EXHIBIT 10.16
EASEMENT AGREEMENT
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THIS EASEMENT AGREEMENT (this "Agreement") is made and entered into as of
the 21st day of June, 1991 (the "Effective Date"), by and among TEXAS EASTERN
CRYOGENICS, INC., a Delaware corporation ("TEC") TEXAS EASTERN TRANSMISSION
CORPORATION, a Delaware corporation ("TET") and HOUSTON CENTER CORPORATION, a
Delaware corporation ("HCC") (TEC, TET and HCC are hereinafter referred to
collectively as "Grantors") and COGEN TECHNOLOGIES LINDEN VENTURE, L.P., a
Delaware limited partnership ("Grantee").
W I T N E S S E T H:
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WHEREAS, TEC is the fee owner of those certain tracts of land situated in
the Borough and County of Richmond, New York described as "Parcel A" and "Parcel
D" on Exhibit A attached hereto; and
WHEREAS, TET is the fee owner of that certain tract of land situated in the
Borough and County of Richmond, New York, described as "Parcel B" on Exhibit A
attached hereto; and
WHEREAS, HCC is the fee owner of that certain tract of land situated in the
Borough and County of Richmond, New York described as "Parcel C" on Exhibit A
attached hereto (Parcels A, B, C and D are hereinafter referred to collectively
as the "Property"); and
WHEREAS, Grantee desires to obtain and Grantors desire to grant to Grantee
an easement (the "Interconnection Easement") over, under, upon, through and
across the land (the "Interconnection Area") which constitutes a portion of the
Property and which is described on Exhibit B attached hereto, for the purposes
of constructing, operating and maintaining within the Interconnection Area
certain underground wires and cables and above ground facilities as more ful1y
set forth herein, all to enable the transmission of ELECTRIC POWER PRODUCED at a
certain electric generating cogeneration facility to be located in Linden, New
Jersey and any expansions of such facility (such facility and any and all
expansions thereof are hereinafter referred to collectively as the "Facility")
to or through Consolidated Edison Company of New York, Inc., a New York
corporation ("ConEd") and its successors or assigns.
NOW THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties intend to be legally bound by this
Agreement and agree as follows:
1. Definitions. The following term used in this Agreement shall have the
following meanings:
A. "Easement Rights" means the rights described as follows:
(1) the right of ingress and egress for
pedestrian, vehicular and other traffic over those portions of
the Property as Grantee may reasonably require, with
Grantors' consent, such consent not to be unreasonably
withheld, delayed or conditioned, to (i) set, construct, install,
erect, operate, maintain, inspect, alter, repair, replace and
remove the Improvements (as such term is defined herein)
and (ii) otherwise transmit or receive electrical power to,
through or from the Interconnection Area; and
(2) the right to set, construct, install, erect,
operate, maintain, inspect, alter, repair, replace and remove
the Improvements within the Interconnection Area; and
(3) the right to use the Staging Areas (as
such term is defined herein) to store, set, place, inspect and
operate material and equipment used by Grantee or its
agents during the construction and removal of the
Improvements and during periods of time when Grantee is
repairing, altering, replacing or maintaining the
Improvements; and
(4) the right to trim and cut vegetation
growing on, within or over the Interconnection Area or the
Staging Areas and to remove fences and other obstructions
thereon as is reasonable in the exercise of the Easement
Rights without unreasonably impeding Grantors' use of the
Property.
B. "Improvements" means the permanent structures, pipes, wires,
lines, conduits, manholes and other electrical interconnection
facilities and any other improvements constructed or placed on the
Interconnection Area by Grantee or its agents.
C. "Staging Areas" means that portion or those portions
of the Property upon which Grantee shall either locate material or
equipment during periods of time when Grantee is constructing or
removing the Improvements or during periods of time when Grantee is
repairing, replacing, altering or maintaining the Improvements. The
location of such Staging Areas shall be determined so as to minimize
their inconvenience to Grantors and such locations shall be subject to
the reasonable approval, in writing, of Grantors, which approval shall
not be unreasonably withheld, delayed or conditioned.
2. Grant of Easement.
A. TEC hereby grants, warrants, bargains, sells and
conveys unto Grantee, its successors and assigns, the Interconnection
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Easement over, under, upon, through and across Parcel A and Parcel D and
otherwise grants, warrants, bargains, sells and conveys unto Grantee, its
successors and assigns, the Easement Rights covering Parcel A and Parcel D,
subject to all easements and other encumbrances of record or shown on that
certain survey of the Property evidenced by Exhibit C attached hereto; and
B. TET hereby grants, warrants, bargains, sells and conveys unto
Grantee, its successors and assigns, the Interconnection Easement over,
under, upon, through and across Parcel B and otherwise grants, warrants,
bargains, sells and conveys unto Grantee, its successors and assigns, the
Easement Rights covering Parcel B, subject to all easements and other
encumbrances of record or shown on that certain survey of the Property
evidenced by Exhibit C attached hereto; and
C. HCC hereby grants, warrants, bargains, sells and conveys unto
Grantee, its successors and assigns, the Interconnection Easement over,
under, upon, through and across Parcel C and otherwise CM grants, warrants,
bargains, sells and conveys unto Grantee, its successors and assigns, the
Easement Rights covering Parcel C, subject to all easements and other
encumbrances of record or shown on that certain survey of the Property
evidenced by Exhibit attached hereto.
3. Compensation to Grantors. Subject to paragraph 6 of this Agreement,
Grantee shall recompense TET for all damage to any portion of the Property or
improvements thereon caused by Grantee's activities under this Agreement or the
activities of Grantee's agents, employees, servants or contractors, and TET
shall be responsible to apportion and pay such sum to TEC, TET and/or HCC on
whose portion of the Property or improvements thereon such damage occurred.
4. Term. The term of the Interconnection Easement and the Easement
Rights granted herein (the "Term") shall extend until the earlier of the date on
which (a) Grantee or its successors or assigns notifies Grantors that Grantee or
its successors or assigns has ceased use of the Interconnection Easement and the
Easement Rights for the purposes contemplated by this Agreement, (b) Grantee or
its successors or assigns fails to use the Interconnection Easement and the
Easement Rights for two (2) consecutive years for the purposes contemplated by
this Agreement or (c) Grantee or its successors or assigns ceases to utilize the
Facility for the purpose of producing electric power for sale to or through
ConEd or its successors or assigns for two (2) consecutive years; provided,
however, in the case of (b) or (c) referenced in this sentence, the Term shall
not terminate at the expiration of the applicable two (2) year period described
therein in the event (y) of force majeure, including, but not limited to, acts
of God, fires, floods, storms, strikes, labor disputes, riots, insurrections,
acts of war (whether declared or otherwise), acts of governmental, regulatory,
or judicial bodies, or any other causes beyond the reasonable control of and
without the fault or negligence of Grantee and
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(z) Grantee or its successors or assigns is exercising reasonable efforts to
cure the problem which gave rise to the failure to either use the
Interconnection Easement and the Easement Rights pursuant to clause (b) of this
sentence or utilize the Facility pursuant to clause (c) of this sentence.
5. Improvements. The Improvements are and shall remain the
property of Grantee, which shall be responsible for and shall pay all taxes,
applicable assessments and other governmental charges resulting from ownership
or use of the Improvements. In addition, Grantee shall pay to TET all real
estate taxes attributable to the Interconnection Area (the "Taxes") (calculated
by multiplying all real estate taxes assessed on the Property, excluding any
such taxes on any improvements situated on the Property, by the ratio of the
acreage of the Interconnection Area to the acreage of the Property) for each
calendar year during the Term but prorated for the first calendar year of the
Term as of the Effective Date and prorated for the last calendar year of the
Term as of the last day of the Term pursuant to paragraph 4 of this Agreement.
Each such payment of Taxes shall be made by Grantee to TET promptly after
Grantee's receipt from Grantors of a copy of bills for the Taxes from applicable
governmental authorities, and TET shall be responsible to apportion such payment
among the respective parties comprising Grantors hereunder. TET shall provide
Grantee with written evidence of Grantors' payment of all such bills to the
appropriate governmental authorities promptly after Grantors' payment of the
same.
6. Restoration. Upon expiration of this Agreement, Grantee shall
remove the Improvements from the Interconnection Area and restore the grading
and contouring of the land included in the Interconnection Area and the Staging
Areas to the grading and contouring of such land prior to installation of the
Improvements. Neither Grantee nor its successors or assigns shall have the
obligation to restore the vegetation (except as required by law) removed
pursuant to paragraph 1.A.4 of this Agreement.
7. Indemnification. Grantee shall defend, indemnify and hold
Grantors and their employee's and agents harmless from and against all claims,
actions, liabilities, losses, damages and expenses (including reasonable
attorneys' fees) whether for injury to person or damage to property incurred by
or asserted against Grantors or their employees or agents which is either (a)
caused by the activities of Grantee or its employees or agents upon the Property
or (b) due to the placement by Grantee of any Improvements or other materials
upon the Property. Notwithstanding the foregoing, Grantee shall not be liable to
Grantors or their employees or agents for any environmental loss, damage, cost
or expense which results from the condition of the Property existing prior to
the Effective Date or from the activities of Grantors or their employees or
agents on or with respect to the Property. Nothing contained herein shall be
deemed to indemnify any party hereto against its own gross negligence or willful
misconduct.
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8. Grantors' Right to Terminate. All rights created hereunder are
strictly for the transmission of electric power from the Facility to or through
ConEd and its successors or assigns, and usage for any other purposes shall
entitle Grantors, upon thirty days' notice to Grantee or its successors or
assigns, to terminate this Agreement.
9. Representations. TEC hereby represents that it is the fee owner of
those certain tracts of land described as "Parcel A" and "Parcel D" on Exhibit A
attached hereto, subject to the liens, easements and other encumbrances shown on
Exhibit C attached hereto. TET hereby represents that it is the fee owner of
that certain tract of land described as "Parcel B" on Exhibit A attached hereto,
subject to the liens, easements and other encumbrances shown on Exhibit C
attached hereto. HCC hereby represents that it is the fee owner of that certain
tract of land described as "Parcel C" on Exhibit A attached hereto, subject to
the liens, easements and other encumbrances shown on Exhibit C attached hereto.
Grantors hereby represent that Exhibit C attached hereto correctly and
accurately identifies and locates all easements, pipelines and other structures
of Grantors affecting the Property.
10. Use of Easement. All Improvements shall be installed so as not to
interfere with the operations of Grantors or the rights of any party having an
interest superior to the interests created hereunder in favor of Grantee.
Further, Grantors fully reserve all rights reasonably necessary to allow each of
them to cross the Interconnection Area with both personnel and machinery as may
be reasonably necessary for their respective routine operations on the Property;
provided, however, that any such crossing must be performed to cause minimal
inconvenience to Grantee and its successors, assigns and agents. Without
limiting any of the foregoing, Grantors and Grantee acknowledge and agree that
Exhibit C attached hereto indicates the intended location of some or all of the
Improvements. Before installing any Improvements not indicated on Exhibit C
attached hereto, Grantee shall submit to Grantors written plans regarding the
location of such Improvements and shall obtain Grantors' written approval
regarding the same, which approval shall not be unreasonably withheld, delayed
or conditioned.
11. Burial of Pipes. The underground pipes, wires and cables installed
under this Agreement shall be buried and maintained by Grantee or its
successors, assigns or agents at a depth of at least three feet below the
surface of the Interconnection Area or at any greater depth which may be
required by applicable governmental statutes or regulations or standard
industrial practice.
12. Recording. This Agreement will be recorded in the Richmond County,
New York, County Clerk's Office, Mortgages and Deeds, Registrar's Department.
13. Assignments. This Agreement shall be freely assignable by Grantee
to (a) ConEd, (b) any entity lending money to Grantee for the
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construction, operation, maintenance, repair, replacement or removal of the
Facility, (c) any entity subsequently providing funds for the refinancing or
taking-out of such loans, (d) any limited partner of Grantee or (e) any other
entity, provided that in the case of (e) Grantors shall consent to such
assignment, such consent not to be unreasonably withheld, delayed or
conditioned. Any assignee of this Agreement shall take such assignment subject
to all the terms and conditions set forth herein. The Interconnection Easement
and the Easement Rights created herein shall be irrevocable, running with the
land, and shall bind all permitted subsequent purchasers, transferees,
successors and assignees of the parties hereto.
14. Notices. All notices, requests, consents, demands and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be given to each applicable party hereto at its address or
facsimile number set forth in this paragraph or at such other address or
facsimile number as such party may hereafter specify for such purpose by notice
to the other parties, and shall be either delivered personally or sent by
facsimile or mail, postage prepaid, and shall be deemed to have been made or
given (a) if given by facsimile, when sent and the appropriate confirmation is
received, and (b) if given by any other means, when delivered.
Unless changed in accordance with this paragraph, the addresses
for all such communications shall be as follows:
If to Grantors, to each of the following:
Texas Eastern Cryogenics, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxxxx
and
Texas Eastern Transmission Corporation
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxxxx
and
Houston Center Corporation
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xx. Xxxx X. Xxxxxxx, Xx.
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If to Grantee:
Cogen Technologies Linden Venture, L.P.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xx. Xxx Xxxxxxxxx
15. Modifications. Any changes to this Agreement must be made
in writing and executed by the parties hereto.
16. Exhibits. All Exhibits attached to and referenced in this
Agreement are incorporated herein and made a part hereof for all purposes.
17. Paragraph Headings. Paragraph headings contained in this
Agreement are for convenience only and shall not be considered in
interpreting or construing this Agreement.
18. Consent to Jurisdiction. Grantors and Grantee hereby
irrevocably submit to the jurisdiction of any state or federal court sitting in
Xxxxxx County, Texas, in any action or proceeding arising out of or related to
this Agreement, and agree that no such party shall bring any such action or
proceeding in any other court, or seek to remove such action or proceeding to
any other court; provided, however, notwithstanding any other provision of this
Agreement to the contrary, this Paragraph 18 will not be binding on (a) any
transferee, successor or assignee of Grantee or of the general partner of
Grantee pursuant to foreclosure or a conveyance in lieu of foreclosure or
incident to the exercise of any remedy under the security documentation executed
by Grantee or the general partner of Grantee or (b) any partner of Grantee
which, pursuant to its rights under the partnership documentation of Grantee,
removes, replaces or substitutes for Cogen Technologies Linden, Ltd., as
managing general partner of Grantee, or which, pursuant to such documentation,
purports to act, in the place of Cogen Technologies Linden, Ltd., as the
managing general partner of Grantee.
19. Choice of Law. This Agreement shall be interpreted, construed
and enforced in accordance with the internal laws of the State of New York,
without regard to conflicts of law rules.
20. Severability. If any provision of this Agreement is determined
by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of this Agreement shall nonetheless remain in full force and effect.
21. Future Development. Grantors and Grantee recognize that
Grantors may in the future desire to develop the Property for usage for or in
connection with an electric generating facility or for other purposes including,
but not limited to, the purposes set forth in that certain Agreement to
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Investigate between Grantors and Grantee attached hereto as Exhibit D. In the
event of any such development and upon written request of Grantors or their
affiliates, Grantee agrees to relocate to other portions of the Interconnection
Area as many of Grantee's underground lines installed in the Interconnection
Area as may be reasonably necessary for such development, all at Grantors' sole
cost and expense; provided, however, that such relocation may not result in any
unreasonable or permanent disruption of Grantee's intended or actual permitted
uses of the Interconnection Area and the Easement Rights.
22. Trust Funds. Grantor, in compliance with Section 13 of the
Lien Law, covenants that Grantor will receive the consideration for conveyance
of this Easement and will hold the right to receive such consideration as a
trust fund to be applied first for the purpose of paying the cost of the
improvement and will apply the same first to the payment of the cost of the
improvement before using any part of the total of the same for any other
purpose.
EXECUTED on the dates of the acknowledgments set forth below, to be
effective for all purposes as of the Effective Date.
ATTEST: TEXAS EASTERN CRYOGENICS, INC.,
A Delaware Corporation
/s/ XXXXXX X. XXXX By /s/ X. X. XXXXXXX
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Secretary Name: X. X. Xxxxxxx
Title: President
(SEAL)
ATTEST: TEXAS EASTERN TRANSMISSION
CORPORATION, a Delaware corporation
/s/ ??? By /s/ X. X. XXXXXXX
--------------------------- -----------------------------
Assistant Secretary Name: X. X. Xxxxxxx
Title: President
(SEAL)
(Signatures continued next page)
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ATTEST: HOUSTON CENTER CORPORATION,
a Delaware corporation
/s/ XXXXXX X. XXXX By X.X. XXXXXX
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Secretary Name: X.X. Xxxxxx
Title: Vice President
(SEAL)
COGEN TECHNOLOGIES LINDEN
VENTURE, L.P., a Delaware limited
partnership
By: COGEN TECHNOLOGIES
LINDEN, LTD., its sole general
partner
ATTEST: By: COGEN TECHNOLOGIES, INC.,
its sole general partner
/s/ SIGNATURE APPEARS HERE By /s/ XXXXXXXX X. XXXXXX
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Asst. Secretary Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
(Seal)
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XXX XXXXX XX XXXXX (S)
(S)
COUNTY OF XXXXXX (S)
On this 18th day of June, 1991, before me personally appeared X.X. Xxxxxxx
to me known and who, being me duly worn, did depose and say that he resides at
000 Xxxx Xxxxx Xx, Xxxxxxx, Xxxxx, and is the President of Texas Eastern
Cryogenics, Inc., a Delaware corporation, which executed the forgoing instrument
by order of the board of directors of said corporation, and that he signed his
name thereto by like order.
/s/ XXXXXXXXX X. XXXXXX
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Notary Public
My Commission Expires:
4/19/92
[NOTARY SEAL APPEARS HERE]
THE STATE OF TEXAS (S)
(S)
COUNTY OF XXXXXX (S)
On this 18th day of June, 1991, before me personally appeared X.X. Xxxxxxx
to me known and who, being by me duly sworn, did depose and say that he resides
at 000 Xxxx Xxxxx Xx. Xxxxxxx, Xxxxx, and is the President of Texas Eastern
Transmission Corporation, a Delaware corporation, which executed the forgoing
instrument by order of the board of directors of said corporation, and that he
signed his name thereto by like order.
/s/ XXXXXXXXX X. XXXXXX
-------------------------------
Notary Public
My Commission Expires:
4/19/92
[NOTARY SEAL APPEARS HERE]
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XXX XXXXX XX XXXXX (S)
(S)
COUNTY OF XXXXXX (S)
On this 18th day of June, 1991, before me personally appeared X.X. Xxxxxx to
me known and who, being by me duly worn, did depose and say that he resides at
0000 Xxx Xxxxx, Xxxxxxx, Xxxxx, and is the V.P. of Houston Center Corporation, a
Delaware corporation, which executed the forgoing instrument by order of the
board of directors of said corporation, and that he signed his name thereto by
like order.
/s/ X.X. XXXXXXX
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Notary Public
My Commission Expires:
June 21, 0000
XXX XXXXX XX XXXXX (S)
(S)
COUNTY OF XXXXXX (S)
On this 17th day of June, 1991, before me personally appeared Xxxxxxxx X.
Xxxxxx, to me known and who, being by me duly sworn, did depose and say that he
resides at 0000 Xxxxxxx, Xxxxxxx, Xxxxx, and is the Vice President of Cogen
Technologies, Inc., general partner of Cogen Technologies Linden, Ltd., which in
turn is general partner of Cogen Technologies Linden Venture, L.P., a Delaware
limited partnership, which executed the foregoing instrument by order of the
board of directors of general partner Cogen Technologies, Inc., and that he
signed his name thereto by like order.
/s/ XXXXXX X. XXXXXXXX
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Notary Public
My Commission Expires:
July 27, 1993
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[NOTARY SEAL APPEARS HERE]
WHEN RECORDED, RETURN TO:
D. XXXXXXX XXXXXX
FULBRIGHT & XXXXXXXX
0000 XXXXXXXX, XXXXX 0000
XXXXXXX, XXXXX 00000-0000
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EXHIBIT A
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The following described Parcels A, B, C and D are as shown on a certain survey
drawing entitled MAP OF PROPOSED EASEMENTS THROUGH LANDS OF TEXAS EASTERN
CRYOGENICS, INC., TEXAS EASTERN TRANSMISSION CORPORATION AND HOUSTON CENTER
CORPORATION. BOROUGH OF RICHMOND, COUNTY OF RICHMOND, STATEN ISLAND, NEW YORK,
DATED APRIL 15, 1990.
Parcel A
All that certain lot piece or parcel of land situated lying and being in
the Borough and County of Richmond City and State of New York bounded and
described as follows:
BEGINNING at a point in the westerly side of the Right of Way of the
Staten Island Rapid Transit Railroad where the same is intersected by the
northerly high water line of Ball's or Xxxxxxx'x Creek, the coordinates of said
point being south 15,085.26 and west 42,420.96; thence from said point of
beginning northerly along the westerly side of said Right of Way the following
courses and distances: north 15 degrees 03 minutes 30 seconds west 45.16 feet:
Thence on a curve to the right having a radius of 1489.19 feet a distance
of 1455.51 feet; thence north 40 degrees 56 minutes 30 seconds east 119.48 feet
to a point, the coordinates of said point being south 13,588.64 and west
41,861.25:
Thence through property of the Gulf Oil Corporation the following courses
and distances: north 48 degrees 46 minutes 00 seconds west passing through a
monument distance of 851.07 feet to a monument
Thence south 40 degrees 59 minutes 00 SECONDS WEST 1232.50 feet to a
monument:
Thence north 49 degrees 01 minute 00 seconds vast 25.00
feet to a monument;
Thence south 40 degrees 59 minutes 00 seconds west 84.59 feet to a
monument: thence on a curve to the right having a radius of 135.83 feet a
distance of 123.07 feet to a monument;
Thence north 87 degrees 06 minutes 00 seconds west passing through a
monument distant 271.32 feet from the last one a total distance of 337.87 feet
to the highwater line of Xxxxxx Kill as it existed on October 26, 1965;
Thence along said highwater line and along highwater line of Xxxxx'x
River and Ball's or Xxxxxxx'x Creek the following courses and distances:
south 06 degrees 27 minutes 00 seconds east 177.26 feet:
south 11 degrees 37 minutes 00 Seconds west 402.24 feet;
south 21 degrees 15 minutes 00 seconds east 212.24 feet;
south 19 degrees 39 minutes 10 seconds west 74.33 feet;
south 61 degrees 57 minutes 35 seconds east 104.24 feet;
south 83 degrees 09 minutes 00 seconds east 360.57 feet;
south 70 degrees 42 minutes 30 seconds east 105.95 feet;
south 64 degrees 09 minutes 50 seconds east 211.10 feet;
south 48 degrees 24 minutes 30 seconds east 225.97 feet:
south 81 degrees 18 minutes 20 seconds east 85.99 feet;
south 52 degrees 07 minutes 30 seconds east 102.62 feet;
south 27 degrees 45 minutes 30 seconds east 128.83 feet;
north 72 degrees 01 minutes 30 seconds east 54.83 feet;
north 66 degrees 02 minutes 00 seconds east 204.71 feet;
north 29 degrees 22 minutes 50 seconds east 50.61 feet:
north 20 degrees 27 minutes 00 seconds east 50.00 feet;
north 13 degrees 43 minutes 00 seconds east 65.61 feet;
north 59 degrees 49 minutes 00 seconds east 180.91 feet; and
north 84 degrees 29 minutes 40 seconds east 10.61 feet to the
point and place of beginning.
The coordinates and bearings are in the system
established by the united States Coast and Geodetic
Survey for the borough of Richmond.
SUBJECT TO: rights of the State of New York to the lands
in the beds of tidal streams or former tidal streams
formerly running through the said promises, including
without limitation those known as Flat Creek, Mark's
Creek and Xxxxx Creek;
SUBJECT TO: an easement and right of way granted to
Buckeye Pipeline Company by deed dated August 20, 1964
and recorded November 2, 1964 in Liber 1667 Cp 264; all
other easements, if any, of record; and easements and
rights of way granted by unrecorded instruments (a) to
Transcontinental Gas Pipeline Company for its 26 inch gas
pipeline, (b) to Colonial Pipeline Company for its
pipelines in part paralleling the easement granted to the
party of the second part for its 30 inch gas pipeline;
and (c) to Consolidated Edison Company at New York, Inc.
located generally across the south of the premises above
described for and on which is located a high voltage
electric transmission line.
PARCEL B
All that certain plot, piece or parcel of land. with buildings and improvements
thereon erected, situate, lying and described as follows: allows:
A 3.27 acre parcel of land out of that certain 58.456 acre tract or parcel
of land in that indenture recorded in Liber 1720, Page 102 of Deeds in the
Richmond County Clerks Office and situated in Xxx Xxxxx 0000, Xxx 00 xx
Xxxxxxxx Xxxxxx, Xxx Xxxx, and being more particularly described as
follows:
Beginning at the most northerly corner of the above
described tract of land:
Thence along a westerly line of said tract of land
S40 degrees 59'00"W, 1232.50 feet to a point;
Thence W49 degrees 01'00"W, 25.00 feet to a point;
Thence S40 degrees 59'00"W, 84,59 feet to a point of curvature
of a curve to the right;
Thence along said curve to the right having a radius of
135.83 feet and a central angle of 51 degrees 55'00" a distance
of 123.07 feet to a point of tangency;
Thence along a northerly line of said tract of land
N87 degrees 06'W, 337.87 feet to a northwesterly corner thereof;
Thence along a westerly line of said tract of land
S06 degrees 27'00"E, 177.26 feet to a point;
Thence S11 degrees 37'W, 15 feet to a point;
Thence leaving said westerly line, S87 degrees 06'E, 318 feet to
a point;
Thence N40 degrees 59'E, 295 feet to a point;
Thence S49 degrees 01'E, 10 feet to a point:
Thence N40 degrees 59'E, 60 feet to a point;
Thence N49 degrees 01'W, 10 feet to a point;
Thence N40 degrees 59'E, 537 feet to a point;
Thence S49 degrees 01'E, 10 feet to a point;
Thence N40 degrees 59'E, 60 feet to a point;
Thence N49 degrees 01'W, 10 feet to a point;
Thence N40 degrees 59'E, 618 feet to a point in a northerly line
of said tract of land;
Thence along said northerly line N48 degrees 46'00"W, 45 feet to the
Point of Beginning. The herein described tract of land containing 3.27
acres of land, more or less.
Coordinates and bearings used in the above Parcel are in the System as
established by the United States Coast and Geodetic Survey for the
Borough of Richmond.
SUBJECT, HOWEVER, to all matters of record and the terms and provisions thereof.
PARCEL C
All that certain lot, piece, or parcel of land, situate, lying and being in the
Borough and County of Richmond, City and State of New York, bounded and
described as follows:
BEGINNING at the corner formed by the intersection of the easterly side
of Second Avenue and the Southerly side of Fifth Street, the coordinates
of which are South 11001.722 and West 43240.155;
Running thence along the southerly side of Xxxxx Xxxxxx Xxxxx 00 degrees
03 minutes 30 seconds East 2736.80 feet to the easterly side of Eighth
Avenue;
Thence along the easterly side of Eighth Avenue South 40
decrees 56 minutes 30 seconds West 1050.52 feet;
Thence North 48 degrees 46 minutes 00 seconds West 851.37
feet;
Thence South 40 degrees 59 minutes 00 seconds West
1232.50 feet;
Thence North 49 degrees 01 minutes 00 seconds West 25
feet;
Thence South 40 decrees 59 minutes 00 seconds West 84.59
feet to a point of curve;
Thence an a curve to the right having a radius of 135.23
feet subtending a central angle of 51 degrees 55 minutes
00 seconds for an arc length of 123.07 feet to a point
of tangency;
Thence North 87 degrees 06 minutes 00 seconds West 636.87
feet to the Pier and Bulkhead Line approved by the
Secretary of The Army March 24, 1954;
Thence along the same North 3 degrees 17 minutes 00
seconds West 1366.38 feet and North 8 degrees 20 minutes
00 seconds East 53.45 feet;
Thence South 83 degrees 53 minutes 04 seconds East 347.85
feet; thence along a line drawn Southerly in prolongation
of the Westerly side at Water Street North 6 degrees 06
minutes 56 seconds East 1067.28 feet to the southerly
prolongation of the easterly side of Second Avenue;
Thence along the same North 40 degrees 55 minutes 30
seconds East 763.64 feet to the southerly side of Fifth
Street and the point or place of Beginning.
COORDINATES and bearings used in the above Parcel are in the System
as established by the United States Coast and Geodetic Survey for
the Borough of Richmond; the streets referred to herein are private
streets and are referred to merely to aid in the description, but
the distances and bearings are intended to prevail.
TOGETHER WITH: (i) all riparian rights, water privileges and
appurtanances to the Subject Property belonging, and (ii) all the
estate and rights of Seller in and to the subject Property.
SUBJECT, HOWEVER, to all matters of record and the terms and
provisions of that certain Roadway and Utility Easement Agreement
dated July 24, 1987, entered into by and between Chevron U.S.A.,
Inc., Texas Eastern Cryogenics, Inc. and Xxxxxx Square Corporation,
and recorded in Reel 811, Cp 286.
PARCEL D
All those parcels or land, formerly under the waters of Flat Creek,
Mark's Creek and Bate's Creek (tributaries of Xxxxxx Kill) in the
County of Richmond, City and State of New York, lying within the
following described boundaries___________________________________
Beginning at a monument in the division line between lands of Gulf Oil
Corporation and Texas Eastern Cryogenics, Inc., said point being N 85 degrees
36' 01" E,
1303.40' from United States Army Engineer Baseline
Station "Flug" (coordinates S 13,127.49, W 43,801.04);
thence along said division line, S 40 degrees 59' 00" W,
1232.50' to a monument; thence N 49 degrees 01' 00" W - 25.00'
to a monument; thence S 40 degrees 59' 00" W 84.59' to a
monument; thence on a curve to the right having a radius
of 135.83' a distance of 123.07' to a monument; thence
N 87 degrees 06' 00" W, passing through a monument distant
271.32' from the last one a total distance of 337.87' to
the high water line of Xxxxxx Kill as it existed on
October 26, 1965; thence along said high water line and
along the high water line of Xxxxx'x River and Ball's or
Xxxxxxx'x Creek the following courses and distances: S
06 degrees 27' 00" E, 177.25; S 11 degrees 37' 00" W, 402.24'; S 21
degrees 15' 00" E, 212.24'; S 19 degrees 39' 10" W, 74.33'; S 61 degrees
57' 35" E, 104.24'; S 83 degrees 09' 00" E, 360.57'; S 70 degrees 42'
30" E, 105.95'; S 64 degrees 09' 50" E, 211.10'; S 48 degrees 24' 30" E,
225.97'; S 81 degrees 18' 20" E, 85.99'; S 52 degrees 07' 30" E,
102.62'; S 27 degrees 45' 30" E, 128.83'; N 72 degrees 01' 30" E,
54.83'; N 66 degrees 02' 00" E, 204.71'; N 29 degrees 22' 50" E, 50.61';
N 20 degrees 27' 00" E, 50.00'; N 13 degrees 43' 00" E, 65.61'; N 59
degrees 49' 00" E, 180.91'; and N 84 degrees 29' 40" E, 10.61' to its
intersection with the Westerly right of way of the Staten Island Rapid
Transit Railroad (coordinates S 15,085.26, W 42,240.96); thence along
said right of way the following courses and distances; N 15 degrees
03' 30" W, 45.16'; thence on a curve to the right having a radius of
1489.19', a distance of 1455.51'; thence N 40 degrees 56' 30" E.,
119.48' to a point in the before mentioned division line between Gulf
Oil Corporation and Texas Eastern Cryogenics, Inc., coordinates of said
point being (S 13,588.64, W 41,861.25); thence along said division line
N 48 degrees 46' 00" W, 851.07' to the point of beginning.
The Area of Lands Formerly Under the Waters of Flat Creek, Mark's Creek, and
Bate's Creek. Within the Above Described Boundary is 1.10 Acres, More or Less.
The coordinates and bearings are in the system established by the United States
Coast and Geodetic Survey for the Borough of Richmond.
EXHIBIT B
---------
BEING a 30' wide strip of land through Lots 50 and 300, Block 1835 as
delineated on the tax maps of the Borough of Richmond, County of Richmond, New
York, the centerline of which is more described as follows:
BEGINNING at a point in the division line between lands leased to the
Consolidated Edison Corporation contained in Liber 1776, page 371 and Xxx 00,
Xxxxx 0000, now or formerly Texas Eastern Cryogenics Inc., said point being
four hundred sixty-seven and eighteen hundredths (467.18') feet along said
division line from the easterly sideline of lands now or formerly of the
Staten Island Rapid Transit Railroad and running; thence the following six
courses by a new line through said Lots 50 and 300, Block 1835.
1) North fifty-eight degrees, thirty-three minutes, fifty-nine seconds West (N
58 degrees 33' 59" W), six hundred ten and zero hundredths (610.00') feet to
a point of curve in same; thence
2) Westerly and northerly along a curve to the right having a radius of three
hundred seventy-five and zero hundredths (375,00') feet; an arc length of
four hundred forty-seven and seventy-nine hundredths (447.79') feet to a
point of compound curve in same; thence
3) Northerly along a curve to the left having a radius of three hundred
fifty and zero hundredths (350.00') feet, an arc length of two hundred one
and eighty-four hundredths (201.34') feet to a point of compound curve in
same; thence
[Exhibit B continued next page]
4) Northerly along a curve to the right having a radius of seven hundred fifty
and zero hundredths (750.00') feet, an arc length of four hundred seven and
fifty-six hundredths (407.56') feet to a point of compound curve in same,
said line crossing the division lime between Lots 50 and 300 one hundred
thirteen and fifth hundredths (113.50') feet from its beginning; thence
5) Northerly and westerly along a curve to the left having a radius of three
hundred fifty and zero hundredths (350.00') feet, an arc length of three
hundred fifty-eight and seventy-seven hundredths (358.77') feet to a point
of compound curve in same; thence
6) Westerly and northerly along a curve to the right having a radius of six
hundred and zero hundredths (600.00') feet, an arch length of three hundred
thirty-five and ten hundredths (335.10') feet to a point in same; thence
7) Still a new line through Xxx 000, Xxxxx 0000, now or formerly HCC Dev., Inc.
now being the centerline of a 50' wide permanent easement, North forty-eight
degrees, nine minutes, seven seconds West (N 48 degrees 09' 07"), one hundred
eighty six (136' plus or minus) feet more or less to a point in the
approximate mean high water line of the Xxxxxx Kill and there to end.
Containing 1.84 plus or minus acres.
[Exhibit B continued next page]
All in accordance with a map entitled "Map of Proposed Easements Through Lands
of Texas Eastern Cryogenics, Inc., Texas Eastern Transmission Corp., Houston
Center Corporation, Inc., Borough of Richmond, Staten Island, Richmond County,
New York", dated April 15, 1990, by Xxxxxx & Xxxxxxxxxxx, Parsippany, revised to
March 22, 1991.
EASEMENT CROSSING AGREEMENT
This Agreement entered into this 17 day of December, 1990, by and between
Coastal Pipeline Company ("Coastal"), a Delaware corporation and Cogen
Technologies Linden Venture L.P. ("Cogen") a Delaware limited partnership.
WHEREAS, Coastal possesses an easement from the State of New York for its
12" Harbor Pipeline which passes under the Xxxxxx Kill between Linden, New
Jersey and Staten Island, New York (hereinafter referred to as "Easement"), a
copy of the instrument creating the Easement is attached hereto as Exhibit "A";
and
WHEREAS, Cogen is desirous of crossing the Easement with underground
electrical transmission lines and related facilities from its Linden, New Jersey
cogeneration facility to an electric utility substation on Staten Island, New
York (hereinafter referred to as the "Project"); and
WHEREAS, Coastal has filed a remonstrance to the application of Cogen for a
license from the State of New York Office of General Services, Bureau of Land
Management to cross said Easement, expressing safety, environmental and other
concerns held by Coastal;
WHEREAS, the parties desire to address their mutual and individual concerns
by express provisions detailed in this written agreement;
NOW THEREFORE, the parties do hereby agree as follows:
1. Conditioned upon and in consideration of the full and faithful
performance by Cogen of the agreements set forth herein, Coastal agrees to
withdraw its remonstrance and file its written
consent to the Project with the Bureau of Land Management, New York State Office
of General Services.
2. Cogen acknowledges that it has been advised that Coastal has future
plans to relocate its pipeline within the Easement to a depth of approximately
sixty five feet (65') below M.S.L. Therefore, Cogen agrees that its Project
shall cross the Easement at a depth of no less than seventy five feet (75')
below M.S.L. so as to avoid interference with Coastal's future plans. Cogen
further agrees that it has no objection to and will fully cooperate with Coastal
in its future efforts for relocation of its pipeline within the Easement.
3. Cogen agrees to notify Coastal's representative when the project
drilling begins, to keep said representative apprised of the progress of the
drilling and to allow said representative to be in attendance at the drill site.
Cogen shall specially notify the Coastal representative of the period of time
during which the drilling is expected to be within one hundred (100) feet from
the pipeline route. Cogen also agrees to notify said representative as its best
estimate of when the drilling will be taking place directly beneath Coastal's
pipeline.
Cogen agrees to reimburse Coastal for all reasonable costs incurred by
Coastal in retaining a qualified representative to serve the function described
in the preceding paragraph.
4. Cogen assumes full and complete responsibility for any and all damages
caused to Coastal by the drilling and other activities associated with the
construction of its Project. Cogen further agrees to indemnify and hold Coastal,
its agents and
-2-
employees harmless for any and all demands, claims, costs, penalties, fines,
liabilities and expenses (including but not limited to attorneys' fees) for
personal injuries, deaths, property damage or otherwise which may arise or occur
during or as a result of the drilling and/or construction of the Project,
including those claims alleged to arise or occur from the joint or concurrent
negligence of the parties hereto.
5. At such time as Coastal proceeds with the repair, replacement or
maintenance of its pipeline within the Easement, Cogen shall, upon ninety (90)
days advance notice of such operation by Coastal, cooperate with Coastal so that
any work performed by or on behalf of Coastal, within one hundred feet (100') of
either side of Cogen's transmission lines may be safely performed. Cogen agrees
that, upon the written findings of two mutually acceptable independent
recognized experts, one in power transmission and one in horizontal drilling,
that drilling within an area identified in the written findings may be unsafe,
Cogen will cease transmitting electricity through the cables when the drilling
or other work associated with the Coastal pipeline is within said area. Coastal
agrees that it will make all reasonable efforts to minimize Cogen's downtime, if
any. All cost and expenses incurred in securing the services of the two experts
shall be shared equally by Coastal and Cogen.
6. Coastal shall be responsible for any and all direct damages to Cogen
caused by Coastal's negligence in its repair, replacement or maintenance of its
pipeline. Provided, however, that Coastal shall not be liable for any indirect,
consequential or
-3-
special damages which may be incurred by Cogen, and Cogen hereby waives and
releases Coastal from any such damages.
7. This Agreement may be assigned by either party provided written notice
of such assignment is provided to the other party no later than ten (10) days
prior to the effective date of such assignment. Assignment shall not release
either party from responsibility for the obligations provided for herein.
8. This Agreement shall be governed by and construed in accordance with the
laws of the State of Texas, regardless of conflict of laws provisions.
Jurisdiction and venue shall be proper, and the parties hereby agree and submit
to same, in the appropriate Courts of Xxxxxx County, Texas.
This Agreement shall be effective upon the full and complete execution of
duplicate originals hereof.
COASTAL PIPELINE COMPANY
BY: /s/ XXXX X. XXXXXXXX
-----------------------------
NAME: Xxxx X. Xxxxxxxx
TITLE: Senior Vice President
DATE: December 14, 0000
-0-
XXXXX
XXXXX TECHNOLOGIES LINDEN VENTURE, L.P.
BY ITS GENERAL PARTNER,
COGEN TECHNOLOGIES LINDEN, LTD.
BY ITS GENERAL PARTNER
COGEN TECHNOLOGIES, INC.
BY: /s/ X.X. XXXXXXXXX
------------------------------
NAME: XXXXXX X. XXXXXXXXX
------------------------------
TITLE: VICE PRESIDENT/GENERAL MANAGER
------------------------------
DATE: DECEMBER 14, 1990
------------------------------
-5-
COGEN
CONFIDENTIAL
ASSIGNMENT AND CONVEYANCE
-------------------------
THE STATE OF NEW YORK (S)
(S) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF RICHMOND (S)
That COGEN TECHNOLOGIES LINDEN VENTURE, L.P., a Delaware limited
partnership having its principal office at 0000 Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx, 00000 ("Assignor"), for and in consideration of Ten Dollars
($10.00) and other good and valuable consideration in hand paid by CONSOLIDATED
EDISON COMPANY OF NEW YORK, INC., a New York corporation having its principal
office at 0 Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000 ("Assignee"), the receipt
and sufficiency of which are hereby acknowledged and confessed by the Assignor,
does hereby TRANSFER, ASSIGN, SELL, SET OVER, GRANT, CONVEY and DELIVER unto the
Assignee all of the Assignor's right, title and interest in and to the
following:
(i) that certain Indenture dated May 9, 1991, between The People of the
State of New York, as grantor, and Assign or, as grantee (the "Indenture"),
recorded in Richmond County, New York at reel 2991, page 0291, and in the
Department of State in Volume 33 of Miscellaneous Deeds and Title Papers at
page 60, covering and describing those certain tracts or parcels of land
located in Richmond County, New York, and being more fully described on
Exhibits A-1 and A-2 attached hereto and made a part hereof for all purposes
(the "State Property"),
(ii) that certain Easement Agreement dated as of June 21, 1991 by and among
Texas Eastern Cryogenics, Inc., Texas Eastern Transmission Corporation, and
Houston Center Corporation, as grantors, and Assignor, as grantee (the
"Easement Agreement"), recorded in Richmond County, New York at reel 3008, page
277, covering and describing those certain tracts or parcels of land located
in Richmond County, New York and being more fully described on Exhibits B-1 and
B-2 attached hereto and made a part hereof for all purposes (herein together
with the State Property called the "Land"),
(iii) that certain Easement Crossing Agreement dated December 17, 1990 by
and between Coastal Pipeline Company and Assignor (the "Coastal Crossing
Agreement"),
(iv) that certain letter agreement dated June 12, 1991 by and between
Colonial Pipeline Company and Assignor and pertaining to the crossing of a
right-of-way (the "Colonial Crossing Agreement"), and
(v) the permanent structures, cables, pipes, wires, lines, conduits,
manholes and other electrical interconnection facilities and any other
improvements owned by Assignor and located over, under, upon or within the
Land, but only to the extent so located over, under, upon or within the Land.
CONFIDENTIAL
Assignee hereby assumes all of Assignor's obligations, and agrees to comply
with all terms, conditions and covenants, under the Indenture, the Easement
Agreement, the Coastal Crossing Agreement and the Colonial Crossing Agreement
arising from and after the date hereof.
Assignee hereby agrees to provide Assignor, in a timely manner, with a copy
of any notice or other communication received by Assignee under the Indenture,
the Easement Agreement, the Coastal Crossing Agreement and the Colonial Crossing
Agreement. Such notice shall be effectuated pursuant to the terms of Article
24.3 of that certain Power Purchase Agreement between Assignor and Assignee,
dated April 14, 1989, as such agreement has been and may be amended from time to
time (the "Power Purchase Agreement").
This Agreement is made by the Assignor without representation or warranty,
express or implied with respect to the subject matter hereof, except for the
rights and obligations of Assignor and Assignee as set forth in the Power
Purchase Agreement, which Power Purchase Agreement shall survive the execution
and delivery of this Assignment and Conveyance.
Executed as of the 22nd day of December, 1993.
COGEN TECHNOLOGIES LINDEN VENTURE, L.P.,
a Delaware Limited Partnership
By: COGEN TECHNOLOGIES LINDEN, LTD.,
its sole general partner
By: COGEN TECHNOLOGIES, INC.,
its sole general partner
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Vice-President
CONSOLIDATED EDISON COMPANY OF
NEW YORK, INC.
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
-2-
CONFIDENTIAL
THE STATE OF NEW YORK (S)
(S)
COUNTY OF NEW YORK (S)
On this 22nd day of December, 1993, before me personally appeared Xxxxxx
Xxxxx, to me known and who, being by me duly sworn, did depose and say that he
resides at 0000 Xxxx Xxxx #000, Xxxxxxx, XX 00000, and is the Vice President of
Cogen Technologies, Inc., a Texas corporation and general partner of Cogen
Technologies Linden, Ltd., a Delaware limited partnership, which in turn is
general partner of Cogen Technologies Linden Venture, L.P., a Delaware limited
partnership, which executed the foregoing instrument by order of the board of
directors of Cogen Technologies, Inc., and that he signed his name thereto by
like order.
/s/ SIGNATURE APPEARS HERE
--------------------------
Notary Public
My Commission Expires: October 31, 0000
XXX XXXXX XX XXX XXXX (S)
(S)
COUNTY OF NEW YORK (S)
On this 22nd day of December, 1993, before me personally appeared Xxxxxxx X.
Xxxxxxx, to me known and who, being by me duly sworn, did depose and say that he
resides at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000, and is the Vice
President of Consolidated Edison Company of New York, Inc., a New York
corporation, which executed the foregoing instrument by order of the board of
directors of said corporation, and that he signed his name thereto by like
order.
/s/ SIGNATURE APPEARS HERE
--------------------------
Notary Public
My Commission Expires: October 31, 1995
