Page | ||||
ARTICLE 1 DEFINITIONS | 1 | |||
ARTICLE 2 PREMISES AND TERM OF LEASE | 27 | |||
ARTICLE 3 RENT | 28 | |||
ARTICLE 4 IMPOSITIONS | 44 | |||
ARTICLE 5 DEPOSITS FOR IMPOSITIONS | 49 | |||
ARTICLE 6 LATE CHARGES | 52 | |||
ARTICLE 7 INSURANCE | 53 | |||
ARTICLE 8 USE OF INSURANCE PROCEEDS | 62 | |||
ARTICLE 9 CONDEMNATION | 68 | |||
ARTICLE 10 ASSIGNMENT, SUBLETTING, MORTGAGES, ETC; TRANSFER OF LANDLORD’S INTEREST | 73 | |||
ARTICLE 11 CONSTRUCTION OF BUILDING | 85 | |||
ARTICLE 12 REPAIRS | 105 | |||
ARTICLE 13 CHANGES, ALTERATIONS AND ADDITIONS | 106 | |||
ARTICLE 14 REQUIREMENTS OF PUBLIC AUTHORITIES AND OF INSURANCE UNDERWRITERS AND POLICIES | 111 | |||
ARTICLE 15 EQUIPMENT | 113 | |||
ARTICLE 16 DISCHARGE OF LIENS; BONDS | 114 | |||
ARTICLE 17 REPRESENTATIONS; POSSESSION | 116 | |||
ARTICLE 18 LANDLORD NOT LIABLE FOR INJURY OR DAMAGE, ETC. | 118 | |||
ARTICLE 19 INDEMNIFICATION OF LANDLORD AND OTHERS | 119 | |||
ARTICLE 20 RIGHT OF INSPECTION, ETC. | 122 | |||
ARTICLE 21 LANDLORD’S RIGHT TO PERFORM TENANT’S COVENANTS | 123 |
i
Page | ||||
ARTICLE 22 NO ABATEMENT OF RENTAL | 124 | |||
ARTICLE 23 PERMITTED USE; NO UNLAWFUL OCCUPANCY | 125 | |||
ARTICLE 24 EVENTS OF DEFAULT; CONDITIONAL LIMITATIONS, REMEDIES, ETC. | 127 | |||
ARTICLE 25 NOTICES | 137 | |||
ARTICLE 26 CONSTRUCTION AND MAINTENANCE OF THE CIVIC FACILITIES | 139 | |||
ARTICLE 27 STREET WIDENING | 147 | |||
ARTICLE 28 SUBORDINATION; ATTORNMENT | 148 | |||
ARTICLE 29 EXCAVATIONS AND SHORING | 149 | |||
ARTICLE 30 CERTIFICATES BY LANDLORD AND TENANT | 150 | |||
ARTICLE 31 CONSENTS AND APPROVALS | 151 | |||
ARTICLE 32 SURRENDER AT END OF TERM | 152 | |||
ARTICLE 33 ENTIRE AGREEMENT | 153 | |||
ARTICLE 34 QUIET ENJOYMENT | 154 | |||
ARTICLE 35 ARBITRATION | 155 | |||
ARTICLE 36 INVALIDITY OF CERTAIN PROVISIONS | 156 | |||
ARTICLE 37 FINANCIAL REPORTS | 157 | |||
ARTICLE 38 RECORDING OF MEMORANDUM | 158 | |||
ARTICLE 39 NO DISCRIMINATION | 159 | |||
ARTICLE 40 RENEWAL AND PURCHASE OPTIONS | 162 | |||
ARTICLE 41 MISCELLANEOUS | 163 | |||
ARTICLE 42 LETTERS OF CREDIT | 171 | |||
ARTICLE 43 CONSTRUCTION OF SITES 16/17 AND 24 | 174 | |||
ARTICLE 44 ADDITIONAL ECONOMIC INCENTIVES | 175 |
ii
Page | ||||
ARTICLE 45 TERMINATION RIGHT | 176 |
Annex I - | Alternate Architects | |
Annex II - | Alternate Environmental Consultants | |
Schedule 1- | Specific Downtown Projects | |
Exhibit A - | Description of Land | |
Exhibit B - | Title Matters | |
Exhibit C - | Affirmative Action Program | |
Exhibit D - | Form of Escrow Agreement | |
Exhibit E - | Design Guidelines | |
Exhibit F - | Form of Qualifying Guaranty | |
Exhibit G - | Form of Guaranty of Construction-Related Payments | |
Exhibit H - | Form of Memorandum of Lease | |
Exhibit I - | Form of Non-Disturbance and Attornment Agreement | |
Exhibit J - | Form of Design/Construction Period Letter of Credit | |
Exhibit K - | Utilities | |
Exhibit K-1- | Utilities | |
Exhibit L- | Sales Tax Letters | |
Exhibit M- | Proposal | |
Exhibit N- | Form of Payment Escrow Agreement |
iii
ACH | The Automated Clearing House Network | |
Additional Deposit | Defined inSection 11.12(a). | |
Additional Improvements | Any physical improvement to the Land and Building in addition to the improvements described in the Approved Plans. | |
Adverse City Operational Escrow Determination Date | The earlier to occur of: (i) December 31, 2009 (which date may be extended to not later than March 31, 2010, as long as the City is proceeding with all necessary diligence to cause the occurrence of a Compliant City Operational Escrow Determination Date) if a Compliant City Operational Escrow Determination Date shall not have occurred prior to such date and (ii) the City taking any action that frustrates in any material respect the development and implementation of any material component of the Plan that is not the City’s responsibility in accordance with the procedures and within the time requirements set forth in the Kallstrom Letter; provided that if such action is reasonably susceptible of cure, upon being notified in writing (at the following address: Law Department, 100 Church Street, New York, New York 10007-2601, Attn: Chief, Economic Development Division, with a copy to Tenant) of such action by Tenant or the State, the City shall have ten (10) days from the giving of such notice to cease such activity and cure the adverse effects thereof prior to it being deemed to |
be materially frustrating the development and implementation of the Plan. | ||
Adverse Determination Date | Any one of the following: (i) an Adverse City Operational Escrow Determination Date, (ii) an Adverse Operational Escrow Determination Date or (iii) an Adverse Physical Escrow Determination Date. | |
Adverse Operational Escrow Determination Date | December 31, 2009 (which date may be extended to not later than March 31, 2010, as long as the Public Parties are proceeding with all necessary diligence to cause the occurrence of a Compliant Operational Escrow Determination Date) if a Compliant Operational Escrow Determination Date shall not have occurred prior to such date. For the avoidance of doubt, it is acknowledged and agreed that an Adverse Operational Escrow Determination Date shall be deemed also to have occurred if an Adverse City Operational Escrow Determination Date shall have occurred. | |
Adverse Physical Escrow Determination Date | The earlier to occur of (i) December 31, 2009 (which date may be extended to not later than March 31, 2010, as long as the Public Parties are proceeding with all necessary diligence to cause the occurrence of a Compliant Physical Escrow Determination Date) if a Compliant Physical Escrow Determination Date shall not have occurred prior to such date and (ii) the State taking any action that would frustrate in any material respect the occurrence of a Compliant Physical Escrow Determination Date prior to such date or taking any action with respect to any Specific Downtown Project that is contrary to the agreements set forth in the Proposal, provided that if such action is reasonably susceptible of cure, upon being notified in writing (at the address set forth for the State in Section 4.6 of the Payment Escrow Agreement, with a copy to Tenant) of such action by Tenant or the City, the State shall have ten (10) days from the giving of such notice to cease such activity and cure the adverse effects thereof prior to it being deemed to be materially frustrating to the occurrence of a Compliant Physical Escrow Determination Date. | |
Affiliate | (A) With respect to a Person who is not a natural person, any other Person that Controls (hereinafter defined), is Controlled by or is under common Control with such Person, and (B) with respect to a Person who is a natural person, any other individual |
2
who is a member of the immediate family (whether by birth or marriage) of such Person or an Affiliate of such Person; “immediate family” includes for purposes of this definition a spouse, a brother or a sister of the whole- or half-blood of such individual or his or her spouse, a lineal descendant or ancestor (including an individual related by or through legal adoption) of any of the foregoing or a trust exclusively for the benefit of one or more of the foregoing. | ||
Affirmative Action Program | The affirmative action program annexed hereto asExhibit C. | |
Appraiser’s Certificate | A certificate of an independent real estate appraiser that is a member of The Appraisal Institute (or its successor or, if there is no such successor, another similar organization proposed by Tenant and reasonably approved by Landlord) certifying, in the opinion of the appraiser, that the rent and other monies payable by a Subtenant under a Sublease throughout the term thereof, after taking into account any escalations, renewal rent, credits, offsets and deductions, as well as any services, ordinary and extraordinary, to which such Subtenant may be entitled thereunder, and any work to be performed by or for such Subtenant and any other items which, in the opinion of the appraiser, may affect fair market rental value, constitute not less than a fair market rental value for the space demised thereunder as of the date of such certificate. | |
Approved C/CM | Any of Tishman Construction Corporation, Turner Construction or Bovis, or any other reputable contractor or construction manager proposed by Tenant and approved by Landlord, which approval shall not be unreasonably withheld. | |
Approved Plans | Plans submitted to and approved by the Department of Buildings in connection with Tenant’s building permit for the construction of the Building, including any amendments to such plans approved by such department before final inspection of the work for which such permit was issued. | |
Approved Remedies | Defined inSection 26.04(a). | |
Architect of Record | Adamson Associates, and any other architect designated by Tenant as lead architect and approved by Landlord, which approval shall not be unreasonably withheld. | |
As-of Right Tax Reduction | Any as-of-right Real Property Tax exemption, reduction and/or abatement that is available with respect to the Additional |
3
Improvements, if any, after application by Tenant to, and the issuance of a determination of eligibility for such benefits by, the Department of Finance. | ||
AV | For any Tax Year, the lesser of the taxable transitional or the taxable actual assessed value, for such Tax Year, as computed pursuant to sub-Section 1805(3) of the New York State Real Property Tax Law as certified on the assessment roll for the Borough of Manhattan by New York City Commissioner of Finance, as delivered to the City Council of the City of New York for such Tax Year pursuant to New York City Charter Section 1514, without giving effect to any exemption, abatement or reduction in AV available through any as-of-right program. | |
Base Rent | Defined inSection 3.01(a). | |
Benefit Period | Defined in the Project Agreement. | |
BPCA | The Battery Park City Authority. | |
Brookfield | Brookfield Financial Properties, L.P., and its affiliates, successors and assigns, but expressly excluding therefrom Merrill Lynch & Co., Inc. and American Express Company and their respective affiliates, successors and assigns. | |
Building | The building, including footings and foundations, Equipment (hereinafter defined) and other improvements and appurtenances of every kind and description now or hereafter erected, constructed or placed upon the Land (hereinafter defined), including, without limitation, Capital Improvements (hereinafter defined), and any and all alterations and replacements thereof, additions thereto and substitutions therefor. | |
Bulkhead | Defined inSection 11.02(k). | |
Business Day(s) | Any day which is not a Saturday, Sunday or a day observed as a holiday by either the State of New York or the federal government. | |
Capital Improvement or Capital Improvements | Defined inSection 13.01. |
4
Capped PILOT | With respect to any Tax Year, the product of (1) the total gross square footage of the Building (as calculated by the Department of Finance) (provided thatprior to the Substantial Completion of the Building, the total gross square footage of the Building shall be assumed to be the gross square footage as shown on the then-most current plans on file with the Department of Buildings) and (2) the quotient of (A) the aggregate payments in lieu of real property taxes (as finally determined) with respect to such Tax Year payable in respect of the World Financial Center (including the NYMEX building) divided by (B) the aggregate gross square footage (as calculated by the Department of Finance) of the World Financial Center (including the NYMEX building) and (3) 115%. | |
Certificate of Occupancy | A temporary or permanent certificate of occupancy issued by the Department of Buildings pursuant toSection 645 of the New York City Charter or other similar certificate issued by a department or agency of New York City. | |
Civic Facilities | Landlord’s Civic Facilities and Tenant’s Civic Facilities, collectively. | |
Civic Facilities Payment | Defined inSection 26.05(a). | |
Commencement Date | The date of this Lease. | |
Commencement of Construction | The date upon which on-site construction of the Building shall commence, including any excavation, pile driving or construction of the substructure but not including test borings, surveys and similar pre-construction activities. | |
Completion of the Building | Completion of the Building shall be deemed to have occurred upon the satisfaction of all of the conditions to Substantial Completion of the Building, the completion of all work necessary to complete all so-called “punchlist items” in accordance with the approved Construction Documents, and the delivery by the Architect to Landlord of a certification, in form and substance reasonably acceptable to Landlord, certifying to Landlord that all punchlist items have been completed substantially in accordance with the approved Construction Documents. The performance and completion of any tenant |
5
improvements in the interior of the Building’s retail space shall not be a condition to the occurrence of Completion of the Building (it being agreed that for this purpose “tenant improvement work” shall mean all interior work in excess of (i) construction raw space consisting of the shell, floor, slabs, ceiling slabs and demising walls and (ii) any other work that may be necessary to comply with the Building Code of New York City or any other Requirements after taking into account that such retail space is then unoccupied). | ||
Compliance Reports | Defined inSection 39.01(e). | |
Compliant City Operational Escrow Determination Date | The date on which the portions of the Plan that are the City’s responsibility have been developed and implemented in accordance with the procedures and within the time requirements set forth in the Kallstrom Letter. | |
Compliant Operational Escrow Determination Date | The date on which the Plan shall have been developed and implemented in accordance with the procedures and within the time requirements set forth in the Kallstrom Letter. For the avoidance of doubt, it is acknowledged and agreed that a Compliant Operational Escrow Determination Date cannot occur unless there shall also occur or have occurred a Compliant City Operational Escrow Determination Date. | |
Compliant Physical Escrow Determination Date | The date on which all of the Specific Downtown Projects (as described on Schedule 1 hereto) shall have been completed in accordance with the Proposal and to the extent specified on said Schedule 1. | |
Confidential Information | Defined inSection 41.27(a). | |
Construction Agreements | Agreements made by or on behalf of Tenant for the initial construction of the Building and for any Restoration (hereinafter defined), Capital Improvement, rehabilitation, alteration, repair or demolition performed pursuant to this Lease. | |
Construction Commencement Date | The earlier to occur of (i) the date upon which Commencement of Construction occurs and (ii) the date which is ninety (90) days (subject to Unavoidable Delays) after Landlord’s approval of the Construction Documents in accordance withSection 11.02. |
6
Construction Documents | Defined inSection 11.02(d). | |
Consumer Price Index | The Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics of the United States Department of Labor, New York-Northern New Jersey-Long Island-NY-NJ-CT area, All Items (1982-84=100), or any successor index thereto, appropriately adjusted. If the Consumer Price Index ceases to be published, and there is no successor thereto, such other index as Landlord and Tenant agree upon, as appropriately adjusted, shall be substituted for the Consumer Price Index. | |
Control | “Control” of a Person shall exist when either of the following criteria are met: (i) the possession, direct or indirect, of the power or shared power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise or (ii) the ownership, either direct or indirect, of more than 50% of the stock or other equity interests of such Person. | |
Core and Shell | In respect of the Building (but excluding all elements of finish): (a) the structure of the Building, including the roof, interior weight-bearing walls, support beams, foundation, columns, lateral supports, exterior walls, including exterior storefronts, exterior doors and exterior windows, (b) the concrete slabs and related structural assemblies that constitute the superstructure of the Building, (c) the core corridor walls on each floor of the Building, and (d) the base building systems servicing the building common areas and the tenant premises (and the air shafts, elevator shafts, electrical and other utility closets, equipment rooms, fire doors and fire stairways housing, necessary to accommodate and/or service such base building services) but, in each case, only to the extent necessary to bring such services to the floor (as distinguished from distributing the same on the floor), including (i) the main sprinkler loop on each floor and all vertical risers, (ii) the elevator (including service) facilities, including the elevator cabs and all shafts, cables and other mechanical equipment relating thereto, (iii) the heating, ventilation and air conditioning system (but only to the main distribution point on each floor), (iv) all vertical pipes, mains and risers of plumbing and sanitary systems, (v) the electrical system, including any and all switch gears, risers, feeders, |
7
transformers, main distribution panels, wiring and meters relating thereto up through the point of connection to the electrical closet of any floor of the Building, and (vi) the life safety, fire alarm and security systems required by Requirements in respect of core and shell construction, including the fire command station, the emergency generator, panel and system, any wiring, cables, risers, ductwork or distribution apparatus necessary to distribute such service within the Building (but only to the main distribution point on each floor). | ||
Corrected PILOT | Defined inSection 3.02(c). | |
Declaration of Restrictions | That certain Amendment and Restatement of Declaration of Restrictions dated as of May 18, 1995 between Landlord, WFC Tower A Company, Olympia & York Tower B Company and WFC Tower D Company, recorded in the New York County Office of the City Register on May 31, 1995 in Reel 2211, Page 1414. | |
Default | Any condition or event which constitutes or, after notice or lapse of time, or both, would constitute an Event of Default (hereinafter defined). | |
Defaulting Party | Defined inSection 24.14. | |
Deficiency | Defined inSection 24.04(c). | |
Department of Buildings | The New York City Department of Buildings or any successor body of similar function. | |
Department of Finance | The New York City Department of Finance or any successor body of similar function. | |
Depository | A savings bank, a savings and loan association or a commercial bank or trust company which has executed and delivered a Depository Agreement and would qualify as an Institutional Lender (hereinafter defined), designated by Tenant, to serve as Depository pursuant to this Lease,providedthat all funds held by any Depository pursuant to this Lease shall be held in a segregated, non-commingled interest-bearing account or instrument held in New York City. In the event Tenant shall |
8
have failed to designate a Depository within ten (10) Business Days after request of Landlord, Depository shall be the Institutional Lender holding the Mortgage having the highest priority (or, if such Institutional Lender declines to act as Depository, the Institutional Lender holding a Mortgage with the next highest priority which desires to act as Depository), but if there shall be no such Institutional Lender, Landlord shall have the right to designate such Depository. No Person shall serve as Depository unless and until it shall have executed and delivered to Landlord and Tenant a Depository Agreement. The Depository shall not be an Affiliate of Tenant or Landlord. | ||
Depository Agreement | An agreement, in form and substance reasonably acceptable to Landlord and Tenant, pursuant to which the Depository agrees to perform its obligations hereunder. Such agreement shall provide that,inter alia,monies deposited with the Depository shall be applied first to the satisfaction, in accordance with and subject to the terms of this Lease, of Tenant’s obligation the payment of which the monies on deposit secure, then, unless otherwise provided in this Lease, to any other outstanding obligations of Tenant under this Lease, and then disbursed to Tenant, subject to the rights of Mortgagees under this Lease. | |
Design Architect | (a) Pei Cobb Freed & Partners or (b) any alternative Design Architect set forth onAnnex I, as designated by Tenant from time to time, or (c) any other architect designated by Tenant and approved by Landlord in Landlord’s sole discretion. | |
Design/Construction Period Letter of Credit | Defined inSection 11.12(a). | |
Design Development Plans | Defined inSection 11.02(c). | |
Design Guidelines | The Design Guidelines attached hereto asExhibit E, as supplemented or modified by the Proposal, as the same may hereafter be amended, modified or supplemented in accordance with the provisions ofSection 41.19. | |
Designation Letter | That certain Letter Agreement, dated September 7, 2004 by and between The Goldman Sachs Group, Inc. and Landlord. |
9
Due Date | With respect to an Imposition (hereinafter defined), the last date on which such Imposition can be paid without any fine, penalty, interest or cost being added thereto or imposed by law for the non-payment thereof,provided,however,thatsuch term shall, with respect to Tenant’s obligations hereunder, take into account Tenant’s right to pay Impositions in installments as provided inSection 4.01 hereof. | |
Eligible Affiliate | (a) Parent; (b) any Person Controlled by Parent; and (c) any Person Controlled by Tenant. | |
Eligibility Requirements | With respect to any Person, that (a) such Person is subject to the jurisdiction of the courts of the State of New York in any actions (whether by presence, consent or otherwise) related to the subject matter of this Lease and (b) each such Person, or Persons comprising such Person, shall have individual or combined assets (in ownership or under management), as the case may be, of not less than Five Billion and 00/100 Dollars ($5,000,000,000.00) as of the date of the giving of a Mortgage by Tenant to any such aforementioned Person. | |
Environmental Consultant | Steven Winter Associates, Inc., and any other consultant designated by Tenant and approved by Landlord, which approval shall not be unreasonably withheld. The alternative Environmental Consultants set forth onAnnex II are hereby pre-approved by Landlord. | |
Environmental Statutes | All federal, state and local laws, rules and regulations, whether now existing or hereafter enacted or promulgated, regulating, relating to or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material or the protection of the environment, including, without limitation: (1) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601et seq. (known as “CERCLA” or “Superfund”) as amended by the Superfund Amendments and Reauthorization Act of 1986 (known as “SARA”); (2) the Solid Waste Disposal Act, 42 U.S.C. § 6901et seq. (known as “SWDA”) as amended by Resource Conservation and Recovery Act (known as “RCRA”); (3) the National Environmental Policy Act, 42 U.S.C. § 4321et seq. (known as “NEPA”); (4) the Toxic Substances Control Act, |
10
15 U.S.C., § 2601et seq. (known as “TSCA”); (5) the Safe Drinking Water Act, 42 U.S.C. § 300(f)et seq. (known as “Public Health Services Act” or “PHSA”); (6) the Refuse Act, 33 U.S.C. § 407et seq.; (7) the Clean Water Act, 33 U.S.C. § 1251et seq.(known as “Federal Water Pollution Control Act” or “FWPCA”); (8) the Clean Air Act, 42 U.S.C. § 7401et seq. (known as “CAA”); (9) the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. § 1101et seq.(known as “EPCRTKA”); (10) the Occupational Safety and Health Act, 29 U.S.C. § 651et seq. (known as “OSHA”); and (11) the New York Environmental Conservation Law, § 1-0101et seq. (known as “ECL”). | ||
Equipment | All fixtures incorporated in the Premises except for any of the same owned by any Subtenant or any Person other than Tenant or any Affiliate of Tenant. | |
ERS | Defined inSection 26.01(a)(iv). | |
Escrow Agent | Defined inSection 41.28. | |
Escrow Agreement | Defined inSection 41.28. | |
Esplanade | Defined inSection 26.01(a)(x). | |
Estimated PILOT | Defined inSection 3.02(c). | |
Estimated Tenant Sales Tax Statement | Defined inSection 3.04(c). | |
Event of Default | Defined inSection 24.01. | |
Excavation Work | The excavation of caissons on the Land sequenced as follows: (i) clearing of surface obstructions at the Land, (ii) setting template for caisson installation, (iii) installing steel casing to rock, (iv) seating caisson steel casing, (v) cleaning-out caisson casing, (iv) drilling rock socket, (v) cleaning out rock socket, (vi) inspecting caisson rock socket for proper bearing and proper seating of caisson casing, and (vii) re-filling casing with clean water and covering with a protective cap. | |
Exempt Property | Defined in Section 3.04(f). |
11
Exemption Amount | Defined in Section 3.02(b)(i)(B). | |
Exemption AV – Additional Improvements | As determined for any Tax Year, the AV of any Additional Improvements as reduced by any As-of-Right Tax Reduction. | |
Exemption Base | For any Tax Year commencing on or following the PILOT Benefit Commencement Date, the AV of the Building at the Site made since the date of issuance by the Department of Buildings of a building permit for the construction work described in the initial Approved Plans which are attributable exclusively to the construction work described in the Approved Plans, provided such improvements have been completed within forty-two months of the Building Permit Issuance Date. | |
Expiration Date | Defined inArticle 2. | |
Fill Response Contractor | Defined inSection 11.07(b). | |
Fill Response Contractor Retention Agreement | Defined inSection 11.07(c). | |
Fill Response Work | Defined inSection 11.07(b). | |
First CFP Period | Defined inSection 26.05(a)(i). | |
Fiscal Year | Tenant’s fiscal year from time to time. As of the Commencement Date, Tenant’s fiscal year commences on the Saturday following the last Friday in November and ends on the last Friday of the succeeding November. | |
Full Real Property Taxes | The sum of (a) full Real Property Taxes that would otherwise be assessed with respect to the Land, based on the then current AV and Real Property Tax rate applicable to the Land for such Tax Year, but for the governmental ownership of the Land; and (b) full Real Property Taxes that would otherwise be assessed with respect to the Building, based on the then current AV of the Building and Real Property Tax rate applicable to the Building for such Tax Year, but for the governmental ownership of the Building, subject to any tax exemptions, reductions or abatements that would be available, from time to time, through as-of-right programs with respect to the Land and/or the |
12
Building if the same were subject to tax. | ||
Goldman Sachs Use | The use of space in the Building in accordance withSection 23.01and uses accessory thereto for or conducted by Tenant, Affiliates of Tenant and any service providers, in substantially the same manner and level of use as prior to the relevant taking. | |
Governmental Authority (Authorities) | The United States of America, the State of New York, New York City and any agency, department, commission, board, bureau, instrumentality or political subdivision of any of the foregoing, now existing or hereafter created, having jurisdiction over the Premises or any portion thereof. “Governmental Authority” shall not include any of the foregoing acting solely in its capacity as Landlord under this Lease. | |
Green Building Systems | Defined inSection 11.14(e). | |
Guaranty of Construction-Related Payments | A guaranty executed by The Goldman Sachs Group, Inc. (or any other Person approved by Landlord in its sole discretion) guaranteeing prompt payment of monies due to the contractor, his or her subcontractors in the prosecution of the relevant work, in the form attached hereto asExhibit G. | |
Impositions | Defined inSection 4.01. | |
Improvement Approvals | Defined inSection 13.01. | |
Indemnitees | Defined inSection 19.01. | |
Initial CFP Date | Defined inSection 26.05(a). | |
Initial Financing Plan | Defined inSection 11.01. | |
Initial Sales Tax Period | The period commencing as of the date hereof and ending on the fourth anniversary of the date on which the first division of Parent or any subsidiary thereof (other than the project development team) occupies the Building for its intended use. | |
Institutional Lender | Any one of the following: | |
(i) A savings bank, a savings and loan association, a commercial |
13
bank or trust company (whether acting individually or in a fiduciary capacity), an insurance or annuity company, a real estate investment trust, a fraternal benefit society, a religious, educational or eleemosynary institution, a governmental agency, body or entity, an employee benefit, pension or retirement plan, trust or fund, a commercial credit corporation or an investment bank that satisfies the Eligibility Requirements; | ||
(ii) JPMorganChase Bank, N.A., Citibank, N.A., or HSBC Bank, or any other commercial bank or trust company acting as trustee or fiduciary of various pension funds or other tax-exempt funds that satisfies the Eligibility Requirements; | ||
(iii) an investment company or business development company (as defined in the Investment Company Act of 1940, as amended), a small business investment company licensed under the Small Business Investment Act of 1958, as amended, any broker or dealer registered under the Securities Exchange Act of 1934, as amended, or any investment adviser registered under the Investment Advisers Act of 1940, as amended, that satisfies the Eligibility Requirements; | ||
(iv) a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an institutional “accredited investor” within the meaning of Regulation D under the Securities Act of 1933, as amended, that satisfies the Eligibility Requirements; | ||
(v) an institution that satisfies the Eligibility Requirements and is otherwise reasonably satisfactory to Landlord; | ||
(vi) a Person Controlled by any of the foregoing entities described in clauses (i)-(v) above; | ||
(vii) an investment fund, limited liability company, limited partnership or general partnership in which an entity that is otherwise an Institutional Lender acts as the general partner, managing member or fund manager, as applicable; or | ||
(viii) any combination of the foregoing. | ||
Involuntary Rate | The Prime Rate (hereinafter defined) plus two percent (2%) per annum, but, in no event in excess of the maximum permissible interest rate then in effect in the State of New York. | |
Issuer | The issuer of a Letter of Credit (hereinafter defined). |
14
Kallstrom Letter | The letter from James K. Kallstrom to Edward C. Forst, dated July 27, 2005, which is part of the Proposal and included inExhibit M attached hereto. | |
Land | The land described in Exhibit A hereto. | |
Landlord | On the date as of which this Lease is made, Battery Park City Authority; but thereafter “Landlord” shall mean only the landlord at the time in question under this Lease. The foregoing shall not be deemed to permit any transfer not otherwise permissible under this Lease. | |
Landlord’s Basic Civic Facilities | Defined inSection 26.01(a). | |
Landlord’s Civic Facilities | Defined inSection 26.01(a). | |
Landlord’s Fill Response Actions | Defined in Section 11.07(c). | |
Landlord’s Lien or Landlord’s Liens | A lien, encumbrance or charge that results from Landlord’s actions or from any liability or obligation that is the express responsibility of Landlord hereunder to pay or comply with or any lien, encumbrance or charge consented to by Landlord without Tenant’s consent. | |
Landlord’s Project Manager | Defined inSection 11.02(f). | |
Lease | This Agreement of Lease and all amendments, modifications and supplements hereof. | |
Lease Year | The twelve-month period beginning on the earlier of the January 1 or July 1 first following the Commencement Date and each succeeding twelve-month period or portion thereof during the Term (hereinafter defined). | |
LEED Compliance | Defined inSection 11.14(a) | |
Letter of Credit | Defined inSection 42.01(a). |
15
LMCCC | The Lower Manhattan Construction Command Center. | |
Maintenance Obligations | Defined inSection 26.03(a). | |
Master Lease | The Restated Amended Agreement of Lease, made as of June 10, 1980, between BPC Development Corporation, as landlord, and Battery Park City Authority, as tenant, a Memorandum of which was recorded on June 11, 1980 in the New York County Office of the City Register in Reel 527, Page 163, as amended by First Amendment to Restated Amended Lease dated as of June 15, 1983 and recorded on June 20, 1983 in said Register’s Office in Reel 696, Page 424, Second Amendment to Restated Amended Lease dated June 15, 1983 and recorded on June 20, 1983 in said Register’s Office in Reel 696, Page 432, Third Amendment to Restated Amended Lease dated as of August 15, 1986 and recorded on October 22, 1986 in said Register’s Office in Reel 1133, Page 569, and Fourth Lease Amendment to Restated Amended Lease dated as of May 25, 1990 and recorded on May 30, 1990 in said Register’s Office in Reel 1697, Page 302, as the same may hereafter be further amended, modified or supplemented. | |
Miscellaneous Fill | Defined inSection 11.07(a). | |
Modified Adverse Physical Escrow Determination Date | Either (i) December 31, 2009, if (A) as of such date, all or any portion of the work listed as items A, C, D, G and H on Schedule 1 shall not have been completed to the extent described on Schedule 1 or (B) a Compliant Operational Escrow Determination Date shall not have occurred as of such date, or (ii) December 31, 2010 if as of such date all or any portion of the work listed as items B and F on Schedule 1 shall not have been completed to the extent described on Schedule 1. | |
Mortgage | Any one of the following: | |
(i) Any mortgage which constitutes a lien on Tenant’s interest in this Lease and the leasehold estate created hereby; | ||
(ii) any security interest in or lien on the equity interest in Tenant or in any Person that is an indirect owner of Tenant and |
16
all or substantially all of the assets of which constitute its beneficial interest in Tenant; | ||
(iii) the rights of any preferred equity investor not initially Controlling Tenant to assume Control of Tenant or an indirect owner of Tenant referred to in clause (ii) above upon a default by Tenant in its obligations under the instrument governing such preferred equity investment; or | ||
(iv) the rights of any lessor under a lease entered into in respect of the Premises in connection with a lease-leaseback financing; | ||
providedthat such Mortgage is held (x) prior to Substantial Completion of the Building, by an Institutional Lender and, from and after Substantial Completion of the Building, by any Person, or (y) by a Person formerly constituting Tenant, or such Person’s assignee, if such mortgage is made to such Person in connection with an assignment by Tenant of its interest in this Lease (other than an assignment by Tenant of its interest in this Lease to an Affiliate of Tenant). | ||
Mortgagee or Mortgagees | The holder of a Mortgage from time to time. | |
Mortgagee Designee | Defined in Section 10.01(f). | |
New York City, The City of New York, or the City | The City of New York, a municipal corporation of the State of New York. | |
Non-Defaulting Party | Defined inSection 24.14. | |
Non-Disturbance and Attornment Agreement | A Non-Disturbance and Attornment Agreement in the form ofExhibit I. | |
NYCEDC | New York City Economic Development Corporation | |
Obligor | “Obligor” as defined in the Project Agreement. | |
Office TCO | A temporary Certificate of Occupancy duly issued by the Department of Buildings for the office, trading and other space |
17
in the Building except for the retail space and garage. | ||
Parent | Any one of the following: | |
(i) as of the Commencement Date, The Goldman Sachs Group, Inc. and any Person with which or into which The Goldman Sachs Group, Inc. is merged or consolidated or to which all or substantially all of its assets or major lines of business are transferred; | ||
(ii) subsequent to any merger, consolidation or sale described in clause (i) above, the result of which is that The Goldman Sachs Group, Inc. is no longer the direct or indirect owner of Tenant, the surviving entity or any other Person with which or into which such surviving entity is merged or consolidated, or to which all or substantially all of such surviving entity’s assets or major lines of business are transferred; and | ||
(iii) subsequent to any assignment of Tenant’s interest permitted under this Lease from time to time, or to any other Transfer the result of which is that the Tenant is not controlled by Parent (as described in clauses (i) or (ii) above) or a successor Parent described in this clause (iii), the parent entity of such assignee or of Tenant, as specified by Tenant and approved by Landlord, such approval not to be unreasonably withheld, and upon such designation and approval, the surviving entity or any other Person with which or into which such surviving entity is merged or consolidated. | ||
Parks | Defined inSection 26.01(a)(xi). | |
Payment Escrow Agent | Defined inSection 3.06(c). | |
Payment Escrow Agreement | Defined inSection 3.06(c). | |
Payment Escrow Fund | Defined inSection 3.06(c). | |
Payments in Lieu of Taxes or PILOT | Defined inSection 3.02(a). | |
Permits | Defined inSection 11.01. |
18
Person or Persons | An individual, corporation, limited liability company, partnership, joint venture, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof or any other entity. | |
PILOST | Defined inSection 3.04(b). | |
PILOT | Defined inSection 3.02(a). | |
PILOT Benefit Commencement Date | Defined inSection 3.02(h). | |
PILOT Elements | Defined inSection 3.02(c). | |
Plan | The “Plan” as defined in the Kallstrom Letter, which Plan shall be deemed supplemented for purposes of this Lease by the letter from Raymond W. Kelly to Edward C. Forst, dated July 21, 2005,which is part of the Proposal and included inExhibit M attached hereto. | |
Pre-Existing Environmental Condition or Pre-Existing Environmental Conditions | Any (i) hazardous materials or environmental contamination existing on the Land as of the date of this Lease or (ii) migration to the Land of hazardous materials or environmental contaminants from other sites within the Project Area (which migration did not originate on the Land following the date hereof). | |
Premises | The Land and the Building, together with access for the benefit of Tenant over the following streets: Murray Street, North End Avenue and Vesey Street (east of North End Avenue). | |
Pre-Schematics | Defined inSection 11.02(a). | |
Prime Rate | The rate announced publicly from time to time in New York City by Citibank, N.A. or its successor as its “base rate.” | |
Prohibited Person | A Person: | |
(i) (x) who has ever been convicted of a felony, (y) against whom any action or proceeding is pending to enforce rights |
19
of the State of New York or any agency, department, public authority or public benefit corporation thereof arising out of a mortgage obligation to the State of New York or to any such agency, department, public authority or public benefit corporation, or (z) with respect to whom any notice of substantial monetary default which remains uncured has been given by the State of New York or any agency, department, public authority or any public benefit corporation thereof arising out of a mortgage obligation to the State of New York or to any such agency, department, public authority or public benefit corporation; | ||
(ii) on the most current list of “Specifically Designated National and Blocked Persons”, or on any other similarly designated lists promulgated from time to time by any agency of the U.S. government and with whom the conduct of business is prohibited; or | ||
(iii) who is a “designated national,” “specially designated national,” “specially designated terrorist,” “specially designated global terrorist,” “foreign terrorist organization,” or “blocked person” within the definitions set forth in the Foreign Assets Control Regulations of the United States Treasury Department, 31 C.F.R., Subtitle B, Chapter V, as amended from time to time. | ||
Project | At any time and from time to time during the term of this Lease, the construction of the Building and the improving and equiping of the Premises, including, without limitation, (a) the planning and design of the Building, (b) the acquisition and installation of materials to be incorporated in (and the construction of) the Building, (c) the acquisition and installation of fixtures to be incorporated in the Building, and (d) the acquisition, leasing, fabrication, design, installation, maintenance, testing, “breaking-in” and future upgrades of any Equipment for use at the Premises and for use off-site in support of Tenant’s operations at the Premises. | |
Project Agreement | The Project and Benefits Administration Agreement among The Goldman Sachs Group, Inc., Tenant, BPCA and NYCEDC, dated August 23, 2005, regarding,inter alia, PILOT and |
20
PILOST. | ||
Project Area | Defined in the Master Lease. | |
Project Costs | Defined in the Project Agreement. | |
Project Premises (PILOT) | The Land and the Building. | |
Proposal | The documents attached hereto asExhibit M(excluding specifically all of the sections set forth in the document captioned “Term Sheet”, other than the section captioned “Perimeter Security – Bollards”). | |
Public Entity | A corporation or other Person (a) whose common stock or other ownership or voting interests are listed on the NASDAQ National Market or traded over the New York Stock Exchange, the American Stock Exchange or another stock exchange registered as a “national securities exchange” pursuant to the Securities Exchange Act of 1934 or the rules promulgated thereunder or (b) whose common stock or other ownership or voting interests are registered under the Securities Act of 1933 or the Securities Exchange Act of 1934 if such Person files periodic reports under the Securities Exchange Act of 1934. | |
Public Parties | The State, the City and each of the other governmental agencies referred to in the Proposal. | |
Qualifying Guaranty | A guaranty of payment given by (a) The Goldman Sachs Group, Inc.;provided,however,thatsuch guaranty of payment shall only constitute a Qualifying Guaranty if and for so long as the senior, unsecured long-term debt rating by Standard & Poor’s or Moody’s Investors Service of The Goldman Sachs Group, Inc. (or, if applicable, such other Person) is not less than A (in the case of Standard and Poor’s rating) and not less than “A2” (in the case of Moody’s Investors Service rating), in the form annexed hereto as Exhibit F or (b) any other Person approved by Landlord in its sole discretion. | |
Qualifying Sublease | A Sublease (a) (x) which is made at a net effective rental of not less than the fair market rental for the space demised thereunder as of date of execution and delivery (taking into account all of |
21
the terms and conditions of such Sublease), which must be conclusively established by the delivery, within ninety (90) days after the effective date of the Sublease, of an Appraiser’s Certificate or (y) with respect to which, each Mortgagee shall have agreed in writing substantially to the effect that it will not join the subtenant as a party defendant in any foreclosure action or proceeding which may be instituted or taken by the Mortgagee, nor evict the subtenant from the portion of the premises demised to it, except by reason of the subtenant’s default under such Sublease, nor affect any of the subtenant’s rights under such Sublease by reason of any default under its Mortgage, and (b) which is entered into in accordance with all of the requirements of this Lease applicable to Subleases. | ||
Real Property Taxes | The real property taxes payable pursuant to the New York State Real Property Tax Law and Title 11 of the Administrative Code and Charter of The City of New York, as the same may be amended from time to time. | |
Recapture Amount | “Recapture Amount” as defined in the Project Agreement. | |
Recourse Claims | Either of the following: (i) liability for Tenant’s fraud, intentional misrepresentation, breach of obligation to act in trust or as trustee pursuant to a specific trust obligation hereunder, or conversion, including, without limitation, Tenant’s misapplication of security deposits from Subtenants, application by Tenant of insurance proceeds or condemnation awards that may come into Tenant’s control other than to the Restoration or in accordance with the terms of this Lease, and (ii) any liability of Tenant arising underArticle 19 of this Lease with respect to claims made by third parties only, to the extent the same would have been insured against pursuant toArticle 7 but for Tenant’s default in its obligations to maintain insurance pursuant toArticle 7. | |
Rent Insurance | Defined inSection 7.01(a)(iv). | |
�� | ||
Rental | Defined inSection 3.05. | |
Replacement Letter of Credit | Defined inSection 42.01(h). |
22
Requirements | Defined inSection 14.01. | |
Restoration | Defined inSection 8.01. | |
Restore | Defined inSection 8.01. | |
Right to Self-Insure | Defined inSection 7.05. | |
Sales Tax Letter or Sales Tax Letters | One or more of the three types of Letters of Authorization for Sales Tax exemption, which Landlord shall make available to Tenant in accordance with Sections 3.04(a), 3.04(c) and 3.04(d) and substantially in the form set forth in Exhibit L-1, Exhibit L-2 and Exhibit L-3 to this Lease, and shall include any and all amendments or restatements thereof. The Sales Tax Letters do not include the Sales Tax Letter (as defined in the Project Agreement) issued pursuant to the Project Agreement with respect to Growth Credits. | |
Sales Tax Savings | The Sales Tax savings realized by Tenant, pursuant toSection 3.04(b). | |
Sales and Use Taxes | Sales and compensating use tax imposed under Section 1105, 1107, 1109 and 1110 of the New York State Tax Law, as the same may be amended from time to time. | |
Scheduled Completion Date | Defined inSection 11.04. | |
Schematics | Defined inSection 11.02(b). | |
Second CFP Period | Defined inSection 26.05(a)(ii). | |
Self-Help | Defined inSection 26.04(b). | |
Self-Insurance Conditions | Defined inSection 7.05. | |
Settlement Agreement | The Settlement Agreement dated as of June 6, 1980, between New York City and the Urban Development Corporation, as supplemented by Letter dated June 9, 1980, from Richard A. Kahan to Mayor Edward I. Koch, and amended by Amendment to Settlement Agreement dated as of August 15, 1986, by Agreement for Certain Payments and by Infrastructure |
23
Agreement and Consent, each dated as of June 28, 1989, by Agreement and Consent dated as of December 30, 1989, by Amendment and Agreement and Consent Pursuant to Settlement Agreement dated as of May 18, 1990, by Amendment and Agreement and Consent Pursuant to Settlement Agreement and Consent dated as of October 15, 1993, by Second Infrastructure Agreement and Consent dated as of October 25, 1993, by Amendment and Agreement and Consent Pursuant to Settlement Agreement dated as of April 10, 1995, by 1996 Agreement and Consent Pursuant to Settlement Agreement dated as of October 1, 1996, by 1998 Agreement and Consent Pursuant to Settlement Agreement dated as of May 1, 1998, by Third Infrastructure Agreement and Consent made as of January 11, 2000, by 2001 Agreement and Consent Pursuant to Settlement Agreement dated of December 27, 2001, by Site 22 Agreement and Consent made as of May 3, 2002, by 2003 Agreement and Consent Pursuant to Settlement Agreement dated as of September 9, 2003, and by 2005 Agreement and Consent Pursuant to Settlement Agreement dated as of August 23, 2005 as the same may hereafter be further amended, modified or supplemented in accordance with the provisions ofSection 41.19. | ||
Severance Leases | Defined in the Declaration of Restrictions. | |
SHPO | Defined inSection 11.02(k). | |
Site 25 Ground Lease | That certain Agreement of Lease dated as of November 18, 1998 between Landlord and BPC Site 25 Associates, LLC, a New York limited liability company, as the same may hereafter be further amended, modified or supplemented. | |
Staging Letter | That certain Site 26 Staging Letter Agreement dated as of the date hereof by and between Landlord and Tenant. | |
State | The State of New York. | |
Sublease or Subleases | Defined inSection 10.04. | |
Substantial Completion of the Building or Substantially Complete(d) | Defined inSection 11.04. |
24
Subtenants | Defined inSection 10.04. | |
Tax Year | Each annual period commencing on July 1 of such year and ending on the following June 30. | |
Taxes | The real property taxes assessed and levied against the Premises or any part thereof pursuant to the provisions of Title 11, Chapter 2 of the Administrative Code of The City of New York, as the same may now or hereafter be amended, or any statute or ordinance in lieu thereof in whole or in part, and which either are payable, or would otherwise be payable if the Premises or any part thereof or the owner thereof were not exempt therefrom. | |
Tenant | On the date as of which this Lease is made, Goldman Sachs Headquarters LLC, but thereafter “Tenant” shall mean only the tenant at the time in question under this Lease. The foregoing shall not be deemed to permit any transfer not otherwise permissible under this Lease. | |
Tenant’s Civic Facilities | Defined inSection 26.01(b). | |
Tenant’s Construction Work | Tenant’s construction of the Building in accordance with the Requirements, the Design Guidelines, the Construction Documents, the requirements for LEED Compliance and the applicable provisions of this Lease. | |
Term | The term of this Lease as set forth inArticle 2. | |
Title Matters | Only those matters affecting title to the Land set forth inExhibit B hereto. | |
Transfer | Defined inSection 10.01(a). | |
UDC | The New York State Urban Development Corporation, doing business as Empire State Development Corporation, a corporate governmental agency of the State of New York. | |
Unavoidable Delays | (i) With respect to Tenant or its obligations hereunder, delays incurred by Tenant due to strikes, lockouts, work |
25
stoppages due to labor disputes (including jurisdictional disputes), acts of God, inability to obtain labor or materials, the outbreak of armed hostilities, enemy action, acts of domestic or international terrorism, riot, civil commotion, fire, casualty or other causes beyond the reasonable control of Tenant (but not including Tenant’s insolvency or financial condition), any redesign of the redevelopment of West Street not consistent with the design contemplated by the Proposal or the abandonment of such design, any construction and development work on West Street in connection with the reconstruction hereof that materially or adversely impacts access to the Premises, construction activities of Landlord, Landlord’s failure to complete Landlord’s Civic Facilities in accordance withSection 26.01(a)(i)(A) and (D), a work stoppage or slowdown requested by Landlord in order not to unreasonably interfere with the work of other developers within the Project Area, which for purposes hereof shall include the construction activities of Landlord under this Lease (but the foregoing shall not be deemed to constitute Tenant’s agreement to comply with such request except to the extent Tenant may otherwise be required to do so underSection 11.08,11.09 or11.10 of this Lease);provided that, in the case of any claim of Unavoidable Delay in respect of Tenant’s obligations under Sections 11.01, 11.04, 24.01(b) and 26.02 (without giving effect to the last sentence of Section 11.16), Tenant shall have notified Landlord not later than thirty (30) days after Tenant knows or should have known of the occurrence in question and the occurrence shall be one which a Person in the position of Tenant could not have reasonably prevented; and | ||
(ii) With respect to Landlord or its obligations hereunder, delays incurred by Landlord due to strikes, lockouts, work stoppages due to labor disputes (including jurisdictional disputes), acts of God, inability to obtain labor or materials, the outbreak of armed hostilities, enemy action, acts of domestic or international terrorism, riot, civil commotion, fire, casualty or other causes beyond the reasonable control of Landlord (but not including Landlord’s insolvency or financial condition),providedthat the occurrence shall be one the effects of which a Person in the position of Landlord could not have reasonably prevented. |
26
View Corridor Study | Defined inArticle 43. | |
Zoning Floor Area | Defined inSection 11.02(i). | |
Zoning Resolution | The Zoning Resolution of New York City, as the same may be amended from time to time. |
27
28
“Exemption Amount” = Amount | ||
Tax Year after | determined by reference to the | |
PILOT | following applicable percentage of | |
Commencement Date | the Exemption Base: | |
1 through 4 | 100% of Exemption Base | |
5 | 80% of Exemption Base | |
6 | 60% of Exemption Base | |
7 | 40% of Exemption Base | |
8 | 20% of Exemption Base; and |
29
30
31
32
33
34
35
36
37
38
39
40
41
1. | a natural phenomenon or casualty that affects completion of the Specific Downtown Projects, | ||
2. | a Federal, State or City law or court ruling, provided that the State and the City shall have exercised their best efforts to prevent such law or ruling. Such efforts include (without limitation) the following: |
a. | with respect to any law, |
i. | no State or City executive officer shall have introduced or initiated, or otherwise materially supported, the same, |
42
ii. | State and City executive officers shall have affirmatively opposed and lobbied against the legislation (and cooperated with GS in connection therewith), | ||
iii. | any available vetoes on the part of the State and City were exercised, | ||
iv. | promptly upon the enactment of such legislation, the State and City shall have initiated and thereafter diligently prosecuted all reasonable legal challenges to the same, until the rendering of a final non-appealable judgment from the highest court of competent jurisdiction, and |
b. | with respect to any legal ruling, the State and City shall have promptly undertaken and initiated a defense and thereafter diligently prosecuted the same to final non-appealable judgment in the highest court of competent jurisdiction, or |
3. | strikes, lockouts or other industrial disturbances, acts of the public enemy, insurrections, riots, epidemics, civil disturbances, explosions, partial or entire failure of utilities, shortages of labor, material, supplies or transportation, or any other similar or different cause not reasonably within the control of the party claiming such inability, and as long as such event has a physical impact and/or directly retards the progress of the construction site projects and the parties seeking relief have taken all such reasonable steps to avoid such event and to mitigate the delay resulting therefrom, including the expenditure of funds. In no event will the extension of time to be provided for hereunder exceed the actual duration of such force majeure event. |
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
(i) | Tenant shall at all times during which Tenant is exercising the Right to Self-Insure be Controlled by Parent (which shall not include, for purposes of thisSection 7.05, any Person described inclause (iii) of the definition of Parent); | ||
(ii) | the aggregate amount with respect to which Tenant may exercise its Right to Self-Insure shall in no event exceed the lesser of (A) $250 million, as adjusted in direct proportion to the change in the Consumer Price Index between the time of determination of this value and the Commencement Date or (B) fifteen percent (15%) of the average of the annualized quarterly “pre-tax earnings” of Parent (on a consolidated basis) during its eight most recently reported fiscal quarters as |
59
reported in its periodic reports filed with the Securities and Exchange Commission on Forms 10-K and 10-Q (it being acknowledged that the amount of pre-tax earnings for the last fiscal quarter of each fiscal year will be derived by deducting the pre-tax earnings reported for the first three (3) fiscal quarters of such fiscal year from the pre-tax earnings reported for such fiscal year as a whole) or, if Parent is a “foreign private issuer”, in periodic reports filed by Parent in its primary reporting jurisdiction, such lesser amount being reduced by the amount of any deductibles which Tenant shall otherwise be entitled to maintain hereunder; | |||
(iii) | Tenant shall have delivered to Landlord an indemnity agreement, in form reasonably satisfactory to Landlord, from Parent pursuant to which Parent agrees to pay to Landlord (or, if Tenant is exercising its Right to Self-Insure with respect to any of the coverages identified in Section 7.01(a)(ii)-(viii) or Section 11.03(a)(i)-(iii) for the benefit of a party other than Landlord, to such third party) and undertake such indemnification and defense obligations as a third-party insurer would have paid or undertaken, as applicable, if Tenant had not elected to exercise the Right to Self-Insure and the insurance coverage otherwise required to be obtained and maintained hereunder with respect to the types and strata of risk with respect to which Tenant is then exercising its Right to Self-Insure had been in effect (for the avoidance of doubt, it being agreed that Parent’s payment obligations under any such indemnity agreement shall not extend to any amounts that Tenant may otherwise maintain hereunder as a “deductible”); and | ||
(iv) | none of the following shall have occurred: |
(A) | either of Standard & Poor’s or Moody’s Investors Service shall have reduced the senior, unsecured long-term debt rating of Parent to less than A (in the case of Standard and Poor’s rating) or “A2” (in the case of Moody’s Investors Service rating); or | ||
(B) | either of Standard & Poor’s or Moody’s Investors Service shall have placed Parent on a “watch” or similar list announcing its intent to review the senior, unsecured long-term debt rating of Parent for possible downgrade at a time at which such debt rating shall be not higher than A (in the case of Standard and Poor’s rating) or “A2” (in the case of Moody’s Investors Service rating); or | ||
(C) | Parent shall not be eligible to file, or shall have failed to file within thirty (30) days after the date required by the Securities Exchange Act of 1934 and the rules promulgated thereunder, its most recent report on Form 10-K (or, in the event Parent is a “foreign private issuer”, Form 20-F) with the Securities and Exchange Commission; or |
60
(D) | the independent registered public accounting firm of Parent shall have appended a “going concern” qualification to its report on the financial statements of Parent, or shall have refused to issue such report without such qualification. |
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
REPAIRS
105
CHANGES, ALTERATIONS AND ADDITIONS
106
107
108
109
110
OF INSURANCE UNDERWRITERS AND POLICIES
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
REMEDIES, ETC.
127
128
129
130
131
132
133
134
135
136
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attn: Timur Galen
with a copy sent simultaneously and in the same manner to:
85 Broad Street
New York, New York 10004
Attn: General Counsel
with a copy sent simultaneously by facsimile to (212) 256-4295
125 Broad Street
New York, New York 10004
Attn: Arthur S. Adler
with a copy sent simultaneously by facsimile to (212) 558-3588
137
One World Financial Center
New York, New York 10281
Attn: President
with a copy sent simultaneously by facsimile to (212) 417-4123
599 Lexington Avenue
New York, New York 10022
Attn: Chris M. Smith
Client/Matter: 34370/2
with a copy sent simultaneously by facsimile to (646) 848-8238
138
(i) | (A) Electrical mains and lines bringing electrical service as described inExhibit K, (B) gas mains as described inExhibit K, (C) steam mains and lines bringing steam service as described inExhibit K and (D) such other work to be performed by Landlord pursuant to Exhibit K-1 (and, to the extent Exhibit K-1 amplifies any other work described in this Section 26.01, Landlord’s obligation in respect of such work shall be so amplified); | ||
(ii) | Water mains located along Vesey Street and Murray Streets for branch tie-in by Tenant at its own cost at a location designated by Tenant and subject to the approval of any applicable City agency which has jurisdiction over water mains and branches; | ||
(iii) | (A) Sanitary sewers located along Vesey Street for branch tie-in by Tenant at its own cost at a location designated by Tenant and subject to the approval of any applicable City agency which has jurisdiction over sanitary sewers and branches and (B) storm sewers located along Vesey Street and Murray Streets for branch tie-in by Tenant at its own cost at a location designated by Tenant and subject to the approval of any applicable City agency which has jurisdiction over storm sewers and branches; | ||
(iv) | Fire hydrants and Emergency Response Service (“ERS”) conduits and boxes as described inExhibit K; | ||
(v) | Street lighting (conduit, cable, poles, fixtures and connections) as described inExhibit K; | ||
(vi) | Streets; | ||
(vii) | Curbs; | ||
(viii) | Temporary concrete sidewalks; | ||
(ix) | Permanent sidewalks in the Project Area and not on or adjacent to the Premises, including planting strip, cobble strip and paving; |
139
(x) | Landscaped esplanade, including appurtenances located within the pierhead line of the Project Area (“Esplanade”); | ||
(xi) | Existing and future parks and recreation areas, including, without limitation, those areas known as Governor Nelson A. Rockefeller Park, the Vesey Street turnaround area, a landscaped triangle on Murray Street, a landscaped median strip on North End Avenue, Teardrop Park, The Irish Hunger Memorial, Robert F. Wagner, Jr. Park, Rector Park, the Site 23/24 Ball fields and the Site 16/17 Public Open Space (collectively, the “Parks”); and | ||
(xii) | To the extent of Landlord’s obligations under Section 26.03 (a)(ii), street trees in accordance with a landscape plan approved by Landlord pursuant to Article 11. |
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
BATTERY PARK CITY AUTHORITY | ||||
d/b/a HUGH L. CAREY BATTERY PARK | ||||
CITY AUTHORITY | ||||
By: | ||||
Timothy S. Carey | ||||
President and CEO | ||||
GOLDMAN SACHS HEADQUARTERS LLC | ||||
By: | The Goldman Sachs Group, Inc., Its | |||
Managing Member | ||||
By: | ||||
Name: | ||||
Title: |
Kohn Pedersen Fox
Foster and Partners
Fox and Fowle
A. | Rte. 9A/West Street Reconstruction in accordance with the Proposal (as defined in the Lease to which this Schedule is attached). | |
B. | WTC Transit Hub including PATH Concourse, 9A underpass and associated retail | |
C. | Street Construction: Streets in and adjacent to World Trade Center Site in accordance with the Proposal | |
D. | Street Construction: Vesey & Murray Streets west of West Street in accordance with the Proposal | |
E. | Memorial and Cultural Buildings |
1. | Memorial Museum to grade | ||
2. | Cultural Center to grade | ||
3. | Performing Arts Center to grade |
F. | East Bathtub to grade and aesthetically treated | |
G. | Security Program/Construction of Vehicular Network and Security Center in accordance with the Proposal | |
H. | Vesey Street Ferry Landing |
1. | Terms, covenants and conditions of Restated Amended Agreement of Lease made and between BPC Development Corporation (“BPC”), as landlord, and BPCA, as tenant dated June 10, 1980, as referenced in Memorandum of Restated Amended Agreement of Lease dated as of June 10, 1980 recorded June 11, 1980 in Reel 527 page 163, which amends, restates and supersedes the Agreement of Lease made by between New York City, as lessor, and BPCA, as lessee, dated as of November 24, 1969 recorded December 26, 1969 in Reel 161 page 1, as amended by First Amendment to Restated Amended Agreement of Lease dated as of June 15, 1983 recorded June 20, 1983 in Reel 696 Page 424, as amended by Second Amendment to Restated Amended Agreement of Lease dated as of June 15, 1983 recorded June 20, 1983 in Reel 696 Page 432, as amended by Third Amendment to Restated Amended Agreement of Lease dated as of August 15, 1986 recorded October 22, 1986 in Reel 1133 Page 569, as amended by Fourth Amendment to Restated Amended Agreement of Lease dated as of May 25, 1990 recorded May 30, 1990 in Reel 1697 Page 302. | ||
2. | Declaration of Restrictions made by BPCA, dated as of June 15, 1983 recorded June 20, 1983 in Reel 696 Page 551, as amended and restated by Amendment and Restatement of Declaration of Restrictions dated as of May 18, 1995 recorded May 31, 1995 in Reel 2211 Page 1414, as waived and acknowledged by Waiver and Acknowledgment dated as of May 18, 1995 recorded May 31, 1995 in Reel 2211 Page 1469. | ||
3. | Memorandum of Understanding, dated as of November 8, 1979, among the Governor of the State of New York, the Mayor of New York City and the President and Chief Executive Officer of BPCA, as supplemented by Letter, dated November 8, 1979, from the President and Chief Executive Officer of BPCA to the Mayor of New York City, and as amended by the 1986 Supplemental Memorandum of Understanding, dated as of August 15, 1986, among the Governor of the State of New York, the Mayor of New York City and BPCA, and the Amendment to the Memorandum of Understanding, dated as of January 9, 1995, among the Governor of the State of New York, the Mayor of New York City and BPCA. | ||
4. | The Settlement Agreement dated as of June 6, 1980, between New York City and the Urban Development Corporation, as supplemented by Letter dated June 9, 1980, from Richard A. Kahan to Mayor Edward I. Koch, and amended by Amendment to Settlement Agreement dated as of August 15, 1986, by Agreement for Certain Payments and by Infrastructure Agreement and Consent, each dated as of June 28, 1989, by Agreement and Consent dated as of December 30, 1989, by Amendment and Agreement and Consent Pursuant to Settlement Agreement dated as of May 18, 1990, by Amendment and Agreement and Consent Pursuant to Settlement Agreement and |
Consent dated as of October 15, 1993, by Second Infrastructure Agreement and Consent dated as of October 25, 1993, by Amendment and Agreement and Consent Pursuant to Settlement Agreement dated as of April 10, 1995, by 1996 Agreement and Consent Pursuant to Settlement Agreement dated as of October 1, 1996, by 1998 Agreement and Consent Pursuant to Settlement Agreement dated as of May 1, 1998, by Third Infrastructure Agreement and Consent made as of January 11, 2000, by 2001 Agreement and Consent Pursuant to Settlement Agreement dated of December 27, 2001, by Site 22 Agreement and Consent made as of May 3, 2002, by 2003 Agreement and Consent Pursuant to Settlement Agreement dated as of September 9, 2003, and by 2005 Agreement and Consent Pursuant to Settlement Agreement dated as of August ___, 2005. | |||
5. | Easements contained in the Memorandum of Lease made between BPCA and BPC Site 25 Associates, LLC, dated November 18, 1998 recorded December 9, 1998 in Reel 2771 Page 1380. | ||
6. | Option to Purchase dated as of June 6, 1980 among New York State Urban Development Corporation, BPC, BPCA and New York City recorded on June 11, 1980 in Reel 527, page 153, as amended by amendment to Option to Purchase dated as of August 15, 1986 between BPCA and the New York City recorded on October 22, 1986 in Reel 1133, page 582, and further amended by Second Amendment to Option to Purchase dated as of May 18, 1990 between BPCA and New York City recorded on May 30, 1990 in reel 1697, page 294. | ||
7. | Notice of Appropriation recorded July 18, 2003 under CRFN 2003000240547. | ||
8. | Declaration of Covenants and Restrictions made by BPCA dated as of March 15, 1984 recorded March 21, 1984 in Reel 776 Page 360. | ||
9. | Mapping Agreement between New York City and the BPCA made as of October 3, 1991. | ||
10. | Sidewalk Easement as indicated on the City Map (described in Item 11 below) and described in the Design Guidelines. | ||
11. | The City Map of New York City as modified by a Map Showing a Change in the City Map, dated January 15, 1987, corrected September 10, 1993 and certified by the Secretary to the City Planning Commission on November 5, 1995 and as the City Map may be otherwise modified. | ||
12. | 2005 Agreement and Consent Pursuant to Settlement Agreement made by and between New York City and BPCA dated as of the date hereof as the same affects above items 1 through 4. |
AFFIRMATIVE ACTION PROGRAM
1 | Pursuant to Section 317 of the Executive Law, Section 1974d of the Public Authorities Law is to be construed as if subdivisions 5, 6, 7 & 8 of section 313 and section 316 of the Executive Law were fully set forth therein and are made applicable only to complaints of violations occurring on or after September 1, 1988. |
(1) | Black persons having origins in any of the Black African racial groups; | ||
(2) | Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban, Central or South American descent of either Indian or Hispanic origin, regardless of race; | ||
(3) | Native American or Alaskan native persons having origins in any of the original peoples of North America; or | ||
(4) | Asian and Pacific Islander persons having origins in any of the Far East countries, South East Asia, the Indian subcontinent or the Pacific Islands. |
(1) | at least 51 percent owned by one or more Minority Group Members; | ||
(2) | an enterprise in which such minority ownership is real, substantial and continuing; | ||
(3) | an enterprise in which such minority ownership has and exercises the authority to control and operate, independently, the day-to-day business decisions of the enterprise; and | ||
(4) | an enterprise authorized to do business in this State and is independently owned and operated. |
(1) | at least 51 percent owned by one or more United States citizens or permanent resident aliens who are women; | ||
(2) | an enterprise in which the ownership interest of such women is real, substantial and continuing; | ||
(3) | an enterprise in which such women ownership has and exercises the authority to control and operate, independently, the day-to-day business decisions of the enterprise; and | ||
(4) | an enterprise authorized to do business in this State and which is independently owned and operated. |
2 | N.Y. State Executive Law: |
(All names and figures for illustrative purposes only)
SAMPLE MONTHLY REPORT
REPORT DATE | 20-Aug-05 |
WORKFORCE PARTICIPATION AGGREGATE | ||||||||||||||||||||||||||||||||||
ADJUSTED | HOURS | |||||||||||||||||||||||||||||||||
CONTRACT | CONTRACT | CUMULATIVE | MINORITY WOMEN | |||||||||||||||||||||||||||||||
TRADE | AMOUNT | AMOUNT | AGG. HRS | HOURS | % | COMMENTS | ||||||||||||||||||||||||||||
I. M/WBE CONTRACTING FOR MONTH | ||||||||||||||||||||||||||||||||||
Direct GS Contracts | ||||||||||||||||||||||||||||||||||
Smith Plumbing | Underground Plumbing | $ | 10,000,000.00 | $ | 10,000,000.00 | |||||||||||||||||||||||||||||
Jones Electric | Basement Electric | $ | 15,000,000.00 | $ | 15,000,000.00 | |||||||||||||||||||||||||||||
a. Subtotal M/WBE Direct GS Contracts | $ | 25,000,000.00 | $ | 25,000,000.00 | ||||||||||||||||||||||||||||||
Contractor Subcontracts | ||||||||||||||||||||||||||||||||||
Finney Drywall | Drywall ground floor | $ | 15,000,000.00 | $ | 15,000,000.00 | |||||||||||||||||||||||||||||
b. Subtotal M/WBE Subcontracts | $ | 15,000,000.00 | $ | 15,000,000.00 | ||||||||||||||||||||||||||||||
c. Total M/WBE Activity for Month | $ | 40,000,000.00 | $ | 40,000,000.00 | 2,300 | g. | 575 | h. | 25 | % | ||||||||||||||||||||||||
d. Total M/WBE Activity to Date | $ | 40,000,000.00 | $ | 40,000,000.00 | 2,300 | i. | 575 | j. | 25 | % | ||||||||||||||||||||||||
II. MAJORITY CONTRACTOR ACTIVITY FOR MONTH* | various | $ | 100,000,000.00 | $ | 100,000,000.00 | 10,000 | k. | 3,000 | l. | 30 | % | |||||||||||||||||||||||
f. Cumulative Majority Contractor Activity | various | $ | 100,000,000.00 | $ | 100,000,000.00 | 10,000 | m. | 3,000 | n. | 30 | % | |||||||||||||||||||||||
III. M/WBE AS PERCENTAGE OF TOTAL (CUMULATIVE) | 29 | % | d/(d+f) exclusive of Proprietary and Exempt Contracts, based on Adjusted Contract Amount | |||||||||||||||||||||||||||||||
IV. WORKFORCE PARTICIPATION | ||||||||||||||||||||||||||||||||||
MONTHLY WORKFORCE PARTICIPATION | 29 | % | (h+l+p)/(g+k+o | ) | ||||||||||||||||||||||||||||||
CUMULATIVE WORKFORCE PARTICIPATION | 29 | % | (j+n+r)/(i+m+q | ) | ||||||||||||||||||||||||||||||
V. PROPRIETARY/EXEMPT CONTRACTING | ||||||||||||||||||||||||||||||||||
Healy Data System | BMS System | $ | 2,000,000 | $ | 2,000,000 | 100 | o. | 25 | p. | proprietary | ||||||||||||||||||||||||
CUMULATIVE PROPRIETARY/EXEMPT | $ | 2,000,000 | $ | 2,000,000 | 100 | q. | 25 | r. | ||||||||||||||||||||||||||
* | exclusive of M/WBE subcontract(s) |
BATTERY PARK CITY AUTHORITY | ||||||
By: | ||||||
Title: |
GOLDMAN SACHS HEADQUARTERS LLC | ||||||||
By: The Goldman Sachs Group, Inc., its managing member | ||||||||
By: | ||||||||
Title: | ||||||||
FIDELITY NATIONAL TITLE INSURANCE COMPANY | ||||||||
By: | ||||||||
Title: |
A. INTRODUCTION | The Design Guidelines for Site 26 established by the Hugh L. Carey Battery Park City Authority (the “Authority”) define the urban and architectural goals for the largest remaining development parcel in Battery Park City (See Fig. 1, Site Plan.) The site is immediately north of the World Financial Center and east of the Embassy Suites/Regal Cinemas project (Site 25) with 460 hotel rooms, a movie complex and various restaurants and stores and a major public space in the form of an art gallery/atrium. The Embassy Suites/Regal Cinemas building is separated from the Site 26 building by a landscaped pedestrian plaza, which provides access to the theater and retail entrances on the eastern side of the building and visually connects Sites 25 and 26 to the World Financial Center (the “Pedestrian Plaza”). (See Fig. 2, Ground Floor Plan and Buildable Area, Site Dimensions, Site Easements) | |||||||
The Site 26 Guidelines contain development and architectural controls, as well as requirements that will enhance the site’s contribution to the public environment of Battery Park City. They focus on defining the appropriate building volume and setbacks, the manner in which the building meets the streets and public spaces, and aspects of the overall character and materials of building elevations. | ||||||||
The Site 26 Guidelines continue a standard intended to promote architectural excellence as well as ensure that development on Site 26 complements the World Financial Center. It is the intention of the guidelines to create a building that is harmonious with those areas of Battery Park City that have already been constructed, and that exhibits architectural excellence. | ||||||||
B. SITE DESCRIPTION | ||||||||
1. | Size, Boundaries and Easements of Site 26 | Site 26 is located between Murray Street and Vesey Street. It includes within its western boundary the Pedestrian Plaza adjacent to Site 25 and its eastern edge is adjacent to the future Hudson River Park. |
The site would allow for development up to a maximum of approximately 1,887,570 square feet of zoning floor area, with a buildable footprint of approximately 74,600 square feet. (See Bulk Controls requirements in Urban Design Guidelines, below.) | ||||||||
Site 26 contains the Pedestrian Plaza, which was designed and constructed as a temporary landscaped public area. A permanent plaza is to be reconstructed by the developer as a public amenity as described below. | ||||||||
2. | Streets | There is a 10 foot sidewalk easement on Vesey Street. The streets, parks, and utilities infrastructure at Battery Park City are built by the Authority. (See Fig. 2.) The streets have been mapped by the City of New York and the Street Map established the legal boundaries of streets, blocks and parks. | ||||||
Site 26 is served by Vesey Street, Murray Street and West Street (or “Route 9-A”). Vesey Street connects at grade across West Street and consists of a 100-foot right-of-way containing a 70-foot roadbed with one 8-foot parking lane, a 20-foot sidewalk to the south and a 10-foot sidewalk to the north. An additional 10-foot sidewalk easement on Block 26 will increase the north sidewalk to 20 feet. | ||||||||
Murray Street extends to the west from Tribeca as a two-way 90-foot right-of-way with a 60-foot roadbed containing two 8-foot parking lanes, and 15-foot sidewalks. | ||||||||
North End Avenue links the east/west streets of the north neighborhood to each other and terminates at its southern end. | ||||||||
Building entrances, curb-cuts, and utility hook-ups must be coordinated with the street tree patterns and other architectural features at ground level. The developer must arrange for connections to city and private utilities. | ||||||||
3. | Utilities | a. Water System | ||||||
New York City water is available to Site 26 for both potable and fire fighting uses. Connections to the |
Battery Park City — Site 26 Guidelines | Page 2 |
water mains are subject to the review approval of the New York City Department of Environmental and Protection. A 12-inch water main has been installed along Vesey Place. | ||||
b. Storm Sewer | ||||
Storm water within Battery Park City a collected via a system of catch basins and pipes connecting to Lower Manhattan’s storm sewer system. A 96-inch storm sewer line has been installed running west on Vesey Street with an outfall into the Hudson River near the northwest corner of the NYMEX Site. Catch basins and manholes are located along sewer lines as required for connections and drainage of the streets and parks. The mains are located so that developments can connect at convenient manholes with 90-degree lines. Details of the connections are subject to the review and approval of the New York City Department of Environmental Protection. | ||||
c. Sanitary Sewers | ||||
Sanitary sewers in the bed of Vesey Street connect to the City’s sewer system in West Street. Sewer lines were installed so that all development parcels can connect to them at convenient manholes with 90-degree lines. Details of these connections are subject to the review and approval of the New York City Department of Environmental Protection. | ||||
It may not be possible to service deep basements by gravity flow. Wherever deep basements are proposed below the elevation of the streets, it may be necessary to pump the sewage into the sewer line. | ||||
d. Private Utilities | ||||
Site 26 is serviced by Electricity, Gas and Telephone lines running in the right of way of Vesey Street and North End Avenue. A steam line currently exists along Vesey Street. It is the responsibility of the developer to arrange with the private utilities companies to make service connects to the building. The private utilities will be maintained by their own companies; the public utilities will be maintained by the City of New York. |
Battery Park City — Site 26 Guidelines | Page 3 |
e. Geotechnical Conditions | ||||
The landfill north of the North Cove was constructed by means of a thorough preparation of the subsurface river bottom and a careful placement of controlled fill consisting of clean sand. Some debris may have been left in the area as a result of adjacent construction projects. The Authority assumes no responsibility for the condition of the fill on Site 26. | ||||
Site 26 is located in an area of the Hudson River waterfront that was formerly occupied by a number of piers and ferry terminals. To provide a uniform subsurface for the landfill this area was dredged to about elevation -20 feet. | ||||
The Borough of Manhattan datum Elev. 0.0 feet is set at mean high water. Ground water level in the area of Site 26 is estimated to be between -1.5 feet and -2.5 feet. Mean high water at the Hudson River is at Elev. 0.0 feet. The 100-year storm elevation is at approximately Elev. +8.6 feet. | ||||
Basement slabs can be constructed at any elevation if designed to resist hydrostatic pressure. Basement levels can extend to hard bottom and should be built with cofferdams and hydrologically sealed. If basements are provided on deep foundation elements, the slab must be designed for hydraulic uplift. All building structures are to be in accordance with all New York City local laws and codes. All local laws governing construction in flood zone areas shall apply. | ||||
C. | URBAN DESIGN GUIDELINES | The Urban Design Guidelines for Site 26 set the overall design principles for a building that will complement the World Financial Center, the Embassy Suites/Regal Cinemas development, the landscaped Pedestrian Plaza and the North Residential Neighborhood. The Guidelines are primarily concerned with the architectural quality and compatibility of the structure with existing and future buildings, and with the urban spaces around Site 26. The Guidelines define the building mass, streetwalls and heights, facade articulations, and the distribution of ground floor uses and public amenity. |
Battery Park City — Site 26 Guidelines | Page 4 |
Development on Site 26 shall be in compliance with the zoning requirements contained in the New York City Zoning Resolution, as amended by the New York City Planning Commission on July 14, 2004 and the Amendment and Restatement of Declaration of Restrictions, dated as of May 18, 1995, among BPCA and certain tenants of the World Financial Center (the “Declaration of Restrictions”). In some instances the Design Guidelines are more restrictive than the Zoning and in those cases, the more restrictive requirements must be followed. | ||||||||
1. | Building Configuration | a. Bulk Controls | ||||||
The maximum floor area that may be built on Site 26 is approximately 1,887,570 zoning square feet, as defined in the NYC Zoning Resolution, computed on the basis of 15 FAR from Sites 25 and 26 combined. | ||||||||
b. Streetwalls and Heights | ||||||||
A streetwall coincident with the property line is required on Murray Street. A streetwall is also required adjacent to the eastern property line. A streetwall is required along the length of Vesey Street, set back 10 feet from the Vesey Street property line. A streetwall is required on the western edge following the eastern line of the Pedestrian Plaza as described below and indicated in Fig. 2. | ||||||||
The base of the building shall rise to a height of 140 feet. Along Vesey Street the building must set back a minimum of 70 feet at 140 feet. It may then rise to a maximum height of 245 feet, and may intrude into the View Corridor described in the Declaration of Restrictions,provided that: (1) the building shall not obstruct more area in the View Plane than 3,000 square feet plus the area of overlap with Site 24 (approximately 1,050 square feet) as indicated on the attached View Corridor Study prepared by Ralph Lerner Architect PC, dated August 31, 2004, and (2) no portion of the building above 245 feet shall be located in the View Corridor. The tower shall not exceed 800 feet including all obstructions. (See Fig. 3, Building Heights; and Fig. 5 Massing.) |
Battery Park City — Site 26 Guidelines | Page 5 |
All heights are to be measured consistent with the New York City Zoning Resolution. | ||||||||
2. | Permitted Uses | a. Uses | ||||||
Site 26 must be developed as a commercial office tower with not less than 5,000 square feet of ground floor retail space accessible to the public. | ||||||||
b. Ground Level Entrances and Circulation | ||||||||
Pedestrians will approach the building along Vesey Street, from the Pedestrian Plaza and from Murray Street. A major office entry is required either on Vesey Street or at the southeast corner of the site. There will be other entrances from the Pedestrian Plaza and West Street. (See Fig. 4, Pedestrian Entries, Curb Cuts & Loading.) | ||||||||
c. Public Amenity | ||||||||
The developer must redesign and rebuild the Pedestrian Plaza between Sites 25 and 26. The rebuilt Pedestrian Plaza must have a width of no less than 30 feet for approximately 210 feet along its length from Murray Street to where the eastern wall of the building on Site 25 changes its course in a southwesterly direction. Thereafter, the Pedestrian Plaza shall widen to a width at its southern terminus of not less than 45 feet as indicated in Fig. 2. | ||||||||
The design of the Pedestrian Plaza is subject to approval by the Authority. The Pedestrian Plaza shall be a public space covered for all or part of its entire 30-foot-wide length, though it may be uncovered for the area that is wider. | ||||||||
The Pedestrian Plaza must be open every day for public access, 24 hours per day, except as required to perform maintenance activities, such periods of closure to be subject to agreement with the Authority. | ||||||||
The plaza and all of its appurtenances must be compatible with the high quality of design and materials of the rest of the building. |
Battery Park City — Site 26 Guidelines | Page 6 |
d. | Building Servicing | |||||||
No curb may be located on Vesey Street. Curb cuts may be no more than 30 feet wide and loading docks must be fully enclosed within the building. (See Fig. 2) | ||||||||
Emergency exits must be dispersed. They should be designed so that they contribute to the visual interest of the pedestrian level. | ||||||||
D. | ARCHITECTURAL DESIGN GUIDELINES | Architectural controls have been imposed for Site 26 primarily to ensure that the building is compatible with the existing structures of the World Financial Center, the New York Mercantile Exchange and the Embassy Suites/Regal Cinemas development and is in compliance with the Declaration of Restrictions. | ||||||
1. | Building Wall Materials | The World Financial Center should be a model in terms of the quality and detailing of material. Should metal be used, it must be stainless steel with the exception of window frames. Should stone be used, it must be of a size and quality similar to the World Financial Center. | ||||||
2. | Glass and Fenestration | The building must be compatible with the vocabulary of the other commercial tower buildings. The western facade must be detailed to reduce the scale of the western side as generally depicted in the 10 foot module scheme shown in the rendering “Comparative Views of Current and Original Scheme for Curved West Facade” prepared by Pei Cobb Freed & Partners, dated July 8, 2004. | ||||||
3. | Rooftops & Bulkheads | Mechanical equipment must be completely enclosed and the enclosure must appear to be an extension of the building. It is important that the design of the building include a carefully composed top. | ||||||
4. | Parking and Service | All parking must be below grade. The parking and services entries are to be from Murray Street. | ||||||
5. | Graphics and Signage | The Hugh L. Carey Battery Park City Authority reserves the right to approve all exterior signage and all illuminated signage and retail signage that can be seen from the exterior of the building. Street addresses only are allowed on Vesey, Murray and West Streets except as noted below. For parking |
Battery Park City—Site 26 Guidelines | Page 7 |
entrances, only directional signs will be considered (e.g. “Parking Entrance”). Such signs must be of minimum size, be unobtrusive, and contain no rate advertising. | ||||||||
Retail signage for on-premises businesses may be incorporated into the window transoms on the right-of-way. Rental signs must be removed after one year of building openings. No stanchions or freestanding signs are allowed, except at lobby entrances. The backs of interior merchandise displays must not be placed against or be proximate to storefront windows. | ||||||||
6. | Satellite Dishes | The location of visible satellite dishes must be approved by the Authority and should be set back from the bulkhead perimeter and screened. | ||||||
7. | Louvers | No visible mechanical exhausts or intake louvers are allowed on the first two levels of building. | ||||||
8. | Refuse Storage and Disposal | Paper products only shall be mechanically compacted in accordance with applicable law. Materials to be recycled and wet trash shall be stored separately. The storage of refuse shall occur entirely within the enclosed areas within the building. | ||||||
9. | Streetscape | The sidewalks will be built according to the standards established by the Authority in coordination with Developer. The Developer is responsible for sidewalks and streetlights along Vesey Street and Murray Street. The Developer is also responsible for getting all required approvals from governmental entities, including approval from the City for the Builders Pavers Plan. | ||||||
10. | Lighting | The Authority provides lighting specifications for all streets and parks. Additional lighting may be incorporated into marquees. This lighting must be compatible with the street and park lighting and is subject to the approval of the Authority. A preliminary lighting plan must be part of the design submission. | ||||||
E. | ENERGY AND THE ENVIRONMENT | The building must comply with the Authority’s Commercial Institutional Environmental Guidelines dated March 2002 (“Green Guidelines”) unless |
Battery Park City—Site 26 Guidelines | Page 8 |
exceptions to such guidelines are specifically permitted by the Authority. The Developer must submit a green design plan for the Site providing a detailed description of the methods or technologies the Developer is committed to for the building. The building must be designed to achieve a rating of gold or better under the LEED Green Building Rating System developed by the U.S. Green Building Council. | ||||||||
F. | ADMINISTRATIVE | FRAMEWORK | ||||||
1. | Submission Requirements | In order to ensure that development is in compliance in intent and quality with the 1979 Master Plan Report and these Design Guidelines, and consistent with the Environmental Impact Statement and the Memorandum of Understanding between the City and State of June 6, 1980, approvals by the Authority will consist of: | ||||||
a. | Approval of Developer's selection of Architect(s) and Engineers. | |||||||
b. | Review and approval of the Developer’s plans and specifications for each phase (pre-schematics, schematics, design development, and construction documents) through a design review process. Each submission must be in substantial conformance with the prior submission as approved. In each submission, the Architect must note any change from the previous submission, and include a summary of such changes, in a letter with the submission; and include a summary of such changes, in a letter with the submission. In general, the Authority will honor any approvals given in a previous stage. | |||||||
The Developer must submit information in drawings 24 x 36 inches (or as otherwise agreed to) bound and numbered for each step of the review and approval process. Where alternate scales are shown, the Authority will direct which scale to use in each case. Zoning and gross square feet calculations must be provided with each submission. |
Battery Park City—Site 26 Guidelines | Page 9 |
The Developer must submit fee following information for review and approval. | ||||||||
b.1. Pre-Schematics |
• | Conceptual site plan. | ||
• | Conceptual ground floor plan indicating uses, access, and entries. | ||
• | Conceptual second floor plan indicating uses and circulation. | ||
• | Conceptual sections. | ||
• | Conceptual elevations of street facades. | ||
• | Massing model. | ||
• | Development of the Developer’s proposed program for energy conservation, recycling systems, air quality, operations and maintenance, and resource conservation. Strategies will include specific proposals, and methods plus the calculations of LEED points. Chart listing LEED points to be met and strategies for their achievement. The Authority’s approval of Pre-Schematics does not constitute approval of the green development plan. The Authority’s approval of Developer’s green design program approval will be given separately from the other elements of Pre-Schematics. |
b.2. Schematics | ||||||||
To assess conformance to previous plans and to determine success of green strategies, a review and approval of the Developer’s Schematic Design submission is required. The approval process will include the computer modeling of the building using DOE2 or similar software that will lead to recommendations for improved energy efficiency and better environmental practices. Developer must submit the following information: |
• | Outline specifications including all exterior materials (including colors), systems and windows. |
Battery Park City—Site 26 Guidelines | Page 10 |
• | Site plan showing all surrounding Streets and indicating building footprint, entries, access and landscaped areas. Scale: 1"= 16' or larger. | ||
• | Zoning drawings and calculations. | ||
• | Basement or Cellar Plan(s) showing all parking Scale: 1"=16'. | ||
• | Ground floor plan. Scale 1"=16'. | ||
• | Second Floor plan. Scale 1"=16'. | ||
• | Typical floor plans. Scale: 1"=16'. | ||
• | Roof Plans showing all mechanical equipment. | ||
• | Scale 1"=16'. | ||
• | Concept plan for open space treatment. | ||
• | Single line drawings showing structural, mechanical, electrical and plumbing systems and connections. | ||
• | Building section in both directions. Scale 1"=16' or 1"=32'. | ||
• | Building elevations indicating all materials. Scale: l"=16' or 1"=32'. | ||
• | Front-wall elevations showing floors one through four indicating material treatment and plane changes in inches. Scale 1"=4'. | ||
• | Building top and bulkhead elevation showing top expression zones, cornice and bulkhead indicating materials and plane elevation changes in inches. Scale 1"= 4'. | ||
• | Rendered elevations representing material and color choices. | ||
• | Model indicating building massing, in off-white Strathmore board, for insertion into the Battery Park City site model. Scale: 1"=20'. |
Battery Park City — Site 26 Guidelines | Page 11 |
• | Plan for material mock-up to be built as part of Design Development submission. | ||
• | Written list of all deviations from Design Guidelines. | ||
• | Drawings and models should adequately show the architectural treatment for areas of special concern including roof profiles, building corners, required street-wall height expression and any rooftops visible from above. | ||
• | Further development of sustainable design elements indicating commitments with respect to energy conservation, recycling systems, air quality, operations and maintenance, resource conservation and other requirements of the Green Guidelines. Strategies will include specific proposals, and method plus the calculations of LEED points. Chart listing LEED points to be met and strategies for their achievement. | ||
• | A completed statement of incremental costs of ‘green’ design elements, in the format supplied by the Authority. |
b.3. Design Development | ||||||||
To verify conformance with the previously approved submission, a review and approval of the Developer’s Design Development Plans and specifications is required. Developer must list in writing all changes from approved Schematic Design, including changes to measures undertaken to comply with the Green guidelines and achieve a LEED ‘gold’ rating. The Developer must submit the following information: |
• | Description of changes made to incorporate recommendations from schematic design review. | ||
• | Zoning drawings and calculations. | ||
• | Floor plans, building sections and elevations. Scale: 1''=16'. (Site Plan Scale 1''=16' or larger). |
Battery Park City—Site 26 Guidelines | Page 12 |
• | Additional plans, sections and elevations for typical exterior details, at appropriate scale. | ||
• | Detail plans of open spaces. | ||
• | Detail plans for special facilities and/or special areas. Scale as appropriate. | ||
• | Structural, mechanical, electrical and plumbing drawings with energy-efficient components highlighted. | ||
• | Reflected ceiling plan for any arcades. | ||
• | Technical specifications including, all exterior materials (including colors), systems and windows. | ||
• | Samples of an exterior and surface materials. | ||
• | Model to be updated. | ||
• | Before approval of design development, a mockup is required. It must be a corner condition and illustrate the use and colors of bricks, stone, mortar, and a window unit. The mock-up must be of sufficient scale to adequately evaluate the proposed materials. | ||
• | Further development of program for energy conservation, recycling systems, air quality, operations and maintenance, and resource conservation. Strategies will include specific proposals, and methods plus the calculations of LEED points. Chart listing LEED points to be met and strategies for their achievement | ||
• | An updated statement of incremental costs of ‘green’ design elements, in the format supplied by the Authority. |
b.4. Construction Documents |
• | Review and approval of the Developer’s final contract plans and specifications for each building or facility are required to verify conformance with previously approved submissions. Developer must list in writing all changes from previously |
Battery Park City—Site 26 Guidelines | Page 13 |
approved submissions. The Developer must submit the following information: | |||
• | Description of development of green strategies and incorporated recommendations. | ||
• | Calculation of improved energy efficiency from DOE2 analysis. | ||
• | Final Plans and Construction Documents, including all plans, elevations and details as per Design Development Plans and Specifications. | ||
• | Model to be updated. | ||
• | Final specifications. Samples of all exterior and surface materials. | ||
• | The developer, on receipt of the Authority written approval of the final contract plans, is responsible for obtaining all required approvals from the Buildings Department and any other city agencies. | ||
• | Further development of program for energy conservation, recycling systems, air quality, operations and maintenance, and resource conservation. Strategies will include specific proposals, and methods plus the calculations of LEED points. Chart listing LEED points to be met and strategies for their achievement. | ||
• | An updated statement of incremental costs of ‘green’ design elements, in the format supplied by the Authority. |
2. | Changes to Plans | Changes to approved Schematics, Design Development or Construction Documents including exterior materials and specifications, must be submitted to the Authority for approval prior to construction of such changes. The Authority acknowledges that Construction Documents will be submitted, reviewed and approved on a phased basis in order to facilitate Developer’s need to fast-track construction of the building. | ||||||
3. | Reviews | The Authority will review all submissions within 15 business days for initial submissions and |
Battery Park City—Site 26 Guidelines | Page 14 |
10 business days for each revised submission. The Authority will maintain field personnel to observe construction methods and technologies and to verify that construction is proceeding in accordance with the official documents. | ||||||||
4. | As-Built Drawings | Developers an required to submit a record set of building plans, sections and elevations in a CAD format to be designated. |
One World Financial Center
New York, New York 10281
Very truly yours, | ||||
THE GOLDMAN SACHS GROUP, INC. | ||||
By: | ||||
Authorized Officer |
One World Financial Center
New York, New York 10281
1 | Select appropriate bracketed text depending on whether delivered pursuant to Section 11.03(f) of the Ground Lease, in which case the first bracketed text will be used, or Section 8.04(ii) of the Ground Lease, in which case the second bracketed text will be used. | |
2 | If the first bracketed phrase in the preceding sentence is used, then the first bracketed phrase here should also be used, and otherwise, it should be omitted. |
Very truly yours, | ||||
THE GOLDMAN SACHS GROUP, INC. | ||||
By: | ||||
Authorized Officer |
AFTER RECORDING, RETURN TO
125 Broad Street
New York, NY 10004
Attn: Arthur S. Adler
New York State Real Property Law
LANDLORD: | ||||
BATTERY PARK CITY AUTHORITY, | ||||
a public benefit corporation of the State of New York | ||||
By: | ||||
Name: | ||||
Title: | ||||
TENANT: | ||||
GOLDMAN SACHS HEADQUARTERS LLC, | ||||
a Delaware limited liability company | ||||
By: The Goldman Sachs Group, Inc., | ||||
Its Managing Member | ||||
By: | ||||
Name: | ||||
Title: |
State of | : | |||||||
: | ss | |||||||
County of | : | |||||||
Notary Public |
State of | : | |||||||
: | ss | |||||||
County of | : | |||||||
Notary Public |
North 18 degrees 49 minutes 55 seconds West 67.32 feet to a point;
North 18 degrees 47 minutes 10 seconds West 187.86 feet to a point;
North 18 degrees 21 minutes 20 seconds West 55.92 feet to the southerly line of Murray Street;
a. | services commonly provided by owners of like buildings to commercial tenants in similar circumstances; | ||
b. | repairs to the Premises that become necessary by reason of a fire or other casualty that occurs prior, from and/or after the date that Ground Lessor succeeds to Landlord’s interest in the Premises and that Landlord is required to perform pursuant to |
the Lease, to the extent that Ground Lessor can make such repairs from the net proceeds of Landlord’s insurance policies that are actually made available to Ground Lessor (provided, however, that if (i) Landlord is required to repair the resulting damage to the Building pursuant to the Lease and (ii) Ground Lessor cannot make such repairs from such net proceeds, then (A) Tenant shall have the right to terminate this Lease by giving notice thereof to Ground Lessor within thirty (30) days after the date that Ground Lessor gives Tenant notice that Ground Lessor does not intend to perform such repairs or (B) failing notice that Ground Lessor will make such repairs, Tenant shall have the right to terminate the Lease at any time after (30) days following Tenant’s request for Ground Lessor’s written agreement that it will undertake such repairs without having received such written agreement); and | |||
c. | repairs to the Premises as a result of a partial condemnation that occurs prior, from and/or after the date that Ground Lessor succeeds to Landlord’s interest in the Premises and that Landlord is required to perform pursuant to the Lease, to the extent that Ground Lessor can make such repairs from the net proceeds of any condemnation award made available to Ground Lessor (provided, however, that if (x) a partial condemnation occurs and Ground Lessor cannot make such repairs from such net proceeds, then (A) Tenant shall have the right to terminate this Lease by giving notice thereof to Ground Lessor within thirty (30) days after the date that Ground Lessor gives Tenant notice that Ground Lessor does not intend to perform such repairs or (B) failing notice that Ground Lessor will make such repairs, Tenant shall have the right to terminate the Lease at any time after thirty (30) days following Tenant’s request for Ground Lessor’s written agreement that it will undertake such repairs without having received such written agreement). |
Ground Lessor: BATTERY PARK CITY AUTHORITY d/b/a HUGH L. CAREY BATTERY PARK CITY AUTHORITY | ||||||||
By: | ||||||||
Name: Title: | ||||||||
Tenant: | ||||||||
By: | ||||||||
Name: Title: | ||||||||
Landlord: | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
State of New York | ) | |
County of | ) ss.: |
Signature and Office of individual | ||||
taking acknowledgement |
State of New York | ) | |
County of | ) ss.: |
Signature and Office of individual | ||||
taking acknowledgement |
State of New York | ) | |
County of | ) ss.: |
Signature and Office of individual | ||||
taking acknowledgement |
North 18 degrees 49 minutes 55 seconds West 67.32 feet to a point;
North 18 degrees 47 minutes 10 seconds West 187.86 feet to a point;
North 18 degrees 21 minutes 20 seconds West 55.92 feet to the southerly line of Murray Street;
Date: | ||||||||
BENEFICIARY: | APPLICANT: | |
Battery Park City Authority | ||
One World Financial Center, 24th Floor | ||
New York, NY 10281 | ||
Attn: President | ||
MAXIMUM AMOUNT: | INITIAL EXPIRATION DATE AT OUR | |
USD | : | |
1. | This original Letter of Credit and any subsequent accepted amendment(s).AND | |
2. | Beneficiary’s statement, on its letterhead, completed, dated and signed by an authorized individual, stating: “We are drawing for USA___, under Letter of Credit No. ___, which amount we are entitled to receive under that certain Agreement of Lease between Battery Park City Authority d/b/a Hugh Carey Battery Park City Authority, as landlord, and Goldman Sachs Headquarters LLC, as tenant, dated ___, 2005. Please wire proceeds to: ___.” |
Authorized Signature | ||||
• | Due to the congestion of utility infrastructure (electrical, telecom, steam, sanitary, storm, gas) on Vesey Street resulting from breadth of existing services serving the area, the proposed new services serving Site 26, the routing and physical arrangement of the existing services, the questionable accuracy of existing documentation, and the undocumented utility changes made subsequent to 9/11, it has been difficult at best to determine if, and how, services would be supplied to Site 26. These conditions may be potentially exacerbated by other subgrade penetrations such as tree pits, bollards, other security measures, etc. | ||
• | To improve stand-off, the existing curb on Vesey Street shall be extended to the south by 11 feet. All existing and new utility elements shall coordinate with these new curb dimensions. | ||
• | To improve stand-off, the existing curb on Murray Street shall be extended to the north by 8 feet. All existing and new utility elements shall coordinate with these new curb dimensions. | ||
• | Flexibility in use of tree pits and bollards, location of tree pits or bollards, or alternate solutions will be required to coordinate with utilities beneath sidewalks. | ||
• | The utility congestion and locations will preclude the use of security trenches such as “tiger traps” on the north side of Vesey Street, the north side of Murray Street and the south side of Murray Street and these measures will not be implemented. | ||
• | All utility infrastructure shall be coordinated between the various utilities and the Engineer designated by GS Headquarters and utilities shall be delivered to Site 26 as indicated below.. | ||
• | Electrical utility point of entries shall be provided on both Vesey Street and Murray Street as indicated below. | ||
• | All work described herein shall be undertaken in consultation with GS Headquarters and the engineer designated by GS Headquarters. |
• | All steam valves and expansion joints on the steam line serving Site 26 shall be inspected and repaired, as required, by ConEdison to prevent release of steam. | ||
• | Valve in steam vault to allow temporary boiler connection to serve Site 26 in event of steam failure shall be engineered and installed by ConEdison. | ||
• | BPCA shall install a service head valve for steam service to a point of entry location within the foundation wall as indicated on the drawings. |
• | Utility steam vault located on the mid-block of Vesey Street shall be removed and replaced by ConEdison with spool piece to coordinate with above grade elements (bollards, tree pits, etc.). The western steam vault shall remain and the curb bump-out near the pedestrian walkway shall coordinate with this steam vault. | ||
• | Locations and inverts for all existing steam lines routed below Vesey Street shall be identified. | ||
• | The steam line on West Street running below the center planting area shall be relocated west by ConEdison to the area below the bike path to coordinate with existing plantings and utilities. LMCCC will obtain a letter from ConEdison CEO Gene McGrath confirming ConEdison’s agreement to pay for such relocation, and NYSDOT commits its best efforts to ensure ConEdison will perform such agreement. |
• | All unused gas lines in the Vesey Street sidewalk and in Site 26 shall be identified and disconnected and removed by ConEdison back to the gas supply main, unless directed otherwise by GS. Some of these gas lines are not documented or are not as indicated on the drawings, by ConEdison. | ||
• | BPCA shall install a service head valve for gas service to a point of entry location within the foundation wall as indicated on the drawings. |
• | All points of entry telecom conduits on Vesey Street and Murray Street shall be coordinated with new curb locations, utilities, bollards and tree pits, and installed within five feet of foundation wall as indicated on drawings. | ||
• | The Vesey Street POE shall be served from manhole designation 115-592-5. Murray Street POEs shall be served from manhole designations 115-593-1 and 163-873-8, unless directed otherwise by GS. |
• | The following applies to all three POE’s: BPCA will install high tension disconnects. BPCA will install conduit to within 5’ of foundation wall. Tenant will connect to such conduits and shall provide conduit to the splice chamber located within close proximity to the foundation wall. BPCA will install wiring from manhole to splice chamber. | ||
• | One (1) electrical point of entry shown on the Vesey Street western-most portion of site drawings shall remain to serve Site 26. This POE consists of three conduits housing 1 or 2 feeders (quantity to be determined by Con Ed) from “Band A”. | ||
• | One (1) electrical point of entry previously shown on the Vesey Street center portion of site drawings shall be re-routed to allow new point of entry on Murray Street (to be coordinated and located with the Site 26 Engineer at a later date). This POE consists of three conduits housing 1 or 2 feeders (quantity to be determined by Con Ed) from “Band B”. |
• | One (1) electrical point of entry previously shown on the Vesey Street eastern-most portion of site drawings shall be re-routed to allow new point of entry on Murray Street (to be coordinated and located with the Engineer designated by GS Headquarters at a later date). This POE consists of three conduits housing 1 or 2 feeders (quantity to be determined by Con Ed) from “Band C”. | ||
• | Temporary power requirements for site 26 construction shall be capable of using one or all of the following: (A) permanent high-tension power feeders from the manhole to the foundation wall splice chamber to serve a temporary substation; (B) temporary high-tension power feeders pulled in the spare POE conduit from the manhole to the foundation wall splice chamber to serve a temporary substation; (C) temporary low tension 480V feeders from the existing Embassy Suites vault to serve a temporary switchboard. | ||
• | All points of entry feeders into Site 26 on Vesey Street and Murray Street shall be coordinated with utilities and new curb locations and installed in locations as indicated on drawings (western-most POE) and Murray Street entries coordinated with Engineer designated by GS Headquarters. |
• | The domestic and fire water mains located in Vesey Street and/or under the sidewalks shall be coordinated with new curb locations, utilities, bollards and tree pits, and coordinated with the Engineer designated by GS Headquarters in accordance with applicable City codes. BPCA shall install piping from street mains to within five feet of the foundation wall on Vesey Street at location indicated on the drawings in accordance with applicable City codes. | ||
• | The domestic and fire water lines on Murray Street shall be coordinated with new curb locations, utilities, bollards, and tree pits to allow installation into Site 26 as indicated on the drawings and coordinated with Engineer designated by GS Headquarters in accordance with applicable City codes. | ||
• | The storm sewer and sanitary sewer mains and vaults in Vesey Street shall be coordinated with new curb locations, utilities, bollards and tree pits, and coordinated with the Engineer designated by GS Headquarters. BPCA shall install piping from street mains to within five feet of the foundation wall on Vesey Street as conceptually indicated on the drawings with elevations and locations to be coordinated between GS Headquarters’ engineers and BPCA in accordance with applicable City codes. Any installation of stormwater manholes required to tie-in the piping to the street mains shall be engineered and installed by BPCA. | ||
��� | The storm water and sanitary water mains and vaults in Murray Street shall be coordinated with all utilities and new curb locations to allow installation into Site 26 as conceptually indicated on the drawings with elevations and locations to be coordinated between GS Headquarters Engineer and BPCA in accordance with applicable City codes. | ||
• | Due to discrepancy in drawings provided for Murray Street, the size of the storm sewer main on Murray Street that will be tied into from Site 26 shall be confirmed to be |
Re: | Battery Park City Authority | |||
Goldman Sachs Headquarters LLC Project | ||||
Eligible Location For Project Property: | ||||
Site 26 in Battery Park City, New York, New York |
BATTERY PARK CITY AUTHORITY | ||||
By: | ||||
Name: | ||||
Title: |
By: The Goldman Sachs Group, Inc., as Managing Member | ||||
By: | ||||
Name: | ||||
Title: |
Re: | Battery Park City Authority | |||
Goldman Sachs Headquarters LLC Project | ||||
Eligible Location For Project Property: | ||||
Site 26 in Battery Park City, New York, New York |
BATTERY PARK CITY AUTHORITY | ||||
By: | ||||
Name: | ||||
Title: |
By: The Goldman Sachs Group, Inc., as Managing Member | ||||
By: | ||||
Name: | ||||
Title: |
Re: | Battery Park City Authority | |||
Goldman Sachs Headquarters LLC Project | ||||
Eligible Location For Project Property: | ||||
Site 26 in Battery Park City, New York, New York |
BATTERY PARK CITY AUTHORITY | ||||
By: | ||||
Name: | ||||
Title: |
By: The Goldman Sachs Group, Inc., as Managing Member | ||||
By: | ||||
Name: | ||||
Title: |
State of New York City of New York | ||||
GeorgeE.Pataki | MichaelR.Bloomberg | |||
Governor | Mayor |
Managing Director and Chief Administrative Officer
Goldman Sachs & Co.
85 Broad Street
New York, New York 10004
Sincerely, | ||
John P. Cahill | Daniel L. Doctoroff | |
Secretary to the Governor | Deputy Mayor for Economic Development | |
And Rebuilding |
City Hall New York, New York 10007
Items | Notes | Status | ||||
1. | Cover letter to proposal from Secretary Cahill and Deputy Mayor Doctoroff | To be signed and delivered | FINAL | |||
2. | Term Sheet | GS Draft delivered 8/4 | FINAL | |||
3. | Perimeter Security — Bollards Statement | GS Draft delivered 8/4 | FINAL | |||
4. | Exhibit to Perimeter Security Bollards Statement (Security Specifications) | GS Draft delivered 8/4 | FINAL | |||
5. | Letter from Tim Gilchrist to Timur Galen dated August 4, 2005 | Received signed copy via fax from Doug Blais on 8/4 | FINAL | |||
6. | Exhibit A — Lighting/Trees Landscape Plan/Pavement/Noise/Bollards/Traffic Barriers Along West Side of Road/Signage/Street Alignment | State Draft delivered 8/4 in Doug Blais 5:02pm email | FINAL | |||
7. | Exhibit B — Right of Entry Agreement between the NYSDOT and Goldman Sachs | D. Blais accepted GS Draft of 8/4 in email of 8/4 5:02pm | FINAL | |||
8. | Exhibit C— Route 9A/West Street: 9A Coordinates & Offsets to Freedom Tower | State Draft delivered 7/27 and in Doug Blais email of 8/4 5:02pm | Final | |||
9. | Exhibit C-l — Drawing 1 | PCF plans, confirmed as final in Doug Blais email of 8/4 and by Jay Berman email of 8/4 | FINAL |
Items | Notes | Status | ||||
10. | Exhibit C-l—Drawing 2 | PCF plans, confirmed as final in Doug Blais email of 8/4 and by Jay Berman email of 8/4 | FINAL | |||
11. | Exhibit C-l—Drawing 3 | PCF plans, confirmed as final in Doug Blais email of 8/4 and by Jay Berman email of 8/4 | FINAL | |||
12. | OMITTED | OMITTED | OMITTED | |||
13. | Exhibit D—Route 9A/West Street: At-grade Alternative, Site 26—Key Elevations at West Street and Surf. Treatment Limits of NYSDOT Work | State Draft delivered 7/27 | FINAL | |||
14. | Site Logistics Plan for Excavation Foundation Phase: Excavation Foundation Phase—Duration 11 Mos. | GS delivered | Final | |||
15. | Site Logistics Plan for Steel Erection Phase: Erection—Start of Steel to Complete 1st Floor Steel—Duration 2 Mos. | GS delivered | Final | |||
16. | Site Logistics Plan: Superstructure — Begin 2nd Floor Steel Through Topping Out — Duration 14 Mos. | GS delivered | Final | |||
17. | Site Logistics Plan: Sitework through Migration—Duration 13 Mos. | GS delivered | Final | |||
18. | Bulkhead Detail | GS delivered | Final | |||
19. | Required Utility Modifications | GS Draft delivered 8/4 | Final | |||
20. | Specific Downtown Projects for Construction Milestone Schedule | GS Draft delivered 8/4 | Final | |||
21. | Letter from Commissioner Raymond W. Kelly to Edward C. Forst dated July 21, 2005 | Received signed copy 7/27 | Final | |||
22. | Letter from James K. Kallstrom to Edward C. Forst dated July 29, 2005 | Signed copy received 8/4 | Final | |||
23. | Annex G-l : Design Approval Procedures | NYS Draft delivered 7/29 | Final |
Items | Notes | Status | ||||
24. | Letter from Stephanie Gelb to Jessica Healy dated July 25, 2005 re curtain wall mockup | Signed copy delivered 7/27 | Final | |||
25. | Work Rules | State draft delivered 7/27; accepted by GS | Final | |||
26. | Hudson River Park Trust Permit | Signed copy delivered by HRPT 7/27 | Final (to be executed by GS) | |||
27. | MWBE Program (and related sample report) | GS Draft delivered 7/15 and 7/19 (resent 7/28); BPCA approved 7/29. | Final | |||
28. | Designation Letter Extension between BPCA and GS Headquarters LLC | GS Draft delivered 8/4 | ||||
29. | Access Letter between BPCA and GS Headquarters LLC | GS Draft delivered 8/4 | FINAL | |||
30. | BPCA Letter Approving Design Development Plans | Signed copy delivered 7/28 | Final | |||
31. | Landscape Design Approval Letter | GS Draft delivered 8/4 | FINAL |
1. | a natural phenomenon or casualty that affects completion of the Specific Downtown Projects, | ||
2. | a Federal, State or City law or court ruling, provided that the State and the City shall have exercised their best efforts to prevent such law or ruling. Such efforts include (without limitation) the following: |
a. | with respect to any law, |
i. | no State or City executive officer shall have introduced or initiated, or otherwise materially supported, the same, | ||
ii. | State and City executive officers shall have affirmatively opposed and lobbied against the legislation (and cooperated with GS in connection therewith), | ||
iii. | any available vetoes on the part of the State and City were exercised, | ||
iv. | promptly upon the enactment of such legislation, the State and City shall have initiated and thereafter diligently prosecuted all reasonable legal challenges to the same, until the rendering of a final non-appealable judgment from the highest court of competent jurisdiction, and |
b. | with respect to any legal ruling, the State and City shall have promptly undertaken initiated a defense and thereafter diligently prosecuted the |
same to final non-appealable judgment in the highest court of competent jurisdiction, or |
3. | a labor strike or an inability to obtain materials which is not reasonably foreseeable, in each case, notwithstanding reasonable efforts to avoid and/or mitigate the resulting delay; provided that any event of force majeure described in the clause 3 shall not, in any event, excuse performance for a period in excess of the period of such event of force majeure. |
Further, with respect to any legal challenge or defense per the above, the City and State shall have used all reasonable good faith efforts to provide Goldman Sachs and its counsel with the right to participate and otherwise shall have consulted regularly and meaningfully with Goldman Sachs and its counsel as to all aspects thereof. |
1. | The “Security Specifications” referred to in Exhibit A hereto constitute the necessary and appropriate specifications for the perimeter security for the improvements to be constructed on Site 26, which is an office tower at which thousands of individuals are expected to work daily, situated within a several-block area within which tens of thousands of workers and visitors are expected daily. The Security Specifications emphasize, among other items, the necessity for “stand-off” for the Site 26 building and the consequential need for security barriers as proximate to the curb as possible. | |||
2. | In developing and implementing a security-perimeter plan for Site 26 that satisfies the Security Specifications, the parties have given and will give due regard to the interests of pedestrians and bicyclists at and around Site 26. | |||
3. | The security analyses performed by the parties’ respective employees and agents conclude that, given current technology and experience, the placement of bollards in the manner shown on Goldman Sachs’ submitted PCF-prepared Exhibit C-1 (Drawings 1, 2, and 3) is an existing method that will satisfy the Security Specifications in a manner that the public-sector parties believe on balance to be reasonably accommodating to the interests of pedestrians and bicyclists at and around Site 26 and will not constitute a significant action affecting the Hudson River Park or the community. Absent an agreed-upon alternative described in paragraph 5 below, the bollard placement indicated in such exhibits will be implemented. | |||
4. | In the period between now and the physical implementation of the security-perimeter plan in accordance with Exhibit B, the parties will continue to discuss and study alternatives to such security-perimeter plan (including alternatives employing other tested technologies) that will still satisfy the Security Specifications but better serve in a reasonable manner the interests of pedestrians and bicyclists at and around Site 26. GS shall not be required to bear any material incremental cost of such alternatives. | |||
5. | If such alternatives are found to exist and consented to by all parties, such consent to be granted or withheld in the discretion of the parties exercised in good faith, then such alternatives shall be implemented. |
Managing Director
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
• | Creation of high quality landscaping and green space, park and recreational spaces; | ||
• | Carefully designed and detailed urban open spaces; | ||
• | Thoughtful and context sensitive selection of materials; and | ||
• | Utilization of techniques such as lighting, curb treatments and pavement treatments to distinguish this section of Route 9A/West Street from the segment to the north of Chambers Street. |
1. | NYSDOT will issue a Right of Entry Agreement for the coordinated construction of Route 9A/West Street in front of Site 26 and the Goldman Sachs World Headquarters, substantially in the form of Exhibit B. The updated Logistics Plan referenced in the Agreement was submitted by Goldman Sachs on July 21, 2005 and is approved. | |
2. | Exhibit C provides the alignment and dimension of Route 9A/West Street and serves as the base map for Exhibit C-l (Goldman drawings), which depicts Vesey and Murray Street dimensions and the Lay-By, and Exhibit D, which depicts the grading and limits of work. NYSDOT agrees that the streets, curbs, sidewalks, Lay-By, walkway, bikeway, landscape, traffic directions, parking restrictions and utility configurations as shown on the Goldman drawings are acceptable and approved, subject to minor modification (not necessary re-engineering) due to detailed development of construction documentation and as found conditions. To the extent that the depiction of the Lay-By, bikeway or walkway in Exhibit D is inconsistent with the depiction of Exhibit C-l, the latter shall control. | |
3. | NYSDOT will cooperate and coordinate with Goldman Sachs in the construction of the Lay-By in front of Site 26 substantially in conformance with the Lay-By schematic shown on Exhibit C-1. |
4. | NYSDOT and Goldman Sachs have reached agreement on their respective limits of work within NYSDOT right of way in front of Site 26. Construction of sidewalks, bike path and other urban design elements from the western curb of the Lay-By to the building line at Site 26 will be accomplished by Goldman Sachs under a permit from NYSDOT which shall be reasonably acceptable to Goldman Sachs. Goldman Sachs has submitted a landscaping plan for approval by NYSDOT, BPCA, New York City and the Hudson River Park Trust (HRPT). Concurrently with the delivery of this letter, NYSDOT, BPCA, New York City and HRPT have approved Goldman Sachs’ landscaping plan, except as set forth in Exhibit A. These facilities will be maintained by HRPT to HRPT standards. Goldman Sachs will not be responsible for maintenance costs on NYSDOT or HRPT right of way, except to the extent that Goldman Sachs requests maintenance to a higher standard. | |
NYSDOT will advance necessary subsurface work (lightweight fill) in the area adjacent to Site 26, from the existing bulkhead east to the existing bikeway walkway. This work will be advanced on a schedule which ensures completion no later than November 1, 2005. | ||
5. | NYSDOT will cooperate and coordinate with Goldman Sachs, BPCA, NYCDOT, New York Police Department, and New York Fire Department in the development of operational control standards for the Lay-By in front of Site 26 in order to provide security for the Site and to maintain the safety of the traveling public on Route 9A/West Street. NYSDOT will issue a simple operating permit to Goldman Sachs to allow the closing of the Lay-By in emergencies in consultation with the State and City. | |
6. | NYSDOT will ensure in its design and construction of Route 9A/West Street that the size of the median and pedestrian refuge area between Vesey and Murray Streets will not be narrower than that shown on Exhibit C, except as set forth in Exhibit A. NYSDOT, NYCDOT, BPCA and Goldman Sachs have agreed upon the configuration of Vesey Street as shown on Exhibit C-l. NYSDOT has consulted with Goldman Sachs on the issue of the design and direction of Murray Street at Site 26, presently planned to be two lanes in each direction both east and west of Route 9A/West Street as well as the design of left turn lanes from Route 9A/West Street to Murray Street as shown on Exhibit C and C-l. | |
7. | The FSEIS for Route 9A/West Street in the vicinity of the WTC recommends studies of possible pedestrian bridges including one north of Vesey Street. NYSDOT’s needs and feasibility technical studies of possible locations at Vesey or Murray Street have determined that at-grade crossings are the recommended alternative at both Murray and Vesey Streets, therefore, further studies are unwarranted and will not be undertaken. | |
8. | NYSDOT and Goldman Sachs are in agreement on the setting of grades in front of Site 26 and in the NYSDOT right of way for Route 9A/West Street between Vesey and Murray Streets. The agreed upon range of grades is set forth in Exhibit D. | |
9. | In preparing the FSEIS for Route 9A/West Street in the vicinity of the WTC, NYSDOT contemplated a possible through street across Route 9A/West Street at Barclay Street, however, NYSDOT and NYCDOT have agreed to an operational traffic schematic that does not include that through street. Additionally, the agreed upon grades set forth in Exhibit D preclude construction of a safe and secure through street across Route 9A/West Street at Barclay Street, therefore, NYSDOT will not permit or fund the construction of a through street at that location. |
10. | NYSDOT will cooperate and coordinate with Goldman Sachs in the development of design principles and standards for the promenade in front of Site 26. Goldman Sachs will work with the team of stakeholders to be convened by NYSDOT to ensure that materials, planting, urban design features, security features, maintenance standards, etc. for the promenade from Battery Park to Chambers Street will be coordinated with the work in front of Site 26. Goldman Sachs, HRPT and NYSDOT have reached substantial agreement on the design of the plaza and landscape adjacent to the proposed Goldman Sachs building. | |
11. | The schedule for the removal of the Vesey Street Pedestrian Bridge across Route 9A/West Street will be coordinated with Goldman Sachs and will be finalized as soon as construction staging documents for Route 9A/West Street are completed but in any case, the Bridge will be removed no later than March 1, 2009. |
Timothy J. Gilchrist
Director
Office of Downstate Transportation Strategy
• | The relevant governmental agencies and stakeholders will consider use of newly approved NYCDOT fixture for 9A south of Chambers Street for the WTC/WFC precinct or, alternatively, the new light fixture proposed by the Downtown Alliance which has been installed on Broadway and at other locations in lower Manhattan. | ||
• | The relevant governmental agencies will consider use of different light-sources for Route 9A/West Street fixtures south of Chambers, including replacing high-pressure sodium ballasts and lamps with metal halide sources. This is primarily a NYCDOT issue. | ||
• | If the Route 9A/West Street fixture is continued as the standard, NYSDOT will work with Goldman Sachs on a mutually agreed upon plan for lighting in front of site 26. |
• | NYSDOT shall investigate the use of paving materials or finishes for Route 9A/West Street south of Chambers Street that will minimize road noise and improve pedestrian movements and safety. | ||
• | NYSDOT shall, in consultation relevant parties, including Goldman Sachs, consider the use of paving materials for sidewalks and crosswalks that meets or exceeds the standard proposed for the Promenade South project. |
• | Bollards must adhere to highway design standards for setback from roadway. | ||
• | The cost of any required utility relocations necessitated solely by the placement of bollards will not be borne by NYSDOT. |
• | FHWA approval of any change to safety standards must be obtained. NYSDOT will consult with Goldman Sachs before making modifications necessary to comply with FHWA requirements. |
• | NYSDOT shall, in consultation with relevant parties including Goldman Sachs, investigate upgrades to Route 9A/West Street traffic signage, street signs, bike path signal signage and regulation signage. |
• | No dedicated left turn lanes and no left hand turning motions on Route 9A/West Street at the intersection of West and Vesey Streets. | ||
• | Dedicated left turn lanes at the intersection of West and Murray Streets are not median separated from general lanes. | ||
• | NYSDOT and NYCDOT shall consider engineering signaling/wait time to benefit the pedestrian experience and urban planning goals for the district over traffic engineering goals taking into account air quality, traffic congestion and other environmental issues. | ||
• | Vehicular traffic on Vesey Street traveling east shall be permitted to make left turns onto Route 9A/West Street traveling north. | ||
• | The median between the northbound and southbound lanes of Route 9A/West Street between Vesey and Murray Streets shall be designed to maximize their widths for the benefit of pedestrians and shall be a minimum of 30’ wide at the south side of Vesey Street and a minimum of 33’ wide at the north side of Vesey Street. If Goldman Sachs wishes to increase the stand off distance at the northwest corner of Vesey and Route 9A/West Street, the median width will be reduced to no less than 20 feet. | ||
• | The median at the Fulton Street intersection with Route 9A/West Street will be initially constructed as a pedestrian refuge area with a curb typical to the median condition (with no through traffic contemplated), but the curb will be sloped to allow access by emergency vehicles. If the security plan requires, more restricted vehicular access shall be implemented. | ||
• | There shall be no vertical structures (other than for the exclusive purpose of accommodating landscaping, lighting and other required highway related elements within the median) in the median of Route 9A/West Street from Fulton Street through Murray Street; all exhaust/intake, egress or other elements to serve PANYNJ program shall be located elsewhere. |
DEPARTMENT OF TRANSPORTATION AND GOLDMAN SACHS
HEADQUATERS LLC
1. | NYSDOT will permit Goldman Sachs and its affiliates and their perspective contractors, subcontractors, consultants, agents and other representatives to enter upon and use the Property for the staging and construction of the Project effective as of the date hereof. | ||
2. | Goldman Sachs has submitted its Logistics Plans for the staging and construction of the Project to NYSDOT and, based on those plans Goldman Sachs contemplates utilizing the Property beginning in 2005 and ending in 2011. NYSDOT has determined that it is possible for the parties to occupy and use the Property without substantially interfering with each other’s operations. The Logistics Plans are hereby approved by NYSDOT and are attached hereto as Exhibit 1. | ||
3. | Goldman Sachs agrees to submit to NYSDOT immediately upon their approval by BPCA any and all changes to the Logistics Plans which will substantially change its schedule for occupying the Property as described in the Logistics Plans and/or the types of operations for which it intends to utilize the Property. |
4. | Goldman Sachs and NYSDOT will cooperate with each other throughout construction by Goldman Sachs to accommodate any such changes or to modify such changes if necessary to accommodate work on the portion of Route 9A adjacent to Site 26. | ||
5. | Promptly after the conclusion of its environmental review process, NYSDOT will submit to Goldman Sachs its schedule for any work on Route 9A which will require the use of the Property. Goldman Sachs and NYSDOT will cooperate in the phasing of their work to maximize the efficient use of the Property and the efficiency of the both their operations. | ||
6. | Notwithstanding anything herein to the contrary, NYSDOT will phase NYSDOT’s work on Route 9A which will require use of the Property in a manner that will not interfere with the phasing of the construction of the Project as set forth in the Logistics Plans as of the date hereof. Goldman Sachs will have the right to adjust the Logistics Plans from time to time in which event Goldman Sachs and NYSDOT will cooperate in the phasing of their work to accommodate any such changes or to modify such changes if necessary to accommodate work on the portion of Route 9A adjacent to Site 26. | ||
7. | Goldman Sachs will construct, maintain, or remove all sidewalk sheds or other appurtenances on the Property or to be constructed on the Property in conformance with applicable legal requirements. NYSDOT hereby approves the construction, maintenance and removal of the structures and other appurtenances described or shown in the Logistics Plans. Goldman Sachs will comply with all applicable laws in performing the work in the Property and will obtain such other consents, permits and approvals (including from HRPT) as required. | ||
8. | Goldman Sachs represents and warrants that is has received a letter of determination from The New York State Office of Parks, Recreation and Historic Preservation, (“SHPO”) that the Project will have no adverse impact on any property eligible for inclusion on the State or National Registers of Historic Places. In the event the plans for the Project are modified and require further approval from the SHPO, Goldman Sachs will obtain such approval. In the event the plans for the Project are modified so as to affect the structural elements of the bulkhead, Goldman Sachs will notify NYSDOT of such modifications and again demonstrate to NYSDOT’s reasonable satisfaction that such modification will have no adverse impact on the 1941 bulkhead. With respect to modifications that do not affect the structural elements of the bulkhead, including plans for material delivery and other construction loading and the staging of cranes and other heavy machinery, Goldman will submit its plans to NYSDOT for informational purposes only, together with a certification by a professional engineer licensed in the State of New York to the effect that such modification will have no adverse impact on the 1941 bulkhead. If NYSDOT elects to excavate the area east of the 1941 Bulkhead for the purposes of replacing the current soil in such area with lightweight fill, NYSDOT will commence such work promptly after the execution of this Agreement and will, in any event, complete such excavation and soil replacement at its own expense prior to November 1, 2005. | ||
9. | Final grading of the Property, any permanent construction on the Property and the ongoing operation and maintenance of the same will be the subject of a further agreement among NYSDOT, HRPT and Goldman Sachs. Any work by NYSDOT on the Property will be |
Draft of August 4, 2005 |
coordinated with Goldman Sachs in order to minimize disruption to each other’s construction and operation to the maximum extent possible. | ||
10. | Goldman Sachs will use the Property in such a way that the public’s use of the bikeway/walkway will not be unduly interrupted. | |
11. | Goldman Sachs and NYSDOT will maintain working groups (including representatives of the contractors and construction managers for Goldman Sachs and NYSDOT) which will meet regularly and as often as is reasonably required during the planning, design and construction of their projects and which will ensure, to the maximum extent possible, that the parties’ construction schedules and operations are constantly coordinated with the other and do not disrupt the schedule and operations of the other. | |
12. | Goldman Sachs shall have the right to collaterally assign, mortgage or pledge this Agreement or any part thereof, or in any way charge or encumber the rights granted herein, or any part, thereof, in the same manner and to the same degree as under the Ground Lease for Site 26. Without limiting the foregoing, (i) NYSDOT, after receiving notice from Goldman Sachs’ lender, shall copy such lender on any notices of default given to Goldman Sachs (and such notice shall not be effective unless such copy is delivered), (ii) such lender shall have not less than the period given to Goldman Sachs to cure any default, and (iii) upon any termination of this Agreement for any reason whatsoever, the NYSDOT shall allow such lender or its designee thirty days after notice to such lender, to execute and deliver with such lender or its designee a new right of entry agreement on all of the unexpired terms and conditions contained herein. | |
13. | Goldman Sachs shall have the right to record this instrument or a memorandum hereof in the land records with respect to the Property. |
Draft of August 4, 2005 |
By: | ||||
Title: |
By: | ||||
Title: |
By: | ||||
Title: |
By: | ||||
Title: |
[Drawing Omitted]
[Drawing Omitted]
[Drawing Omitted]
[Drawing Omitted]
[Drawing Omitted]
VICE PRESIDENT PLANNING AND DESIGN
Goldman Sachs Headquarters LLC
30 Hudson Street — 19th Floor
Jersey City, New Jersey 07302-4699
cc: | Timothy S. Carey | |
James Cavanaugh |
Pick A. Bagel | new york sports clubs | |
Regal Cinemas 11 | Applebee’s | |
DSW | Lili’s Noodle Shop & Grill |
August 4, 2005
• | Due to the congestion of utility infrastructure (electrical, telecom, steam, sanitary, storm, gas) on Vesey Street resulting from breadth of existing services serving the area, the proposed new services serving Site 26, the routing and physical arrangement of the existing services, the questionable accuracy of existing documentation, and the undocumented utility changes made subsequent to 9/11, it has been difficult at best to determine if, and how, services would be supplied to Site 26. These conditions may be potentially exacerbated by other subgrade penetrations such as tree pits, bollards, other security measures, etc. | ||
• | To improve stand-off, the existing curb on Vesey Street shall be extended to the south by 11 feet. All existing and new utility elements shall coordinate with these new curb dimensions. | ||
• | To improve stand-off, the existing curb on Murray Street shall be extended to the north by 8 feet. All existing and new utility elements shall coordinate with these new curb dimensions. | ||
• | Flexibility in use of tree pits and bollards, location of tree pits or bollards, or alternate solutions will be required to coordinate with utilities beneath sidewalks. | ||
• | The utility congestion and locations will preclude the use of security trenches such as “tiger traps” on the north side of Vesey Street, the north side of Murray Street and the south side of Murray Street and these measures will not be implemented. | ||
• | All utility infrastructure shall be coordinated between the various utilities and the Engineer designated by GS Headquarters and utilities shall be delivered to Site 26 as indicated below. | ||
• | Electrical utility point of entries shall be provided on both Vesey Street and Murray Street as indicated below. | ||
• | All work described herein shall be undertaken in consultation with GS Headquarters and the engineer designated by GS Headquarters. |
• | All steam valves and expansion joints on the steam line serving Site 26 shall be inspected and repaired, as required, by ConEdison to prevent release of steam. |
• | Valve in steam vault to allow temporary boiler connection to serve Site 26 in event of steam failure shall be engineered and installed by ConEdison. | ||
• | BPCA shall install a service head valve for steam service to a point of entry location within the foundation wall as indicated on the drawings. | ||
• | Utility steam vault located on the mid-block of Vesey Street shall be removed and replaced by ConEdison with spool piece to coordinate with above grade elements (bollards, tree pits, etc.). The western steam vault shall remain and the curb bump-out near the pedestrian walkway shall coordinate with this steam vault. | ||
• | Locations and inverts for all existing steam lines routed below Vesey Street shall be identified and coordinate location and relocation of steam lines with all perpendicular utility crossings, including sanitary and stormwater pipes, serving Site 26. Any relocations shall be performed by BPCA. | ||
• | The steam line on West Street running below the center planting area shall be relocated west by ConEdison to the area below the bike path to coordinate with existing plantings and utilities. LMCCC will obtain a letter from ConEdison CEO Gene McGrath confirming ConEdison’s agreement to pay for such relocation, and NYSDOT commits its best efforts to ensure ConEdison will perform such agreement. |
• | All unused gas lines in the Vesey Street sidewalk and in Site 26 shall be identified and disconnected and removed by ConEdison back to the gas supply main, unless directed otherwise by GS. Some of these gas lines are not documented or are not as indicated on the drawings, by ConEdison. | ||
• | BPCA shall install a service head valve for gas service to a point of entry location within the foundation wall as indicated on the drawings. |
• | All points of entry telecom conduits on Vesey Street and Murray Street shall be coordinated with new curb locations, utilities, bollards and tree pits, and installed within five feet of foundation wall as indicated on drawings. | ||
• | The Vesey Street POE shall be served from manhole designation 115-592-5. Murray Street POEs shall be served from manhole designations 115-593-1 and 163-873-8, unless directed otherwise by GS. |
• | The following applies to all three POE’s: BPCA will install high tension disconnects. BPCA will install conduit to within 5’ of foundation wall. |
Tenant will connect to such conduits and shall provide conduit to the splice chamber located within close proximity to the foundation wall. BPCA will install wiring from manhole to splice chamber. | |||
• | One (1) electrical point of entry shown on the Vesey Street western-most portion of site drawings shall remain to serve Site 26. This POE consists of three conduits housing 1 or 2 feeders (quantity to be determined by Con Ed) from “Band A”. | ||
• | One (1) electrical point of entry previously shown on the Vesey Street center portion of site drawings shall be re-routed to allow new point of entry on Murray Street (to be coordinated and located with the Site 26 Engineer at a later date). This POE consists of three conduits housing 1 or 2 feeders (quantity to be determined by Con Ed) from “Band B”. | ||
• | One (1) electrical point of entry previously shown on the Vesey Street eastern-most portion of site drawings shall be re-routed to allow new point of entry on Murray Street (to be coordinated and located with the Engineer designated by GS Headquarters at a later date). This POE consists of three conduits housing 1 or 2 feeders (quantity to be determined by Con Ed) from “Band C”. | ||
• | Temporary power requirements for site 26 construction shall be capable of using one or all of the following: (A) permanent high-tension power feeders from the manhole to the foundation wall splice chamber to serve a temporary substation; (B) temporary high-tension power feeders pulled in the spare POE conduit from the manhole to the foundation wall splice chamber to serve a temporary substation; (C) temporary low tension 480V feeders from the existing Embassy Suites vault to serve a temporary switchboard. | ||
• | All points of entry feeders into Site 26 on Vesey Street and Murray Street shall be coordinated with utilities and new curb locations and installed in locations as indicated on drawings (western-most POE) and Murray Street entries coordinated with Engineer designated by GS Headquarters. |
• | The domestic and fire water mains located in Vesey Street and/or under the sidewalks shall be coordinated with new curb locations, utilities, bollards and tree pits, and coordinated with the Engineer designated by GS Headquarters. BPCA shall install piping from street mains to within five feet of the foundation wall on Vesey Street at location indicated on the drawings | ||
• | The domestic and fire water lines on Murray Street shall be coordinated with new curb locations, utilities, bollards, and tree pits to allow |
Installation into Site 26 as indicated on the drawings and coordinated with Engineer designated by GS Headquarters. | |||
• | The storm sewer and sanitary sewer mains and vaults in Vesey Street shall be coordinated with new curb locations, utilities, bollards and tree pits, and coordinated with the Engineer designated by GS Headquarters. BPCA shall install piping from street mains to within five feet of the foundation wall on Vesey Street at location and elevation indicated on the drawings. Any installation of stormwater manholes required to tie-in the piping to the street mains shall be engineered and installed by BPCA. | ||
• | The storm water and sanitary water mains and vaults in Murray Street shall be coordinated with all utilities and new curb locations to allow installation into Site 26 as indicated on drawings and coordinated with the Site 26 Engineer. | ||
• | Due to discrepancy in drawings provided for Murray Street, the size of the storm sewer main on Murray Street that will be tied into from Site 26 shall be confirmed to be minimum 24 inches to coordinate with Site 26 storm line. If such storm sewer main is less than 24 inches, BPCA shall install new storm sewer mains to accommodate the present design. |
A. | Rte. 9A/West Street Reconstruction in accordance with the proposal from Messrs. Cahill and Doctoroff and the other attachments thereto and agreements executed and delivered contemporaneously therewith (collectively, the “Proposal”) | ||
B. | WTC Transit Hub including PATH Concourse, 9A underpass and associated retail | ||
C. | Street Construction: Streets in and adjacent to WTC Site in accordance with the Proposal | ||
D. | Street Construction: Vesey & Murray west of West Street in accordance with the Proposal | ||
E. | Memorial and Cultural Buildings |
1. | Memorial Museum to grade | ||
2. | Cultural Center to grade | ||
3. | Performing Arts Center to grade |
F. | East Bathtub to grade and aesthetically treated | ||
G. | Security Program/Construction of Vehicular Network and Security Center in accordance with the Proposal | ||
H. | Vesey Street Ferry Landing |
PERMIT FOR USE OF PROPERTY
1. | Premises: Approximately 18,400 sq. ft. east of the park area west of Route 9A between Murray and Vesey Streets as indicated on attached Exhibit 1, all of which is within and forms a part of the Hudson River Park, within the County and State of New York (the “Premises”). |
2. | Purpose and Use: |
a. | Permittee shall have the exclusive right to enter upon, occupy and use the Premises as set forth above. Permittee’s occupancy and use of such areas shall be for the purpose of maintaining a storage and mobilization yard for Permittee’s contractors and subcontractors and a construction staging area (including for the delivery of construction materials and the staging of heavy equipment) in connection with the development and construction of an office building at Site 26 in Battery Park City. | ||
b. | Permittee shall be responsible for all maintenance and operational expenses associated with its occupancy and use as described above. All construction fencing, windscreens and gates at the Premises shall be maintained in good repair. This paragraph is subject to the provisions of Section 6(f). | ||
c. | No parking is allowed on Hudson River Park property outside of the fenced in Premises area. Any vehicles parked outside of such area are subject to ticketing and tow. | ||
d. | Permittee shall comply with the Hudson River Park rules and regulations set forth in Exhibit 2 attached hereto, and such other duly adopted rules and regulations of general applicability to the Hudson River Park property as the Trust may adopt from time to time and of which Permittee is given reasonable written notice, provided that no such rule or regulation shall adversely affect Permittee’s use and occupancy of the Premises in the manner otherwise contemplated hereunder. |
3. | Permit Term: |
a. | This is a six-year Permit which shall commence on the Commencement Date. This Permit may not be cancelled by the Trust except by reason of a material breach by Permittee of an obligation on the part of Permittee hereunder, which breach remains uncured after not less than thirty (30) days’ written notice from the Trust to Permittee, or if such breach is not reasonably susceptible of cure within said thirty (30) day period, such longer period as is reasonably necessary to cure such breach, provided that Permittee |
2
b. | In the event of a casualty, force majeure or other event affecting Permittee’s construction schedule for its building on Site 26 that is beyond Permittee’s reasonable control, then the term of this Permit shall be extended accordingly. | ||
c. | The parties acknowledge that this instrument is not a lease but is merely an exclusive permit to occupy and use, and therefore a landlord-tenant relationship is not hereby created; and further, that since this is not a lease, Section 5-321 of the General Obligations Law does not apply to this permit to the extent permitted by law. No ownership leasehold or other property interest shall vest in Permittee by virtue of this Permit. Notwithstanding the foregoing, the Trust acknowledges that in the event of the Trust’s termination or attempted termination of this Permit, Permittee would suffer irreparable harm which would not be compensable by money and that Permittee shall be entitled to injunctive relief against the Trust, including an injunction against any attempt on the part of the Trust to dispossess Permittee. |
4. | Insurance: |
a. | Permittee throughout the term of this Permit, or as otherwise required by this Permit, shall obtain and maintain in full force and effect, the following insurance with limits not less than those described below and as required by terms of this Permit, or as required by law, whichever is greater (limits may be provided through a combination of primary and umbrella/excess policies) for all individual areas included in the Premises: |
i. | Commercial General Liability Insurance with a limit of not less than $5,000,000 per each occurrence. Such liability shall be written on the Insurance Service Office’s (ISO) occurrence form CG 00 01, or a substitute form providing equivalent coverages and shall cover liability arising from premises operations, independent contractors, products-completed operations, broad form property damage, personal and advertising injury, cross liability coverage, liability |
3
ii. | Workers Compensation, Employers Liability, and Disability Benefits as required by New York State; and | ||
iii. | If Permittee owns or operates vehicles as part of its operations, then Permittee shall maintain Comprehensive Business Automobile Liability Insurance with a limit of not less than $2,000,000 each accident. Such insurance shall cover liability arising out of any automobile including owned, leased, hired and non-owned automobiles. |
b. | All insurance required by this Permit shall be; |
i. | Obtained at the sole cost and expense of Permittee; | ||
ii. | Maintained with insurance carriers authorized to do business in New York State; | ||
iii. | Primary and non-contributing to any insurance or self-insurance maintained by the Trust; | ||
iv. | Endorsed to provide written notice be given to the Trust, at least (30) days prior to the cancellation (other than for nonpayment, which will require only 10 days’ notice) or material alteration of such policies, which notice evidenced by return receipt of United States Certified Mail, shall be sent to the Trust at the addresses set forth in Article XVI below; and | ||
v. | shall name the Hudson River Park Trust, the People of the State of New York, the New York State Executive Department, the New York State Office of Parks, Recreation and Historic Preservation, the New York City Region of State Parks, Recreation and Historic Preservation Commission, the Department of Environmental Conservation, the City of New York, the City of New York Department of Parks and Recreation (“Additional Insureds”). |
4
c. | Permittee shall be solely responsible for the payment of all deductibles and self-insured retentions to which such policies are subject. Deductibles and self-insured retentions must be approved by the Trust. Such approval shall not be unreasonably withheld, conditioned or delayed. | ||
d. | Each insurance carrier must be rated at least “A-” Class “VII” in the most recently published Best’s Insurance Report. If, during term of the policy, a carrier’s rating falls below “A-” Class “VII”, the insurance must be replaced no later than the renewal date of the policy with an insurer acceptable to the Trust and rated at least “A-” Class “VII” in the most recently published Best’s Insurance Report. | ||
e. | Permittee shall cause all insurance to be in full force and effect as on the Commencement Date and to remain in full force and effect throughout the term of this Permit and as further required by this Permit. Permittee shall not take any action, or omit to take any action that would suspend or invalidate any of the required coverages during the period of time such coverages are required to be in effect. Not less than ten (10) days prior to the expiration date or renewal date of any policy, Permittee shall supply the Trust with updated replacement Certificates of Insurance, and amendatory endorsements. | ||
f. | Waiver of Subrogation. Permittee shall cause to be included in each of its policies insuring against loss, damage or destruction by fire or other insured casualty a waiver of the insurer’s right of subrogation against the Trust, or, if such waiver is unobtainable (i) an express agreement that such policy shall not be invalidated if Permittee waives or has waived before the casualty the right of recovery against the Trust or other Additional Insureds set forth above, or (ii) any other form of permission for the release of the Trust or other the Additional Insureds. | ||
g. | Within 15 days of the Commencement Date, Permittee shall provide the Trust with Evidence of Insurance reflecting compliance with all requirements contained in this Permit. Acceptance and/or approval by the Trust does not and shall not be construed to relieve Permittee of any obligations, responsibilities or liabilities under this Permit. |
5
h. | Permittee may have its insurance requirements hereunder satisfied by its sublessees, concessionaires, sub-permittees, licensees, contractors and subcontractors. |
5. | Indemnification: |
a. | Permittee shall defend, indemnify and hold harmless the Trust, the People of the State of New York, the New York State Executive Department, the New York State Office of Parks, Recreation and Historic Preservation, the New York City Region of State Parks, Recreation and Historic Preservation Commission, the Department of Environmental Conservation, the City of New York, the City of New York Department of Parks and Recreation, and each of their respective commissioners, officers, agents, employees, successors and assigns (“Indemnitees”) from and against any and all liabilities, claims, demands, penalties, fines, settlements, damages, costs, expenses and judgments which: |
i. | arise from injury to any person, or persons, including death, or any damage to property of any nature, occasioned wholly or in part by any act(s) or omission(s) of Permittee or of the directors, officers, employees, guests, contractors, subcontractors, representatives or agents of Permittee, that occurs on the Premises, or arise out of or as a result of this Permit, or | ||
ii. | relate to or arise from any and all liens and encumbrances which may be filed or recorded against the Premises or any public improvement lien filed against any funds of the Trust, the State or the City of New York, as a result of actions taken by or on behalf of Permittee, its directors, officers, contractors, subcontractors, agents, representatives, employees, guest or invitees. |
b. | Permittee shall defend, indemnify and hold harmless the Indemnitees from and against any and all loss, damage or liability of whatever kind or nature, arising out of, or in any way related to the presence, storage, transportation, disposal, release or threatened release of any Hazardous Materials (as hereinafter defined) over, under, in, on or from the Premises caused wholly or |
6
i. | any “hazardous waste” as defined under the Resource Conservation and Recovery Act, 42 U.S.C. Section 9601et. seq., or | ||
ii. | “hazardous substance” as defined under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601et seq., or | ||
iii. | “hazardous materials” as defined under the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801et seq., or | ||
iv. | “hazardous waste” as defined under New York Environmental Conservation Law Section 27-0901et seq., or | ||
v. | “hazardous substance” as defined under the Clean Water Act, 33 U.S.C. 1321et seq. |
c. | Anything in this Section to the contrary notwithstanding, nothing in this Permit shall be construed to relieve the Trust from responsibility to Permittee for any loss or damage suffered by Permittee wholly or in part by the negligent acts or omissions of the Trust; except, however, that the Trust shall not be responsible for such portion of such loss or damage which is recovered or recoverable by Permittee from any insurance covering such loss or damage or for such loss or damage against which the Permittee is indemnified or insured. Further, nothing herein shall be construed to obligate Permittee to indemnify any Indemnitee for any liability in connection with Hazardous Materials at, under or about the Premises solely by reason of the presence of the same. | ||
d. | The provisions of this Section shall survive the termination or non-renewal of this Permit. |
7
6. | Repair, Maintenance and Improvements: |
a. | Permittee is responsible for keeping and maintaining the Premises described herein in a safe and clean condition and for the regular and prompt removal of garbage, rubbish, litter, snow and ice. Permittee shall install and be fully responsible for maintaining security fencing with privacy screening along the perimeter of the Premises to restrict access. All gates installed in such fencing shall be kept closed and kept locked and secured when construction and other related development work ceases each work day. | ||
b. | Except as (permitted hereunder (including the installation of construction fencing and signage), Permittee shall not make any improvements, alterations or structural changes, nor erect signage of any kind on, to or at the Premises, inside or outside, without the prior specific written consent and authorization of the Trust, which consent shall not be unreasonably withheld, delayed or conditioned. | ||
c. | Any additions or improvements made by Permittee shall remain property of Permittee. At Permittee’s option, Permittee may elect to remove additions or improvements or leave in place at the expiration or termination of this Permit. | ||
d. | The Trust shall have no obligation to make structural repairs for the benefit of Permittee or for any purpose under this Permit. | ||
e. | The Trust shall have no responsibility whatsoever for the loss or destruction of any improvements made by the Permittee or for personal property stored or being used on the premises (except to the extent caused by the Trust’s negligence or willful misconduct). | ||
f. | Any provision in this Permit to the contrary notwithstanding, the provisions of paragraphs (B)(3) and (C) of Exhibit 3 hereto shall control over any inconsistent provision contained herein with the effect that (A) Permittee shall have no liability whatsoever to construct, operate or maintain any Street Improvements (as defined in Exhibit 3) and (B) any limitation herein on the obligations of the Trust to construct, operate or maintain any improvements constructed on the Premises shall in all respects be subject to the provisions |
8
7. | Access to Premises: | ||
Permittee shall permit access, inspection and examination of the Premises by the Trust or the Trust’s agents, employees, consultants and representatives during reasonable business hours and on reasonable notice. Such right of access, inspection or examination shall include, but is not limited to, determining whether the Premises are in good repair and maintenance, structurally sound, and that there are no hazardous, unsanitary, or defective conditions present; and to conduct tests, procedures, investigations and inspections in connection with developing plans for construction or improvements in, on, around or near the Premises. Such access shall be undertaken and coordinated with Permittee so as not to interfere with Permittee’s operations to the extent feasible. | |||
8. | Legality of Use: | ||
Permittee is responsible to maintain the occupancy in compliance with any and all applicable Federal, State, and local laws, ordinances, codes, rules and regulations affecting the use of the Premises. Permittee shall not conduct or allow any use or activity on the premises inconsistent with law, and shall not conduct or allow any use or activity on the Premises which may require a permit or other approval by a government agency without having lawfully obtained such permit or approval. | |||
9. | Utilities, Maintenance and Services: | ||
Permittee must provide and pay for any utility charges or expenses incurred in connection with Permittee’s operations at the Premises, including all water, gas, heat, electricity, sewer charges, removal of garbage, rubbish, litter, snow and ice, unless otherwise specified. The Trust shall have no responsibility for providing any services not specifically set forth in writing herein. Permittee shall comply with all applicable local and State building standards in the installation or repair of any utilities including but not limited to electricity and plumbing. The provisions of this Section 9 are subject to Section 6(f). |
9
10. | Premises “As-is”: |
a. | Permittee has inspected the condition of the Premises and accepts the Premises “as-is” and will not at any time make any claim that the Premises or structures thereon are not in suitable repair or condition for the uses and purposes of this Permit, nor will Permittee at any time make any claim for or by way of reduction of charge, or otherwise, for damage arising from or consequent upon any repairs that the Trust or Permittee may do or cause to be done or in consequence of the occupation of the Premises by the Trust or its agents or contractors. | ||
b. | The Trust has not made nor does it make any representation or warranty as to the condition of the Premises or its suitability for any particular use or as to any other matter affecting this Permit. | ||
c. | The provision contained in this Section that Permittee accepts the Premises “as-is” relates to the condition of the Premises as they were when Permittee first entered into possession thereof, or on the Commencement Date, whichever is earlier. |
11. | Possession: | ||
The Trust shall deliver possession of the Premises concurrently with the execution and delivery hereof, provided that Permittee shall have the right, at any time and from time to time, on written notice to the Trust to defer acceptance of delivery to such date as shall be specified in said notice (the date on which possession of the Premises is delivered and accepted, the “Commencement Date”). | |||
12. | Assignment or Use of the Premises: |
a. | Except as set forth in this Permit, Permittee shall not assign, grant use of, permit or license the whole or any part of the Premises or this Permit, nor allow the same to be occupied by any person or entity other than Permittee or its agents, representatives, employees, contractors, subcontractors, consultants, subconsultants, successors and assigns. |
10
b. | Permittee shall have the right to transfer, assign, mortgage or pledge this Permit or any part thereof, or in any way charge or encumber the rights granted herein, or any part thereof, in the same manner and to the same degree as under the Ground Lease for Site 26. Without limiting the foregoing, (i) the Trust, after receiving notice from Permittee’s lender, shall copy such lender on any notices of default given to Permittee (and such notice shall not be effective under Section 3(a) unless such copy is delivered), (ii) such lender shall have not less than the period given to Permittee to cure any default, and (iii) upon any termination of this Permit for any reason whatsoever, the Trust shall allow such lender or its designee thirty days after notice to such lender, to execute and deliver with such lender or its designee a new permit on all of the unexpired terms and conditions contained herein. | ||
c. | Permittee shall not issue or grant any permit or license to use the Premises or any part thereof without the prior written consent of the Trust, which consent shall not be unreasonably withheld, conditioned or delayed. | ||
d. | If Permittee is a limited or general partnership, neither Permittee or any general partner shall sell, assign or transfer its interest in the partnership which is the Permittee under this Permit; nor shall a limited or general partnership (or a Permittee comprised of two (2) or more persons individually or a co-partners) change or convert Permittee to any of the following entities (“Limited Liability Entity”): (i) a limited liability company, (ii) a limited liability partnership, or (iii) any other entity which possesses the characteristics of limited liability; without the prior written consent of the Trust, which consent shall be granted or withheld in accordance with clause (e) below. | ||
e. | In the event Permittee wishes to convert to a Limited Liability Entity, the Trust agrees not to unreasonably withhold, condition or delay its consent provided that: (i) The Limited Liability Entity succeeds to all or substantially all of Permittee’s business and assets; and (ii) the Limited Liability Entity has a net worth (“Net Worth”) determined in accordance with generally accepted accounting principles of not less than the greater of Permittee’s Net Worth on (1) the date of execution of the Permit, or (2) the day immediately preceding the date of such conversion; and (iii) Permittee is not in default of any of the terms, covenants or conditions of the Permit on the date of such conversion; and(iv)each partner of Permittee shall execute and deliver to the Trust an |
11
agreement, in form and substance reasonably satisfactory to the Trust, under which each partner agrees to remain personally liable for all of the terms, covenants and conditions of the Permit. | |||
f. | The Permittee shall provide to the Trust the following: the name and address of the proposed assignee, subpermittee, user, licensee or grantee (collectively referred to here as “user”), the nature of business to be conducted on the Premises by the proposed user, the terms of the proposed sub-permit or other authorization to be provided to user, and reasonable financial information so that the Trust may evaluate the proposed user. Failure to comply with this provision may result in ten (10) days written notice of cancellation of the Permit by the Trust and, absent substantial compliance with the above provisions of this section (f) subsequent to such notice, the Trust may immediately take possession and terminate all rights of the Permittee at such time. The provisions of this subsection (f) shall not apply to any contractor, subcontractor, representative or agent of Permittee in connection with the construction of the building on Site 26. |
13. | Conflict of Interest: | ||
Permittee warrants and represents that no officer, agent, employee or representative of the Trust, has received any payment or other consideration from Permittee or at Permittee’s direction for the granting of this Permit. Permittee acknowledges that the Trust is relying on the warranty and representation contained in this article and that the Trust would not enter into this Permit absent the same. It is specifically agreed that, in the event the facts hereby warranted and represented prove to be incorrect, the Trust shall have the right to terminate this Permit upon twenty-four (24) hours notice to Permittee and to rescind this transaction in all respects. | |||
14. | Investigation: | ||
The parties to this Permit agree to cooperate fully with any investigation, audit, or inquiry related to the grant of this Permit conducted by a State of New York (“State”) or City of New York (“City”) governmental agency or authority that is empowered directly or by designation to compel the attendance of witnesses and to examine |
12
witnesses under oath, or conducted by the Inspector General of a governmental agency that is a party in interest to the transaction, submitted bid, submitted proposal, contract, permit, lease or license that is the subject of the investigation, audit or inquiry. | |||
15. | No Flammable Materials: | ||
Permittee shall not place or store, or allow others to place or store, any flammable explosive, hazardous, toxic or corrosive materials, debris of any description, garbage or any materials commonly referred to as “junk” within the permit area, except fuel kept in the fuel tanks of vehicles as are parked on the Premises in accordance with the terms of this Permit or as otherwise reasonably necessary in connection with Permittee’s use and occupancy of the Premises in accordance with the terms of this Permit, provided that Permittee shall at all times comply with law in connection therewith. Failure to comply with this provision may result in a written notice of cancellation of the Permit in accordance with Section 3.a of this Permit. | |||
16. | Executory Clause: | ||
In accordance with Section 41 of the State Finance Law, the Trust shall have no liability under this contract to the Permittee or to anyone else beyond funds appropriated and available for this contract. | |||
17. | Non-Discrimination: | ||
In accordance with Article 15 of the Executive Law (also known as the Human Rights Law) and all other State and Federal statutory and constitutional non-discrimination provisions, the Permittee will not discriminate against any employee or applicant for employment because of race, creed, color, sex, national origin, age, disability or marital status. Neither shall the Permittee discriminate in the use of these Premises or any access to these Premises if such Premises is used as a public accommodation or in connection with a public service. |
13
18. | No Right to Relocation/Relocation Benefits: | ||
The Trust shall have no right to relocate the premises used by the Permittee to a location other than the Premises. Notwithstanding the foregoing, in the event this Permit is properly terminated, it is understood and agreed by and between the parties that the Permittee will not be entitled to any relocation benefits provided under Federal and State law. | |||
19. | No Obligation to Sell Property: | ||
Permittee agrees and understands that the Premises are a part of the Hudson River Park and that neither the State nor the Trust is under any obligation to sell the property to the Permittee and that no commitment, express or implied, has been made by the State or the Trust to give the Permittee any preemptive right of purchase in respect of the Premises. | |||
20. | No Oral Modification: | ||
This Permit may not be altered, modified or amended in any manner whatsoever except by a written instrument signed by the Trust and Permittee, | |||
21. | Severability: | ||
If any of the provisions of this Permit are held invalid, such invalidity shall not affect or impair other provisions of this Permit which can remain in effect without the invalid provisions, and therefore, the provisions of this Permit are severable. | |||
22. | Other Agreements: | ||
It is understood that all other agreements between Trust and Permittee with respect to this Permit shall be superseded by this Permit, and any obligations between the parties shall be determined solely by this Permit until such time as this Permit is superseded by another agreement. |
14
23. | Notices: | |||||
Any notice, approval, consent, acceptance, request, bill, demand or statement required or permitted to be given hereunder (a “Notice”) from either party to the other must be in writing and shall be deemed given when received by hand delivery, overnight mail or three (3) business days after it has been deposited with the United States Postal Service in a postage prepaid envelope, certified or registered mail, addressed to the other party at the address set forth herein. | ||||||
If to the Trust: | ||||||
Hudson River Park Trust | ||||||
Pier 40, Second Floor | ||||||
West Street @ West Houston Street | ||||||
New York, New York 10014 | ||||||
Attn.: Assistant Treasurer | ||||||
Copy to: Vice President, Operations | ||||||
If to Permittee: | ||||||
Goldman Sachs Headquarters LLC | ||||||
c/o The Goldman Sachs Group, Inc. | ||||||
85 Broad Street | ||||||
New York, New York 10004 | ||||||
Attn: Timur Galen | ||||||
Copy to: General Counsel via fax: 212-256-4295 | ||||||
Either party may at any time change such address or add additional parties to receive a Notice by mailing, as aforesaid, to the other party a Notice thereof. |
15
24. | No Arbitration: | |||||
Disputes involving this Permit, including the breach or alleged breach thereof, may not be submitted to binding arbitration but must, instead, be heard in a court of competent jurisdiction of the State of New York. | ||||||
25. | Service of Process: | |||||
In addition to the methods of service allowed by the State Civil Practice Law & Rules (“CPLR”), Permittee hereby consents to service of process upon it by registered or certified mail, return receipt requested. Service hereunder shall be complete upon Permittee’s actual receipt of process or upon the Trust’s receipt of the return thereof by the United States Postal Service as refused or undeliverable. Permittee must promptly notify the Trust, in writing, of each and every change of address to which service of process can be made. Service by the Trust to the last known address shall be sufficient. The Trust will have thirty (30) calendar days after service hereunder is complete in which to respond. | ||||||
26. | Interest of Others: | |||||
Nothing in this Permit shall be construed to give any person other than the Trust and Permittee (and their respective successors and permitted assigns) any legal equitable right, remedy or claim. This Permit shall be held to be for the sole and exclusive benefit of the Trust and Permittee (and their respective successors and permitted assigns). | ||||||
27. | Governing Law: | |||||
This Permit shall be construed under, and be governed by, the laws of the State of New York, excluding conflict of law principles. No legal proceeding shall be commenced by either party against the other party in any court other than a court of competent jurisdiction of the State of New York in the County of New York. Permittee and the Trust agree to waive all rights to a trial by jury in any legal proceeding to which Permittee and the Trust are parties. |
16
28. | Warranty of Authority: | |||||
The undersigned respective signatory for Permittee and the Trust, by signing this Permit, personally warrants that he or she has the power and authority to enter into this Permit agreement on behalf of Permittee or the Trust, respectively, and to bind Permittee or the Trust, respectively, to the terms and conditions of this Permit. | ||||||
29. | Non-Disclosure: | |||||
(a) To the extent consistent with New York State Freedom of Information Law and other governmental disclosure law requirements or mandates, each party hereto shall not disclose and shall keep confidential any information received from the other party in connection with this Permit that is expressly designated and marked as “confidential” (collectively “Confidential Information”). Notwithstanding the foregoing, “Confidential Information” shall not include information which (i) is or becomes available to the public, other than as a result of a disclosure by such party or its Representatives (as defined below) or (ii) was available to such party or its Representatives on a non-confidential basis from a Person, where such Person was not, or such party did not reasonably believe such Person was, bound by a confidentiality agreement with such other party not to transmit the information to such party or its Representatives. In addition (i) nothing herein shall prohibit the disclosure of Confidential Information to the extent such disclosure is required under law and (ii) each party shall be permitted to provide Confidential Information to its officers, employees, accountants, attorneys, agents, advisors, consultants and potential lenders or equity partners and their officers, employees, accountants, attorneys, agents, advisors and consultants (collectively, “Representatives”). Each party shall direct its Representatives to comply with the provisions of this Section (a). | ||||||
(b) If any party hereto or any of its Representatives is required to disclose any Confidential Information (i) in connection with any judicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigation Demand or similar process) or (ii) in order, in the opinion of its counsel, to avoid violating applicable law, such party shall, in advance of such disclosure, to the extent legally permissible, provide the other party hereto with prompt notice of any such requirement. |
17
(c) Without prejudice to the rights and remedies otherwise available to each party, each party agrees that the other shall be entitled to equitable relief by way of injunction or otherwise if either party or any of either party’s Representatives breach or threaten to breach any of the provisions of this Section 29. | ||||||
(d) The Parties hereto, and their respective directors, officers, employees and agents, shall not in each instance, without the prior written consent of the other party hereto: | ||||||
(i) use in advertising, publicity or otherwise the name of the other Party, or any of its Affiliates, partners, managing directors, directors, officers or employees or any such Affiliate (collectively, “Personnel”), or any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by such party or any of its Affiliates, except that each party hereto may use the name of the other party hereto to the extent and in the manner required under applicable law, (ii) represent, directly or indirectly, that it or any of its activities have been approved or endorsed by the other party or any Affiliate of the other party, or (iii) discuss any information regarding the Project or any of the other party’s plans or activities in connection therewith with, or comment about the foregoing to unrelated third parties, members of the press or any other media, any reporter, author, producer or similar Person, or take any other action seeking to publicize or disclose any such information in any way likely to result in such information being made available to the general public in any form including books, articles or writings of any other kind, or through any medium, including film, videotape, audiotape, television, radio or the internet, except that each party may make such disclosures to the extent required under applicable law. | ||||||
30. | Long Term Agreement: | |||||
Attached hereto as Exhibit 3 are the terms and conditions under which Permittee, at or around substantial completion of its construction of the building at Site 26, will have continued ability to access the Premises to provide ingress and egress and to ensure security for its employees and visitors. Exhibit 3 also provides the key terms on which the Premises will be maintained and operated on a long term basis. The Permittee agrees that the Trust shall have approval rights in the future if changes to the Premises are required, and the Trust acknowledges that such approvals shall not be unreasonably withheld provided that they are consistent with the Hudson River Park Act and do not unduly impair use of the park. By its execution and delivery of |
18
this Permit, the Trust hereby agrees to such terms and conditions. Said terms and conditions, and the Trust’s agreement thereto, shall survive any termination of this Permit, other than a termination of this Permit in accordance with Section 3.a hereof prior to the substantial completion of such building. |
THE TRUST: | PERMITTEE: | |||||||
HUDSON RIVER PARK TRUST | GOLDMAN SACHS HEADQUARTERS LLC | |||||||
By: | The Goldman Sachs Group, Inc., its | |||||||
Managing Member | ||||||||
By: | /s/ Connie Fishman | By: | ||||||
Title: | President | Title: | ||||||
STATE OF NEW YORK | ) | |||
)SS .: | ||||
COUNTY OF | ) |
Notary Public |
20
STATE OF NEW YORK | ) | |||
) | ss.: | |||
COUNTY OF __________ | ) |
Notary Public |
GEORGE E. PATAKI GOVERNOR | JAMES K. KALLSTROM SENIOR ADVISOR FOR COUNTER-TERRORISM |
Managing Director and Chief Administrative Officer
Goldman Sachs & Co.
85 Broad Street
New York, New York 10004
The World Trade Center Redevelopment Agreement, dated November 24, 2004 between the Port Authority of New York and New Jersey and the City of New York, among other items, provides that the Port Authority and the City will develop a mutually acceptable Security Plan for the World Trade Center (WTC) Site. (That agreement is attached hereto as Attachment A.)
On May 12, 2005, Governor George Pataki called upon Mr. John Cahill, Secretary to the Governor, to coordinate the Lower Manhattan Redevelopment effort. As his Senior Advisor for Counter-Terrorism, I was identified by the Governor to coordinate the security interests and activities of the various public sector and private entities that are participants in the redevelopment of Lower Manhattan. Part of that task has been to develop the necessary security protocols with the City of New York, and specifically, the New York City Police Department as a principal stakeholder in this effort.
To develop these protocols, we are in the process of acquiring the services of a Security Consultant to prepare and assist in the implementation of a Site-Wide World Trade Center All Hazards and Risks Master Security Plan and Standards, with a Concept of Operations, Operational Procedures, and Functional Requirements (the “Plan”). The Plan will encompass and coordinate all aspects and components of security for the WTC Site, related entities and proximal environs, from security design, through construction and completion, to occupancy, and operations. It will identify all security components that will impact the redevelopment of the WTC Site and recommend long-term security measures and procedures that will be integrated with the proximal environs, and Lower Manhattan. In developing the Plan, the Consultant will be collaborating with the various agencies and other public and private stakeholders performing the design and
1) | The formation of a Working Group to meet with the Lower Manhattan Counter-Terrorism Advisory Team as it interacts with the selected consultant. | ||
2) | To participate in the review of the consultant’s environs recommendations concerning the operational procedures to be implemented as they become available. | ||
3) | One hundred days after the Security Consultant initiates its work, participate in the review of the submitted Conceptual Options draft of the Plan. | ||
4) | One hundred eighty days after the Security Consultant initiates its work, participate in the review of the submitted Preferred Alternative draft of the Plan. | ||
5) | Two hundred and forty days after the Security Consultant initiates its work, participate in the review of the submitted Final Version of the Plan. | ||
6) | Thereafter, participate in the substantial implementation of the Plan and the operational procedures and protocols for its implementation, which will be phased in over an indefinite period. As the Plan and stages of work to be defined in the body of work are developed and implemented, all stages to be completed by December 31, 2009, will be completed by December 31, 2009. |
In summary, both the State and City of New York are synchronized and committed to establishing and implementing, in concert with the other involved public and private stakeholders, security standards, plans and operations for the WTC Site and proximal environs in the manner described above. We look forward to your active participation in this process.
Sincerely, | ||||
James K. Kallstrom | ||||
Senior Advisor to the Governor for Counter-Terrorism |
Enclosure
Executive Vice President
Chief Administrative Officer
Goldman Sachs
85 Broad Street
New York, New York 10004
As you know from our previous discussions, the NYPD is committed to the development and implementation of a comprehensive security plan for Lower Manhattan.
Our security plan for Lower Manhattan will address a wide range of issues, including optimal command, control and communication, street and traffic management and other operational issues, area wide security monitoring and the use of technology.
The Port Authority is also working on the development of a security plan for the World Trade Center site. The NYPD is working with the Port Authority and other State agencies to ensure that this effort is seamlessly integrated into the overall Lower Manhattan security plan.
We recognize that Goldman Sachs, as well as other relevant stakeholders, should be included in this process. In fact, the security plan will be based on the outline of such a plan already shared with Goldman Sachs. We also invite Goldman Sachs to provide a liaison that would be available for all security planning work.
One component of the plan will be a centralized coordination center that will provide space for full-time, on site representation from Goldman Sachs and other stakeholders. This will ensure maximum communication and coordination in case of any event.
We look forward to discussing this further.
Sincerely, | |||||
Raymond W. Kelly | |||||
Police Commissioner |
Website: http://nyc.gov/nypd
c/o The Goldman Sachs Group, Inc.
85 Broad Street
New York, N.Y. 10004
Attn: Timur Galen — Managing Director, Corporate Services
Re: | Site 26 — Battery Park City |
1. | |||
2. | You shall not be required to pay BPCA any rent or other occupancy or use fees in connection with your access under this Letter Agreement unless you and BPCA shall not have executed and delivered the Lease on or before the 60th calendar day following the Access Commencement Date (such day, the “Fee Commencement Date”) and the Access Termination Date shall have not occurred. In no event shall the Fee Commencement Date occur later than December 1, 2005. With respect to the period from the Fee Commencement Date through the Access Termination Date, you shall pay BPCA a fee of $110,000 per month (prorated on a per diem basis, based on the actual number of days in the month in question). Such fee shall be payable on or before the fifth business day following the Fee Commencement Date (prorated as appropriate) and on the fifth business day of each succeeding month. Any overpayment as of the Access Termination |
Date shall be refunded to you within five business days. | |||
3. | You shall have delivered to BPCA prior to the Access Commencement Date a clean, unconditional and irrevocable letter of credit in the form previously delivered to BPCA (the “Letter of Credit”) in the amount of Four Million Dollars ($4,000,000) to secure your faithful performance, observance and compliance with the terms, provisions, covenants, conditions and requirements of this Letter Agreement, and such Letter of Credit shall remain in effect for the Work described in paragraph 4 below. | ||
4. | The Work may include the following: |
a. | Mobilizing Site Security | ||
b. | Mobilizing Trailers | ||
c. | Pre-construction Survey | ||
d. | Ground Penetration Radar | ||
e. | Trenching to locate Hudson River Bulkhead | ||
f. | Site Fencing | ||
g. | Installation of Sidewalk Bridge | ||
h. | Trenching for existing Utilities/Utility Relocations | ||
i. | Borings/Soil Investigation | ||
j. | Mobilization of the Caisson Contractor, including locating equipment and materials on the Premises | ||
k. | Pedestrian Walkway fencing, location of equipment and materials east of such fencing and curb cuts | ||
l. | Utility Hookups to Trailers | ||
m. | Pedestrian Walkway Utility Disconnect | ||
n. | Pedestrian Walkway Demolition | ||
o. | Curb Cuts in other locations | ||
p. | Sidewalk Signage Relocation | ||
q. | Excavation to Site 26 elevation +2 feet and installation of sheeting and shoring around the perimeter of the Premises | ||
r. | Caisson Work |
5. | You shall perform the Work at your sole cost and expense and in compliance with all applicable laws. BPCA agrees that the workdays and hours and other work rules set forth on Exhibit A hereto are acceptable and have been approved by BPCA for the conduct of the Work. | ||
6. | At your sole cost and expense, upon the Access Termination Date (unless the same occurs by reason of clause (b) of the definition thereof), you shall promptly remove any equipment, fencing, sidewalk bridges or other materials placed on the Premises by you or your agents and repair any damage caused to the Premises by you or your agents, including replacing removed fill or paving. Such repair work shall be considered as part of the Work and BPCA shall permit you to have access to the Premises to perform such repairs and remove such equipment and materials. For the avoidance of doubt, you shall not be required, either pursuant to this paragraph 6 or pursuant to paragraph 7 below, to restore or repair any condition caused by BPCA, its agents or contractors or any BPCA tenant or subtenant or to indemnify BPCA or any such tenant or subtenant for the |
costs of any such restoration or repair, whether or not the such condition was created in anticipation of the Work or your activities at the Premises. | |||
7. | You shall deliver to BPCA on or prior to the Access Commencement Date evidence that you maintain in effect, at your own expense, insurance policies as required in Section 11.03 of the most recent BPCA draft of the Lease which was dated February 18, 2005. You shall also indemnify and hold harmless BPCA from and against all claims, judgment, liabilities, obligations, losses, damages, penalties, costs and expenses, including reasonable attorneys’ fees and disbursements and including any loss of value to the Premises, paid, suffered or incurred by BPCA (a) as a result of or in connection with the Work or the presence of you, your employees, agents or contractors at the Premises or (b) in enforcing this indemnity or any other provision of this Letter Agreement. This indemnity and hold harmless shall not apply to any claims, judgment, liabilities, obligations, losses, damages, penalties, costs and expenses which arise out of hazardous or toxic waste existing on the Premises prior to the Access Commencement Date. | ||
8. | Your access to the existing pedestrian plaza at the western side of Site 26 shall be coordinated with Forest City Ratner Companies, representative of BPCA’s tenant on Site 25. If you desire that movable outdoor retail seating on the plaza be removed, you shall give 10 calendar days prior written notice to BPCA. This Letter Agreement does not permit access to property adjacent to the Premises under the control of Hudson River Park Trust or NYS Department of Transportation, which you shall separately arrange if you find the same necessary or appropriate. This letter is intended to permit access to sidewalk areas adjacent to the Premises that are under the control of BPCA to conduct the Work. | ||
9. | You acknowledge that you have no legal or equitable rights with respect to the Premises except as may be provided in the Designation Letter or as expressly provided herein. | ||
10. | This Letter Agreement may be signed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. |
Very truly yours, BATTERY PARK CITY AUTHORITY | ||||
BY: | ||||
NAME: | ||||
TITLE: | ||||
GOLDMAN SACHS HEADQUARTERS LLC | ||
BY: | ||
NAME: | ||
TITLE: President |
State of New York City of New York | ||||
George E. Pataki | Michael R. Bloomberg | |||
Governor | Mayor |
30 Hudson Street, 19th Floor
Jersey City, New Jersey 07302
Attention: Timur Galen
City Hall New York, New York 10007
STEPHANIE GELB, AIA VICE PRESIDENT PLANNING AND DESIGN |
Goldman Sachs Headquarters LLC
30 Hudson Street -19th Floor
Jersey City, New Jersey 07302-4699
ONE WORLD FINANCIAL CENTER, NEW YORK, NY 10281-1097 (212) 417-1301 FAX: (212) 417-4381 WWW.GELBS@BPCAUTHOR.ORG
VICE PRESIDENT PLANNING AND DESIGN
cc: | Timothy S. Carey George Miller |
ONE WORLD FINANCIAL CENTER, NEW YORK, NY 10281-1097 (212) 417-1301 FAX: (212) 417-4381 WWW.GELBS@BPCAUTHOR.ORG
• | Design Guidelines are deemed amended (“Revised Design Guidelines”) to omit reference to Battery Park City Authority green guidelines and requiring only that the building receive a LEEDS Gold certification. | |
• | The Lease will provide that the Pre-Schematics, Schematics and Design Development Plans (except with respect to the canopy, hard-scape and landscape for the pedestrian walkway which will be submitted with the Construction Documents) previously submitted and the curtain wall design as presented in prior design submissions and the required curtain wall mock-up have been approved prior to the execution of the Lease. |
• | Within 300 calendar days of the execution of the Lease, GS shall submit Construction Documents (which may be submitted in parts, consistent with GS’s fast-track process) to BPCA and the subject to the limitations regarding the scope of the required submission previously agreed to by BPCA. | |
• | BPCA shall determine within 10 business days of submission whether the Construction Documents are consistent with the Design Development Plans, and to the extent not covered in the Design Development Plans, conform to the Revised Design Guidelines. | |
• | If BPCA determines that the Construction Documents are inconsistent with the Design Development Plans or the Revised Design Guidelines, as applicable, and objects to such inconsistency, BPCA shall submit a reasonably detailed statement of its objection to GS and the LMCCC. If BPCA fails to submit such reasonably detailed statement within 10 business days of GS’s submission of the Construction Documents, the Construction Documents shall be deemed approved. | |
• | If BPCA objects to the Construction Documents, GS may, at its option, (i) revise the same to address BPCA’s objection or (ii) immediately refer the objection to the LMCCC for mediation. If GS submits revised Construction Documents, BPCA shall review such revised Construction Documents and notify GS and the the LMCCC of any objection within 5 business days of submission in accordance with the procedure described above for the approval of the initial submission. If BPCA fails to so object within 5 business days, the revised submission shall be deemed approved. If GS elects to refer any BPCA objection to the LMCCC as described above, the LMCCC shall mediate the BPCA objection in a manner consistent with the powers granted to the |
• | Hours of allowed work will be the maximum permitted under laws and regulations generally applicable to similar construction projects in The City of New York outside of Battery Park City. The LMCCC will facilitate and otherwise support GS and its contractors in obtaining any waivers or permits required for weekend or other overtime working including, to the extent available, waivers by virtue of the fact that the improvements are owned by a state agency and will generally expedite and facilitate the process for obtaining permits and approvals. | |
• | The LMCCC will facilitate and otherwise support long term duration single fee permitting for nuisance permits. | |
• | The LMCCC will facilitate expedited sidewalk, street closing, crane access permits and other similar permits as may be required. |
if to Tenant: | Goldman Sachs Headquarters LLC c/o Goldman, Sachs & Co. 85 Broad Street New York, New York 10004 Attn: Mr. Timur Galen | |
with a copy sent simultaneously and in the same manner to: | ||
Goldman, Sachs & Co. 85 Broad Street New York, New York 10004 Attn: General Counsel | ||
with a copy sent simultaneously by facsimile to (212) 256-4295 | ||
-and- | ||
Sullivan & Cromwell LLP 125 Broad Street New York, New York 10004 Attn: Arthur S. Adler | ||
if to BPCA: | Battery Park City Authority One World Financial Center New York, New York 10281 Attn: President with a copy sent simultaneously by facsimile to General Counsel at: (212) 417-4123 |
with a copy sent simultaneously and in the same manner to: | ||
Shearman & Sterling LLP 599 Lexington Avenue New York, New York 10022 Attn: Chris M. Smith Client/Matter: 34370/2 | ||
With copy to the City, per the below | ||
if to the City: | ||
Office of the Mayor City Hall New York, New York 10007 Attn: Deputy Mayor for Economic Development and Rebuilding | ||
New York City Law Department 100 Church Street New York, New York 10007-2601 Attn: Chief, Economic Development Division | ||
New York City Economic Development Corporation 110 William Street, 4th Floor New York, New York 10038 Att: Chief Compliance Officer | ||
if to Escrow Agent: | JPMorgan Chase Bank, N.A. Escrow Services 4 New York Plaza, 21st Floor New York, NY 10004 Attn: Audrey Mohan Tel: 212-623-5087 Fax: 212-623-6168 |
BATTERY PARK CITY AUTHORITY d/b/a HUGH L. CAREY BATTERY PARK CITY AUTHORITY | ||||
By: | ||||
Timothy S. Carey | ||||
President and CEO | ||||
GOLDMAN SACHS HEADQUARTERS LLC | ||||
By: | The Goldman Sachs Group, Inc., Its Managing Member | |||
By: | ||||
Name: | ||||
Title: | ||||
JPMORGAN CHASE BANK, N.A., as Escrow Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
Approved as to form: | THE CITY OF NEW YORK | ||||
By: | |||||
Acting Corporation Counsel | Name: | ||||
Title: |
Name | Telephone Number | Signature | ||||
1. | ||||||
2. | ||||||
3. | ||||||
Name | Telephone Number | Signature | ||||
1. | Edward C. Forst | (212) 902-9585 | ||||
2. | Elizabeth Beshel | (212) 902-7428 | ||||
3. | Timur Galen | (212) 902-2353 |
Name | Telephone Number | Signature | ||||
1. | ||||||
2. | ||||||
3. | ||||||
Name | Telephone Number | |||
1. | ||||
2. | ||||
3. | ||||
Name | Telephone Number | |||
1. | Edward C. Forst | (212) 902-9585 | ||
2. | Elizabeth Beshel | (212) 902-7428 | ||
3. | Timur Galen | (212) 902-2353 |
Name | Telephone Number | |||
1. | ||||
2. | ||||
3. | ||||