Exhibit 10.13
LEASE CONTRACT
BETWEEN
THE NEW YORK STATE
DEPARTMENT OF TRANSPORTATION
AND
THE EDGEWATER XXXXXXX COMPANY
February 26, 1988
C 0 N T E N T S
Article Page
Introduction 1
1 Term 3
2 Leased Premises 4
3 Use of Leased Premises 6
4 Rental 8
5 Acceptance, Care, Maintenance,
Improvements and Repair 11
6 Additional Obligations of Lessee 17
7 Ingress and Egress 21
8 Insurance, Damage or Destruction 23
9 Liabilities and Indemnities 29
10 Leasehold Mortgages 32
11 Assignment and Sublease 49
12 Condemnation 54
13 Non-Discrimination 59
14 Governmental Requirements 61
15 Rights of Entry Reserved 63
16 Additional Rents and Charges 66
17 Termination by the Department 68
18 Surrender and Right of Re-Entry 71
19 Services to Lessee 72
20 Survival of the Obligations of the Lessee 74
21 Use Subsequent to Cancellation or Termination 76
22 Notices 77
Article
Page
23 Holding Over
79
24 Invalid Provisions
80
25 Miscellaneous Provisions:
Remedies to be Nonexclusive 81
Non-Waiver of Rights 81
Force Majeure 81
Non-liability of Individuals 82
Quiet Enjoyment 82
Estoppel Certificate 82
Short Form of Lease 83
General Provisions 83
26 Supplementary Provisions 85
27 Entire Agreement 87
AA Disbursement of Deposited Moneys AA-1
LEASE AGREEMENT
This Agreement of Lease, made and entered into this, day
of February, 1988, by and between: THE STATE OF NEW YORK
ACTING BY AND THROUGH its DEPARTMENT OF TRANSPORTATION,
having offices at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx
00000, hereinafter referred to as the "Department and THE
EDGEWATER XXXXXXX COMPANY, a New York general partnership,
having an office at The Hilton Tower, 465 South Salina
Street, Syracuse, New York 13202-24-87, hereinafter referred
to as the "Lessee". Lessee's Employer Identification Number
is 00-0000000.
WITNESSETH THAT:
WHEREAS, the Department is the fee owner of the premises
known as Xxxxxxx International Airport Industrial Park
located in the Town of New Windsor, New York and presently
comprising approximately 8,000 acres, and wherever "Park" is
used in this Lease it shall be construed to mean the
Industrial Park as it may be expanded from time to time; and
WHEREAS, Lockheed Air Terminal Inc. is the current Park
Manager for the Department under an agreement dated April 1,
1983, and wherever "Department" is used herein it shall be
construed to mean the New York State Department of
Transportation or its Park Manager acting on its behalf; and
WHEREAS, the Department and the Lessee are mutually desirous
of entering into a Lease for the development of a certain
area in the Park; and
WHEREAS, the Department desires to further promote,
accommodate and enhance the economic development of the Mid
Xxxxxx Valley area through development at the Park and the
Lessee desires to construct and lease a light industrial
fabrication and distribution facility in the Park area; and
WHEREAS, the Department and the Lessee have reached an
understanding in principle which envisions the Lessee's
construction and use of an approximately 57,200 square foot
light industrial fabrication and distribution facility,
hereinafter the "Facility", and associated site improvements
without cost to the Department on the Leased Premises.
NOW, THEREFORE, in consideration of the premises and of the
rents, covenants and conditions herein contained, the
Department does hereby lease to the Lessee the area of the
Park described in Article 2 hereof (hereinafter referred to
as "the Leased Premises"), during the term hereof for the
term and pursuant to the conditions hereinafter set forth.
ARTICLE 1
TERM
1.1 The Initial Term of this Agreement shall be for a period
of twenty-five (25) years and eight (8) months commencing on
February 1, 1988, and expiring on September 30, 2013, unless
sooner terminated in accordance with the provisions hereof.
1.2 The Lessee shall have an option to extend the term of
this Agreement for seven (7) additional periods of five (5)
years each, (the "Extended Terms") provided Lessee is not, at
the time of its exercise of such option, in default of its
obligations hereunder. In the event Lessee exercises said
options it shall do so no later than one year prior to the
expiration of the Initial Term or the then current Extended
Term. The terms and conditions during the Extended Terms
shall be the same. The rent escalation shall continue
throughout the Initial Term and Extended Terms as set forth
in Article 4 hereof.
1.3 The Initial Term of this Agreement is subject to
Lessee's right of termination as set forth in Section 5.1.3
hereof.
ARTICLE 2
LEASED PREMISES
2.1 The Leased Premises consist of:
2.1.1 A six and eight tenths (6.8) acre parcel of land on
the Westerly portion of Lot 6 of the Park more particularly
described and shown on Exhibit A attached hereto and made a
part hereof.
2.1.2 All improvements now or hereafter constructed on
the aforementioned land.
2.2. The Department warrants and represents that it has
obtained by eminent domain or otherwise, fee title to
the Leased Premises, free of any restriction or
encumbrance which would prevent the construction of the
improvements which Lessee is required hereunder to
construct or which would prevent the use of such
improvements as a light industrial fabrication and
distribution facility.
2.3 The Department represents and warrants to Lessee that it
has unencumbered title to the Leased Premises by virtue
of the acquisition of certain parcels of land now a part
of the Airport through the 0000 Xxx Xxxx Xxxxx
Transportation Bond Issue and the provisions of Section
400 of the Transportation Law of the State of New York.
2.4 The Department agrees to provide Lessee immediate access
to the Leased Premises and the surrounding environs during
normal business hours for the purpose of site testing to
determine its suitability for the proposed construction.
2.5 The Leased Premises is subject to the Department's
perpetual easement, fifty feet in width, running in a
Northerly direction along the Easterly boundary of the Leased
Premises from Governor Drive to Lot-6-B.
2.6 Lessee shall have an option for the development of Lot
6-B, consisting of approximately three acres between the
Leased Premises and the Park boundary along Interstate 84,
for the sole purpose of expanding the Facility for a period
of three years commencing August 1, 1988 and expiring July
31, 1991. To exercise its option, the Lessee shall be in
compliance with all the terms and conditions of this
Agreement and shall pay the Department a fee of $1,000
annually in advance therefor.
2.6.1. At the time Lessee exercises the option: (a) Lot
6-B shall merge into the Leased Premises and become a
part thereof; (b) the perpetual easement set forth in
Section 2.5 shall be extinguished, and; (c) the rent for
Lot 6-B shall be at the same rate as for the Leased
Premises at that time and shall escalate thereafter at
the times and amounts as set forth in Article 4 hereof.
ARTICLE 3
USE OF LEASED PREMISES
3.1 The Lessee shall occupy and use the Leased Premises for
the construction and leasing of light industrial
fabrication and distribution facilities. Nothing herein
shall be construed to prevent Lessee from using these
Premises for any other lawful purposes consistent with
the provisions of this Agreement and the Park's current
Performance and Development Standards.
3.2 Lessee shall not use or allow the Leased Premises to be
used for any unlawful purpose or in violation of any
certificate of occupancy covering or affecting the use
of the Leased Premises, or any part thereof, or for any
use which, in law, constitutes a nuisance, public or
private, or which voids or makes voidable any insurance
then in force with respect thereto.
3.3 There is hereby reserved to the State of New York, its
successors and assigns, for the use and benefit of the
public, the right of flight of aircraft in the airspace
above the surface of the Leased Premises herein
conveyed. This public right of flight shall include the
right to cause in said airspace, any noise inherent in
the operation of any aircraft used in navigation enroute
to or from, or taking off or landing at, or operating at
Xxxxxxx International Airport, Newburgh, New York.
3.4 Nothing contained in this Agreement shall be construed
to grant to the Lessee any additional rights in the
airspace above the Leased Premises which would be in
violation of Federal Aviation Administration rules,
regulations or orders currently in force as subsequently
promulgated.
3.5 Lessee's use of the Leased Premises is subject to the
Department's easement described in Sections 2.5 and
2.6.1 hereof.
3.6 Except for the exclusive right of the Lessee to
possession of the Leased Premises, no exclusive rights
in the Park are granted by this Agreement and no greater
rights or privileges with respect to the use of the
Leased Premises or any part thereof are granted or
intended to be granted to the Lessee by this Agreement,
or by any provision thereof, than the rights and
privileges expressly and specifically granted hereby.
3.7 Lessee agrees that all water, mineral and any other
subsurface rights are the sole property of the
Department and Lessee shall not have any rights or
rights of access thereto.
ARTICLE 4
RENTAL
4.1 For use and occupancy of the Leased Premises and
privileges herein granted, the Lessee agrees to pay to
the Department during the period commencing on October
1, 1988, and ending on September 30, 1993, an annual
rental of thirty-four thousand six dollars, eighty cents
($34,006.80).
4.1.1 The annual rental payable hereunder shall be paid
in equal monthly installments on the first day of each
month in advance at the Office of the Park Manager or at
such other office as may be directed in writing by the
Department. The monthly installment for the first five
years of the lease term through September 30, 1993 shall
be two thousand eight hundred thirty-three dollars,
ninety cents ($2,833.90).
4.1.2 Commencing October 1, 1993 and ending September 30,
1998, Lessee shall pay an annual rent of thirty-seven
thousand three hundred ninety-three dollars, twenty
cents ($37,393.20) plus a rent escalation on the Rent
amount in Section 4.1 above as calculated in accordance
with the provisions of Section 4.2 hereof.
4.2 Commencing on October 1, 1993 and on each fifth
anniversary thereof during the remainder of the Initial
Term, the annual rent payable hereunder shall be
adjusted (subject to the provisions of 4.2.1 hereof) by
multiplying the annual rent payable in the next
preceding year of the Leased Term by a fraction, the
numerator of which shall be the C.P.I. (as such term is
hereinafter defined) published for the month of October
of the year in which such adjustment is made and the
denominator of which shall be the C.P.I. published for
the month of September of the calendar year in which the
last preceding such adjustment was made; provided,
however that the denominator for first adjustment shall
be the C.P.I. for the month of September, 1988. In no
event shall the annual rental payable under this Section
4.2 be less than the amount payable for the last
adjusted period.
4.2.1 The term "C.P.I." as used herein shall mean the
Consumer Price Index for all Urban Consumers, all items,
Selected Large Cities, for the New York/Northeastern New
Jersey Area as published by the Bureau of Labor
Statistics of the United States Department of Labor,
1982-84 base equals 100, provided, however, that for the
purpose of this Agreement, the escalation of the C.P.I.
shall not exceed twenty-five percent (25%) in any five
years during the Initial Term. In the event that the
base year is changed, the C.P.I. shall be converted to
the equivalent of the base year 1982-84 equals 100.
4.2.2 If the option for any Extended Term is exercised by
the Lessee, then the Department shall, six months prior
to the commencement of each of the Extended Terms,
complete an appraisal of the land value of the Leased
Premises. The appraisal will be performed by an
appraiser selected by the Department. The appraiser
shall be certified by the American Institute of Real
Estate Appraisers (M.A.I.) and licensed to do business
in the State of New York. The annual rent during the
first Extended Term shall be ten percent (10%) of the
appraised fair market value of the land, exclusive of
the Facility and without regard to the fair market value
of the Facility, but in no event less than the annual
rental rate paid during the last five years of the
Initial Term or during the then current Extended Term.
4.3 Promptly upon the execution of this Agreement, Lessee
shall submit plans and specifications to the Department
in accordance with the provisions of the Department's
Construction Application and Appendix B hereof.
4.4 As additional rent, the Lessee shall construct, or cause
to be constructed, the Facility at the Leased Premises
generally in accordance with the Lessee's site plans
SP-1 dated November 10, 1987 and revised February 3,
1988 and SP-2 dated November 10, 1987 and revised
February 9, 1988 as modified, supplemented or amended
pursuant to the Department's review and approval process
as set forth in Section 5.4 and Appendix B hereof (the
"Initial Improvements"). A copy of that site plans are
attached hereto as Exhibits B-1 and B-2, respectively,
and made a part hereof.
4.5 The Facility shall be substantially completed on or
before December 31, 1988. Construction of the facility must
begin within ninety (90) days after approval of the Lessee's
plans and specifications by the Department. If Lessee delays
construction beyond that date, the Department may, in its
sole discretion, terminate this Agreement by prompt written
notice to Lessee.
ARTICLE 5
ACCEPTANCE, CARE, MAINTENANCE,IMPROVEMENTS AND REPAIR
5.1 Subject to the provisions of 2.4 hereof, and in reliance
upon the representations of the Department set forth in this
Section 5.1, Lessee warrants that it has inspected the Leased
Premises and accepts possession of the Leased Premises "as
is" in its present condition and.acknowledges its
suitableness and sufficiency for the uses permitted
hereunder. The Department represents to the Lessee that, to
its knowledge, the Leased Premises is free of any adverse
environmental conditions and no part of the Leased Premises
lies in a flood hazard area or constitutes a fresh water
wetland, nor is any part of the Leased Premises within 100
feet of a fresh water wetland. Except as may otherwise be
provided for herein, the Department shall not be required to
maintain nor to make any improvements, repairs or restoration
upon or to the Leased Premises or to any of the improvements
presently located thereon. The Department shall not have any
obligation to repair, maintain or restore, during the term of
this Agreement, any improvements placed upon the Leased
Premises by the Lessee, its successors and assigns.
5.1.1 In the event the representations made in Section
5.1 above are not accurate and hazardous material is
found on or under the Leased Premises and such hazardous
material existed prior to the date of Agreement, the
Department accepts responsibility for performing, or
causing to be performed by the Lessee and reimbursable
to the Lessee by the Department, any and all clean-up
efforts required by law.
5.1.2Alternatively, the Department agrees to offer to Lessee
an alternate comparable site for the Facility, if one is
available.
5.1.3 In the event the clean-up efforts cannot be
performed, or it an alternate site is not available in a
timely manner to meet Lessee's timetable for construction for
Xxxxxxx Controls, then this Agreement shall be terminable
upon written notice by either party to the other.
5.1.4 In the event Lessee discovers any hazardous
material on the Leased Premises, it will promptly notify
the Department in writing and comply with all directives
by the Department.
5.1.5 The Department will facilitate environmental
approvals as necessary or appropriate for the
construction and operation of the project described
herein. Lessee agrees to cooperate fully and promptly
with the Department in providing it with any data, forms
or other information required by the Department.
5.1.6 The Lessee's obligation under this Agreement is
contingent upon the Leased Premises being free of any
adverse environmental condition and Lessee's ability to
obtain all necessary permits and approvals for the
Facility and other improvements to be used by Xxxxxxx
Controls, provided that Lessee pursues the obtaining of
said permits and approvals with all due diligence.
5.1.7 Lessee shall be responsible for permits issued by
involved agencies relative to industrial processes and
operations.
5.2 The Lessee shall throughout the term of this Agreement
assume the entire responsibility, cost and expense for
all cleaning, repair and maintenance whatsoever on the
Leased Premises and all improvements thereon in a good
and workmanlike manner, whether such repair or
maintenance be ordinary or extraordinary, structural or
otherwise. Additionally, the Lessee, without limiting
the generality hereof, shall:
5.2.1 Provide and maintain on the Leased Premises all
obstruction lights and similar devices, and safety
equipment required by law.
5.2.2 Take measures to prevent erosion, including but not
limited to the planting and replanting of grasses with
respect to all portions of the Leased Premises not paved
or built upon, and in particular shall plant, maintain
and replant any landscaped areas.
5.2.3 Be responsible for the maintenance and repair of
all utility service lines placed on the Leased Premises
and used by the Lessee exclusively, including, but not
limited to, water lines, gas lines, electrical power and
telephone conduits and lines, sanitary sewers and storm
sewers provided however, that the Department shall be
responsible for assuring the maintenance and repair of
the road and utilities which it is obligated to install
hereunder up to the boundary lines of the Leased
Premises.
5.3 In the event the Lessee fails: (a) to commence to
maintain, clean, repair, replace, rebuild or repaint
within a period of thirty (30) days after written notice
from the Department to do any maintenance or repair work
required to be done under the provisions of this
Agreement, including preventive maintenance within a
period of ninety (90) days of the said written notice
specifying that the work to be accomplished by the
Lessee involves preventive maintenance only; (b) or to
diligently continue to completion any repairs,
replacement, rebuilding, painting or repainting as
required under this Agreement; then, the Department may,
at its option, and in addition to any other remedies
which may be available to it, enter the premises
involved, without such entering causing or constituting
a cancellation of this Agreement or an interference with
the possession of the Leased Premises, and repair,
replace, rebuild or paint all or any part of the Leased
Premises or the improvements thereon, and do all things
reasonably necessary to accomplish the work required,
and the cost and expense thereof shall be payable to the
Department by the Lessee on demand. The Department's
costs and expenses shall include all direct costs and
expenses of the Department, its agents, contractors, and
employees and all allocations of fringe benefits,
overhead, legal and administration charges actually
incurred. Furthermore, should the Department, its
officers, employees or agents undertake any work
hereunder, the Lessee hereby waives any claim for
damages, consequential or otherwise, as a result
therefrom except for claims for damages arising from the
negligence of the Department, its agents and
contractors. The foregoing shall in no way affect or
alter the primary obligations of Lessee as set forth in
this Agreement, and shall not impose or be construed to
impose upon the Department any obligations to maintain
the Leased Premises, unless specifically stated
otherwise herein.
5.4 Plans and specifications for all major repairs,
construction, alterations, modifications, additions or
replacements costing in excess of fifty thousand dollars
($50,000), which amount shall be escalated by the C.P.I.
over the Term and Extended Term of the Agreement in the
same manner as the rent is escalated in Article 4
hereof, (hereinafter referred to as "Improvements')
including, without limitation the Facility to be
constructed by the Lessee pursuant to Section 4.4.1
above and Appendix B hereto and the Park's Performance
and Development Standards, shall be submitted to and
receive the written approval of the Department, and no
such work shall be commenced until such written
approvals are obtained from the Department which
approval shall not be unreasonably withheld or delayed.
The Department shall advise the Lessee within thirty
(30) days after receipt of the written request, together
with copies of the plans and specifications for the
proposed improvements in sufficient detail to make a
proper review thereof, of its approval or disapproval of
the proposed work, and in the event it disapproves,
stating its reasons therefore. In determining whether to
approve a major repair, construction, alteration,
modification, addition or replacement, the Department
shall be guided by the criteria set forth in Section 3
of Appendix B and the Park's Performance and Development
Standards.
5.5 If the Lessee makes any Improvements without
Departmental approval or that are disapproved by the
Department, then, upon notice to do so, the Lessee shall
remove the same or at the option of the Department cause
the same to be changed to the reasonable satisfaction of
the Department. If the Lessee fails to comply with such
notice within thirty (30) days or to commence to comply
and pursue diligently to completion, the Department may
effect the removal or change and the Lessee shall pay
the cost (as defined in Section 5.3) thereof to the
Department.
5.6 The complete and unencumbered title to Improvements
shall vest in the Department at the expiration of the
Initial Term or the expiration of the Extended Term, if
exercised, of this Agreement or upon the earlier
termination of this Agreement.
ARTICLE 6
ADDITIONAL OBLIGATIONS OF LESSEE
6.1 The Lessee shall conduct its operations hereunder so as
not to unreasonably annoy, disturb, or endanger others.
6.2 The Lessee shall take all reasonable measures not to
produce or cause to be produced any electrical,
electronic or other disturbance that interferes with the
operation by the Department or the Federal Aviation
Administration of air navigational, communication or
flight equipment on Xxxxxxx International Airport
(hereinafter "Airport") or on aircraft using the
Airport, or with ground transportation communications.
6.3 The Lessee shall control the conduct and demeanor of its
officers, agents, employees, invitees and, upon
reasonable objection from the Department concerning the
conduct, demeanor of any such person, the Lessee shall
immediately take all lawful steps necessary to remove
the cause of the objection.
6.4 The Lessee shall comply with all health and safety laws
and any other federal, state or municipal laws, rules,
regulations and building codes applicable to the Leased
Premises and the improvements thereon and its operations
at the Park hereunder.
6.5 The Lessee shall be responsible for removal from the
Park of all garbage, debris and other waste materials
(whether solid or liquid) arising out of its occupancy
of the Leased Premises or out of its operations. The
Lessee shall dispose of its sewage through the sewerage
system operated by the Town of Newburgh. The Lessee
shall provide and use suitable covered metal or other
rigidly and sturdily constructed receptacles, suitably
screened from public view, for all garbage, trash and
other refuse created on or arising in connection with
the activities conducted on the Leased Premises. Piling
of boxes, cartons, barrels or other similar items, in an
unsightly or unsafe manner, on or about the Leased
Premises is forbidden. The manner of handling and
disposing of trash, garbage and other refuse and the
frequency of removal thereof from the Park premises
shall at all times be subject to the lawful and
reasonable rules, regulations and approval of the
Department.
6.6 The Lessee shall commit no nuisance or waste on the
Leased Premises,and shall not do, or permit to be done,
anything which may result in the creation, commission or
maintenance of such nuisance, waste on the Leased
Premises.
6.7 The Lessee shall not do, nor permit to be done, anything
which may nterfere with the effectiveness or
accessibility of the drainage system, sewerage system,
fire protection system, sprinkler system, alarm system
and fire hydrants and hoses, if any, installed or
located on the Leased Premises.
6.8 The Lessee shall not overload any floor, structure,
structural member or paved area on the Leased Premises
and shall repair at the Lessee's expense any floor,
structure, structural member, or any paved area damaged
by overloading without limiting the Lessee's obligations
pursuant to Article 5 hereof.
6.9 The Lessee shall not do, nor permit to be done, any act
or thing upon the Leased Premises which will cause a
default in, or invalidate, any fire insurance policies
applicable to the Leased Premises or any part thereof.
6.10 From time to time, the Department may conduct pressure,
water flow, and other appropriate tests of the fire
extinguishing system and apparatus which constitutes a
part of the Leased Premises, if installed, and the
Lessee's proportionate share of the cost of which tests
shall be paid to the Department by the Lessee upon
demand.
6.11 Except for the accommodation of its employees and
guests, the Lessee shall not install, maintain, operate
or permit the installation, maintenance or operation of
any restaurant, kitchen, stand or other establishment of
any type for the sale of food or of any vending machines
or device designed to dispense or sell merchandise or
services of any kind to the general public.
6.12 It is the intent of the parties hereto that noise shall
be held to a reasonable minimum. To this end the Lessee
will conduct its operations in such a manner as to keep
the noise produced by trucks and other mechanical and
electrical equipment thereof or any other noise to a
minimum by such methods as are practicable, considering
the extent and type of the operations of the Lessee.
ARTICLE 7
INGRESS AND EGRESS
7.1 The Lessee shall have the right of ingress and egress
between the Leased Premises and the public roadways by
means of connecting paved roads. Such rights of ingress
and egress shall be in common with others having rights
of passage thereon.
7.2 The use of any such roadway shall be subject to the
lawful Rules and Regulations of the Park which are now
in effect or which may hereafter be promulgated. The
Department may, at any time, temporarily close or
consent to or request the closing of, any such roadway
and any other way at, in or near the Leased Premises
presently or hereafter used as such, so long as a
reasonable means of ingress and egress as provided above
remains available to the Lessee. The Lessee hereby
releases and discharges the Department, its officers,
employees and agents, and all municipalities and other
governmental authorities and their respective successors
and assigns, of and from any and all claims, demands, or
causes of action which the Lessee may now or at any time
hereafter have against any of the foregoing, arising or
alleged to arise out of the closing of any street,
roadway or other area, provided that a reasonable means
of access to the Leased Premises remains available to
the Lessee whether within the Leased Premises or outside
the Leased Premises at the Park unless-otherwise
mandated by safety considerations or lawful exercise of
the police power. The Lessee shall not do or permit
anything to be done which will interfere with the free
access and passage of others up to the boundary of the
Leased Premises or in any streets or roadways near the
Leased Premises.
ARTICLE 8
INSURANCE, DAMAGE OR DESTRUCTION OF LEASED PREMISES AND
IMPROVEMENTS
8.1 The Lessee at its sole cost and expense shall procure
and maintain throughout the term of this lease insurance
protection for all risk coverage on the structure and
improvements of which the Leased Premises is a part, to
the extent of one hundred percent (100%) of the actual
replacement cost thereof. Such insurance shall be
written by insurers of recognized financial standing
authorized to conduct business in the State of New York.
If said insurers become financially incapable of
performing under the terms of said policy, the Lessee
shall promptly obtain a new policy issued by a
financially responsible carrier and shall submit such
new policy as previously provided. In the event Lessee
elects to insure itself for the required coverage, it
shall request the prior written approval of the
Department and it shall document its capability to self
insure to the satisfaction of the Department every two
years on the anniversary of the effective date of this
Agreement.
8.1.1 The above stated property insurance shall be for
the benefit of the New York State Department of
Transportation and Lessee as their interests may appear
and provide thirty (30) days notice of cancellation or
material change, by registered mail, to the Department,
Attention: Department Counsel, and the Park Manager.
8.1.2 The Lessee shall provide certificates of insurance
evidencing existence of all insurance required to be
maintained prior to the commencement of the lease term.
Upon the failure of the Lessee to maintain such
insurance as above provided, the Department, at its
option, may take out such insurance and charge the cost
thereof to the Lessee with the next installment of the
monthly fee due hereunder or may give notice of a
default hereunder pursuant to Article 19 herein.
8.2 In the event any improvements, insurable or uninsurable,
on the Leased Premises are damaged or destroyed to the
extent that they are unusable by the Lessee for the
purposes for which they were used prior to such damage,
or same are destroyed, the Lessee shall repair and
reconstruct the improvements substantially as they were
immediately prior to such casualty or in a new or
modified design subject to applicable existing building
codes at the time of repairing or rebuilding. Provided,
however that if the aforesaid damage or destruction
occurs in the last five years of the Term of this
Agreement or during any Extended Term, the Lessee may
elect not to repair and reconstruct the improvements
subject to the following terms and conditions:
8.2.1 The Lessee shall give the Department written notice
of its election not to repair and reconstruct the
improvements within forty-five (45) days of the date
upon which the improvements were damaged or destroyed.
8.2.2 The Lessee shall clear the site, remove all debris,
stub up all utilities, and generally restore the site to
it's cleared condition prior to commencement of
construction.
8.2.3 The Lessee shall permit the Department to retain
all insurance coverage and proceeds as described in
Section 8.1 hereof, subject to the provisions of Section
8.7 hereof.
8.2 upon the occurrence of 8.2.1, 8.2.2 and 8.2.3 above, the
Department shall terminate this Agreement and relieve
Lessee of all future rental obligations hereunder.
8.3 In the event of damage or destruction to any of the
improvements upon the Leased Premises, the Department
shall have no obligation to repair or rebuild the
improvements or any fixtures, equipment or other
personal property installed by the Lessee pursuant to
this Agreement.
8.4 In the event the Lessee repairs or reconstructs as
aforesaid, Lessee, shall, at its expense, replace and
repair any and all fixtures, equipment and other
personal property necessary to properly and adequately
continue its business at the Park, but in no event shall
Lessee be obligated to provide equipment and fixtures in
excess of those existing prior to such damage or
destruction except for requirements of construction
codes existing at the time of repair or replacement. The
Lessee agrees that such work will be promptly commenced
and prosecuted to completion with due diligence subject
to delays beyond the Lessee's control.
8.5 The insurance policies required under this Lease to be
furnished by Lessee to the Department may, at the
election of Lessee, be furnished and/or paid for by any
subtenant or other person having an insurable interest
in the Leased Premises, and the Department shall accept
such policies as though they had been supplied and paid
for by Lessee provided such policies shall comply
otherwise with the requirements of this Lease.
8.6 All policies of insurance required herein shall name the
Department as an additional insured. Subject to be
provisions and limitations hereinafter set forth in this
Section 8.6 and in Sections 8.7 and 8.8, all such
policies of insurance shall also provide, if required by
either party hereto, for the loss thereunder to be
payable to the holder of any Leasehold Mortgage, as the
interests of such holder may appear, pursuant to a
standard mortgage clause or endorsement. Notwithstanding
anything to the contrary contained in this lease, the
Lessee, in consultation with the Department, shall have
the right to adjust or otherwise settle any claim for
insurance proceeds under any insurance policy maintained
pursuant hereto.
8.7 The loss, if any, under all policies of the character
referred to in Section 8.1, shall be payable (i) to
Lessee in the case of any particular casualty resulting
in a loss payment not exceeding one hundred fifty
thousand dollars ($150,000) (adjusted for C.P.I. in the
same manner as rent), or (ii) in case of any particular
casualty resulting in a loss payment in excess of one
hundred fifty thousand ($150,000) dollars (adjusted for
C.P.I. in the same xxxxxx.xx rent), to the first
Leasehold Mortgagee, or if there is none, to a bank or
trust company, as insurance trustee, to be designated by
Lessee in a notice given to the insurance companies and
to the Department promptly following the occurrence of
the casualty, which bank or trust company shall have an
office in the County of Orange, and shall disburse the
loss proceeds in accordance with the provisions of
Article AA hereof. All policies of the character
aforesaid shall expressly provide that loss thereunder
shall be adjusted and paid as provided in Section 8.8
and this Section 8.7. Any agreement which the Department
or Lessee shall enter into with any bank or trust
company acting as trustee hereunder may include as a
party thereto the holder of any mortgage on this Lease,
when so requested, provided such mortgage shall provide
or the holder thereof shall agree in writing for
application of insurance proceeds in the same manner as
provided in this Lease.
8.8 Any loss paid under any insurance policy to Lessee shall
be held by Lessee in trust for application to the cost
of restoring,- repairing, replacing or rebuilding the
Building-g and any loss so paid to the first Leasehold
Mortgagee or the insurance trustee shall be disbursed by
it in accordance with the provisions of Article AA.
8.9 Whenever in this Agreement, provision is made for the
carrying of any insurance, it shall be deemed that such
provision is complied with if such insurance otherwise
complying with such provision is carried under a blanket
policy or policies covering the Leased Premises as well
as other properties.
8.10 Lessee shall not violate, or permit to be violated, any
of the conditions of any of the said policies; any
Lessee shall perform and satisfy, or cause to be
satisfied, the requirements of the companies writing
such policies.
ARTICLE 9
LIABILITIES AND INDEMNITIES
9.1 The Department shall not in any way be liable for any
cost, liability, damage or injury including cost of suit
and reasonable expenses of legal services, claimed or
recovered by any person whomsoever, or occurring on the
Leased Premises or as a result of any operations, works,
acts or omissions performed on the Leased Premises
by-the Lessee, its sublessees or tenants, or their
guests or invitees.
9.2 The Lessee agrees to indemnify, save and hold harmless,
the Department (its officers, agents, servants and
employees) of and from any and all costs, liability,
damage and expense (including costs of suit and
reasonable expenses of legal services) claimed or
recovered, justly or unjustly, falsely, fraudulently or
frivolously, by any person, firm or corporation by
reason of injury to, or death of, any person or persons,
including Department personnel and damage to,
destruction or loss of use of any and all property,
including Department property, arising from, or
resulting from, any operations, works, acts or omissions
of Lessee, its agents, servants, employees, contractors,
sublessees or tenants. In any case in which such
indemnification would violate Sections 5-321.1 or
5-322.1 of the New York General Obligations Law, or any
other applicable legal prohibition, the foregoing
provisions concerning indemnification shall not be
construed to indemnify the Department, its officers,
employees or agents for damage arising out of bodily
injury to persons or damage to property caused by or
resulting from the negligence of the Department, its
officers, employees or agents. Upon the filing with the
Department by anyone of a claim for damages arising out
of incidents for which the Lessee herein agrees to
indemnify and hold the Department harmless, the
Department shall notify the Lessee of such claim and in
the event that the Lessee does not settle or compromise
such claim, then the Lessee shall undertake the legal
defense of such claim both on behalf of the Lessee and
behalf of the Department. It is specifically agreed,
however, that the Department at its own cost and
expense, may participate in the legal defense of any
such claim. Any judgment, final beyond all possibility
of appeal, rendered against the Department for any cause
for which the Lessee is liable hereunder shall be
conclusive against the Lessee as to liability and amount
upon the expiration of the time for appeal.
9.3 In addition to the Lessee's undertaking, as stated in
this Article, and as a means of further protecting the
Department, its officers, employees and agents, the
Lessee shall at all times during the term of this
Agreement obtain and maintain in effect Public Liability
Insurance coverage as set forth in Schedule A attached
hereto and made a part hereof. In this connection, the
Lessee agrees to require its contractors doing work in
the Park, and the Lessee's tenants and sublessees, to
carry adequate insurance coverage, and if the Lessee so
desires, it may accomplish same by an endorsement to the
Lessee's policies to include such persons or parties as
additional named insureds.
9.3.1 The Lessee shall review its coverage annually and
increase the minimum liability insurance set forth in
Schedule A to a reasonable threshold when, in the
Lessee's opinion, the risks attendant to the Lessee's
operations hereunder have increased. The Department
shall never be liable for any shortfall in Lessee's
coverage.
9.4 The Lessee represents that it is the owner of or fully
authorized to use any and all services, processes,
machines, articles, marks, names or slogans used by it
in its operations under or in anywise connected with
this Agreement. The Lessee agrees to save and hold the
Department, its officers, employees, agents and
representatives free and harmless of and from any loss,
liability, expense, suit or claim for damages in
connection with any actual or alleged infringement of
any patent, trademark or copyright, or arising from any
alleged or actual unfair competition or other similar
claim arising out of the operations of the Lessee under
or in anywise connected with this Agreement.
9.5 The Lessee represents and warrants that no broker has
been concerned on its behalf in the negotiation of this
Agreement and shall indemnify and save harmless the
Department from all liability, damage, cost and expense,
including reasonable attorneys' fees, resulting from any
breach of this representation and warranty.
ARTICLE 10
LEASEHOLD MORTGAGES
10.1 On one or more occasions, with the Department's prior
written consent, not to be unreasonably withheld, Lessee
may take back a Leasehold Mortgage upon a sale and
assignment of the leasehold estate created by this
Agreement or may mortgage or otherwise encumber Lessee's
leasehold estate to an Institutional Investor (as
hereinafter defined), under one or more Leasehold
Mortgages and assign this Agreement as security for such
Mortgage or Mortgages; subject, however, to the
limitations of this Article. At no time shall the
Department permit subordination of the fee interest in
the Leased Premises. The Department hereby consents to
Lessee's use of Chemical Bank as a Leasehold Mortgagee.
10.2 (a)(i) Leasehold Mortgage upon a sale and assignment of
the leasehold estate or shall mortgage Lessee's leasehold
estate to an Institutional Investor, and if the holder of
such Leasehold Mortgage shall provide the Department with
notice of such Leasehold Mortgage together with a true copy
of such Leasehold Mortgage and the name and address of the
Mortgagee, the Department and Lessee agree that, following
receipt of such notice by the Department, the provisions of
this Article 10 shall apply in respect to each such Leasehold
Mortgage; provided that the provisions o-f this Article shall
not be binding on the Department, unless and until such
notice shall have been given and such copy delivered to the
Department, notwithstanding any other form of notice, actual
or constructive. (ii) In the event of any assignment of a
Leasehold Mortgage or in the event of a change of address of
a Leasehold Mortgagee or of an assignee of such Mortgage,
notice of the new name and address shall be promptly provided
to the Department; provided that the provisions of this
Article as to such mortgagee or assignee shall not be binding
on the Department, unless and until such notice shall have
been given and such copy delivered to the Department,
notwithstanding any other form of notice, actual or
constructive.
(b) the Department shall upon receipt of notice
provided for by Section 10.2(a) promptly acknowledge the
receipt of such communication, as constituting the
notice provided for by Section 10.2(a) or in the
alternative, notify the Lessee and Leasehold Mortgagee
of the rejection of such communication as not conforming
with the provisions of Section 10.2(a) and specify the
specific basis of such rejection.
10.3 (a) The terms 'Institutional Investor' or 'Institution'
as used in this Agreement shall refer to a savings bank,
savings and loan association, commercial bank or trust
company (whether for its own account or as fiduciary),
credit union, insurance company, college, university,
real estate investment trust, a pension fund, welfare or
retirement fund, an eleemosynary institution, or any
combination of the foregoing.
(b) The term "Leasehold Mortgage" as used in this
Agreement shall include a mortgage, a deed of trust, a
deed to secure debt, or other security instrument by
which Lessee's leasehold estate is mortgaged, conveyed,
assigned, or otherwise transferred, to secure a debt or
other obligation under the provisions of this Agreement.
(c) The term "Leasehold Mortgagee" as used in this
Agreement shall refer to a holder of a Leasehold
Mortgage in respect to which the notice provided for by
Section 10.1(a) has been given and received and as to
which the provisions of this Agreement are applicable.
10.4 The Department, upon providing Lessee any notice of (a)
default under this Agreement; or (b) a termination of
this Agreement or (c) a matter on which the Department
may predicate or claim a default, shall at the same time
provide a copy of such notice to every Leasehold
Mortgagee. No such notice by the Department to Lessee
shall be deemed to have been duly given unless and until
a copy thereof has been so provided to every Leasehold
Mortgagee by certified mail at the address specified in
the notice given pursuant to Section 10.2(a). From and
after the date such notice has been given to a Leasehold
Mortgagee, such Leasehold Mortgagee shall have the
additional periods of time specified in Sections 10.6
and 10.7 hereof to remedy, commence remedying, or cause
to be remedied the defaults or acts or omissions which
are specified in any such notice. The Department shall
accept such performance by or at the instigation of such
Leasehold Mortgagee as if the same had been done by
Lessee. Lessee authorizes such Leasehold Mortgagee to
take any such action at such Leasehold Mortgagee's
option and does hereby authorize entry upon the Leased
Premises by Leasehold Mortgagee for such purposes
consistent with the provisions of this Agreement.
10.5 (a) Anything contained in this Agreement to the
contrary, notwithstanding, if any default shall occur which
entitles the Department to terminate this Agreement, the
Department shall have no right to terminate this Agreement
unless, following the expiration of the - period of time
given Lessee to cure such default or the act or omission
which gave rise to such default, the Department shall notify
every Leasehold Mortgagee of the Department's intent to so
terminate ("Termination Notice") at least thirty (30) days in
advance of the proposed effective date of such termination if
such default is capable of being cured by the payment of
money, and at least forty-five (45) days in advance of the
proposed effective date of such termination if such default
is not capable of being cured by the payment of money. The
provisions of Section 10.6 below shall apply if, during such
thirty (30) or forty-five (45) day Termination Notice period,
any Leasehold Mortgagee shall (i) notify the Department of
such Leasehold Mortgagee's desire to defeat such Termination
Notice, and (ii) pay or cause to be paid all rent, additional
rent, and other payments then due and in arrears as specified
in the Termination Notice to such Leasehold Mortgagee and
which may become due during such thirty (30) day period; and
(iii) comply or in good faith, with due diligence and
continuity, commence to comply with all non-monetary
requirements of this Agreement then in default pursuant to a
written schedule mutually agreed upon by the Department and
the Leasehold Mortgagee.
(b) Any notice to be given by the Department to a
Leasehold Mortgagee pursuant to any provision of this
Article shall be deemed properly addressed if sent to
the Leasehold Mortgagee who served the notice referred
to in Section 10.2(a)(i) or Section 10.2(a)(ii) as the
case may be.
10.6 (a) If the Department shall elect to terminate this
Agreement by reason of any default of Lessee, and a Leasehold
Mortgagee shall have proceeded in the manner provided for by
Section 10.5, the specified date for termination of this
Agreement as fixed by the Department in its Termination
Notice shall be deemed extended and this Agreement shall not
be terminated without the consent of such Leasehold Mortgagee
provided that such Leasehold Mortgagee shall, during such
extended period: (i) Pay or cause to be paid the rent,
additional rent, and other monetary obligations of Lessee
under this Agreement as the same become due, and continue
with due diligence to perform all of Lessee's other
obligations under this Agreement, which Leasehold Mortgagee
can perform without having first obtained possession of the
Lessee's interest in this Agreement; and (ii) Within three
(3) months from receipt of the Termination Notice, take steps
to acquire or sell Lessee's interest in this Agreement by
foreclosure of the Leasehold Mortgage or other appropriate
means and prosecute the same to completion with due
diligence; provided, however, that if the Leasehold Mortgagee
is otherwise complying with this Section 10.6(a) and is
enjoined or stayed from taking steps to acquire or sell
Lessee's interest in this Agreement, this Agreement shall not
terminate and the time for completion by such Leasehold
Mortgagee of its proceedings shall continue so long as such
Leasehold Mortgagee is enjoined or stayed and thereafter for
so long as such Leasehold Mortgagee proceeds to complete
steps to acquire or sell Lessee's interest in this Agreement
by foreclosure of the Leasehold Mortgage or by other
appropriate means with reasonable diligence and continuity.
Nothing in this Section 10.6, however, shall be construed to
extend this Agreement beyond the original term thereof, as
extended by any options to extend the term of this Agreement
properly exercised by Lessee or a Leasehold Mortgagee within
the time limits set forth in Article 1, nor to require a
Leasehold Mortgagee to continue such foreclosure proceedings
after the default has been cured. If the default shall be
cured and the Leasehold Mortgagee shall discontinue such
foreclosure proceedings, this Agreement shall continue in
full force and effect as if Lessee had not defaulted under
this Agreement. (iii) If the Leasehold Mortgagee is
complying with Section 10.6(a)(1) and is enjoined or stayed
from taking steps to acquire or sell Lessees interest in this
Agreement, this Agreement shall not then terminate and the
time for completion by such Leasehold Mortgagee of its
proceedings shall continue so long as such Leasehold
Mortgagee is enjoined or stayed and thereafter for so long as
such Leasehold Mortgagee proceeds to complete steps to
acquire or sell Lessee's interest in this Agreement by
foreclosure of the Leasehold Mortgagee or by other
appropriate means with due diligence and continuity. Nothing
in this Section 10.6, however, shall be construed to extend
this Agreement beyond the original term thereof as extended
by any options to extend the term of this Agreement properly
exercised by Lessee or a Leasehold Mortgagee within the time
limits set forth in Article 1, nor to require a Leasehold
Mortgagee to continue such foreclosure proceedings after the
default has been cured. If the default shall be cured and the
Leasehold Mortgagee shall discontinue such foreclosure
proceedings, this Agreement shall continue in full force and
effect as if Lessee had not defaulted under this Agreement.
(b) If a Leasehold Mortgagee is complying with Section
10.6(a)(i), upon the acquisition of Lessee's estate
herein by such Leasehold Mortgagee or its designee or
any other purchaser at a foreclosure sale or otherwise
and the discharge by foreclosure or otherwise of any
lien, charge or encumbrance against the Lessee's
interest in this Agreement or the Leased Premises which
is junior in priority to the lien of the Leasehold
Mortgagee held by such Leasehold Mortgagee and which
Lessee is obligated to satisfy and discharge by the
terms of this Agreement, this Agreement shall continue
in full force and effect as if Lessee had not defaulted
under this Agreement.
(c) The making of a Leasehold Mortgage shall not be deemed
to constitute an assignment or transfer of this Agreement or
of the leasehold estate hereby created, nor shall any
Leasehold Mortgagee, as such, be deemed to be an assignee or
transferee of this Agreement or-of the leasehold estate
hereby created so as to require such Leasehold Mortgagee, as
such, to assume the performance of any of the terms,
covenants or conditions on the part of the Lessee to be
performed hereunder, but the purchaser at any sale of this
Agreement of the leasehold estate hereby created in any
proceedings for the foreclosure of any Leasehold Mortgage, or
the assignee or transferee of this Agreement and of the
leasehold estate hereby created under any instrument of
assignment or transfer in lieu of the foreclosure of any
Leasehold Mortgagee shall be deemed to be a permitted
assignee or transferee, subject to the provisions of Section
10.19 hereof, and shall be deemed to have agreed to perform
all of the terms, covenants and conditions on the part of the
Lessee to be performed hereunder from and after the date of
such purchase and assignment, but only for so long as such
purchaser or assignee is the owner of the leasehold estate.
If the Leasehold Mortgagee or its designee shall become
holder of the leasehold estate and if the buildings and
improvements on the Leased Premises shall have been or become
materially damaged on, before, or after the date of such
purchase and assignment, the Leasehold Mortgagee or its
designee shall be obligated to repair, replace or reconstruct
the building or other improvements.
(d) Any Leasehold Mortgagee or other acquirer of the
leasehold estate of Lessee pursuant to foreclosure,
assignment in lieu of foreclosure or other proceedings may,
upon acquiring Lessee's leasehold estate, without further
consent of the Department, sell and assign the leasehold
estate on such terms and to such person and organizations as
are acceptable to such Mortgagee or acquirer and the
Department, and thereafter be relieved of all obligations
under this Agreement; provided that such assignee has
delivered to the Department its written agreement to be bound
thereafter by all of the provisions of this Agreement.
(e) Notwithstanding any other provisions of this Agreement,
any sale of this Agreement and of the leasehold estate hereby
created in any proceedings for the foreclosure of any
Leasehold Mortgage, or the assignment or transfer of this
Agreement and of the leasehold estate hereby created in lieu
of the foreclosure of any Leasehold Mortgage shall be deemed
to be a permitted sale, transfer, or assignment of this
Agreement and of the leasehold estate hereby created, subject
to the provisions of Section 10.19 hereof.
10.7 In the event of the termination of this Agreement as a
result of Lessee's default, the Department shall, in addition
to providing the notices of default and termination as
required by Sections 10.5 and 10.6, provide each Leasehold
Mortgagee with written notice that the Agreement has been
terminated, together with a statement of all sums which would
at that time be due under this Agreement but for such
termination, and of all other defaults, if any, then known to
the Department ("the Department's Notice of Termination").
The Department agrees to enter into a new Agreement("New
Agreement") of the Leased Premises with the first Leasehold
Mortgagee or its designee for the remainder of the Term of
this Agreement, effective as of the date of termination, at
the rent and additional rent, and upon the terms, covenants,
and conditions (including all options to renew but excluding
requirements which are not applicable or which have already
been fulfilled) of this Agreement provided:
(a) Such Leasehold Mortgagee shall make written request
upon the Department for such New Agreement within
forty-five (45) days after the date such Leasehold
Mortgagee receives the Department's Notice of
Termination of this Agreement given pursuant to this
Section 10.7.
(b) Such Leasehold Mortgagee or its designee shall pay or
cause to be paid to the Department at the time of execution
and delivery of such New Agreement, any and all sums which
would at the time of execution and delivery thereof be due
pursuant to this Agreement but for such termination and, in
addition thereto, all reasonable expenses, including
reasonable attorney's fees, which the Department shall have
incurred by reason of such termination and the execution and
delivery of the New Agreement and which have not otherwise.
been received by the Department from Lessee or other party
in interest under Lessee. Upon the execution of such new
Agreement, the Department shall allow to the Lessee named
therein as an offset against the sums otherwise due under
this Section 10.7(b) or under the New Agreement, an amount
equal to the net income derived by the Department from the
Leased Premises during the period from the date of
termination of this Agreement to the date of the beginning of
the lease term of such New Agreement. In the event of a
controversy as to the amount to be paid to the Department
pursuant to this Section 10.7(b), the payment obligation
shall be satisfied if the Department shall be paid the amount
not in controversy, and the Leasehold Mortgagee or its
designee shall agree to pay any additional sum ultimately
determined to be due plus interest at the existing prime rate
as established by Citibank, N.A. (or its successor or other
major New York Metropolitan Area lending institution of
comparable stature) plus two (2) percentage points.
(c) Such Leasehold Mortgagee or its designee shall agree to
remedy any of Lessee's defaults of which said Leasehold
Mortgagee was notified by the Department's Notice of
Termination. (d) Any New Agreement made pursuant to this
Section 10.7 shall be prior in lien to any mortgage or other
lien, charge, or encumbrance on the fee of the Leased
Premises and the Lessee under such New Agreement shall have
the same right, title and interest in and to the Leased
Premises and the building and improvements thereon as Lessee
had under this Agreement.
(d) The Lessee under any such New Agreement shall be liable
to perform the obligations imposed on the Lessee by such New
Agreement.
(e) Effective upon the commencement of the term of any
New Agreement pursuant to this Section 10.7, all
subleases shall be assigned and transferred without
recourse by the Department to the Lessee under the New
Agreement and all moneys on deposit with the Department
pursuant to such subleases, if any, shall be similarly
assigned to the tenant under the New Agreement.
10.8 If more than one Leasehold Mortgagee shall request a New
Agreement pursuant to Section 10.7, the Department shall
enter into such New Agreement with the Leasehold
Mortgagee whose mortgage is prior in lien, or with the
designee of such Leasehold Mortgagee and thereupon the
requests for a New Agreement of each holder of a
Leasehold Mortgage junior in lien shall be and be deemed
to be void and of no force or effect. The Department,
without liability to Lessee or any Leasehold Mortgagee
with an adverse claim, may rely upon a mortgage title
insurance policy issued by a title insurance company
licensed to do business within the State of New York and
selected by the Department as a basis for determining
the appropriate Leasehold Mortgagee who is entitled to
such New Agreement.
10.9 (a) Nothing herein contained shall require any
Leasehold Mortgagee or its designee as a condition to
its exercise of right hereunder to cure any default of
Lessee not reasonably susceptible of being cured by such
Leasehold Mortgagee or its designee such as referred to
in Sections 17.1.2, 17.1.3 and 17.1.4, hereof, in order
to comply with the provisions of Section 10.5 and 10.6,
or as a condition of entering into the New Agreement
provided for by Section 10.7.
(b) If the Department shall elect to terminate this
Agreement by reason of any default of Lessee not
reasonably susceptible of being cured by a Leasehold
Mortgagee, and a Leasehold Mortgagee shall have
proceeded in the manner provided for by Section 10.5(a),
the specified date for the termination of this Agreement
as fixed by the Department in its termination notice
shall be extended as provided for in Section 10.6,
provided that such Leasehold Mortgagee shall proceed in
the manner provided for in Section 10.6.
10.10 Lessee's share, as provided by Article 12 of this
Agreement of the proceeds arising from an exercise of
the power of eminent domain shall, subject to the
provisions of such Article, be disposed of as provided
for by any Leasehold Mortgage.
10.11 A standard mortgagee clause naming each Leasehold
Mortgagee may be added to any and all insurance policies
required to be carried by Lessee hereunder on condition
that the insurance proceeds are to be applied in the
manner specified in this Agreement and the Leasehold
Mortgagee may provide a manner for the disposition of
such proceeds, if any, payable jointly to the Department
and Lessee pursuant to the provisions of this Agreement.
10.12 The Department shall give each Leasehold Mortgagee
prompt written notice of any legal proceedings between
the Department and Lessee involving obligations under
this Agreement. Each Leasehold Mortgagee shall have the
right to intervene in any such proceedings and be made a
party to such proceedings, and the parties hereto do
hereby consent to such intervention. In the event that
any Leasehold Mortgagee shall not elect to intervene or
become a party to any such proceedings, the Department
shall give the Leasehold Mortgagee notice of, and a copy
of any award of decision made in any such proceedings,
which shall be binding on all Leasehold Mortgagees not
intervening after receipt of notice thereof.
10.13 So long as any Leasehold Mortgage is in existence,
unless all Leasehold Mortgagees shall otherwise
expressly consent in writing, the fee title to the
Leased Premises and the leasehold estate of Lessee
therein created by this Agreement shall not merge but
shall remain separate and distinct, notwithstanding the
acquisition of said fee title and said leasehold estate
by the Department or by Lessee or by a third party, by
purchase or otherwise.
10.14 In the event on any occasion hereafter Lessee seeks
to mortgage its leasehold estate under this Agreement or
any portion hereof under any subsequent individual
lease, the Department agrees to amend this Agreement
from time to time to the extent reasonably requested by
an Leasehold Mortgagee proposing to make Lessee a loan
secured by a first lien upon Lessee's leasehold estate,
provided that such proposed amendments do not materially
and adversely affect the rights of the Department or its
interest in the Leased Premises. All reasonable expenses
incurred by the Department in connection with any such
amendment shall be paid by Lessee.
10.15 The Department shall, without charge, at any time
and from time to time hereafter, but not more frequently then
twice in any one year period (or more frequently if such
request is made in connection with any sale or mortgaging of
Lessee's leasehold interest or permitted subletting by
Lessee), within thirty (30) days after written request of
Lessee to do so, certify by written instrument duly executed
and acknowledged to any Leasehold Mortgagee or purchaser, or
proposed Leasehold Mortgagee or proposed purchaser, or any
other person, firm or corporation specified in such request:
(a) As to whether this Agreement has been supplemented
or amended and, if so, the substance and manner of such
supplement or amendment;
(b) as to the validity and force and effect of this
Agreement, in accordance with its tenor;
(c) as to the existence of any default hereunder;
(d) as to the existence of any offsets, counterclaims,
or defenses hereto on the part of the Lessee;
(e) as to the commencement and expiration dates of the
term of this Agreement; and
(f) as to any other matters as may be reasonably so
requested.
Any such certificate may be relied upon by the Lessee
and any other person, firm or corporation to whom the
same may be exhibited or. delivered, and the contents of
such certificate shall be binding on the Department.
10.16 Notices from the Department to each Leasehold
Mortgagee shall be mailed to the address furnished the
Department pursuant to Section 10.2, and those from the
Leasehold Mortgagee to the Department shall be mailed to
the address designated pursuant to the provisions of
Article 22 hereof. Such notices, demands, and requests
shall be given in the matter described in Article 22 and
shall in all respects be governed by the provisions of
that Article.
10.17 No payment made to the Department by a Leasehold
Mortgagee shall constitute agreement that such payment
was, in fact, due under the terms of this Agreement; and
a Leasehold Mortgagee having made any payment to the
Department pursuant to the Department's wrongful,
improper or mistaken notice or demand shall be entitled
to the return of any such payment of portion thereof.
10.18 An Institutional Leasehold Mortgagee shall have the
right to act as depositary pursuant to Article AA.
10.19 The prior written consent of the Department shall
be required for any sale, transfer, or assignment of
this Agreement and of the Leasehold estate hereby
created. If such sale, transfer or assignment is to the
immediate transferee of such Leasehold Mortgagee or to a
purchaser at a foreclosure sale or the grantee of a deed
in lieu thereof, the Department shall have fourteen (14)
calendar days within which to provide its consent after
receipt of request therefor, which consent shall not be
unreasonably withheld.
ARTICLE 11
ASSIGNMENT AND SUBLEASE
11.1 Assignment of the Agreement and subletting under it are
permitted by the Department with it's prior written
consent, which consent shall not be unreasonably
withheld. For the purpose of such assignment and
subletting the Department agrees it shall respond to a
written request for assignment or subletting within
thirty (30) calendar days of-receipt of request for
same.
11.2 Except as provided in Section 11.1 hereof Lessee shall
not assign this Lease without the prior written consent
of the Department, which shall not be unreasonably
withheld, provided, that any such assignment and
transfer shall include the entire interest in this
Agreement and all obligations attendant thereto,
provided also that no such assignment and transfer shall
be effective for any purpose unless and until there
shall be delivered to the Department (i) a duplicate
original of the instrument or instruments of assignment
and transfer in recordable form containing the name and
address of the transferee thereof and (ii) an
instrument of assumption by said assignee or transferee
of all Lessee's obligations under this Agreement;
provided, however, any person or entity to which this
Lease is assigned pursuant to the provisions of the
Bankruptcy Code (11 U.S.C. 101, et seq.) shall be deemed
without further act or deed to have assumed all of the
obligations arising under this lease on and after the
date of such assignment. Any such assignee shall, upon
demand, execute and deliver to the Department an
instrument confirming such assignment.
11.3 Except as provided in Section 11.1 hereof Lessee shall
not have the right to sublet and subtenants shall not
have the right to re-sublet, the Leased Premises, or any
part thereof and any improvement constructed thereon, in
whole or in part. All such subleases shall be expressly
subordinate to this Agreement. No such sublease shall
release Lessee from performance of or compliance with
any term, condition, covenant or obligation imposed upon
Lessee hereunder and no such sublease shall extend for a
term beyond the Term and the Extended Term (as
hereinabove defined) for which an option has been
exercised.
11.4 The Department and Lessee agree that this Agreement
shall not be rescinded, surrendered, modified or amended
without the prior written consent of the holder or
holders (who shall have given the Department written
notice of its or their identity and address) of any
Leasehold Mortgage.
11.5 Provided (i) that the first Institutional Leasehold
Mortgagee shall have entered into a Non-Disturbance
Agreement with any of the Lessee's subtenants; or that
each such subtenant shall have leased at lease five (5%)
percent of the floor area in the new building to be
constructed by Lessee hereunder; and (ii) that such
subtenants shall, at the option of the Department agree
to attorn to the Department, and (iii) such subtenant
shall be subject to the service of legal process in the
State of New York, the Department shall enter into a
Non-Disturbance Agreement with each such subtenant in
the form annexed hereto as Exhibit "C" and made a part
hereof. The term of any such sublease including renewal
options shall not extend beyond the later of the
original Term of this Agreement or the Extended Term of
any extension for which an option has been exercised and
the rental reserved under any such sublease shall not be
less than the then prevailing rate for comparable space
and shall include an escalation clause requiring such
subtenant to pay, as additional rental, the subtenant's
proportionate share of the increase, from and after the
beginning of the term of the sublease, in the real
estate taxes, in the cost of insurance, labor and all
operation costs affecting the subleased premises.
11.6 Lessee shall not modify any sublease, which shall have
been the subject of a Non-Disturbance Agreement, as
mentioned in Section 11.4 hereof, so as to reduce the
rent, shorten the term, or adversely affect in any other
respect to any material extent the rights of the lessor
thereunder, or permit cancellation or accept the
surrender of any such sublease without prior written
consent of the Department in each instance, which
consent shall not be required for the institution or
prosecution of any action or proceedings against such
sublessee by reason of a default on the part of such
sublessee under the terms of such sublease. Such consent
of the Department shall not be required to (i) move any
such subtenant to another part of the Leased Premises,
provided that thereafter such subtenant shall be obliged
to pay a rent which shall be no less than either the
going rate of its new space or that payable by it for
the vacated space; or (ii) to cancel any such sublease,
or portion thereof provided that it be replaced by
another sublease which shall qualify for and become
subject to a non-disturbance agreement and provided,
further, that such new sublease shall require a rental
which shall be no less than either the going rate for
the sublet space or that payable under the canceled
lease. In addition to being subject and subordinate to
the rights of the Department hereunder, as required by
the provision of Section 11.4 hereof, each sublease that
is subject to a Non-Disturbance Agreement shall contain
a specific provision to the effect that except in those
instances in which Lessee and/or sublessees are
complying with the provisions of the immediately
preceding sentence, such sublease may not be modified or
amended so as to reduce the rent, shorten the term, or
adversely affect in any other respect to any material
extent the rights of the lessor thereunder, or be
canceled or surrendered without the prior written
consent of the Department in each instance.
11.7 Each sublease shall provide that in the event of a
termination of this Agreement and the execution and
delivery of a New Agreement pursuant to Section 10.8
hereof, the sublessee shall attorn to and recognize the
Lessee thereunder as its Lessor.
11.8 Any act required to be performed by Lessee pursuant to
the terms of this Lease may be performed by any
sublessee of Lessee occupying all or any part of the
Leased Premises and the performance of such act shall be
deemed to be performance by Lessee and shall be
acceptable as Lessee's act by the Department.
11.9 The Department hereby consents to the Lessee subletting
the Leased Premises to Xxxxxxx Controls, Incorporated.
ARTICLE 12
CONDEMNATION
12.1 If, at any time during the Term of this Agreement, there
shall be a total taking or a constructive total taking
(as hereinafter defined) of the Leased Premises in
condemnation proceedings or by any right of eminent
domain or by agreement between the Department and Lessee
and those authorized to exercise such rights (any such
matters being hereinafter referred to as a "taking"),
this Agreement shall terminate and expire on the date of
such taking and the fixed annual rental, and other
charges payable by Lessee hereunder shall be apportioned
and paid to the date of such taking. For the purposes of
this Article the term a "constructive total taking"
shall mean a taking of such scope that the untaken
portion of the Leased Premises cannot, in the reasonable
opinion of Lessee, be developed, repaired or
reconstructed.
12.2 Rentals for that portion of the Leased Premises
condemned shall be abated from the date that the Lessee
is dispossessed therefrom; provided, however, if all of
the Leased Premises are condemned or if a portion of the
Leased Premises are condemned and in the Lessee's
judgment, the remaining portion of the Leased Premises
is insufficient for the Lessee's operations authorized
hereunder, the Lessee may terminate this Agreement and
all of its rights and unaccrued obligations-hereunder
effective as of the date it is thereafter and within 90
days of the date of such dispossession by giving the
Department 30 days written notice of such termination.
12.3 The Lessee shall be entitled to the award made for a
temporary taking of possession of all or part of the
Leased Premises for any period of time within the term
of this Agreement. Such award shall be full compensation
to the Lessee for such temporary taking and no claims
for damages arising out of the temporary taking shall be
made against the Department.
12.4 Lessee and the holder of any Leasehold Mortgage, as well
as the Department shall have the right to participate in
any condemnation proceeding or agreement for the purpose
of protecting their interests in the Leased Premises
and their rights hereunder. In this connection,
specifically and without limitation, each of such
parties may introduce evidence independently of each
other to establish the value of or damage to the Land
and/or the Facility. Each party so participating shall
pay its own expenses therein.
12.5 Except as provided in Section 12.6 below, in the event
of any taking and the consequent termination of this
Agreement, the total aggregate award for said taking
("Condemnation Proceeds') shall be apportioned and paid
to the extent available in the following order of
priority: (i) The holder of the first Leasehold
Mortgage, if any shall be entitled to receive and retain
from the Condemnation Proceeds the sum required to pay
the unpaid principal balance of the first Leasehold
Mortgage, plus interest accrued thereon from the date of
taking to the date of payment to the institutional first
Leasehold Mortgagee at the rate specified in said
Leasehold Mortgage and other sums secured by the
Leasehold Mortgage. (ii) Then, the Department shall be
entitled to retain from the balance of the Condemnation
Proceeds the sum equal to the then present value of the
leasehold reversion as if the Lessee's Renewal option
had been exercised plus the then present value of the
future rentals payable to the Department under this
Agreement, if this Agreement had not terminated pursuant
to Section 12.1 above, with interest thereon, from the
date of taking and at the rate paid by the condemning
authority. If the condemnation award specifies the
amount allocable to the land taken as if vacant,
unimproved and free of this Agreement, such amount shall
be deemed conclusive for all purposes as to the value
thereof. (iii) Then, the Lessee shall be entitled to
receive and retain the balance of the Condemnation
Proceeds.
12.6 Notwithstanding Section 12.5 above, if prior to the time
when Lessee shall have obtained all governmental permits
and authorizations for the new construction required to
be performed by Lessee hereunder, this Agreement shall
terminate, pursuant to the provisions of Section 12.1
hereof, the Condemnation Proceeds shall be apportioned
and paid, to the extent available, the following order
of priority:
(a) The Department shall be entitled to an amount equal
to the fair market value of the Land (immediately prior
to the taking) considered as vacant, unimproved and free
of this Agreement and without any of the permits and
approvals previously obtained by Lessee, with interest
thereon from the date of taking at the rate paid by the
condemning authority. If the condenmation award
separately specifies the amount allocable to the Land
taken as if vacant and unimproved without this
Agreement, such amount shall be deemed conclusive as to
the value thereof.
(b) The Lessee next shall be entitled to an amount
equal to its aggregate costs and expenses, if any, of
every kind and nature (not compensated for by insurance)
incurred and paid in connection with and for the
acquisition of all governmental permits and licenses and
the development of plans and specifications for any
improvements at the Leased Premises.
(c) The Department shall be entitled to the balance of
the award.
(d) Notwithstanding the foregoing, prior to the
application of the Condemnation Proceeds as set forth in
subsections (a) through (c) of this Section, the holder
of the Leasehold Mortgage, if any, shall be entitled to
receive and retain from the Condemnation Proceeds the
sum required to pay the unpaid principal balance of the
first Leasehold Mortgage, plus interest accrued thereon
from the date of taking to the date of payment to said
holder, at the rate specified in the Leasehold Mortgage
and other sums secured by the Leasehold Mortgage. The
balance, if any, shall then be applied as hereinabove
provided.
12.7 If the Lessee shall assign to any Leasehold Mortgagee
any condemnation Proceeds to which it shall be entitled
under the pro visions of this Article, the Department
shall recognize such assignment and shall consent to the
payment of said Condenmation Proceeds to said assignee
as its interest may appear.
ARTICLE 13
NON-DISCRIMINATION
13.1 Lessee agrees to comply with Section 296 of the New York
State Human Rights Law.
13.2 Specifically, Lessee agrees not to:
13.2.1 Refuse to rent, lease or otherwise deny to or
withhold from any person or group of persons such
commercial space because of the age of such person or
persons; or such land or commercial space because of the
race, creed, color, national origin, sex, or disability
or marital status of such person or persons.
13.2 Discriminate against any person because of his race,
creed, color, national origin, sex, or disability or
marital status in the terms, conditions or privileges of
the sale, rental or lease of any such land or commercial
space or because of his age in relation to such
commercial space; or in the furnishing of facilities or
services in connection therewith.
13.2. Print or circulate or cause to be printed or
circulated any statement, advertisement or publication,
or to use any form of application for the purchase,
rental or lease of such land or commercial space or to
make any record or inquiry in connection with the
prospective purchase, rental or lease of such land or
commercial space which expresses, directly or
indirectly, any limitation, specification or
discrimination as to race, creed, color, national
origin, sex, or disability or marital status, or in
relation to commercial space as to age; or any intent to
make any such limitation, specification or
discrimination.
ARTICLE 14
GOVERNMENTAL REQUIREMENTS
14.1 The Lessee agrees to observe and obey any and all
applicable Federal, State and municipal rules,
regulations, laws and building codes and to require its
officers, agents, employees, contractors, and suppliers,
to observe and obey the same. This provision requires.
compliance with the Park's Performance and Development
Standards as issued by the Department and Appendix A to
this Agreement.
14.2 The Lessee shall procure all licenses, certificates,
permits or other authorization from all governmental
authorities, if any, having jurisdiction over the Lessee's
operations at the Leased Premises which may be necessary for
the Lessee's operations thereat.
14.3 The Lessee shall pay all taxes, license, certification,
permit and examination fees and excise taxes which may
be assessed, levied, exacted or imposed on the Leased
Premises or operation hereunder or on the gross receipts
or gross income to the Lessee therefrom, and shall make
all applications, reports and returns required in
connection therewith.
14.4 Lessee agrees to remit Payments in Lieu of Taxes,
hereinafter P.I.L.O.T. to the local taxing
jurisdictions, hereinafter "Communities" participating
in the P.I.L.O.T. program using their normal payment and
billing cycle. All evaluations, payments and schedules
for P.I.L.O.T. shall be governed by the P.I.L.O.T.
Program as adopted by the Department in consultation
with the Xxxxxxx Airport Commission from time to time
during the term of this Agreement. Provided, however,
that in no event shall the P.I.L.O.T. payments be more
than taxes which would otherwise be payable by the
Lessee if the Leased Premises were taxable in the
Communities.
14.5 The P.I.L.O.T. Program recognizes that there may be tax
abatements and tax exemptions negotiated between the
Lessee and the Communities. Non-payment of P.I.L.O.T.
within the applicable periods of notice and grace shall
be a default under this Agreement.
14.6 Lessee shall establish an escrow account and maintain on
deposit adequate funds to pay the P.I.L.O.T. and water
and sewer charges, as applicable, to the Town of
Newburgh (the "Town"), provided, however, that Lessee
shall not be precluded from making any such payment
directly to the Town outside of escrow by mutual
agreement between the Lessee and the Town, a copy of
which agreement shall be given to the Department; in
which event, no escrow account need be established.
ARTICLE 15
RIGHTS OF ENTRY RESERVED
15.1 On prior reasonable notice, the Department, by its
officers, employees, agents, representatives and
contractors shall have the right at all reasonable times
to enter upon the Leased Premises for any and all
purposes not inconsistent with this Agreement, provided,
such action by the Department, its officers, employees,
agents, representatives and contractors does not
unreasonably interfere with the Lessee's use, occupancy,
or security requirements of the Leased Premises.
15.2 Without limiting the generality of the foregoing, the
Department, by its officers, employees, agents,
representatives, contractors and furnishers of utilities
and other services, shall have the right, at its own
cost and expense, whether for its own benefit, or for
the benefit of others than the Lessee at the Park, to
maintain existing utility, mechanical, electrical and
other utility systems and on prior/reasonable notice to
enter upon the Leased Premises at all reasonable times
to make such repairs, replacements or alterations
thereto, as may, be necessary or advisable, and from
time to time to construct or install over, in or under
the Leased Premises such systems or parts thereof and in
connection with such maintenance, use the Leased
Premises for access to other parts of the Park otherwise
not conveniently accessible, provided, however, that in
the exercise of such right of access, repair, alteration
or new construction, the Department shall not install a
utility under or through any building or parking area or
effect any existing improvement on the Leased Premises
or interfere with the actual use and occupancy of the
Leased Premises by the Lessee. It is specifically
understood and agreed that the reservation of the
aforesaid right by the Department shall not impose or be
construed to impose upon the Department any obligation
to repair, replace or alter any utility service lines
now or hereafter located on the Leased Premises for the
purpose of providing utility services only to the Leased
Premises.
15.3 In the event that any personal property of the Lessee
shall obstruct the access of the Department, its
officers, employees, agents or contractors, or the
utility company furnishing utility service to any of the
existing utility, mechanical, electrical and other
systems, and thus shall interfere with the inspection,
maintenance or repair of any such system pursuant to
Section 15.2, the Lessee shall move such property, as
reasonably directed by the Department or said utility
company, in order that access may be had to the system
or part thereof for inspection, maintenance or repair.
If the Lessee shall fail to so move such property after
direction from the Department or said utility company to
do so, the Department or the utility company may move
it, and the Lessee hereby agrees to pay the cost of such
moving upon demand, and further the Lessee hereby waives
any claim against the Department for damages as a result
therefrom, except for claims for damages arising from
the Department's negligence.
15.4 Exercise of any or all of the foregoing rights in this
Article, by the Department, or others under right of the
Department, shall not be, nor be construed to be, an
eviction of the Lessee, nor be made the grounds for any
abatement of rental nor any claim or demand for damages
against the Department, consequential or otherwise,
except claims for damage to person or property caused by
the negligence of the Department.
ARTICLE 16
ADDITIONAL RENTS AND CHARGES
16.1 Except as provided in Section 5.3 (a), in the event the
Lessee fails within thirty (30) days after receipt of
written notice from the Department to perform or
commence to perform with due diligence any obligation
required herein to be performed by the Lessee, the
Department may enter the Leased Premises (without such
entering causing or constituting a cancellation of this
Agreement or an interference with the possession of such
Leased Premises by the Lessee) and do all things
reasonably necessary to perform such obligation,
charging to the Lessee the cost and expense thereof, and
the Lessee agrees to pay to the Department upon demand
such charge in addition to any other amounts payable by
the Lessee hereunder, provided, however, that if the
Lessee's failure to perform any such obligation
endangers the safety of the public or employees or
property of the Department, or other tenants of the
Park, and the Department so states in its notice to the
Lessee, the Department as its sole remedy may perform
such obligation of the Lessee at any time after the
giving of such notice, and charge to the Lessee the
reasonable cost and expense thereof which the Lessee
shall pay upon demand.
16.2 If the Department elects to pay any sum or sums or incur
any obligation or expense by reason of the failure,
neglect or refusal of the Lessee to perform or fulfill
any one or more of the conditions, covenants or
agreements contained in this Agreement, or as the result
of any act or omission of the Lessee contrary to said
conditions, covenants or agreements, the Lessee hereby
agrees to pay the sum or sums so paid or expense so
incurred by the Department as the result of such
failure, neglect or refusal of the Lessee, including
interest, at the existing prime rate as established by
Citibank, N.A. or other major New York Metropolitan Area
lending institution of comparable stature together with
all reasonable costs, and damages. In such event, the
total of such amounts may be added to any installment of
rent thereafter due hereunder, and each and every part
of the same shall be and become additional rent
recoverable by the Department in the same manner and
with like remedies as if it were originally a part of
the rent provided for in this Agreement.
ARTICLE 17
TERMINATION BY THE DEPARTMENT
17.1 Each of the following shall be deemed a default of the
Lessee and a breach of this Agreement.
17.1.1 If any rental or additional rental required by
this Agreement to be paid to the Department shall not be
paid when due, and such default shall continue for a
period of ten (10) days after written notice by the
Department to the Lessee specifying the items in
default, and shall continue thereafter for a further
period of five (5) days after a second notice from the
Department to the Lessee which shall specify the items
in default, and, in addition, shall state the
Department's intention to terminate this Lease by reason
of such default or;
17.1.2 The institution of proceedings in bankruptcy
against the Lessee; provided, however, that the Lessee
may avoid such termination if the petition is dismissed
or stayed by appeal within ninety (90) days after the
institution thereof; or,
17.1.3 The filing of a petition requesting a court to
take jurisdiction of the Lessee or its assets under the
provisions of any Federal reorganization act which, if
it is an involuntary petition, is not dismissed within
ninety (90) days after the institution thereof; or,
17.1.4 The filing of a request for the appointment of
a receiver or trustee of the Lessee's assets by a court
of competent jurisdiction, which if the request is not
made by the Lessee, is not rejected within ninety (90)
days after being made, or the request for the
appointment of a receiver or trustee of the Lessee's
asset by a voluntary agreement with the Lessee's
creditors.
17.1.5 The default by the Lessee in the performance
of any covenant or conditions required to be performed
by the Lessee, and the failure of the Lessee to remedy
such default for a period of thirty (30) days after
receipt from the Department of written notice (except as
otherwise provided in Section 5.3(a) above) which shall
specify the items in default and, in addition, shall
state the Department's intention to terminate this
Agreement by reason of such default, or in the case of a
default which cannot with due diligence be cured within
said thirty (30) day period and Lessee fails to proceed
within said thirty (30) day period to cure the same and
thereafter to prosecute the curing of such default with
due diligence pursuant to a written schedule mutually
agreed upon by the Department and Lessee.
17.2 If the Department shall exercise its option to terminate
this Agreement upon the Lessee's failure to cure or
remedy any default hereunder prior to the expiration of
the applicable grace periods, this Agreement shall
expire and all of Lessee's rights and interest hereunder
shall terminate upon the expiration of the time
specified in the Department's notice as if such date
were the last date of the leased term, and the Lessee
shall then immediately quit and surrender the Leased
Premises to the Department, including any and all
building erected thereon, and all other improvements,
and the Department may enter into or repossess the
Leased Premises and the Lessee hereby waives the service
of notice of intention to reenter or to institute legal
proceedings to that end.
17.3 Notwithstanding the provisions of this Article, the
rights of the Department hereunder are subject to the
rights of Leasehold Mortgagees to cure pursuant to
Article 10 hereof.
17.4 Failure by the Department to take any authorized action
upon default by the Lessee of any of the terms,
covenants or conditions required to be performed, kept
and observed by the Lessee shall not be construed to be,
nor act as, a waiver of said default nor of any
subsequent default of any of the terms, covenants and
conditions contained herein to be performed, kept and
observed by the Lessee. Acceptance of rentals by the
Department from the Lessee, or performance by the
Department under the terms hereof, for any period or
periods after a default by the Lessee of any of the
terms,_ covenants and conditions herein required to be
performed, kept and observed by the Lessee shall not be
deemed a waiver or estoppel of any right on the part of
the Department to cancel this Agreement for any
subsequent failure by the Lessee to so perform, keep or
observe any of said terms, covenants or conditions.
ARTICLE 18
SURRENDER AND RIGHT OF RE-ENTRY
18.1 Upon the cancellation or termination of this Agreement
pursuant to the terms hereof, the Lessee agrees
peaceably to surrender up the Leased Premises to the
Department in the same condition as they are at the time
of the commencement of the term hereof, and as they may
hereafter be repaired and improved by the Lessee; save
and except, (a) such normal wear and tear thereof as
could not have been prevented by ordinary and usual
repairs and maintenance, (b) obsolescence in spite of
repair, and (c) damage to or destruction of the
leasehold improvements for which insurance proceeds are
received by the Department. Upon such cancellation or
termination, the Department may re-enter and repossess
the Leased Premises together with all improvements and
additions thereto, or pursue any remedy permitted by law
for the enforcement of any of the provisions of this
Agreement, at the Department's election. Furthermore,
upon such cancellation or termination, and for a
reasonable time thereafter (not exceeding thirty (30)
days after such cancellation or termination, and for
which period the Lessee will pay to the Department
current lease rentals), or during the term of this
Agreement, if the Lessee is not in default in rentals or
any other charges or obligations due the Department, the
Lessee shall have the right to remove its personal
property, fixtures and trade equipment which it may have
on the Leased Premises, provided that the Lessee repairs
all-damages that might be occasioned by such removal,
and restore the building and site to the condition above
required.
ARTICLE 19
SERVICES TO LESSEE
19.1 The Department covenants and agrees that during the term
of this Agreement it will operate the Park as such for
the use and benefit of the public, including Lessee,
provided, however, that subject to the rights of Lessee,
the Department may prohibit or limit any given type,
kind, or class of use in the Park if such action is
necessary to serve the needs of the public. The
Department also agrees to provide and maintain, or cause
to be provided and maintained, water and sanitary sewer
services in areas designated for utilities or easements
adjacent to the Leased Premises for access thereto by
the Lessee. The Department reserves the right to
transfer the responsibility for maintenance of water to
the Town of Newburgh and sanitary sewer services to the
Crossroads Sewer District. Any charges related to the
Leased Premises shall be paid by the Lessee.
19.2 The Department agrees to provide utilities (water,
natural gas, and electric) to a boundary line of the
Leased Premises and a finished road as required by law.
The water supply will be operated by the Town of
Newburgh which has set its design criteria at 2,500
gallons per minute at 20 p.s.i. residual pressure.
19.3 The Lessee will contract with and obtain all required
permits from the appropriate departments for any utility
services provided by the Department, paying any required
connection fees, including those to be paid by owners,
and all such services will be provided at rates and on
terms and conditions established by the Department for
similar users in the Park.
19.4 The Lessee will also contract with the furnishers of all
other utilities for the furnishing of such services to
the Leased Premises and shall pay for all water, gas,
electricity, sanitary sewer service, other utilities,
telephone, burglary and fire protection services
furnished to the Leased Premises. The Department shall
allow the providers of such utilities reasonable access
to the boundaries of the Leased Premises for the
installation of their utility systems.
19.5 The Department will provide, repair, maintain and
replace, or cause to be provided, repaired, maintained
or replaced, a paved access road, as required by law, of
at least two lanes by extending Governor Drive to the
Leased Premises.
19.6 The Department will plow all roads within the Park to
the Leased Premises and shall maintain all retention
basins and landscaped areas in the Park but outside any
leased premises.
ARTICLE 20
SURVIVAL OF THE OBLIGATIONS OF THE LESSEE
20.1 In the event that the Agreement shall have been
terminated in accordance with a notice of termination as
provided in Article 17 hereof, all the obligations of
the Lessee under this Agreement shall survive such
termination, re-entry, regaining or resumption of
possession and shall remain in full force and effect for
the full term of this Agreement, and the amount or
amounts of damages or deficiency shall become due and
payable to the Department to the same extent, at the
same time or times, and in the same manner as if no
termination, re-entry, regaining or resumption of
possession had taken place. The Department may maintain
separate actions each month to recover the damage or
deficiency then due or at its option and at any time may
xxx to recover the full deficiency less the proper
discount, for the entire unexpired term of this
Agreement.
20.2 The amount of damages for the period of time subsequent
to termination (or re-entry, regaining or resumption of
possession) on account of the Lessee's rental
obligations, shall be the sum of the following:
20.2.1 The amount of the total of all installments of
rents as they would have become due had the term of this
Agreement not been terminated, less the installments
thereof payable prior to the effective date of
termination except that the credit to be allowed for the
installment payable on the first (1st) day of the month
in which the termination is effective shall be prorated
for the part of the month the Agreement remains in
effect on the basis of the total days in the month;
20.2.2 An amount equal to all reasonable expenses
incurred by the Department and not reimbursed in
connection with regaining possession, restoring the
Leased Premises, acquiring a new lease for the Leased
Premises, legal expenses (including but not limited to
attorney's fees), putting the Leased Premises in order.
20.3 There shall be credited to the account of the Lessee
against its survived obligations hereunder the amount
actually received from any lessee, licensee, permittee or
other occupier in connection with the use of the said Leased
Premises or portion thereof during the balance of the term of
use and occupancy as the same is originally stated in this
Agreement, the market value of the occupancy of such portion
of the Leased Premises as the Department may itself during
such period actually use and occupy. No such use and
occupancy shall be or be construed to be an acceptance of a
surrender of the Leased Premises, nor shall such use and
occupancy constitute a waiver of any rights of the Department
hereunder. The Department will use its best efforts to
mitigate damages to Lessee under this Article.
ARTICLE 21
USE SUBSEQUENT TO CANCELLATION OR TERMINATION
21.1 The Department, upon termination or cancellation
pursuant to Article 19 hereof, may occupy the Leased
Premises or may enter into an agreement with another
lessee and shall have the right to permit any person,
firm or corporation to enter upon the Leased Premises
and use the same. Such use may be of part only of the
Leased Premises or of the entire Leased Premises,
together with other premises, and for a period of time
the same as or different from the balance of the term
hereunder remaining, and on terms and conditions the
same as or different from those set forth in this
Agreement.
21.2 The Department shall also, upon said termination or
cancellation, or upon said re-entry, regaining or
resumption of possession, have the right to repair and
to make structural or other changes in the Leased
Premises, including changes which alter its character
and the suitability thereof for the purposes of the
Lessee under this Agreement, without affecting, altering
or diminishing the obligations of the Lessee hereunder,
provided, that any structural changes shall not be at
Lessee's expense.
ARTICLE 22
NOTICES
22.1 All notices, consents and approvals required or desired
to be given by the parties hereto shall be given in
writing by certified mail, postage prepaid, return
receipt requested, and shall be deemed given when
received at the recipient's notice address. Notice that
starts the running of a time period and is delivered on
a non-business day shall be deemed delivered on the next
business day, if left at the notice address, or the next
business day on which it is redelivered if it is not
left at the notice address.
22.2 The notice addresses of the parties are as follows:
To the Department: N.Y.State Department of
Transportation
Building 000
Xxxxxxx Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
and
Manager
Industrial Park Building
138 Xxxxxxx International Airport
Xxxxxxxx, XX 00000
The Lessee: The Edgewater Stewart Company
c/o The Hilton Tower
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
With a copy to: Bond, Xxxxxxxxx & King
Xxx Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Such addresses shall be subject to change from time to time
to such other addresses as may have been specified in
written notice given by the intended recipient to the
sender.
ARTICLE 23
HOLDING OVER
23.1 No holding over by the Lessee after the termination of
this lease shall operate to extend or renew this lease
for any further term whatsoever; but the Lessee will by
such holding over become the tenant at will of the
Department and after written notice by the Department to
vacate such premises, continued occupancy thereof by the
Lessee shall constitute the Lessee a trespasser.
23.2 Any holding over by the Lessee beyond the thirty (30)
day period permitted for removal of fixtures without the
written consent of the Department shall make the Lessee
liable to the Department for damages equal to double the
rentals provided for herein and which were in effect at
the termination of the Agreement.
23.3 All insurance coverage that the Lessee is required under
the provisions hereof to maintain in effect shall
continue in effect for so long as the Lessee, or any of
the Lessee's subleases or tenants occupy the Leased
Premises or any part thereof.
ARTICLE 24
INVALID PROVISIONS
24.1 The invalidity of any provisions, articles, paragraphs,
portions, or clauses of this agreement shall have no
effect upon the validity of any other part or portion
hereof, so long as the remainder shall constitute an
enforceable agreement.
ARTICLE 25
MISCELLANEOUS PROVISIONS
Remedies to be Nonexclusive.
25.1 All remedies provided in this Agreement shall be deemed
cumulative and additional and not in lieu of, or
exclusive of, each other, or of any other remedy
available to the Department, or the Lessee, at law or in
equity, and the exercise of any remedy, or the existence
herein of any remedies or indemnities shall not prevent
the exercise of any other remedy.
Non-Waiver of Rights.
25.2 The failure by either party to exercise any right, or
rights accruing to it by virtue of the breach of any
covenant, condition or agreement herein by the other
party shall not operate as a waiver of the exercise of
such right or rights in the event of any subsequent
breach by such other party, nor shall such other party
be relieved thereby from its obligations under the terms
hereof.
Force Majeure.
25.3 Neither party shall be deemed in violation of this
Agreement if it is prevented from performing any of its
obligations hereunder by reason of labor disputes, acts
of God, acts of the public enemy or superior
governmental authority, provided, however, that this
section shall not excuse Lessee from paying the rentals
herein specified provided further however, that if the
right of the Lessee to receive rental payments pursuant
to any approved sublease has been abated as a result
thereof, the rental otherwise payable hereunder shall be
reduced by an amount the Department determines is
reasonable in proportion to the abatement of the rentals
otherwise payable under said subleases.
Non-liability of Individuals.
25.4 No agent or employee of either party hereto shall be
charged personally or held contractually liable by or to the
other party under any term or provision of this Agreement or
of any supplement, modification or amendment to this
Agreement because of any breach thereof.
Quiet Enjoyment.
25.5 The Department covenants that as long as the Lessee is
not in default of any provision of this Agreement, the
Lessee shall and may peaceably and quietly have, hold
and enjoy the Leased Premises exclusively to it and the
rights appurt enant to the Leased Premises granted in
this Agreement during the term hereof unless sooner
canceled as provided in this Agreement.
Estoppel Certificate.
25.6 At the request of the Lessee, the Department shall from
time to time execute and deliver a written statement
identifying it as the lessor under this Lease and
certifying: (i) the documents that then comprise this
Lease, (ii) that this Lease is in full force and
effect, (iii) the then current annual amount of rent and
the date through which it has been paid, (iv) the
expiration date of this Lease, (v) that no amounts are
then owed by the Lessee to the Department (or, if
amounts are owed, specifying the same) and (vi) to the
knowledge of the Department, there are not defaults by
the Lessee under this Lease or any facts which but for
the passage of time, the giving of notice or both would
constitute such a default. The party acquiring the
lessee's interest in the Lease shall be entitled to rely
conclusively upon such written statement.
Short Form of Lease.
25.7 This Lease shall not be recorded, but at the request of
either party, the other shall execute a memorandum or
short form of lease for recording.
General Provisions.
25.8 Lessee shall not use, or permit the use of, the Leased
Premises, or any part thereof, for any purpose or use
other than those authorized by this Agreement.
25.9 This Agreement shall be performable and enforceable in
Orange County, New York, and shall be construed in
accordance with the laws of the State of New York.
25.10 This Agreement is made for the sole and exclusive
benefit of the Department and the Lessee, their
successors and assigns, and is not made for the benefit
of any third party.
25.11 In the event of any ambiguity in any of the terms
of this Agreement, it shall not be construed for or
against any party hereto on the basis that such party
did or did not author the same.
25.12 All covenants, stipulations and agreements in this
Agreement shall extend to and bind each party hereto,
its legal representatives, successors and assigns.
25.13 The titles of the several articles of this
Agreement are inserted herein for convenience only, and
are not intended and shall not be construed to affect in
any manner the terms and provisions hereof, or the
interpretation or construction thereof.
25.14 Nothing herein contained shall create or be
construed to creating a co-partnership or joint venture
between the Department and the Lessee or to constitute
the Lessee an agent of the Department. The Department
and the Lessee each expressly disclaim the existence of
such a relationship between them.
25.15 The Department, or any successor in interest to the
Department, shall look solely to the Lessee's interest
in the leasehold estate and Lessee's improvements
thereon for the satisfaction of the remedies of the
Department in the event of a breach by the Lessee of any
of the covenants or conditions of this Agreement except
for the covenants and conditions of Article 9, hereof,
which are not to be so limited.
ARTICLE 26
SUPPLEMENTARY PROVISIONS
26.1 This Agreement is subject and subordinate to the
following:
26.1.1 The Department reserves the right to develop
and improve the Park without interference or hindrance
by or on behalf of the Lessee. Accordingly nothing
contained in this Agreement shall be construed to
obligate the Department to relocate the Lessee.
26.1.2 The Department reserves the right to take such
action it considers necessary to protect the aerial
approaches to the Airport against obstruction, together
with the right to prevent Lessee from erecting or
permitting to be erected any building or other structure
in the Park which, in the opinion of the Department,
would limit the usefulness of the Airport or constitute
a hazard to aircraft.
26.1.3 During the time of war or national emergency,
the Department shall have the right to lease all or any
part of the landing area or of the Park to the United
States for military use, and if any such lease is
executed, the provisions of this Agreement insofar as
they may be inconsistent with the provisions of such
lease to the Government, shall be suspended, but such
suspension shall not extend the term of this Agreement.
Abatement of rentals shall be reasonably determined by
the Department and Lessee in proportion to the degree of
interference with the Lessee's use of the Leased
Premises.
26.1.4 Except to the extent required for the
performance of any obligations of the Lessee hereunder,
nothing contained in this Agreement shall grant to the
Lessee any rights whatsoever in the airspace above the
Leased Premises other than those rights which are
subject to Federal Aviation Administration rules,
regulations and orders currently or subsequently
effective.
ARTICLE 27
ENTIRE AGREEMENT
27.1 This Agreement consists of Articles 1 to 27 inclusive,
and Article AA, Appendices A and B, and Exhibits A, X-0,
X-0 and C and Schedule A.
27.2 It constitutes the entire agreement of the parties
hereto and may not be changed, modified, discharged or
extended except by written instrument duly executed by the
Department and the Lessee. The parties agree that no
representations or warranties shall be binding upon the
Department or the Lessee unless expressed in writing in this
Agreement of Lease.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year written above.
THE NEW YORK STATE DEPARTMENT OF
TRANSPORTATION
Attest:/S/Xxxxx X Xxxxxx By:/s/
THE EDGEWATER XXXXXXX COMPANY
Attest:/s/Xxxxxxx X. Xxxxxxx By:/s/ Xxxxxx X. Xxxxxxx
TENANT'S ACKNOWLEDGEMENT
STATE OF NEW YORK )
) SS.:
COUNTY OF ONANDAGA )
On this 26th day of February, 1988, before me personally came
Xxxxxx X. Xxxxxxx to me known, and known to me to be a member
of the firm of The Edgewater Xxxxxxx Company, a general
partnership duly established and existing under the laws of
the State of New York, the person described in and who
executed the within instrument on behalf of said firm, and he
acknowledged to me that he executed the same in behalf of
said firm for the purposes herein mentioned.
/s/Xxxxxxx X. Xxxxxxx
Notary Public, County of Onandaga
CERTIFICATE OF AUTHORITY
I, Xxxxxx X. Xxxxxxx certify that I am a general partner of
the firm of The Edgewater Xxxxxxx Company, a general
partnership duly established and existing in the State of New
York, named in the foregoing agreement; that Xxxxxx X.
Xxxxxxx who signed said agreement was, at the time of
execution, general partner of the firm.
/s/Xxxxxx X. Xxxxxxx
STATE OF NEW YORK )
) SS.:
COUNTY OF ONONDAGA )
On this 26th day of February, 1988, before me personally came
Xxxxxx X. Xxxxxxx to me known, and known to me to be a member
of the firm of The Edgewater Xxxxxxx Company, a general
partnership duly established and existing under the laws of
the State of New York, the person described in and who
executed the within instrument on behalf of said firm, and he
acknowledged to me that he executed the same in behalf of
said firm for the purposes herein mentioned.
/s/Xxxxxxx X. Xxxxxxx
Notary Public, County of Onondaga
ARTICLE AA
Disbursement of Deposited Moneys
AA.1 All sums of the character referred to in Article 8 and
12 (hereinafter referred to as 'Deposited Sums") paid
to or deposited with a bank or trust company or paid to
the first Leasehold Mortgagee (herein called the
"Depositary"), shall be promptly disbursed in the
manner hereinafter provided.
AA.2 From time to time as any restoration, repair,
replacement or rebuilding of any buildings or any
portion thereof damaged or destroyed by fire or any
other cause, or not taken in a proceeding of the
character described in Article 8, progresses
(hereinafter collectively referred to as the "Work"),
disbursement of any moneys of the character referred to
in the Article shall be made upon receipt by the
Depositary of the following:
(a) A certificate signed by an architect or engineer
licensed in the State of New York selected by Lessee who
shall be reasonably satisfactory to the Department and
also signed by Lessee, dated not more than thirty (30)
days prior to the application for such disbursement,
setting forth in substance the following:
(i) That the sum then requested to be disbursed either
has been paid by Lessee or is justly due to contractors,
subcontractors, materialmen, engineers, architects or
other persons (whose names and addresses shall be
stated) who have rendered and furnished certain labor
and materials for the Work; giving a brief description
of such services and materials and the principal
subdivisions or categories thereof and the amounts so
paid or due to each of said persons in respect thereof,
and stating the progress of the Work up to the date of
said certificate.
(ii) That the sum then requested to be disbursed, plus
all sums previously disbursed, does not exceed the cost
of the Work as actually accomplished up to the date of
such certificate and that the balance of the Deposited
Sums will be sufficient to pay in full for the
completion of the Work, or the Department shall have
received other assurances reasonably satisfactory to it
of payment in full for completion thereof.
(iii) That no part of the cost of their services and
material described in the foregoing clause (i) of this
paragraph (a), in any previous or then pending
application, has been or is being made the basis for the
disbursement of any part of the Deposited Sums or has
been paid out of insurance moneys not required to be
paid to the Depositary; and
iv) That except for the amounts, if any, stated in said
certificate pursuant to the foregoing clause (i) of this
paragraph to be due for services or materials, there is
no outstanding indebtedness known to the person signing
the certificate, after due inquiry, which is then due
and payable for work, labor, services and materials in
connection with the Work, which, if unpaid, might become
the basis for a vendor's, mechanics, laborer's or
materialman's statutory or similar lien upon Lessee's
leasehold estate or Lessee's or the Department's
interest in the leased premises or any part thereof.
(b) A certificate signed by Lessee, dated not more than
thirty (30) days prior to the application for such
disbursement, setting forth in substance that, to the best
knowledge of Lessee, after due inquiry,
(i) All materials and all property described in the
certificate furnished pursuant to clause (i) of the
foregoing paragraph (a) and every part thereof, are free
and clear of all liens and encumbrances, except such as
may secure indebtedness due to persons (whose names and
addresses and the several amounts due them shall be
stated) specified in said certificate, which liens and
encumbrances will be discharged upon payment of such
indebtedness and encumbrances to which this Lease is
subject; and
(ii) That no event of default has occurred which has not
been remedied.
(c) An official search, a certificate of title company
or other evidence reasonably satisfactory to the
Department showing that there has not been filed with
respect to Lessee's leasehold estate of Lessee's or the
Department's interest in the leased premises or any part
thereof any vendor's, mechanic's, laborer's or
materialman's statutory or similar lien which has not
been discharged of record, except such as will be
discharged upon payment of the amount then requested to
be disbursed. Upon compliance with the foregoing
pro-visions of this Section AA.2 the Depositary shall,
out of the Deposited Sums, disburse to the persons named
in the certificate pursuant to the foregoing clause (i)
of paragraph (a) the respective amounts stated in said
certificate to be due to them and/or shall disburse to
Lessee the amount stated in said certificate to have
been paid by Lessee.
At any time after the completion, in full, of the Work,
the whole balance of Deposited Sums not theretofore
disbursed pursuant to the foregoing provisions of this
Section AA.2 shall be disbursed to Lessee, upon receipt
by the Depositary of (a) a certificate signed by Lessee,
dated not more that thirty (30) days prior to the
application for such disbursement, setting forth in
substance the following to the best knowledge of Lessee,
after due inquiry, (i) that the Work has been completed
in full; (ii) that all amounts which Lessee is or may be
entitled to have disbursed under the foregoing
provisions of this Section AM on account of services
rendered or materials furnished in connection with the
Work have been disbursed under said provisions; (iii)
that all amounts for whose payment Lessee is or may
become liable in respect of the Work have been paid in
full except to the extent, if any, of any retainage
shall be applied to the final payments of the amounts
due and (iv) that no event of default has occurred which
has not been remedied and (b) an official search or a
certificate of a title company reasonably satisfactory
to the Department showing that there has not been filed
with respect to Lessee's leasehold estate or Lessee's or
the Department's interest in the leased premises or any
part thereof, any vendor's, mechanic's, laborer's or
materialman's statutory or similar lien which has not
been discharged of record.
AA.3 If an event of default shall have occurred and be
continuing beyond any applicable grace periods, prior to
the disbursement of the Deposited Sums or any part
thereof, the Department may notify the Depositary
thereof, and thereupon the Depositary shall have no
further right or obligation to disburse any of the
deposited Sums to Lessee, but shall disburse the same in
accordance with the requirements of Section AA.2 to or
for the account of the Leasehold Mortgagee in accordance
with the provisions of Article 10 hereof.
AA.4 The Department and Lessee agree that the Depositary
shall have the right to deduct from the Deposited Sums,
prior to any disbursement thereof pursuant to Section
AA.2, its reasonable charges for acting as Depositary
hereunder.
AA.5 The balance remaining of Deposited Funds, if any, after
disbursement in accordance with this Article shall be
paid to the first leasehold mortgagee to be applied to
the mortgage debt, or if there is no leasehold
mortgagee, to the Department, to be applied to the rent
payable hereunder.
AA.6 The depositary shall pay a penalty of Chase Manhattan
Bank's prime rate on all sums not disbursed in
accordance with this Article to the party entitled
thereto within ten (10) days after said depositary's
receipt of all documents required to be submitted to it
hereunder.
AA.7 In the event Lessee shall elect, under the provisions of
Section 8.2.2 of the Agreement, not to repair or
reconstruct the improvements the Depositary shall
disburse the Deposited Funds in accordance with the
provisions of Section 8.6 of the Agreement.
APPENDIX A
STANDARD CLAUSES FOR ALL NEW YORK STATE CONTRACTS
Addendum to Contract Between
The New York State Department of Transportation (The "State")
and
The Edgewater Xxxxxxx Company (The 'Contractor")
Contract No.
The parties to the attached contract, license, lease, or
other agreement of any kind(hereinafter, the "contract")
agree to be bound by the following clauses which are hereby
made a part of said contract:
1. EXECUTORY CLAUSE. In accordance with Section 41 of the
State Finance Law, this contract shall be deemed executory
only to the extent of money available to the State for the
performance of this contract and no liability shall be
incurred by the State of New York beyond moneys available for
this contract.
2. NON-ASSIGNMENT CLAUSE. In accordance with Section 138 of
the State Finance Law, this contract may not be assigned by
the contractor or its right, title or interest therein
assigned, transferred, conveyed, sublet or disposed of
without the previous consent, in writing, of the State.
3. COMPTROLLER'S APPROVAL. In accordance with Section 112
of the State Finance Law, no contract at or above the
statutory amount or amendment thereto shall be valid,
effective or binding upon the State until it has been
approved by the State Comptroller and filed in his office.
Contractors commencing performance of any such contract or
amendment before it has been approved by the State
Comptroller do so at their own risk.
4. WORKERS' COMPENSATION BENEFITS. In accordance with
Section 142 of the State Finance Law, this contract shall be
void and of no force and effect unless the contractor shall
provide and maintain coverage for the benefit of such
employees as are required to be covered by the provisions of
the Workers' Compensation Law.
5. NON-DISCRIMINATION REQUIREMENTS. The contractor will not
discriminate against any employee or applicant for employment
because of race, creed, color, sex, national origin, age,
disability or marital status. Furthermore, in accordance with
Section 220-e of the Labor Law, if this is a contract for the
construction, alteration or repair of any public building or
public work or for the manufacture, sale or distribution of
materials, equipment or supplies, and to the extent that this
contract shall be performed within the State of New York,
contractor agrees that neither it nor its subcontractors
shall, by reason of race, creed, color, disability, sex or
national origin: (a) discriminate in hiring against any New
York State citizen who is qualified and available to perform
the work; or (b) discriminate against or intimidate any
employee hired for the performance of work under this
contract. Contractor is subject to the sanctions of Section
220-e for any violation thereof, including possible
termination of this contract and forfeiture of all moneys due
hereunder for a second or subsequent violation.
6. WAGE AND HOURS PROVISIONS. If this is a public work
contract covered by Article 8 of the Labor Law or a building
service contract covered by Article 9 thereof, neither
contractor's employees nor the employees of its
subcontractors may be required or permitted to work more than
the number of hours or days stated therein, except as
otherwise provided in the Labor Law. Furthermore, contractor
and its subcontractors must pay at least the prevailing wage
rate, as determined by the State Labor Department in
accordance with the Labor Law.
7. NON-COLLUSIVE BIDDING REQUIREMENT. In accordance with
Section 139-d of the State Finance Law, if this contract was
awarded based upon the submission of bids, contractor
warrants, under penalty of perjury, that its bid was arrived
at independently and without collusion aimed at restricting
competition. Contractor further warrants that an authorized
and responsible person has executed and delivered to the
State a non-collusive bidding certification on contractor's
behalf.
8. INTERNATIONAL BOYCOTT PROHIBITION. In accordance with
Section 220-f of the Labor Law and Section 139-h of the State
Finance Law, if this contract exceeds the statutory amount
in Section 139-h of the State Finance Law, the contractor
agrees, as a material condition of the contract, that neither
the contractor nor any substantially owned or affiliated
person, firm, partnership or corporation has participated, is
participating, or shall participate in an international
boycott in violation of federal laws or regulations
thereunder. If such contractor, or any of the aforesaid
affiliates or contractor, is convicted or is otherwise found
to have violated A-3 said laws or regulations upon the final
determination of the United States Commerce Department or any
other appropriate agency of the United States subsequent to
the contract's execution, such contract, amendment or
modification thereto shall be rendered forfeit and void. The
contractor shall so notify the State Comptroller within five
(5) business days of such conviction, determination or
disposition of appeal (2 NYCRR 105.4).
9. SET-OFF RIGHTS. The State shall have all of its common
law rights of set-off. These rights and powers shall include,
but not be limited to, the State's option to withhold for the
purposes of set-off any moneys due to the contractor under
this contract up to any amounts due and owing to the State
with regard to this contract, any other contract with any
State department or agency, including any contract for a term
commencing prior to the term of this contract, or amounts due
and owing to the State for any other reason.
10. RECORD-KEEPING REQUIREMENT. The contractor shall
maintain accurate books, records, documents, accounts and
other evidence directly pertinent to performance under this
contract for a period of six (6) years following the
termination of this contract and any extensions thereto. The
State Comptroller and Attorney General or any other person or
entity authorized to conduct an examination, as well as the
agency or agencies involved in this contract, shall have
access to such records during the contract term, extensions
thereof and said six (6) year period thereafter for the
purposes of inspection, auditing and copying.
11. CONFLICTING TERMS. In the event of a conflict between
the terms of the contract and the terms of this Appendix A,
the terms of this Appendix A shall control.
12. GOVERNING LAW. This contract shall be governed by the
laws of the State of New York.
13. LATE PAYMENT. Timeliness of payment and any interest to
be paid to contractor for late payment shall be governed by
Article XI-A of the State Finance Law.
14. NO ARBITRATION. Disputes involving the breach or alleged
breach of this contract may not be submitted to binding
arbitration (except where statutorily authorized) but must,
instead, be heard in a court of competent jurisdiction of the
State of New York.
/s/xxxxxx X. Xxxxxxx
Signature of Contractor
or Contractor's Authorized
Representative
Printed or Typed Name
Partner
Title
26 February 88
Date
APPENDIX B
Construction by Lessee
1. The Lessee agrees to construct on the space shown on
Exhibits B-1 and B-2 the following facilities;
1.1 approximately 57,200 square feet of light industrial
space; and
1.2 paving to accommodate auto and over the road truck
parking spaces,
1.3 together with the grading of the ground area contained
within the Space and the installation on or in the Space of
such utilities as may be appropriate or necessary for the
utilization of the Space for the purposes the Lessee is
permitted to use the same.
2. Prior to the commencement of construction of the
facilities set forth in Section 1 above, or any part thereof,
Lessee shall submit to the Department complete plans and
specifications for such proposed construction within 90 days
of the effective date of this Agreement. Such plans and
specifications shall be signed and sealed by a registered
architect or a professional engineer licensed to practice in
the State of New York.
3. The Department may refuse to grant approval if, in its
reasonable opinion, the proposed facilities as laid out and
indicated by the Lessee on such plans or constructed
according to such plans and specifications:
3.1 will be structurally unsound or unsafe or hazardous for
human occupancy or improper for the use and occupancy for
which it is designed;
3.2 will not comply with all the requirements of this
Agreement;
3.3 will be in violation of any State code, OSHA-70, the
National Electric Code or any other law, ordinance of
regulation of any governmental authority having jurisdiction
over the Airport;
3.4 will not be at locations or not be oriented in
accordance with the approved comprehensive plans for the
Park.
4. Upon approval of such plans and specifications by the
Department the Lessee shall proceed expeditiously and with
all reasonable diligence to construct, at its own cost and
expense, the facilities in accordance with such approved
plans and specifications and complete the facilities in
accordance with the time limit set forth above.
4.1 The Lessee or the Lessee's construction contractor shall
furnish the Department Letters of Credit in a sum equal to
the estimated cost of construction, in a form and with
sureties satisfactory to the Department, for the faithful
performance by the Lessee of its construction obligations
contained in this Agreement and for the guarantee of payment
of all claims of materialmen, workmen and subcontractors. The
Lessee shall deliver such Letters of Credit to the Department
prior to commencement of construction or within (30) days
after the award by Lessee of construction contract or
contracts, which ever occurs first. 5. All construction work
shall be done in accordance with the following terms and
conditions:
5.1 The Lessee hereby assumes the risk of loss or damage to
all of the construction work prior to the completion thereof
and the risk of loss or damage to all property of the
Department arising out of or in connection with the
performance of the construction work. In the event of such
loss or damage, the Lessee shall forthwith repair, replace
and made good the construction work and the property of the
Department without cost or expense to the Department.
5.2 The Lessee shall itself and shall also require its
contractors to indemnify and hold harmless the Department,
the Park Manager, and their officers, agents and employees
from and against all claims and demands, just or unjust, of
third persons (including employees, officers, and agents of
the Department) arising or alleged to arise out of the
performance of the construction work and for all expenses,
(whether or not such claims, demands, causes of action,
liabilities etc, are made or asserted before or after
termination or expiration of this agreement) incurred by it
and by them in the defense, settlement or satisfaction
thereof, including without limitation thereto, claims and
demands for death, for personal injury or for property
damage, direct or consequential, (to include reasonable
attorneys and other professional fees) whether they arise out
of or from the acts or omissions of the Lessee, of any
contractors of the Lessee, of the Department or of third
person, or from acts of God or of the public enemy, or
otherwise excepting only claims and demands which result
solely from negligent acts done by the Department, its
subsidiaries, its officers, agents and employees subsequent
to the commencement of the construction work.
5.3 The Lessee shall furnish a project manager during the
construction period with whom the Department may communicate
at all times.
5.4 The Department shall have the right, through its duly
designated representatives, to inspect the construction work
and the plans and specifications thereof, at any and all
reasonable times during the progress thereof and from time to
time, in its discretion, to take samples and perform testing
on any part of the construction work, but the taking of
samples and testing shall be conducted so as to minimize
interference with the construction work. If such minimization
of impact can be accomplished without diminishing the
effectiveness of accuracy of the samples and or tests.
5.5 The Lessee agrees that it shall deliver to the
Department "as-built" drawings (capable of being reproduced)
of the construction work and shall during the term of this
Agreement keep said drawings current showing thereon any
changes or modifications which may be made. (No changes or
modifications to be made without the Department's consent not
to be unreasonably withheld or delayed.)
5.6 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 the 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 of a contractor,
subcontractor, materialman, xxxxxxx and/or other person and
no such claim shall be considered to be an obligation of the
Lessee within the meaning of this Section unless and until
the same shall have been finally adjudicated. The Lessee
shall use its best efforts to resolve any such claims and
shall keep the Department fully informed of its actions with
respect thereto.
5.7 The Lessee shall procure and maintain comprehensive
general liability insurance, including automotive, with a
contractual liability endorsement covering the obligations
assumed by the Lessee in Section 5.2 of this Appendix,
which shall be in addition to all policies of insurance
otherwise required under this Agreement or the Lessee may
provide such insurance by requiring each contractor engaged
by it for the construction work to procure and maintain such
insurance including such contractual liability endorsement,
said insurance not to contain any care, custody or control
exclusions, any exclusion for explosions, collapses or damage
to bodily injury to or sickness, disease, or death of any
employee of the Lessee or of any of its contractors which
would conflict with or in anyway impair coverage under the
contractual liability endorsement. Said insurance shall name
the Department, the Park Manager and their agents as an
additional insureds and be in not less than the following
amounts:
(i) Bodily Injury Liability:
For injury to or wrongful death
to one person $1,000,000
For injury or wrongful death or
more than one person for any
one occurrence $5,000,000
Aggregate Products Completed
Operations $39000,000
(ii) Property Damage Liability:
For all damages arising out of
injury to or destruction of property
in any one occurrence $3,000,000
Aggregate Products Completed
Operations $3,000,000
Aggregate Operations $3,000,000
Aggregate Productive $3,000,000
Aggregate Contractual $3,000,000
The insurance required hereunder shall be maintained in
effect during the performance of the construction work.
A certified copy of each of the policies or a
certificate or certificates evidencing the existence
thereof, or binders, shall be delivered to the
Department at least fifteen (15) days prior to the
commencement of any work. In the event any binder is
delivered, it shall be replaced within thirty (30) days
by a certified copy of the policy or a certificate. Each
such copy or certificate shall contain a valid provision
or endorsement that the policy certificate shall contain
a valid provision or endorsement that the policy may not
be canceled, terminated, changed or modified without
giving thirty (30) days' written advance notice thereof
to the Department.
5.8 The Lessee shall procure and maintain or cause to be
procured and maintained Builder's Risk Completed Value
Insurance covering the construction work during the
performance thereof including material delivered to the
construction site but not attached to the realty in an amount
and form satisfactory to the Department. Such insurance shall
name the Department, the Lessee and its contractors and
subcontractors as additional assureds and such policy shall
provide that the loss shall be adjusted with and payable to
the Lessee. Such proceeds shall be used by the Lessee for the
repair, replacement or rebuilding of the construction work.
The policies or certificates representing this insurance
shall be delivered by the Lessee to the Department prior to
the commencement of construction and each policy or
certificate delivered shall bear the endorsement of or be
accompanied by evidence of payment of the premium thereon
and, also, a valid provision obligating the insurance company
to furnish the Department fifteen (15) days' advance notice
of the cancellation, termination, change or modification of
the insurance evidenced by said policy or certificate.
5.9 Nothing contained herein shall grant or be deemed to
grant to any contractor, architect, supplier, subcontractor
or any other person engaged by the Lessee of any of its
contractors in the performance of any part of the
construction work any right of action or claim against the
Department, its officers, agents and employees with respect
to any work any of them may do in connection with the
construction work.
5.10 Nothing contained herein shall create or be deemed to
create any relationship between the Department 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
Department shall not be responsible to any of the foregoing
for any payments due or alleged to be due thereto for any
work performed or materials purchased on connection with the
construction work.
5.11 When the construction work is substantially completed
and is ready for use by the Lessee, the Lessee shall advise
the Department to such effect and shall deliver to the
Department a certificate of completion by a registered
architect or professional engineer licensed to practice in
the State of New York certifying that such construction work
has been constructed in accordance with the approved plans
and specifications and the provisions of this Agreement and
in compliance with all applicable laws, ordinances and
governmental rules, regulations and orders. All risks
thereafter with respect to the construction and installation
of the same and any liability therefor for negligence or
other reason shall be borne by the Lessee. The Lessee shall
not use or permit the use of the construction work for the
purposes set forth in this Agreement until such certificate
is received by the Department. The date of delivery of the
certificate to the Department shall constitute the Completion
Date for the purposes of this Agreement.
Exhibits B-I And B-2
LESSEE'S SITE PLANS
Annexed hereto as separate documents are Lessee's site
plans SP-1, dated November 10, 1987 and revised February 3,
1988, and SP-2 dated November 10, 1987 and revised February
9, 1988, both of which are initialed by the Department and
Lessee.
Exhibit C
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, dated as of the _____ day of ___________,
_____ by and among THE STATE OF NEW YORK acting by and
through it's Department of Transportation (hereinafter called
_____________"Department"),___________ a New York corporation
(hereinafter called ("Tenant") and __________ (hereinafter
called "Subtenant")
WITNESSETH:
WHEREAS, Department and Tenant have entered into a certain
land lease agreement dated March _____,____ (the "Agreement")
covering premises located in The Industrial Park at Xxxxxxx
International Airport, Newburgh, New York 12550 ("the
Premises') as more particularly described in Exhibit "A"
attached hereto and made a part hereof; and
WHEREAS, Tenant and Subtenant have entered into a certain
sublease agreement (the "Sublease") dated ______, ____ for a
portion of the lands and premises described in Exhibit "A"
hereinbefore referred to, said portion being more
particularly described in Schedule 8 attached hereto and made
a part hereof; and
WHEREAS, the parties hereto desire to assure Subtenant of
continued occupancy of the Premises under the terms of the
Sublease, in the event of default in or termination of the
Agreement.
NOW, THEREFORE, in consideration of the sum of one dollar
($1.00) by each party in hand paid to the other, the receipt
of which is hereby acknowledged and in consideration of the
mutual promises and covenants and agreements herein
contained, the parties hereto, intending to be legally bound
hereby, promise, covenant and agree as follows:
1. In the event the Department takes possession of the
Premises as a result of summary eviction, foreclosure or
otherwise, Department agrees not to affect or disturb
Subtenant's right to possession of the Premises under the
Sublease in the exercise of Department's rights under the
Lease so long as Subtenant is not in default under any of the
terms, covenants, or conditions of the Sublease.
2. In the event that Department takes possession of the
Premises as result of any action or proceeding as set forth
above, or otherwise succeeds to the interest of Tenant under
the Sublease, Department and Subtenant, after ten (10) days
written notice by Department of Subtenant, hereby agree to be
bound to one another under all of the terms, covenants and
conditions of the Sublease; accordingly; from and after such
event, the Department and Subtenant shall have the same
remedies against one another for the breach of any agreement
contained in the Sublease as Tenant and Subtenant had before
the Department succeeded to the interest of Tenant.
3. All notices given under any of the provisions of this
Agreement shall be deemed to have been duly given if mailed
by certified mail, return receipt requested, as follows:
TO DEPARTMENT:
TO TENANT:
TO SUBTENANT:
4. This Agreement represents the entire agreement of the
parties hereto. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged, or
terminated orally, or in any manner other than by an
instrument in writing signed by the party against which the
enforcement of the change, waiver, discharge, or termination
is sought.
5. This Agreement shall inure to the benefit of any be
binding upon the heirs, personal representatives, successors
and assigns of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement by their duly authorized officers the day and year
first above written.
ATTEST: THE STATE OF NEW YORK
By:
ATTEST:
ATTEST: TEMAMT
By:
SCHEDULE A
The Lessee agrees to indemnify, save and hold harmless,
the Department (its officers, agents, servants and employees)
of and from any and all costs, liability, damage and expense
(including costs of suit and reasonable expenses of legal
services) claimed or recovered, justly or unjustly, falsely,
fraudulently or frivolously, by any person, firm or
corporation by reason of injury to, or death of, any person
or persons, including Department personnel and damage to,
destruction or loss of use of any and all property, including
Department property, arising from, or resulting from, any
operations, works, acts or omissions of Lessee, its agents,
servants, employees, contractors, sublessees or tenants. In
any case in which such indemnification would violate Sections
5-321.1 or 5-322.1 of the New York General Obligations Law,
or any other applicable legal prohibition, the foregoing
provisions concerning indemnification shall not be construed
to indemnify the Department, its officers, employees or
agents for damage arising out of bodily injury to persons or
damage to property caused by or resulting from the negligence
of the Department, its officer, employees or agents. Upon the
filing with the Department by anyone of a claim for damages
arising out of incidents for which the Lessee herein agrees
to indemnify and hold the Department harmless, the Department
shall notify the Lessee of such claim and in the event that
the Lessee does not settle or compromise such claim, then the
Lessee shall undertake the legal defense of such claim both
on behalf of the Lessee and behalf of the Department. It is
specifically agreed, however, that the Department at its own
cost and expense, may participate in the legal defense of any
such claim. Any judgment, final beyond all possibility of
appeal, rendered against the Department for any cause for
which the Lessee is liable hereunder shall be conclusive
against the Lessee as to liability and amount upon the
expiration of the time for appeal.
Lessee shall, at its own cost and expense, take out and
maintain such insurance for the term of this Agreement as the
Lessee is required under the Workers' Compensation Act; and
also take out and maintain such public liability as will
protect the Lessee, the Department and its Park Manager from
any claims for damage to persons, property, etc., arising out
of, occurring or caused by operations under this Agreement by
the Lessee or otherwise arising out of this Agreement. The
policy will provide the amounts of insurance specified in
this Schedule A. Upon execution of this Agreement,
certificates of insurance in form acceptable to the
Department should be submitted to the Department. Each
certificate shall have endorsed thereon:
- A clause naming New York State and it's Department of
Transportation and the Park Manager (currently Lockheed Air
Terminal of New York) as additional insureds under the
policies.
- "No cancellation or change in the policy shall become
effective until after thirty (30) days notice by registered
mail to the Park Manager, 0000 Xxxxx Xxxxxx, Xxxxxxx
International Airport, Xxxxxxxx Xxx Xxxx 00000.
"Upon failure of Lessee to furnish, deliver and maintain
such insurance as above provided, the Department may obtain
such insurance and charge Lessee as additional rental, the
cost of the insurance plus all appropriate administrative
charges and incidental expenses associated with the
transaction. Failure of Lessee to take out and/or maintain,
or the taking out and/or maintenance or any required
insurance shall not relieve Lessee from any liability under
this Agreement, nor shall the insurance requirements be
construed to conflict with the obligations on Lessee
concerning indemnification.
All required insurance must be in effect and so continue
during the life of this Agreement in not less than the
following amounts:
A. Workers' Compensation Unlimited - Statutory - in
compliance with the Compensation Law of the State of New
York.
B. General Liability Insurance with a maximum combined
single limit of $15,000,000 per occurrence. This insurance
shall indicate on the Certificate of Insurance the following
coverages:
1. Premises - Operations
2. Independent Contractor and Subcontractors
3. Products and Completed Operations
4. Broad Form Contractual
C. Disability Benefits: The Contractor shall provide proof
of compliance with the Disability Benefits Law.
Location of operation shall be "All locations in Orange
County, New York".
Nothing herein contained shall prevent the Lessee from
taking out any other insurance for protection of its interest
which it deems advisable or necessary.
