Lease and development agreement



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Section 5.5 Fees for Port Authority Review.


(a) Initial Construction. The Lessee shall not be required to pay to the Port Authority any fee or deposit in connection with the Port Authority’s review and approval of the Construction Application (and any revisions or resubmissions thereof) relating to the initial construction of the Project.

(b) Future Construction. With respect to any future construction at the Premises, however, the Lessee may be required to pay to the Port Authority a fee or deposit in connection with the Port Authority’s review and approval of any Construction Application (and any proposed changes, modifications or revisions thereto). Such fee would be in lieu of any other building permit or other similar fee customarily charged by the City or the Port Authority for similar reviews or approvals. The foregoing fee would be payable to the Port Authority at the time the Construction Application (or proposed change, modification or revision) is submitted to the Port Authority for approval.


Section 5.6 Contractors and Subcontractors.


(a) Lists. The Lessee has heretofore provided to the Port Authority a listing of contractors and subcontractors the Lessee expects to select to perform the Construction Work. The listing includes for each contractor and subcontractor, its name, business address and telephone number. The Port Authority has indicated to the Lessee the contractors and subcontractors that are acceptable to the Port Authority, and the Lessee shall be free to use any and all of such acceptable contractors and subcontractors without further referral to or approval by the Port Authority, provided only that the Lessee shall notify the Port Authority of the name and, if not previously provided, the business address and federal tax identification number of each contractor or subcontractor from such lists that will be utilized in the performance of Construction Work. Such notification shall be provided to the Port Authority prior to the commencement by the contractor or subcontractor of any part of the Construction Work.

(b) Unlisted Contractors and Subcontractors. If at any time after the date hereof the Lessee determines that it may need to utilize a contractor or subcontractor not included on the lists referred to in the preceding paragraph, the Lessee shall submit the firm name, business address and federal tax identification number of such contractor or subcontractor to the Port Authority, and shall identify the specific contract work contemplated to be performed, no later than seven (7) days prior to the contemplated date of use of such contractor or subcontractor.

(c) Required Insurance. In retaining each and every contractor and/or subcontractor, the Lessee shall ensure that there is included as a requirement of the contract between the Lessee and the contractor and/or between the contractor and subcontractor that there be submitted to the Lessee evidence of effective insurance coverage in accordance with the provisions of the Section of this Article entitled “Insurance” that is applicable to contractors or subcontractors.

(d) No Right of Action. Nothing contained in this Agreement shall grant or be deemed to grant any contractor, architect, supplier, subcontractor or any other Person engaged by the Lessee or any of its contractors in the performance of any part of the Construction Work any right of action or claim against the Port Authority or any of the other Indemnified Parties with respect to any work any of them may do in connection with the Construction Work.

(e) No Relationship. Nothing contained herein shall create or be deemed to create any relationship between the Port Authority and any such contractor, architect, supplier, subcontractor or any other Person engaged by the Lessee or any of its contractors in the performance of any part of the Construction Work and the Port Authority shall not be responsible to any of the foregoing for any payments due or alleged to be due thereto for any Construction Work performed or materials purchased in connection with the Construction Work.

(f) Warranties for Benefit of Port Authority. Any warranties contained in any construction contract entered into by the Lessee for the performance of any Construction Work that are freely assignable and have not been assigned to a Recognized Mortgagee shall be for the benefit of the Port Authority as well as the Lessee, and shall be enforceable by the Port Authority as well as the Lessee.

(g) No Contractor Rights against Port Authority. Nothing contained in this Agreement shall grant or be deemed to grant any contractor, architect, supplier, subcontractor or any other person engaged by the Lessee or any of its contractors in the performance of any part of the Construction Work any right of action or claim against any Indemnified Party with respect to any work any of them may do in connection with the Construction Work. Nothing contained herein shall create or be deemed to create any relationship between the Port Authority and any such contractor, architect, supplier, subcontractor or any other person engaged by the Lessee or any of its contractors in the performance of any part of the Construction Work, and the Port Authority shall in no event be responsible to any of the foregoing for any payments due or alleged to be due for any work performed or materials purchased in connection with the Construction Work.

(h) No Port Authority Liability. Notwithstanding any rights the Port Authority may have reserved to itself hereunder, the Port Authority shall have no liabilities or obligations of any kind to any contractors engaged by the Lessee or for any other matter in connection therewith and the Lessee hereby releases and discharges the Indemnified Parties of and from any and all liability, claims for damages or losses of any kind, whether legal or equitable, or from any action or cause of action arising or alleged to arise out of the performance of any Construction Work pursuant to the contracts between the Lessee and its contractors.

(i) Lessee’s Payment of Contractors’ Claims. The Lessee shall pay or cause to be paid all claims lawfully made against it by its contractors, subcontractors, materialmen and workmen, and all claims lawfully made against it by other third persons arising out of or in connection with or because of the performance of any Construction Work, and shall cause its contractors and subcontractors to pay all such claims lawfully made against them, provided, however, that nothing herein contained shall be construed to limit the right of the Lessee to contest any claim or lien of any contractor, subcontractor, materialmen, workman or other person and no such claim shall be considered to be an obligation of the Lessee within the meaning of this paragraph unless and until the same shall have been finally adjudicated. Subject to the foregoing, the Lessee shall promptly commence and diligently and continuously pursue resolution of any such claims and shall keep the Port Authority fully informed of its actions with respect thereto.

(j) Payment and Performance Bond. Prior to the commencement of any Construction Work, the Lessee shall procure, and cause to be delivered to the Port Authority, a payment and performance bond covering the Construction Work (the “Bond”) in such form as has been approved in advance in form and substance by the Port Authority in its sole discretion, whereby the Port Authority and the Lessee shall be listed as the payee, protecting the Port Authority and the Lessee from monetary risk during, relating to or arising out of the Construction Work, and in all events the Bond shall be only with a surety listed in the Financial Management Service of the United States Department of the Treasury. The Bond shall be in an amount equal to the entire contract price for the Construction Work, and shall guarantee the full, faithful and prompt performance of and compliance with, on the part of the Lessee’s general contractor, all of the terms, provisions, covenants and conditions of this Agreement relating to the Construction Work, including without limitation the terms, provisions, covenants and conditions which relate to the Construction Work generally and the insurance, indemnity and environmental obligations associated therewith. The Bond shall remain in effect in all respects through and after the Completion Date, and indefinitely until the General Contractor has fully satisfied its obligations relating to the Construction Work. The existence of the Bond shall not limit or alter any other remedies of the Port Authority under this Agreement, and the Port Authority may from time to time and at any time elect to pursue (or not to pursue) its rights under the Bond without thereby limiting, voiding or relinquishing any of its other rights or remedies under this Agreement.


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