Lease and development agreement



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Section 5.4 Partial Approval Work.


(a) Partial Approval Work. The Lessee may wish to commence construction and installation of portions of the Construction Work prior to the Port Authority’s approval of the Construction Application for all of the Construction Work for the Project. In such event the Lessee shall submit to the Port Authority a written request covering each portion of the Construction Work the Lessee wishes to commence prior to the Port Authority’s approval of the complete Construction Application for all of the Construction Work for the Project (the portions of the Lessee’s Construction Work which the Lessee proposes to commence prior to the Port Authority’s approval of the complete Construction Application for all of the Construction Work for the Project being hereafter referred to as the “Partial Approval Work”) together with a Construction Application covering each item of Partial Approval Work which the Lessee proposes to perform, to be accompanied by final and complete plans, specifications, drawings, and data with respect thereto (such final and complete plans, specifications, drawings, and data, the “Partial Approval Plans”) setting forth in detail the Partial Approval Work to be performed.

(b) Construction Pursuant to Port Authority Approval. Upon the Port Authority’s approval of the Construction Application covering the Partial Approval Work, the Port Authority shall issue to the Lessee a construction permit covering the Partial Approval Work (a “Partial Construction Permit”). The Lessee may thereupon proceed to perform the Partial Approval Work covered by the Partial Construction Permit, subject to and in accordance with the following terms and conditions:

(1) The Lessee’s performance of any item of Partial Approval Work in accordance with the Port Authority’s approval shall be at its sole risk, and if for any reason the Construction Plans for the balance of the Lessee’s Construction Work for the Project, or any part thereof, are not approved by the Port Authority or if the approval thereof calls for modifications or changes in the Partial Approval Work undertaken by the Lessee under any approval granted by the Port Authority pursuant to this Section, the Lessee shall, as directed by the Port Authority, and at the Lessee’s sole cost and expense, either restore the portion of the Premises affected to the condition existing prior to the commencement of such item of Partial Approval Work or make such modifications and changes to such work as may be required by the Port Authority.

(2) Nothing contained in any approval given pursuant to this Section shall constitute a determination or indication by the Port Authority that the Lessee has complied with any Requirements that may pertain to the Partial Approval Work, and no such approval shall constitute a waiver of the Lessee’s obligation hereunder to comply with Requirements.

(3) Each item of Partial Approval Work shall be performed in accordance with and subject to the terms and provisions of this Agreement covering Construction Work and in accordance with the approved Construction Application covering such item of Partial Approval Work, and subject to any requirements, stipulations, and provisions which the Port Authority may impose in its approval of the performance of such item of Partial Approval Work.

(4) No Partial Approval Work performed by the Lessee pursuant to the provisions of this Section shall affect or limit the obligations of the Lessee under any prior approvals it may have obtained with respect to any Construction Work.

(5) The fact that the Lessee has performed any item of Partial Approval Work and that the Port Authority has consented to the performance thereof shall not affect or limit the obligations of the Lessee under this Agreement with respect to Construction Work. The Lessee specifically understands that neither the Port Authority’s approval of any Construction Application covering any item of Partial Approval Work nor the performance by the Lessee of any item of Partial Approval Work pursuant to such approval shall obligate the Port Authority to approve any subsequent Construction Application for the balance of the Construction Work for the Project or shall create or be deemed to create any obligation on the part of the Port Authority to permit the performance of subsequent proposed Partial Approval Work.

(6) Without limiting the generality of the provisions of this Section, it is specifically understood that the Port Authority may withhold its approval of a Construction Application and the accompanying Partial Approval Plans covering any item of Partial Approval Work if the Port Authority determines that review of subsequent items of Partial Approval Work is required before the Port Authority can approve, reject, or comment upon the Construction Application covering the proposed Partial Approval Work in question.

(7) If in the opinion of the Port Authority the Lessee, at any time during the performance of any portion of any item of Partial Approval Work approved pursuant to this Section, fails to comply with, or is in breach of, (x) any of the provisions of this Agreement with respect to Construction Work, (y) the provisions of the Construction Application covering such Partial Approval Work or (z) any requirements, stipulations, or provisions imposed by the Port Authority in its approval of the Construction Application covering such Partial Approval Work, the Port Authority shall have the right to cause the Lessee to cease all of such item of Partial Approval Work or such part of such item of Partial Approval Work as is being performed in violation of this Agreement, the Construction Application or the conditions of the Port Authority’s approval. Upon direction from the Port Authority, the Lessee shall promptly cease performance of all or a portion of such item of Partial Approval Work, as specified. The Lessee shall thereupon submit to the Port Authority for its written approval the Lessee’s proposal for making modifications, corrections or changes in or to the item of Partial Approval Work that has been or is to be performed so that the same will comply with the provisions of this Agreement, the Construction Application or the conditions of the Port Authority’s approval. The Lessee shall not commence the Construction Work that has been halted pursuant to the foregoing until the Lessee has received written approval of the proposed modifications, corrections or changes.

(8) The Port Authority shall in no event have any duty or obligation of any kind whatsoever to inspect or police the performance of any Partial Approval Work, and the rights granted hereunder shall not create or be deemed to create such a duty or obligation. Accordingly, the fact that the Port Authority has not exercised its right to require the Lessee to cease performance of all or any part of an item of Partial Approval Work shall not constitute an agreement or acknowledgment on the part of the Port Authority that the Lessee has in fact performed such work in accordance with the terms of this Agreement, the Construction Application covering such work, or any of the conditions imposed in connection with the approval of such work, nor shall such fact constitute a waiver by the Port Authority of any of the requirements of this Agreement with respect to such work, or any of the requirements of the Construction Application covering such work, or any of the conditions imposed in connection with the approval of such Construction Application.


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