mains, pipes, drains, cables, manholes, wires, conduits and other facilities required to be constructed (or relocated) within the Premises in connection with or relating to the utility, mechanical, electrical, storm sewer, sanitary sewer, communication, security, radio, telephone, fire alarm, fire protection, gas and other systems and facilities needed for the Building;

(3) all necessary driveways, ramps and pedestrian circulation areas, together with all associated and related areas and facilities to the extent required for, or resulting from, the completion of the Lessee’s construction obligations provided in this Agreement;

(4) all necessary grading and paving of ground areas and appropriate landscaping, together with all associated and related areas within the Premises, and driveway aprons serving and contiguous to the Premises.

Section 5.2 Conceptual Plan.

The Port Authority has approved the Lessee’s plan for the redevelopment of the Premises (the “Conceptual Plan”), including the conceptual design of the open space and including, without limitation, renderings and layouts of the Building, estimated commencement and completion dates and preliminary information relating to scheduling requirements during construction, estimated times and manner of delivery of equipment and materials, and preliminary functional plans showing the proposed location of on-site utility systems and all connections to utility supply lines at the perimeter of the Premises, all necessary roadways, ramps, pedestrian circulation and parking areas, appropriate landscaping (including the landscaping of open space) and fences. Conceptual drawings of the Project are attached as Exhibit F.

Section 5.3 Construction Application.

(a) Designation of Design and Construction Professionals.

(1) The Port Authority shall designate to the Lessee the Port Authority’s architect or engineer for coordinating the review and processing of the Construction Application (as defined below) and inspection of construction.

(2) The Lessee shall retain the services of an architect or engineer to provide architectural and engineering services in connection with the Project (the “Lessee’s Architect/Engineer”). The Port Authority shall have the right to disapprove any architect or engineer who may be unacceptable to it.

(b) Submission. Prior to the commencement of the Construction Work, the Lessee shall execute and submit to the Port Authority for approval a “Tenant Alteration Application(s)” in the form prescribed by the Port Authority (the “Construction Application”), which shall include final and complete plans and specifications, drawings, calculations and data (the “Construction Plans”), setting forth in detail the Construction Work the Lessee proposes to perform and the manner of and projected time periods for performing the same. Additionally, the Lessee’s Architect/Engineer shall include in this submittal a certification that these Construction Plans are in conformance and consistent with the previously approved Conceptual Plans. The Construction Application, including the Construction Plans, shall bear the seal of the Lessee’s Architect/Engineer. The Construction Plans shall be in sufficient detail for a contractor to perform the work shown thereon and shall identify separately each item of work and shall describe in detail the systems, improvements, fixtures and equipment to be installed by the Lessee. The Lessee shall submit such additional data, detail or information as the Port Authority may request in order to complete the Lessee’s Construction Application for Port Authority review. The Conceptual Plans, the Construction Plans and all such additional data, detail or information submitted to the Port Authority shall be retained by, and become the property of, the Port Authority.

(c) Port Authority Review.

(1) Following the Port Authority’s receipt of the Lessee’s Construction Application and Construction Plans, the Port Authority shall give its written approval thereto or shall request revisions or modifications thereto. The Port Authority may refuse to grant approval of the Construction Application if, in its opinion, any of the proposed Construction Work as set forth in the Construction Plans (all in such detail as may permit the Port Authority to make a determination as to whether the requirements referred to below are met):
  1. is unsafe, unsound, hazardous or improper for the use and occupancy for which it is designed; or

is designed for use for purposes other than those authorized under this Agreement; or

is inconsistent with the approved Conceptual Plan; or

does not comply with any other provisions and terms of this Agreement, or

does not comply with any applicable Requirements, including without limitation FAA requirements applicable to the Premises, and Port Authority standards and guidelines; or

does not comply with the provisions of the Basic Lease, including, without limiting the generality thereof, those provisions of the Basic Lease providing that the Port Authority shall conform to the enactments, ordinances, resolutions and regulations of The City of New York and its various departments, boards and businesses in regard to the construction and maintenance of buildings and structures and in regard to health and fire protection which would be applicable if the Port Authority were a private corporation to the extent that the Port Authority finds it practicable so to do, or

does not comply with all applicable rules, regulations, requirements, orders and directions of the National Fire Protection Association and the New York Fire Insurance Rating Organization, and of any other board or organization exercising or which may exercise similar functions; or

does not comply with the standards set forth in the “Tenant Construction and Alteration Process Manual”, a copy of which has been delivered to the Lessee; or

does not comply with the Port Authority’s requirements with respect to landscaping, or

does not comply with Port Authority’s requirements and standards with respect to noise, air pollution, water pollution or other types of pollution, or

does not properly coordinate construction staging with other ongoing Airport construction projects and Airport operations.

(2) If revisions or modifications are requested by the Port Authority in accordance with the foregoing paragraph (a), the Lessee shall promptly revise and modify its Construction Plans accordingly. Until the Port Authority has approved the Construction Application, the Lessee shall continue to resubmit revised Construction Plans or additional information as required by the Port Authority.

(d) Final Approval.

(1) Upon the Port Authority’s approval of the Lessee’s Construction Application, the Port Authority shall provide to the Lessee a construction permit (the “Construction Permit”). Subject to the provisions below relating to Partial Approval Work, no portion of the Lessee’s Construction Work shall be commenced on any portion of the Premises until the Port Authority has approved the Construction Application and has issued the Construction Permit.

(2) Upon final approval of the Construction Application and issuance of the Construction Permit, the Lessee shall promptly commence construction so as to complete construction of the Project in accordance with the construction schedule set forth in the Lessee’s approved Conceptual Plan, but in all events not later than the first day of the twenty-fourth (24th) month following the Lease Commencement Date (the “Construction Completion Deadline”). The Port Authority may, in its discretion, extend the Construction Completion Deadline upon the request of the Lessee and review of reasons for such request.

(e) This Agreement Controls. The Lessee shall comply with all the terms and provisions of the approved Construction Application, provided, however, that in the event of any inconsistency between the terms of the Construction Application and the terms of this Agreement, the terms of this Agreement shall prevail and control.

(f) Lessee Solely Responsible. The Lessee agrees to be solely responsible for any plans and specifications used by it and for any loss or damages resulting from the use thereof, notwithstanding that the same have been approved by the Port Authority and notwithstanding the incorporation therein of Port Authority recommendations or requirements. In no event shall approval by the Port Authority of any plans, whether the Conceptual Plan, Construction Plans, Partial Approval Plans or otherwise, impose any liability on the Port Authority to the Lessee or any other Person for any errors or defects contained in such plans or for the failure of the Building or work provided for such plans to comply with any Requirements, any such liability to be that of the Lessee and/or the professionals who prepared such plans. The obligations assumed by the Lessee in this Article, as well as elsewhere in this Agreement, shall not be limited, affected, impaired or in any manner modified by the Port Authority’s approval of any Construction Application and supporting plans, specifications and contracts covering Construction Work.

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