LEASE AND ASSET AGREEMENT
This Lease Agreement (hereinafter alternately-the "Lease" or "Agreement")
made and entered into January 20, 1993 by and between Consolidated Rail
("Conrail"), a Pennsylvania Corporation with offices at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, XX, CRC Properties, Inc. ("CRCP") a Delaware Corporation with
offices at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX, and New York Cross Harbor
Railroad Terminal Corporation ("NYCH"), a New York Corporation, with offices at
0000 Xxxxx Xxxxxx, Xxxxxxxx, XX, 00000.
WHEREAS, Conrail owns a railroad operating easement granted by CRCP on
certain parcels of realty, hereinafter described on which certain railroad
facilities have been and are none located including, track and float bridges at
Greenville Piers, 7ersey City, New Jersey; and
WHEREAS, the Interstate Commerce Commission ("Commission" or "ICC") has
approved the Abandonment of Conrail's operations over the subject facilities in
Docket AB 167 (Sub--No. 859N); and
WHEREAS, NYCH currently provides on behalf of Conrail on the foresaid
parcel of realty, rail, lighterage services over such facilities pursuant to
various agreements and understanding heretofore reached between NYCH and Conrail
in connection with rail services provided by NYCH; and
WHEREAS, NYCH desires to lease from Conrail and from CRCP such parcels of
realty, easement and facilities so as to continue operations in its own name on
such parcels of. realty using such facilities under the terms and conditions set
forth herein.
NOW THEREFORE, the parties hereto, intending to be legally bound, agree
as follows:
SECTION 1: LEASE OF PARCELS
1.1 In consideration of the payment of $1.00 by NYCH to Conrail, the
receipt of which is hereby acknowledged, CRCP and Conrail hereby lease to NYCH
all the real property described in the attached Exhibit A which is incorporated
herein by reference subject to all, rights of Conrail and CRCP
in and to any leases, easements, licenses, agreements (including, but
not limited to, sidetrack agreements) and privileges pertaining to leased
property, All the property, rights and interests leased in this paragraph 1.1
are hereinafter referred to as the "Rail Operating Property."
1.2. Possession of the Railroad Operating Property under this Agreement
shall be delivered by Conrail and CRCP to NYCH without covenants or warranties
of any nature and subject to all existing laws and ordinances, and orders of
regulatory agencies, including abandonment authority granted by the ICC to
Conrail. Without limiting the generality of the foregoing, the Railroad
Operating Property shall he sub jest to any state of facts that an accurate
survey and a prudent inspection of the Railroad Operating Property would
disclose.
1.3. NYCH expressly acknowledges -that the Railroad Operating Property
is subject to reservations and conditions which are contained in a deed between
Conrail and CRCP, dated October 30, 1985, attached hereto as Exhibit D.
1.4. This lease of the Railroad Operating Property shall continue in
full force and effect until December 31, 2023.
1.5. Subject to the terms of this Agreement, and in consideration of
the payment of rent as specified in Section 2 paragraph 2.1 of this Agreement by
NYCH to Conrail, Conrail and CRCP hereby lease to NYCH all the real property
described in the attached Exhibit B which is incorporated herein by reference
subject to all rights of Conrail and CRCP in and to any leases, easements,
licenses, agreements (including, but not limited to, Sidetrack Agreements), and
privileges pertaining to the leased property. All the property, rights and
interests leased in this paragraph 1.5 are hereinafter referred to as the
"Terminal Intermodal Operating Property A".
1.6 Possession of the Terminal-intermodal Property A under this
Agreement shall be delivered by Conrail and CRCP to NYCH without covenants or
warranties of any nature and subject to all existing laws and ordinances and
orders of regulatory agencies. Without limiting the generality of the foregoing
the Terminal Property A shall be subject to any state of facts that an accurate
survey and a prudent inspection of the Terminal-Intermodal Property A would
disclose.
1.7. NYCH expressly acknowledges that the Terminal Intermodal
Property. A is subject to reservations and conditions which are contained in a
deed between Conrail and CRCP attached hereto as Exhibit D.
1.8. This lease of the Terminal-Intermodal Property A shall continue
in force and effect until December 31, 2023.
1.9. Subject to the terms of. this Agreement, and in consideration of
the payment of rent as specified in Section 2 paragraph 2.2 of this Agreement by
NYCH to Conrail, Conrail and CRCP hereby lease to NYCH all the real property
described in the attached Exhibit C which is incorporated herein by reference
subject to all rights of Conrail and CRCP in and to any-leases, easement5,
licenses, agreements (including, but not limited to sidetrack Agreements), and
privileges pertaining to the leased property. All the property, rights and
interests leased "as aforesaid are hereinafter referred to as the
"Terminal-Intermodal Operating Property B".
1.10 Possession of the Terminal-Intermodal Property B under this
Agreement shall be delivered by CRCP to NYCH without covenants or warranties of
any nature and subject to all existing laws and ordinances and orders of
regulatory agencies. Without limiting the generality of the foregoing, the
Terminal -Intermodal Property B shall be subject to any state of facts that an
accurate survey and a prudent inspection of the Terminal Intermodal Property B
would disclose.
1.11. NYCH expressly acknowledges that the Terminal Intermodal
Property B is subject to reservations and conditions which are contained in a
dead between Conrail and CRCP attached hereto as Exhibit D.
1.12. This lease of the Terminal-Intermodal Property B shall continue in
force and effect until December 31, 2023.
1.13. The Railroad Operating Property, the Terminal-Intermodal Property
A and the Terminal -intermodal Property B shall hereinafter be collectively
referred to as the "Property".
SECTION 2: RENT
2.1. Rent shall be paid by NYCH to CRCP in consideration for the Lease
of Terminal-intermodal Property A as follows:
A. $1.00, the receipt of which is hereby ac knowledge for the period commencing
with the date of this Agreement and ending 5 years thereafter.
B. Twenty (20) percent of the Adjusted Base Rent determined as provided in
paragraph 2.3 of this Section 2, in advance, in equal quarterly installments
commencing the first day of the sixth year after the date of this Agreement;
C. Forty (40) percent of the Adjusted Base Rent determined as provided in
paragraph 2.3 of this Section 2, in advance, in equal quarterly installments
commencing the first day of the seventh year after the date of this Agreement;
D. Sixty (60) percent of the Adjusted Base Rent determined as provided in
paragraph 2.3 of this Section 2, in advance, in equal quarterly installments
commencing the first day of the eighth year after the date of this Agreement;
E. Eighty (80) percent of the Adjusted Base Rent determined as provided in
paragraph 2.3 of this Section 2, in advance, in equal quarterly installments
commencing the first day of the ninth year after the date of this Agreement;
F. One hundred (100) percent of the Adjusted Base Rent determined as provided in
paragraph 2.3 of this Section 2, in advance, in equal quarterly installments
commencing the first day of the tenth year after the date of the Agreement to
the end of the term of lease of the Terminal-Intermodal Operating Property A.
2. 2. Rent shall be paid by NYCH to Conrail in consideration of the Lease
of Terminal-Intermodal Operating Property B as follows:
Ten (10) percent-- per annum of the fair market value determined as
provided in paragraph 2.3a, in advance, in equal quarterly installments
commencing with the date of this agreement, except for the initial rental
payment, which shall be made within 5 business days of determining the fair
market value on 2.3a.
2.3. The Adjusted Base Rent payable with respect to the lease of Terminal
-Intermodal Operating Property A and Terminal Intermodal Operating Property B
shall he determined as follows:
a. Within execution of this lease agreement, NYCH and Conrail shall each
designate an appraiser appropriately licensed in the State of New Jersey. Each
such appraiser shall prepare an appraisal of Terminal Intermodal Operating
Property A and a separate appraisal of Terminal Intermodal Operating Property B
which appraisal shall report the appraisers considered respective opinions as to
the annual fair market rental value of each property as of the appraisal date.
Such appraisals shall be completed and delivered to NYCH and Conrail no later
than one hundred fifty days after execution of this Agreement.
b. The Annual Base Rent for each property so appraised shall be 10 percent of
the average of the appraised values as provided by each appraiser for such
property.
X. XXXX may negotiate adjustments to the Base Rent based upon the volume of
revenue rail cars interchanged with Conrail at the Greenville Yards during the
previous calendar year. The specific terms of any such adjustments shall be as
contained in commercial agreements between NYCH and Conrail's Marketing
Department.
2.4. NYCH shall pay the rent for each property to Account Number 81-08101 to
X.X. Xxx 0000-000, Xxxxxxxxxxxx, XX 00000, or to such other address as CRCP may
indicate by notice to NYCH.
2.5. NYCH shall pay the rent without prior demand, setoff, or counterclaim.
Lessor shall apply each payment of rent when received according to the direction
of NYCH. No payment shall operate as an accord and satisfaction, notwithstanding
any statement or endorsement accompanying such payment.
2.6 If NYCH does not pay the rent for any property for a period of fifteen (15)
days from the day same shall have been due and payable, then NYCH shall pay a
late charge equal to three percent (3%-) of the rent payment then due.
Furthermore, if the rent is not paid within thirty (30) days from the date said
rent payment was due, NYCH shall pay interest at the rate of 1.0% per annual
above the prime rate then in effect for each month or fraction thereof for which
rent is not paid on the amount of any such rent unpaid.
2.7. NYCH shall pay all taxes (including without limitation real, transfer,
sales and use taxes), assessments (including without limitation all assessments
for public improvements or benefits, whether or not to be completed during the
lease), water, sewer and other rents, rates and charges, excises, levies,
license fees, permit fees, inspection fees and other charges (including all
interest and penalties thereon) which at. any time during the lease may be
assessed, levied, confirmed or imposed against the Property or against any
improvements made by NYCH, or other property of NYCH, real or personal, located
on the Property. If the Property is not taxed as a parcel but is taxed as part
of a larger parcel, NYCH shall pay an equitable portion of the taxes and the
assessments upon the whole tract or parcel of which the Property is a part.
Conrail and CRCP shall cooperate with NYCH with respect to providing such
consents, verifications, affidavits or- other materials which would have the
effect of reducing taxes for the Property under any and all tax laws
establishing special tax rates for railroads.
2.8. NYCH, at its sole cost and expense (including fees for permits and similar
documents), shall obtain, all utility services required or desired by NYCH,
including the installation of meters and sub-meters it none exist. NYCH shall be
responsible for all charges for utilities consumed by, and supplied to, NYCH by
the provider thereof. NYCH shall not obtain any utility service from any of
Conrail's facilities without first obtaining the prior written consent of
Conrail.
SECTION 3: SALE OF CERTAIN ASSETS
3.1. CRCP agrees to sell to NYCH all of its right, title and interest in and to
all assets installed in or on the Property, including without limitation all
in-place main and side track devices appurtenant thereto, track materials,
wires, pipes, conduits, poles, guys, structures, buildings, signals and bridges
located on the Property, as of the date of execution of this Agreement, and all
spare parts and special tools necessary for operation and maintenance of such
assets owned by CRCP on the date of execution of this Agreement, and
specifically excluding any interest in the real property, including but not
limited to those items specified in the attached Exhibit E all of which shall
hereinafter be refereed to as the "Assets".'
3.2. The consideration to be paid by NYCH to CRCP for purchase of the Assets
shall be $1.00 which sun is acknowledged to have been delivered as of the
execution of this Agreement.
3.3.Title to the Assets shall be conveyed by Xxxx of Sale in the form attached
hereto as Exhibit E without covenants or warranties of any nature except those
specifically set forth in this Agreement, and conveyance shall be subject to (1)
whatever rights the public may have to the use of any roads, alleys, bridges or
streets on or crossing the Property, (2) streams, rivers, creeks and waterways
passing under, across or through the Property, (3) the reservations contained in
the deed attached as Exhibit D or in the Xxxx of Sale attached hereto as Exhibit
E, it any, (4) any and aLI1 existing tenancies, encumbrances, easements, rights,
trackage rights, licenses, permits, privileges, agreements, sidetrack
agreements, third party claims, covenants, conditions, restrictions, rights of
reentry, possibilities of reverter, existing laws and ordinances, and orders of
regulatory agencies, and (5) any pipes, wires, poles, cables, culverts, drainage
courses or systems, or other facilities on or crossing the Property, together
with the rights of any person entitled thereto to maintain, repair, renew,
replace, use or remove the same. Said conveyance shall not, however, be subject
to mortgage, tax or other liens for the payment of money. The Assets shall be
delivered "as is" on the date of Closing subject to any state of facts that an
accurate survey or a prudent inspection of the Property or Assets would
disclose, except as otherwise expressly provided herein.
SECTION 4: NYCH'S OPERATION ON THE PROPERTY
4.1. Upon execution of this Agreement or as soon thereafter as practicable, NYCH
shall commence rail freight service over the Railroad Operating Property
pursuant to the terms hereof and such operating agreements as may be in force as
between NYCH and Conrail. Notwithstanding the foregoing, to the extent
inconsistent with the terms of this Agreement, this lease supersedes all other
outstanding agreements or understandings among the parties.
4.2. NYCH represents and warrants that it has, or will within 10 business days
of the execution of this agreement, obtain any and all governmental or
regulatory approvals, authorizations or exemptions necessary under state,
Federal and local law for consummation of the transactions under this Agreement.
4.3. Conrail agrees that simultaneously with the execution of this Agreement, it
will exercise the abandonment authority received by it In the Matter: ICC
Sub.-No- 859N, Docket No. AB 167. Conrail agrees that it will not object to a
petition to be filed by NYCH with the Interstate Commerce Commission pursuant to
the Revised Interstate Commerce Act 49 U.S.C.A. ss. 10901 seeking operating
authority over the Railroad Operating Property, or an exemption under the terms
thereof.
4.4. During the term of this Agreement, and subject to the terms of Section 8 of
this Agreement, NYCH shall maintain, repair, and renew the Property and Assets
at its own expense and with its own supervision and labor. NYCH shall keep and
maintain the Property and Assets in accordance with all applicable laws,
ordinances and regulations.
4.5. (a) Upon expiration or the termination of this Agreement by operation of
Sections 6.2 (insurance) or 7.1, NYCH shall, as promptly as possible, remove the
Assets from the Property, but in no event later than (60) days from a written
request by CRCP and Conrail to do so
(b) Notwithstanding the terms of section 4.5(a), Conrail at its sole option, may
elect to repurchase from NYCH and retain all or a portion of the Assets for one
dollar ($1.00). However, to the extent NYCH expends sums in excess of the costs
of maintenance of any of the Assets, or installs additional rail facilities or
other fixtures on the Property, and Conrail elects to purchase from I\TYCH any
portion of the facilities or fixtures subject to such extraordinary improvement,
Conrail shall pay NYCH the undepreciated value of the such improvements. Any
Assets not purchased by Conrail shall be subject to the provisions of 4.5(a)
(removal).
SECTION 5: USE
5.1 NYCH represents and warrants to Conrail and CRCP that NYCH intends to use
the Property for railroad operations and railroad-related terminal and
intermodal facilities which operations have the Standard Industrial
Classification ("S.I.C.") numbers as defined by the most recent edition of the
Standard Industrial Classification Manual published by the Federal Executive
Office of the President, Office of Management and Budget. NYCH's use of the
Property shall be restricted to the use and classifications set forth above
unless YYCH obtains CRCP prior consent to any change in use of the Property.
NYCH shall supply to CPCP an affidavit of an officer of NYCH ("Officer's
Affidavit") setting forth NYCH's S.T.C. numbers and a detailed description of
the operations and processes NYCR will undertake at the property, organized in
the form of a narrative report including a description and quantification of
hazardous substances and wastes to be generated, manufactured, refined,
transported, treated, stored, handled or disposed of at the property. Following
delivery of the Officer's Affidavit, NYCH shall notify CRCP by way of Officer's
Affidavit as to any changes in NYCH I s operation, S.I.C. number or use or,
generation of hazardous substances and wastes, by way of a supplemental
Officer's Affidavit. NYCH shall also supplement and update Officer's Affidavit
upon each anniversary of this agreement- NYCH shall not commence or alter any
operations 'at the property prior to (i) obtaining all required operating and
discharge permits or approvals, including but not limited to air pollution
control permits and pollution discharge elimination system permits from NJDEP,
from all governmental or public authorities having jurisdiction over NYCH's
operations or the property, and (ii) providing copies of permits or approvals to
CRCP.
5.2. NYCH shall not install any underground storage tanks or related structures
on the property without the prior written approval of a Senior Vice President of
Conrail, or an authorized delegate thereof.
5.3. NYCH shall conduct its business on the property so that it shall in no way
interfere with the use and enjoyment of property near or adjoining the property.
Such restrictions on NYCH's use of the property shall include the following by
way of example:
a. Radio Activity or Electrical Disturbance -No activities shall be permitted
which emit dangerous radio activity or electrical disturbance which will
jeopardize the health of any employee or adjacent resident or property, or
otherwise adversely affect the operation of any equipment;
b. Noise - The maximum noise level at the property line applicable to the use
involved shall not exceed those limits established by state law or regulation as
measured in accord with procedure specified by the American National Standards
institute;
c. Vibration No vibration shall be permitted which is detectable, other than by
instrument, at the property line;
d. Glare - No direct or reflective glare from any lighting or process shall be
permitted where such will interfere with traffic safety or the useful enjoyment
of adjoining properties;
e. Smoke- No emission shall be permitted or a shade equal to or darker than
Ringlemann Chart, No. 2;
f. Odors - No emission of odorous gasses or other matter shall he permitted in a
quantity or of a type that permit them to be detectable, other than by
instrument, at the property line;
g. Other Forms of Air Pollution No emission of fly, ash, dust, smoke, vapors,
gasses, other airborne particulate or other forms of air pollution shall be
permitted which contribute to the deterioration of or detract from use of
adjacent properties for any purposes.
SECTION 6 INDEMNIFICATION - INSURANCE
6.1. Personal Injury and Property Damage. NYCH shall be responsible for, and
shall release, indemnify, defend, and save harmless Conrail and its directors,
agents and employees from and against, all loss, damage, expenses, claims,
demands, liabilities and actions at law or equity (and expenses resulting from
the handling thereof) arising out of incidents of personal injury (including
death) or incidents of loss of or damage to property other than freight loss and
damage), which incidents occur on or about the Property, except to the extent
the loss, damage or liability is caused by the fault, failure or negligence of
Conrail or its directors, agents or employees or any third party.
6.2. (a) Insurance. Within ten business days of the execution of this Agreement,
NYCH shall obtain and furnish Conrail and CRCP written evidence of one or more
policies of general comprehensive liability insurance as is standard in the rail
industry, with coverage up to $5 million, covering the liability specified in
Paragraph 6.1. Such insurance shall remain in effect for the term of this
Agreement; and, upon reasonable request by Conrail and CRCP, NYCH shall furnish
certificates evidencing that said insurance is in force and will remain in force
until a date specified in such certificate. NYCH agrees to require its Insurers)
to provide Conrail and XXXX 00 days advance written notice of the cancellation
of such coverage, and after such cancellation, Conrail and CRCP may terminate
this Agreement and require NYCH to cease operations on the property, without
fault or liability to Conrail and CRCP.
(b) NYCH shall comply with the Federal Employer's Liability Act and all
applicable worker's compensation and employer's liability laws and regulations
affecting railroad employees.
SECTION 7: DEFAULT, WAIVER
7.1.(a) Subject to the terms of Paragraph 7.1(c), in the event of a default by
NYCH with respect to Intermodal Property A or B which cannot be Cured by the
payment of money, CRCP at its option, may terminate the lease of that parcel
affected by the default, but not the entire Agreement unless the default affects
all of the parcels leased to NYCH. in the event of a default by NYCH that cannot
be cured by the payment of money and that either is not confined to the
intermodal parcels or involves the Railroad Operating Property, CRCP, at their
sole option, may terminate this Agreement in its entirety. Such termination
shall be preceded by a written notice of default and intent to terminate, which
shall be delivered to NYCH no less than forty-five (45) days prior to the
intended date of termination. If during such forty-five (45) day notice period
NYCH shall cure the default in its entirety this Agreement and any lease of a
parcel under this Agreement shall not be terminated.
7.1.(b) In the event of a default by NYCH that can be cured by the payment of
money, CRCP, at its option, may Terminate the lease of the parcel (s) affected
by the default (except that CRCP may terminate this Agreement in its entirety in
the event of a default with respect to the Railroad Operating Property). Such
termination shall be preceded by ten (10 days written notice of such default and
intent to terminate, and NYCH. shall have an additional ten (10) days From the
date' of such notice to cure such default.
7.1.(c) If at any time during the term, of this Agreement there shall be filed
by or against NYCH in any court, pursuant to any statute either of the United
States or of any state, a petition in bankruptcy, or there shall be commenced a
case by or against NYCH under the Bankruptcy Code, or a petition filed in
insolvency or for reorganization or for the appointment of a receiver or trustee
of all or a portion of NYCH's property, and within sixty (60), days thereafter
NYCH fails to secure a discharge thereof, or if NYCH makes an assignment for the
'benefit of creditors or petitions for or enters into an arrangement with its
creditors (all the hereinabove collectively referred to as a "Bankruptcy
Default"), Conrail or CRCP may terminate this Agreement in its entirety, in
which event, neither NYCH nor any person claiming through or under NYCH by
virtue of any statute or of an order of any court shall be entitled to,
possession or to remain in possession of the Property, and shall immediately
surrender the Property to Conrail and CRCP. Conrail and CRCP, in addition to the
other rights and remedies contained herein or available pursuant to any statute
or rule of law, may retain as liquidated damages any rent, security, deposit, or
monies received by it from NYCH or others on behalf of NYCH.
7.1.(d) No delay or failure of Conrail and CPCP to insist in any one or more
instances upon strict performance of any of the obligations of NYCH under this
Agreement or to take advantage of or exercise any of Conrail and CRCP's rights
or, powers hereunder Shall impair any such right or power or be construed to be
a waiver of any such default or of the performance of any such obligation, or be
construed to be an acquiescence in such default or a relinquishment of any such
right or power for the future, but such obligation, right, and power shall
continue and remain in full force and effect.
7.1.(e) The remedies of Conrail and CPCP set forth herein shall be in addition
to all other remedies provided by law, and these remedies shall include, without
limitation,, the right of Conrail and CRCP to obtain specific performance and/or
injunctive relief.
7.1.(f) NYCH irrevocably waives any right it may have, or that of any successor,
either now or in the future, to condemn any part of or interest in the Property
for any purpose whatsoever, The provisions of the paragraph shall survive
termination of this Agreement.
SECTION 8 ENVIRONMENTAL COMPLIANCE
8.1 NYCH represents that it has and, agrees that it will, at all times during
its occupancy of the Property and at its expense, keep the Property and all
improvements now or hereafter, erected or placed thereon, including but not
limited to, the structures, equipment, and operations, in compliance with all
federal, state, and local laws, rules and regulations designed to Prevent or
control the discharge of substances in the land, water, or air. Notwithstanding
the provisions of this Section 8.1, nothing contained herein shall serve to
relieve Conrail or any of its predecessors in title of liability for the costs
of prevention or control of discharges of substances in the land water or air
caused at any time by Conrail, or its predecessors in title.
8.2 Without limiting any other provision of this Lease, Conrail and CRCP shall
have the right to enter and inspect the Property in order to determine whether
NYCH is' complying with such laws, rules and regulations, provided however, such
entry and inspection shall not interfere with NYCH operations conducted on the
Property. No such inspection or absence of inspection by Conrail or CPCP shall
be construed to relieve NYCH of its obligations to comply with all such laws,
rules and regulations.
8.3 Subject to the provisions of Section 8.1, NYCH shall indemnify and hold
Conrail and CRCP harmless from and against all suits, actions, procedures,
fines, claims, costs and expenses arising out of, or in connection with: (i)
NYCH's actions or inaction with regard' to NYCHI s obligations under this
Section 8; and (ii) any exposure to, cleanup, remediation, response, removal of
any hazardous materials, hazardous wastes, hazardous or toxic substances or
related materials in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the
Hazardous Materials Transportation Act, -as amended (49 U.S.C. Sections 1801, et
seq.), The Resource Conservation and Recovery Act, as amended (42 U.S.C.
Sections. 6901, et seq.) or any other presently applicable federal, state and
local environmental laws, statutes, ordinances and regulations promulgated
thereunder governing the use, storage, treatment, generation, transportation,
processing, handling, production or disposal of hazardous substances located
upon the Property.
8.4 In the event any cleanup, response, removal or remediation of any
environmental condition is required by a governmental entity (hereinafter
collectively referred to as "Response Action"), Conrail or CRCP shall not be
liable for any damages, actual or consequential, by reason of the Response
Action's interference with NYCH's use of the Property. NYCH shall not he
entitled to an abatement in the rent for any interference with NYCH's use of the
Property due to a Response Action. NYCH shall permit Conrail add CRCP and its
contractors full, unrestricted and unconditional access to the Property for the
purpose of completing or engaging in a Response Action for which NYCH is
responsible should NYCH fail to diligently pursue and complete such Response
Action to the satisfaction of Conrail; provided, however, such access shall not
unreasonably interfere With NYCH use and occupancy of the premises. Conrail or
CRCP's completion of any of NYCH's obligations hereunder shall not be deemed a
waiver of NYCH's obligations under this Agreement. Conrail shall have the right,
but not the obligation, to conduct reasonable inspections of NYCH Is Response
Action and NYCH shall provide Conrail and CRCP all information requested by
Conrail and CRCP regarding NYCH's Response Action or any environmental condition
for which -NYCH is responsible.
8.5 Without limiting the other provisions of this Section 8, the following shall
be additional requirements under this Lease with respect to the environmental
condition of the Property:
x. XXXX shall, at NYCH's own expense, comply with the Environmental Cleanup
Responsibility Act, N.J.S.A. 13:1K-6 et seq., the regulations promulgated
thereunder and any successor legislation and regulations ("ECRA"). NYCH shall,
at NYCH's own expense, make all submissions to, provide all information to, and
comply with all requirements of, the Industrial Site Evaluation or its successor
("Element") of the New Jersey Department of Environmental Protection or its
successor ("NJDEP").
x. XXXX'x obligation under this section 8 shall arise if there is any closing,
terminating or transferring of operations of an industrial establishment at the
Property pursuant to ECRA, whether triggered by Conrail, CRCP or NYCH.
c. Provided this Agreement is not previously cancelled or terminated by either
party or by operation of law, NYCH shall commence its submission to the Element
in anticipation of the end of the Lease Term no later than one (1) year prior to
the expiration of the Lease Term. NYCH shall promptly furnish to Conrail and
CRCP true and complete copies of all documents, submissions, correspondence and
oral or written confirmations provided by NYCH to the Element, and all
documents, reports, directives, correspondence and oral or written
communications by the Element to NYCH. NYCH shall also promptly furnish to
Conrail and CRCP true and complete copies of all sampling and test results and
reports obtained and prepared from samples and tests taken at an around the
Property. NYCH shall notify Conrail and CRCP in advance of 'all meetings
scheduled between NYCH and NJDEP, and Conrail and CRCP may attend all such
meetings.
d. Should the Element or any other division of NJDEP determine that a cleanup
plan be prepared and that a cleanup be undertaken because of a spill or
discharge of a hazardous substance or waste at the Premises, which occurred
during the term of this Lease. NYCH shall, at NYCH's own expense, promptly
prepare and submit the required plans' and financial assurances and shall
promptly carry out the approved plans. The cost of any cleanup and development
of a cleanup plan undertaken as a result of a spill or discharge of a hazardous
substance or waste at the Property prior to NYCH's initial occupancy or lease of
the Property, including the operation of the Property by NYCH's predecessor
BEDT, shall be born by Conrail or CRCP.
e. At no expense to Conrail or CRCP, NYCH shall promptly provide all information
requested by Conrail, CRCP or NJDEP for preparation of a non-applicability
affidavit, de minims Quantity exemption application, limited conveyance
application or other submission and shall promptly sign all such affidavits and
submissions when requested by Conrail, CRCP or NJDEP.
f. Should NYCH's operations at the Property be outside of those industrial
operations covered by ECRA, NYCH shall, at NYCH's own expense, obtain a letter
of non-applicability or de, minims quantity exemption from the Element prior to
termination of the Lease Term and shall promptly provide NYCH's submission and
the Element's exemption letter to Conrail and CRCP. Should Conrail and CRCP
obtain a letter of non-applicability or de minims quantity exemption from the
Element, then NYCH shall, at Conrail and CRCP's option, 'hire a consultant
satisfactory to Conrail and CRCP to undertake, sampling at the Property
sufficient to determine whether or not NYCH's operations have resulted in a
spill or discharge of a hazardous substance or waste at or around the Property.
Should the sampling reveal any spill or discharge c-f a hazardous substance or
waste which occurred during NYCH use or occupancy of the Property, then NYCH
shall, at NYCH's expense, promptly clean up the Property to the satisfaction of
Conrail, CRCP and NJDEP.
g. If NYCH fails to obtain either: (i) a non-applicability letter; (ii) a de
minims quantity exemption; (iii) a negative declaration; or (iv) final approval
of cleanup; (collectively. referred to as "ECRA Clearance") from the Element; or
fails to clean up the Property pursuant to subparagraph (f) above, prior to the
expiration or earlier termination of the Lease Term, then upon the expiration or
earlier termination of this Lease, Conrail and CRCP shall have the option either
to consider this Lease as having ended or to treat NYCH as a holdover tenant in
possession of the Property. If Conrail or CRCP considers. this Lease as having
ended, then NYCH shall nevertheless be obligated to promptly obtain ECRA
Clearance and to fulfill the obligations set forth in subparagraph (f) above. If
Conrail and CRCP treats NYCH as a holdover tenant in possession of the Property
then the provisions of Section 8 shall govern.
h. Reporting Requirements. NYCH shall promptly supply Conrail and CRCP with
copies of all notices, reports, correspondence and submissions made by NYCH to
the U.S. Environmental Protection Agency, NJ.DEP, the United States Occupational
Safety and Health Administration or any other local, state or federal authority
which requires submission of any information concerning environmental matters or
hazardous wastes or substances pursuant to laws including but not limited to the
New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. and
the regulations promulgated thereunder ' (the "Spill Act"), the Worker and
Community Right to Know Act, N.J.S.A. 34:5A-1 et seq. and the regulations
Promulgated thereunder, the Hazardous Substance Discharge -- Reports and Notice
Act, N.J.S.A. 13:1K-15 et seq. and the regulations promulgated thereunder, the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
S9601 et esq. and the regulations promulgated thereunder, and the Resource
Conservation and Recovery Act, 42 U.S.C. S9601 et seq. and the regulations
promulgated thereunder.
8.6. NYCH's obligations under this Section 8 for the portion of the Property
operated by NYCH prior to the effective date of this Agreement, as fully
described in Exhibit A hereto, shall he limited to the extent NYCH can
demonstrate that the failure of such Property to comply with the terms of this
Section .8 were caused by Conrail, CRCP, their agents or employees or anyone for
whose acts Conrail or CRCP is liable.
For purpose of this subsection 8.6, NYCH's operation of the Property, either
prior to or pursuant to this Agreement, whether as an agent or independent
contractor, of Conrail and/or CRCP or otherwise, shall not be attributable to
Conrail or CRCP.
SECTIQN 9: CONTENTS OF AGREEMENTS; PARTIES IN INTEREST,
NOTICE:
9. 1. Entire Understanding. This Agreement Sets forth the entire understanding
of the Parties with respect to the subject of this Agreement and may not be
amended except by written instrument executed by the parties. Any Previous
agreements or understandings between the parties regarding the subject matter of
this Agreement are merged into and superseded by this Agreement. All
representations warranties, covenants, terms, conditions, stipulations, and
provisions of this Agreement shall he binding upon the inure to the benefit of,
and be enforceable by the permitted successors and assigns of the respective
parties.
9.2. Best Efforts. Each party shall use its best efforts to expedite the
procurement of any governmental approvals required in connection with any of the
transactions contemplated by this Agreement.
9.3. Notices. Unless otherwise specified, all notices, requests, consents,
demands, or other communications desired or required to be given by one party to
the other shall have been deemed to have been given only when received via
overnight courier or United States Mail, certified, return receipt requested,
directed to the recipient as follows (or at such other addresses as either of
the parties hereto may designate by written notice to the other party hereto):
It to CRCP;
CRC Properties, Inc.
TWO Commerce Square
0000 Xxxxxx Xxxxxx - 00X
Xxxxxxxxxxxx, XX 00000-0000
Attention: President
With a copy to:
Consolidated Rail Corporation Properties
TWO Commerce Square
0000 Xxxxxx Xxxxxx - 00X
Xxxxxxxxxxxx, XX 00000-0000
Attention: Assistant Vice President Asset Development
If to NYCH:
New York Cross Harbor Railroad Terminal Corporation
0000 - Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
9.4. Governing Law. This Agreement and the rights and obligations accruing
hereunder shall be construed and enforced in accordance with the laws of New
Jersey and federal law.
9.5. Appendices. All appendices and Exhibits referred to in this Agreement are
intended to be, and are hereby, specifically made a part of this Agreement.
9.6. Waiver. No waiver by either party of any failure or refusal by, the other
party to comply with its obligations under this Agreement shall be deemed a
waiver of any other or subsequent failure or refusal to so comply.
9.7. Time. Time shall be of the essence of this Agreement.
9.8. Successors and Assigns. This Agreement shall not be assignable by NYCH, in
whole or part, without the prior in written consent of Conrail and CRCP, which
shall not be unreasonably withheld.
9.9. Confidentiality. The terms and conditions of this Agreement are
confidential, and neither party hereto, without the prior consent of the other,
shall reveal any provisions hereof to any third party (except an employee,
attorney or consultant entitled to know the provisions hereof in the ordinary
course of the business of the party), except to the extent required by law or
regulation or a valid judicial or administrative order.
IN WTTNESS WHEREOF, this Agreement has been executed on the day and year
first above written.
NEW YORK CROSS HARBOR RAILROAD TERMINAL CORPORATION
/s/ Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board
CONSOLIDATED RAIL CORPORATION
/s/ M. Xxxxxxxx Xxxxx
Title: Director - Asset Management
CRC PROPERTIES INC.
/s/ Xxxx X Xxxxx
Title: President
