EXHIBIT 10.5e
RECORDED IN FAIRFIELD LAND RECORDS AT VOLUME _______, pAGE ________
RECORDED IN BRIDGEPORT LAND RECORDS AT VOLUME _______, PAGE ________
RECORDED IN STRATFORD LAND RECORDS AT VOLUME _______, PAGE ________
RECORDED IN MILFORD LAND RECORDS AT VOLUME _______, PAGE ________
RECORDED IN ORANGE LAND RECORDS AT VOLUME _______, PAGE ________
RECORDED IN WEST HAVEN LAND RECORDS AT VOLUME _______, PAGE ________
RECORDED IN NEW HAVEN LAND RECORDS AT VOLUME _______, PAGE ________
Agreement No. 5.15-99(03)
--------------
TRANSMISSION LINE AGREEMENT
BETWEEN
STATE OF CONNECTICUT, DEPARTMENT OF TRANSPORTATION
AND
THE UNITED ILLUMINATING COMPANY
TO OPERATE A TRANSMISSION SYSTEM ON THE
NEW HAVEN LINE FROM FAIRFIELD TO NEW HAVEN
RAIL FILE NO. (50) 7001-MISC-143
This TRANSMISSION LINE AGREEMENT (the "Agreement") concluded at
Newington, Connecticut, as of the 15th day of May, 2003, by and
---- ---------
between the STATE OF CONNECTICUT, DEPARTMENT OF TRANSPORTATION, James F. Byrnes,
Jr., Commissioner, acting herein by Harry P. Harris, Bureau Chief, Bureau of
Public Transportation, duly authorized (the "State"), and THE UNITED
ILLUMINATING COMPANY, a specially chartered Connecticut corporation, having its
principal place of business at 157 Church Street, P.O. Box 1564, New Haven,
Connecticut 06506-0901, acting herein by Anthony J. Vallillo, its President and
Chief Operating Officer, hereunto duly authorized (the "Power Company").
WITNESSETH THAT:
WHEREAS, in accordance with the provisions of a certain Transmission
Line Agreement dated January 13, 1966, between Richard Joyce Smith, William J.
Kirk and Harry W. Dorigan, as
1
Trustees of the Property of the New York, New Haven and Hartford Railroad
Company, Debtor in proceedings for reorganization under Section 77 of the
Bankruptcy Act (hereinafter called "Railroad Company") and The United
Illuminating Company (hereinafter called "Power Company"), Power Company has
installed and is now operating an electric power transmission system on, above
and under land used in the operation of a railroad from a point west of the
Fairfield-Westport Town Line to a point in New Haven (hereinafter called the
"New Haven Line"); and
RECITALS:
a. WHEREAS, The Trustees in Bankruptcy of The New York, New Haven,
and Hartford Railroad Company entered into a Transmission Line Agreement with
the Power Company dated January 13, 1966, for which a Notice of Lease was
recorded in the City of New Haven Land Records at Volume 2302, Page 1; the Town
of West Haven Land Records at Volume 480, Page 78; the Town of Orange Land
Records at Volume 215, Page 61; the Town of Milford Land Records at Volume 566,
Page 322; the Town of Stratford Land Records at Volume 422, Page 55; the City of
Bridgeport Land Records at Volume 1332, Page 117; and the Town of Fairfield Land
Records at Volume 497, Page 185 (the "Agreement").
b. The State is the present owner of the New Haven Rail Line which
extends from the New York State border (Greenwich, Connecticut) to New Haven,
Connecticut. The State acquired fee ownership by quitclaim deed on October 31,
1985 from Penn Central Corporation. Said deed was recorded in the Westport Land
Records in Volume 763, Pages 247-250; Fairfield Land Records in Volume 756, Page
551; Bridgeport Land Records in Volume 1975, Pages 277-282; Stratford Land
Records in Volume 621, Pages 65-70; Milford Land Records in Volume
2
1406, Pages 299-304; Orange Land Records in Volume 299, Pages 360-365; and New
Haven Land Records in Volume 3371, Pages 335-340.
c. Metro-North Commuter Railroad Company is operating commuter railroad
services over said land encumbered by the 1966 Agreement pursuant to the
Amended & Restated Service Agreement among the State, Metropolitan
Transportation Authority and Metro-North Commuter Railroad Company
("Metro-North") dated as of June 21, 1985 (the "Metro-North Service
Agreement"), a true and complete copy of which has been previously delivered by
the State to the Power Company. (Metro-North and any successors thereto in
operating the railroad for the State are hereinafter referred to as the
"State's Designee".) Pursuant to that agreement, Metro-North maintains and
operates for the State the trackage and other railroad facilities located on
the said land.
d. Pursuant to the 1966 Agreement, the Power Company constructed,
maintains and operates a 115-KV electric transmission line that is, for the
most part, located on the north side of the railroad tracks and a 115-KV
electric transmission line that is located on the south side of the railroad
tracks.
e. The original term of the 1966 Agreement ended on May 4, 1980, but
the Power Company properly exercised its option to extend the term of the 1966
Agreement to May 4, 2000.
f. The State and the Power Company have agreed to amend and restate the
1966 Agreement to further extend its term to provide for an increase in the
rent, to define a process for the determination of the rent at various future
times, and to make other amendments.
g. The State has statutory authority to enter into this Agreement
pursuant to Conn. Gen. Stat. Sections 13b-23 and 13b-36(b) which states in
pertinent part that the Commissioner of
3
Transportation "... may sell, lease, convey or enter into any other arrangement
for the use of such property for the operation of transportation services, or
for such other purposes as the commissioner determines to be consistent with
the best interests of the state."
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and to amend and restate the 1966 Agreement, the State and the
Power Company agree as follows:
ARTICLE I.
GRANT
-----
(a) The State grants to the Power Company the right to construct,
repair, maintain, replace, reconstruct, relocate, inspect and remove from time
to time and operate at its own expense and, except as otherwise specifically set
forth herein, without expense to the State and the State's Designee, upon
certain of the State's structures, both those now in existence and those which
may hereafter be erected that are located within the limits of the Use Area that
is hereinafter described in subparagraph (1) (the "State's Structures"), and on,
above or under certain of its land used in the operation of its railroad,
located as follows:
(1) between the Fairfield-Westport Town Line and New
Haven, situated generally between catenary structures Nos. 647 and
1052, inclusive, which is 122,217+/- lineal feet, or 23.147 miles,
between station 1913+83, which is approximately catenary 647, up
to station 3136+00, which is approximately catenary 1052, of the
monumented four-track center line of the New Haven Line,
hereinafter referred to as the ("Use Area") a transmission system
that is hereinafter described in Article II with the supporting
structures and other appurtenances thereto (the
4
"Transmission System"), together with the right to erect such new
structures on said land as may be necessary for the support
thereof.
(b) The State grants to the Power Company the right to construct,
repair, maintain, replace, reconstruct, relocate, inspect and remove from time
to time and operate at its sole cost and expense, connecting lines (the
"Connecting Lines") on, above or under the land owned and used by the State or
State's Designee in the operation of its railroad from the Transmission System
to the generating plants, stations, substations and lines which the Power
Company owns or may hereafter construct along its Transmission System, and to
generating plants, stations, substations and lines of other parties, together
with the right to erect such new structures on said land as may be necessary for
the support thereof.
(c) State or its Assignees further leases and grants to Power Company
the right to continue to operate all of the connecting lines heretofore
installed and presently being operated by Power Company and to install from time
to time and operate additional or substituted connecting lines from the
transmission system to facilities of Power Company now or hereafter to be
located on the Bridgeport Harbor station property which was conveyed to it by
deed of the Railroad Company, dated July 28, 1952 and recorded in the Bridgeport
Land Records in Volume 1025, at Pages 219-228, on, above or under a certain
parcel of land used by State or its Assignees in the operation of its or their
railroad which is delineated and shown as "Easement Area" on a certain map,
entitled "EASEMENT AREA FOR TRANSMISSION LINES OF THE UNITED ILLUMINATING
COMPANY AND AREA TO BE RELEASED BY THE UNITED ILLUMINATING COMPANY - BRIDGEPORT,
CONN. - DWG. NO. 410-11-4-9-63" (a duplicate of which was found in the Town
Clerk of Bridgeport on February 5, 1964 in Volume 1280, Page 523 of the
Bridgeport Land Records), said parcel of land being hereinafter called the
5
"easement area" and to construct, maintain, inspect, repair, replace and remove
such poles, wires, cables, conduits, duct lines, pipes and other structures as
may be necessary or appropriate in connection with such connecting lines, it
being understood that such connecting lines, poles, wires, cables, conduits,
duct lines, pipes and other structures hereafter installed shall be placed at
such locations within the easement area as the State or State's Designee and
Power Company mutually agree, and to construct, maintain, inspect, repair,
relocate, reconstruct, replace and remove such supporting wires, guywires and
anchors outside of the easement area as the parties may hereafter from time to
time agree are advisable in connection with such Connecting Lines. (When the
construction and installation of any Connecting Line is completed, it will
thereafter be deemed to be part of the Transmission System for the purposes of
this Agreement.)
ARTICLE II.
TRANSMISSION SYSTEM
-------------------
(a) The Power Company's Transmission System shall include everything
installed by Power Company above the bonnet of State's Catenary Structure and
shall consist of not more than two three-phase sixty cycle circuits which may be
constructed together or at different times, of such kinds and sizes of wire as
may be found necessary or desirable by the Power Company's engineers and
approved by the State and the State's Designee, operated at voltages up to one
hundred fifteen thousand (115,000) volts, with the insulators, fastenings and
other appurtenances necessary to attach them to the supporting structures,
together with lightning shield wires, ground wires of suitable size, structure
foundations, additions to State's Structures and material and communication
facilities for the Power Company's operations. Exhibits A and B attached hereto
are typical examples of Power Company's installations above the bonnet of the
State's Catenary Structures). The Power Company's Transmission System shall
further include all pre-existing,
6
freestanding 65-foot poles located adjacent to State's Catenary Structures as
depicted in Exhibit C attached hereto.
(b) The Transmission System along the Use Area shall be carried upon
suitable additions to or modifications of the State's Structures which now or
which may hereafter carry the power distribution system and other appurtenances
of the State or upon independent supporting structures, or the Transmission
System may be placed underground, or partly on the State's Structures, partly on
independent supporting structures and partly underground.
ARTICLE III.
OBLIGATIONS OF POWER COMPANY
----------------------------
The Power Company agrees:
(a) To notify the State or State's Designee when it shall determine to
proceed after the date hereof with the construction, replacement or
reconstruction of the Transmission System, to erect any new supports required,
and to make any necessary modifications of existing structures; to furnish all
labor, material and tools necessary therefor, and to pay to the State's Designee
the established rates customarily charged by the State's Designee for equipment
which it may desire to rent from the State's Designee.
(b) That simultaneously with the execution and delivery of this
Agreement, to pay to the State the net Base Rent for the period from May 5, 2000
(the commencement of the 30-Year Term) to November 4, 2002. Thereafter, all
payments of Base Rent will be payable quarterly, in advance, on the fifth day of
each succeeding August, November, February and May commencing with November 5,
2002. The Base Rent for each lease year of the 30-Year Term will be $650,000.00,
or $162,500.00 per quarter subject to adjustments at the 6th, 11th, 16th, 21st
and 26th
7
anniversaries of the commencement of the 30-Year Term, as further described in
paragraph (d) of this Article III.
(c) That commencing on the first day of each renewal period of the
Extended Term, as hereinafter defined in Article VII(b), the rent for the first
year of each of such periods will be equal to the then fair market rent for the
premises leased herein as determined by the appraisal process set forth in
Article XV hereof subject to adjustments at the 6th and 11th anniversaries of
the 15-Year Renewal Term, as further described in paragraph (d) of this Article
III. (The rent as so determined by said appraisal process at the beginning of
any renewal period is hereinafter also called the "Base Rent".)
(d) That the Base Rent for the 30-Year Term will be adjusted at the
sixth (6th), eleventh (11th), sixteenth (16th), twenty-first (21st) and
twenty-sixth (26th) anniversaries of the commencement of the 30-Year Term by
multiplying said Base Rent by a fraction that has as its denominator the
Consumer Price Index [(the "CPI")], for March, 2000, and as its numerator the
CPI for the month of March of each of said adjustment years. In the event the
Power Company does not reject one or both of its renewal options, the Base Rent
for the appropriate renewal period will be adjusted at the sixth (6th) and
eleventh (11th) anniversaries of the commencement of the relevant renewal period
by multiplying the Base Rent for said renewal period by a fraction that has as
its denominator the CPI for the month of March of the first year of the renewal
period, and as its numerator the CPI for the month of March of said adjustment
years.
(e) That the term "CPI" shall be deemed to mean the Consumer Price
Index (1982-84=100) prepared by the Bureau of Labor Statistics of the United
States Department of Labor for Northeast "A" for New York, New Jersey, Long
Island, (New York, New Jersey, Connecticut) New York - Northeastern, New Jersey
for All Urban Consumers. However, if at the time
8
required for the determination of the increase, if any, in the Base Rent, said
index is no longer published or issued, the parties shall use such other index
as is then generally recognized and accepted for similar determinations of
purchasing power. If the parties are unable to agree on the selection of an
index that would most accurately carry out the intent hereof, or if there is a
dispute with respect to the computation of the increase, if any, to the Base
Rent as herein provided, then the issue with respect thereto shall be
determined by dispute resolution, as provided in Article XIV hereof.
(f) That the foregoing CPI adjustments to Base Rent during the 30-Year
Term and/or during any renewal period shall produce an increase of at least
three percent (3%) per year (not compounded) over the amount of said Base Rent
at the beginning of the 30-Year Term or the applicable renewal period, but in no
event will said increases be greater than six and one-half percent (6.5%) per
year (not compounded) over the amount of said Base Rent at the beginning of the
30-Year Term or the applicable renewal period.
(g) To pay to the State an annual rent for any additional Connecting
Lines that may be installed by the Power Company after the date of this
Agreement, pursuant to the provisions of Section (b) of Article I of this
Agreement, which annual rent will be equal to the product of the number of
linear feet of such Connecting Lines (to the extent they are located on, above
or under land of the State and as measured from the point of connection of the
Connecting Line with the Transmission System to the boundary of the State's
land) times (i) fifty percent (50%) of the number of dollars per annum per
linear foot of conductor that the Power Company is obligated to pay as rent to
the State under the provisions of Article III(b) of this Lease; and (ii) during
any renewal period, if the Power Company has not exercised its right to reject
the same, the annual fair market rent per linear foot of Connecting Line as
determined under Article XV of this
9
Agreement; such rent to be paid quarterly and to begin on the date of the next
regular quarterly payment of Basic Rent, the first installment of which will be
prorated to the date when construction thereof starts.
(h) To make all payments under this Agreement to the State by check,
made payable to "The Treasurer, State of Connecticut" and addressed to the
"Accounts Receivable Unit, Connecticut Department of Transportation, P.O. Box
317546, Newington, Connecticut, 06131-7546".
(i) To reimburse the State or the State's Designee for any expenses
which they may incur (1) in connection with the reconstruction, repair,
maintenance, replacement, relocation or removal by the Power Company of any
portion of the Transmission System, including but not limited to, the necessary
protection, grounding railroad circuits, flagging trains, supervision and
inspection; and (2) in connection with the maintenance and repair by the Power
Company of the Transmission System and the additions to the present structures
made necessary by the installation thereof; and (3) in connection with such
special testing and inspecting thereof. It being understood that the State or
the State's Designee shall not charge the Power Company for normal patrolling or
inspecting the Transmission System performed in connection with patrolling or
inspecting its own power system.
(j) To reimburse the State or the State's Designee for any expenses
which they may incur or for any material they may supply in connection with (i)
the installation, construction or reconstruction by the Power Company after the
date hereof of any portion of the Transmission System, or (ii) changes in the
supporting structures or in the telephone, fiber optics, signal, power or other
facilities of the State which, in the opinion of the State, are necessary as a
result of said future installation or construction or reconstruction by the
Power Company after the date hereof
10
of the Transmission System within the Use Area. The Power Company agrees to (1)
notify the State when it shall determine to proceed with any such future
installation or construction or reconstruction of the Transmission System, to
erect any new supports required, and/or to make any modifications of existing
structures; (2) furnish all labor, material and tools necessary therefor; and
(3) pay to the State or to the State's Designee the established rates
customarily charged by them for equipment which the Power Company may desire
to rent. It is understood that this Section (j) does not apply (i) to any such
changes to the State's facilities that are not directly made necessary by said
future installation, construction or reconstruction of the Transmission System
by the Power Company after the date hereof, or (ii) to the replacement of the
State's supporting structures or circuits made necessary by normal wear and
tear or other causes not directly connected with the Transmission System; nor
does it apply (except to the extent provided in the following Section (k)) to
any such changes in the fiber optics signal system of the State within the Use
Area made necessary as a result of the occupancy of railroad property by the
Transmission System, unless made necessary by future modification in the design,
construction or operation of the system of the Power Company or power systems
connected therewith.
(k) To reimburse the State or the State's Designee for all reasonable
and necessary costs which may result from any physical or operational changes to
the Transmission System made after the date of this Agreement by the Power
Company to protect the signal system of the State as provided in Article XI of
this Agreement.
(l) To maintain and repair the Transmission System in a safe, prudent
manner, at its sole cost and expense, and if the Power Company fails to do so,
the same shall be considered a default under the provisions of Article XVI(a)(2)
hereof. In the event the Power Company fails
11
to cure such default in accordance with the provisions of said subparagraph,
the State may give written notice to the Power Company specifying such event or
events of default and stating that the State or the State's Designee will, at
the expense of the Power Company, cure such default by taking such appropriate
actions as it deems reasonably necessary. Upon the completion of such work, the
Power Company shall reimburse the State for its costs and expenses in connection
therewith within thirty (30) days after receipt of a notice therefor from the
State, together with reasonable documentation supporting its costs and expenses.
(m) To remove the Transmission System to the reasonable satisfaction of
the State not later than twelve (12) months after the termination or expiration
of this Agreement, provided, however, the ground wires, the structure
foundations and the additions to the State's Structures, which are parts of the
Transmission System and other parts of it that the State agrees may remain,
shall be abandoned in place by the Power Company and will thereafter be the
property of the State. If the Power Company is in default of performing these
obligations under Article XVI hereof, the Power Company shall reimburse the
State or State's Designee for the expense to remove the Transmission System from
its structures if the Power Company fails to remove the same within said twelve
(12) months after the termination of this Agreement.
(n) To permit the State to repair, maintain, replace, inspect and
remove, from time to time, at its own expense, and without expense to the Power
Company, the attachments and facilities of the State that are now attached to
the Power Company's independent structures located within the Use Area pursuant
to this Agreement (the "State's Facilities"). Notwithstanding any other
provisions in this Agreement to the contrary, the obligations of the Power
Company to repair, maintain, replace, relocate or remove any of its facilities
that have State Facilities attached thereto will be subject to the prior
obligation of the State or the State's
12
Designee to remove or relocate, as appropriate, its facilities at its expense,
and any delay in the State's or the State's Designee's completion of its work
will be deemed to extend the period of time within which the Power Company is
obligated to complete its work by a period of time that is equal to the period
of delay in the completion of the State's work. Any additions by the State or
the State's Designee to the structures of the Power Company that are made after
the date hereof shall only be made after a written request therefor is submitted
to the Power Company and a permit therefor is issued by the Power Company to the
State containing such terms, charges and conditions that are mutually acceptable
to the State and the Power Company.
(o) To secure and maintain for the duration of this Agreement,
including any supplements thereto and all renewals thereof, if any, with the
State and the State's Designee being named additional insured parties, the
following minimum insurance coverages regarding the Use Area at no cost to the
State or the State's Designee. Each insurance policy shall state that the
insurance company or companies shall agree to investigate and defend the insured
against all claims for damages, even if groundless. In the event the Power
Company secures excess/umbrella liability insurance to meet the minimum
requirements specified in paragraphs (i) and/or (ii) below, the State and the
State's Designee shall be named as additional insureds.
(i) Commercial General Liability Insurance, including
Contractual Liability Insurance, providing for a total limit
of not less than One Million Dollars ($1,000,000) for all
damages arising out of bodily injuries to or death of all
persons in any one accident or occurrence, and for all damages
arising out of injury to or destruction of property in any one
accident or occurrence, and, subject to that limit per
accident, a total (or aggregate) limit of Two Million Dollars
($2,000,000) for all damages arising out of bodily injuries to
or death of all
13
persons in all accidents or occurrences and out of injury to
or destruction of property during the policy period.
(ii) The operation of all motor vehicles, including
those hired or borrowed, used by the Power Company and its
subcontractors in connection with this Agreement, shall be
covered by automobile liability insurance providing for a
total limit of One Million Dollars ($1,000,000.00) for all
damages arising out of bodily injuries to or death of all
persons in any one accident or occurrence, and for all damages
arising out of injury to or destruction of property in any one
accident or occurrence. In cases where an insurance policy
shows an aggregate limit as part of the automobile liability
coverage, the aggregate limit must be at least Two Million
Dollars ($2,000,000.00).
(iii) With respect to all operations the Power
Company performs under this Agreement, and all those performed
for the Power Company by subcontractors, the Power Company and
subcontractors shall carry workers' compensation insurance,
and, as applicable, insurance required in accordance with the
U.S. Longshore and Harbor Workers' Compensation Act, in
accordance with the requirements of the laws of the State of
Connecticut, and of the laws of the United States,
respectively.
In conjunction with the above coverage(s), the Power Company
agrees to furnish to the State on the form or forms supplied by the State, a
Certificate of Insurance (CON-32), fully executed by an insurance company or
companies satisfactory to the State, for the insurance policy or polices
required hereinabove, which policy or policies shall be in accordance with the
terms of said Certificate of Insurance. For the workers' compensation insurance
and, as applicable, U.S.
14
Longshore and Harbor Workers' Compensation Act coverage, the policy number(s)
and term of the policy(ies) shall be indicated on the CON-32.
While the Transmission System is being constructed, altered,
relocated, maintained, replaced, repaired, reconstructed or removed from the Use
Area, the Power Company shall carry, with respect to the operations it or its
subcontractors perform under this Agreement, Railroad Protective Liability
Insurance for and on behalf of the State's Designee as named insured, and the
State named as additional insured, providing for coverage limits of (1) not less
than Two Million Dollars ($2,000,000.00) for all damages arising out of any one
accident or occurrence, in connection with bodily injury or death and/or injury
to or destruction of property; and (2) subject to this limit per accident, a
total (or aggregate) limit of Six Million Dollars ($6,000,000.00) for all
injuries to persons or property during the policy period. The Power Company
shall obtain and submit the minimum coverage indicated above to the State prior
to the commencement of such installation, construction, alteration, replacement,
repair, relocation, reconstruction, maintenance and/or removal of its facilities
from the right-of-way and shall maintain said coverage until such work and/or
activities are completed. Proof of such insurance shall be provided on a CON-32
form.
The Power Company shall have the right to self-insure portions
of the foregoing insurance requirements up to those limits that it determines,
from time to time, to be acceptable to it, provided that said self-insurance
limits apply to substantially all properties then owned or leased by the Power
Company.
ARTICLE IV.
OBLIGATIONS OF THE STATE
------------------------
The State agrees:
15
(a) To permit (i) the construction, installing, repairing, maintaining,
replacing, reconstructing, relocating, inspecting and removing of any portions
of the Transmission System undertaken from time to time by the Power Company to
proceed as rapidly as conditions will permit, including without limit, arranging
to have the State's Designee cooperate in such efforts, and (ii) the Power
Company to patrol the Transmission System.
(b) To use its best endeavors to allow the proper and uninterrupted
service of the Transmission System at all times consistent with the operating
requirements of the railroad, it being understood that any interruption of such
service may seriously affect the Power Company's ability to furnish electric
current to its customers and that it is of the utmost importance to the Power
Company that any interruptions or outages be minimized so far as possible.
(c) To permit representatives of the Power Company, while accompanied
by a representative of the State or State's Designee, at mutually convenient
times, once during the spring and once during the fall of each year, to visually
inspect the insulators upon those portions of the Transmission System carried
upon the State's Structures; provided, however, that the State or State's
Designee shall not be responsible for the wages or salary of the Power Company's
representative(s); and provided further that the Power Company agrees to
indemnify and hold harmless the State from and against any and all claims,
demands, suits, or judgments, on account of injury to or death of any
representative of the Power Company during or resulting from any of such
inspections.
(d) To permit representatives of the Power Company, but without
expenses to the State or State's Designee and subject to approval of the State
or State's Designee as to time and method, to patrol, inspect, test and repair
those portions of the Transmission System not carried upon the State's
Structures, and any independent structures upon which such portions may be
16
carried, and for the purpose of such patrolling, inspecting, testing and
repairing, representatives of the Power Company shall have the right to pass and
repass over and upon property of the State; provided however, that the Power
Company agrees to indemnify and hold harmless the State and State's Designee
from and against any and all claims, demands, suits or judgments, on account of
injury to or death of any representative of the Power Company during or
resulting from such patrolling, inspecting, testing and repairing.
(e) To keep in repair and in good condition during the continuance of
this Agreement the State's Structures which shall support the Transmission
System, at no expense to the Power Company, except the additions to the State's
Structures made necessary by the installation of the Transmission System and
except such new structures as may be erected by the Power Company and used
solely for the support of the Transmission System.
(f) To permit the removal of the Transmission System, except ground
wires, from the State's Structures and the removal of independent structures
erected by the Power Company if such removal takes place not later than twelve
(12) months after termination or expiration of this Agreement.
(g) To hereafter not grant permission or rights to any third person,
firm or corporation to perform any acts or to construct or place any structures
over, under or upon the Use Area until it shall have first notified and received
the written approval of the Power Company, which approval shall not be withheld
unless, in the reasonable opinion of the Power Company, the exercise of any such
permission or rights will endanger or interfere with the construction,
reconstruction, operation or maintenance of any part of the Transmission System,
whether or not erected or constructed at the time such approval is requested.
17
(h) To hereafter not grant permission or rights to any third person,
firm or corporation that will endanger or unduly interfere with the
construction, reconstruction, operation or maintenance of any part of the
State's transportation rail system or the Transmission System.
ARTICLE V.
APPROVAL
--------
(a) The design, specifications, construction and installation of future
modifications to the Transmission System, any Connecting Lines and the
supporting structures; modification of existing supporting structures hereafter
used or made; all apparatus, including circuit breakers, switches, transformers
and other facilities used or to be used in making additional connections
referred to in Article I; all future changes in the Transmission System, its
supporting structures and connecting apparatus; and the location of connections
and of any independent supporting structures, shall be subject to approval by
the State or State's Designee in all respects prior to installation and
construction of same.
(b) Approval of the State or State's Designee shall not be required
with respect to any such apparatus installed, or any such changes in the
Transmission System made, on property other than property used in the operation
of the railroad except with respect to such apparatus or changes as may affect
fault currents or protection of the Transmission System or the telephone, fiber
optics, signal, power or other facilities of the State.
(c) All work shall be done without material interference with railroad
operations and by such methods and at such times as may be mutually and
reasonably agreed upon by the parties hereto. Before any work is undertaken by
the Power Company, it shall submit to and secure the approval of the State or
State's Designee of the plan and method of doing the work to insure the safety
of the State's Structures and operations.
18
(d) Wherever in this Agreement reference is made to or provision for
the approval by the State or State's Designee of the Transmission System or any
part thereof or any other approval by the State or State's Designee is required,
it is understood and agreed that such approval shall not be unreasonably
withheld, but it is agreed that the safety of train operation is paramount and
that the State or State's Designee shall be the sole judge with reference to all
construction procedures applicable to work by the Power Company under this
Agreement. When approval is given by the State or State's Designee or by a
person designated from time to time by the State or State's Designee, in
writing, to the Power Company as its representative, such approval shall be
final and conclusive upon the State or State's Designee.
ARTICLE VI.
EXPENSES
--------
(a) When referring to expenses incurred by the State or the State's
Designee, "expenses" shall mean all direct expenses incurred by the State or the
State's Designee, including amounts paid to subcontractors, materials and labor
costs, expenses for supervision and inspection to the extent hereinbefore
provided, train protection, de-energizing and grounding of railroad circuits,
field or office engineering work, use of trains, tools and other equipment and
facilities, transportation of men and equipment, and the overheads covering
expenses not directly allowable i.e., Railroad Retirement and Unemployment
Taxes, Vacation Allowance, Holiday Allowance, Health Welfare Allowance, 10%
Supervision of Labor, including vacation and holidays, and 15% of materials to
cover handling, provided however, such costs, expenses and overheads will be
substantially the same as those charged from time to time by the State or the
State's Designee to other parties under similar circumstances.
19
(b) The State or the State's Designee shall render a statement of the
expenses incurred for each month in which such expenses are incurred, which
shall be payable by the Power Company not later than fifteen (15) business days
after receipt of such statement by the Power Company.
(c) The State or the State's Designee agrees to consult, advise and
provide information to the Power Company before incurring any substantial
expense which may be chargeable to the Power Company, and before making any
substantial changes under the provisions of the Agreement which will necessitate
changes in the Transmission System at the expense of the Power Company.
ARTICLE VII.
TERM
----
(a) The term of this Agreement is hereby extended for an additional
period of thirty (30) years from May 5, 2000 to May 4, 2030 (the "30-Year
Term").
(b) In addition, the term of this Agreement will be automatically
extended for up to two (2) successive renewal periods of fifteen (15) years each
(the "Extended Term"), unless, at least eighteen (18) months prior to the
expiration of the 30-Year Term, or any successive renewal period thereof, the
Power Company shall have given to the State written notice of its election to
reject the pending automatic renewal of this Agreement, in which case, upon the
expiration of the 30-Year Term or the relevant successive renewal period, the
term of this Agreement shall cease and terminate. If the Power Company does not
give such notice of rejection, then, upon the expiration of the 30-Year Term or
the initial renewal period, the term of this Agreement shall be automatically
renewed and extended for a further term of fifteen (15) years commencing upon
the expiration of the 30-Year Term or the then expiring renewal period, under
the same covenants,
20
agreements, terms, conditions, limitations, exceptions and reservations
contained in this Agreement, except as to rent which will be governed by the
relevant provisions of Article III hereof.
ARTICLE VIII.
TITLE
-----
Title to the Transmission System and to the Connecting Lines, if any,
shall be and remain in the name of the Power Company. Title to additions to the
State's Structures and to independent structures erected by the Power Company on
the property of the State shall be and remain in the name of the Power Company,
but at the end or termination of this Agreement, title to such additions and
structures shall pass to the State with the State's written permission and
acceptance. Title to the State's Facilities shall be and always remain in the
name of the State.
ARTICLE IX.
WAIVER AND INDEMNITY
--------------------
It is understood between the parties hereto that the operation of the
railroad by the State or State's Designee in close proximity to the Transmission
System involves some risk to the Transmission System and the Power Company
hereby releases and waives any right to ask for, demand or receive damages from
the State or the State's Designee for or on account of loss of or injury to the
Transmission System, including the loss of or interference with service, and
whether attributable to the fault, or negligence of the State or State's
Designee or its representatives, or otherwise.
Power Company agrees to indemnify, protect and save harmless the State
or State's Designee from and against all cost or expense resulting from any and
all loss or damage to the property of the State or State's Designee and from any
and all loss of life or property, or injury or
21
damage to the person or property of any third person, firm or corporation
(including the officers, agents and employees of either party hereto), and from
any and all claims, demands or actions for such loss, injury or damage directly
or indirectly caused by the presence or use or the construction, installation,
maintenance, removal, change or relocation and subsequent removal of the
Transmission System and appurtenances thereto, excepting such loss, damage or
injury as shall be due solely to the negligence of the agents or servants of the
State or State's Designee.
ARTICLE X.
FUTURE CHANGES
--------------
(a) The Power Company agrees to make, or cause to be made, such changes
in its Transmission System, including without limit, the additions to the
State's Structures, and the independent structures erected by Power Company, as
may be required from time to time to conform to changes in railroad facilities
with which the location of the Transmission System may interfere, provided that
(i) such changes are in compliance with the applicable provisions of the
National Electric Safety Code and (ii) except as hereafter set forth in
subparagraph (b), such changes shall be made without cost or expense to the
Power Company, including without limit, the Power Company shall not be liable
for any cost or expense of such changes resulting from the desire or need of the
State to repair, replace or reconstruct the State's Structures; place or permit
others to place additional wires on the State's Structures or in any other way
alter or increase its use of the State's Structures; even though any of the
foregoing might have been more easily and economically accomplished were it not
for the existence of the Power Company's Transmission System.
(b) Notwithstanding the provisions of the foregoing subparagraph (a),
the Power Company and the State will share on an equal basis the costs for one
relocation of the Transmis-
22
sion System at the Devon Bridge over the Housatonic River, the new Fairfield
Railroad Station at Black Rock, and the new railroad station in Orange/West
Haven, provided (i) the State will provide, on its property, all temporary
rights and locations for the Power Company's overhead and underground electric
facilities during each relocation of the Transmission System; (ii) the State
will be solely responsible for the costs of relocating, rebuilding or restoring
railroad facilities without any sharing or reimbursement from the Power Company;
and (iii) the cost to be shared by the Power Company and State will be net of
any federal reimbursement or assistance.
(c) It is understood and agreed that the Power Company, with the
approval of the State, may from time to time make such changes in the
Transmission System as it may deem necessary or advisable in view of changes or
improvements in the methods or technique of transmitting electrical current or
to keep abreast of changes in the art, provided changes do not exceed the
voltages permitted from time to time under Articles I and II of this Agreement.
(d) If the State should hereafter propose to permanently abandon the
use of its structures in the Use Area for the purpose of supporting any wires
other than the Transmission System, it shall give the Power Company at least two
(2) years prior written notice of such proposed abandonment, which written
notice shall state the date of such proposed abandonment.
In the event of such abandonment, from and after the date stated in
such written notice, if this Agreement shall then be in effect, the Power
Company shall cease to have the right to use, for the support of Power Company's
transmission system, the structures of the State theretofore used by the State
or State's Designee in the operation of its railroad provided, however, that if
and so long as the continued use of such structures by the Power Company shall
not interfere with the operations of the railroad, the Power Company may
continue to use such structures upon
23
the assumption by the Power Company or as otherwise agreed, to of all of the
duties theretofore imposed on the State with respect to repairing and keeping
in good condition such structures.
In the event of such abandonment, if this Agreement shall then be in
effect, all of the rights, powers and privileges granted to the Power Company
under the provisions of this Agreement (including, but without limitation, the
right to erect new supporting structures for the Transmission System and the
right to place the Transmission System underground) shall continue in full force
and effect, and thereupon;
(1) Rent payable under the provisions of this Agreement
shall be revised to such lesser amount as shall be agreed upon by
the parties hereto based upon the changed use of the property of
the State by the Power Company or upon the changed obligations and
duties of the respective parties hereunder, or both, as the case
may be;
(2) The State and State's Designee shall be released from
its obligations under the provisions of Sections (c) and (e) of
Article IV and said provisions shall be of no further force or
effect;
(3) The Power Company shall have the right, but without
expense to the State and State's Designee, and subject to the
approval of the State as to time and method, to patrol, inspect,
test and repair the Transmission System, the structures, if any,
which it may have erected or may erect to support such system and
the State's Structures, if at that time the Power Company has the
right to continue to use such structures, and for the purpose of
such patrolling, inspecting, testing and repairing,
24
representatives of the Power Company shall have the right to pass
and repass over and upon property of the State;
(4) The Power Company, without expense to the State and
State's Designee, will remove the Transmission System (except for
buried ground wires and foundations and those parts thereof which
the State agrees need not be removed) from the structures of the
State when and if the Power Company, under the provisions of this
Section (d), shall cease to have the right to use such State's
Structures;
(5) Such other provisions of this Agreement, including,
but not limited to, Article IX, as may be inconsistent with the
provisions of this Section (d), shall be modified and revised
insofar as may be necessary in such manner as may be agreed upon
by the parties hereto;
(6) If the parties shall not agree as to the amount of
rent payable by the Power Company under the provisions of the
foregoing Paragraph (1) or as to any other matter arising under
the provisions of this Section (d), the parties shall attempt to
resolve such matters in accordance with the provisions of Article
XIV;
(7) If the Power Company should hereafter propose to
permanently abandon any of its independent structures on which the
State's Facilities are located, it shall give the State at least
two (2) years prior written notice of such proposed abandonment
stating the date of such proposed abandonment, which shall not be
prior to May 4, 2030.
25
(e) In the event of such abandonment, from and after the date stated in
such written notice, the State shall cease any longer to have the right to use
the Power Company's independent structures for the support of the State's
Facilities; provided, however, that (i) if this Lease shall then be in effect
and (ii) if and so long as the continued use of the Power Company's independent
structures by the State shall not interfere with the operation of the
Transmission Line, the State may continue to use such independent structures
upon the assumption by it, or as otherwise agreed to, of all of the duties of
the Power Company to repair, keep such structures in good condition and remove
the same upon the termination of this Agreement.
ARTICLE XI.
INDUCTIVE INTERFERENCE AND HAZARD TO RAILROAD FACILITIES
--------------------------------------------------------
The Power Company agrees that the telephone, telegraph, fiber optics,
power or other facilities of the State and State's Designee within the Use Area
shall be protected against inductive interference or physical hazard and damage,
or both, brought about by physical or operational changes to the Transmission
System made after the date of this Agreement, and further agrees that, after
consultation between the State, the State's Designee and Power Company, such
changes shall be made, at the expense of the Power Company, in the Transmission
System including additional transposition, or in said facilities as may be
necessary to eliminate any such inductive effects or physical hazard and damage
or both to said facilities.
ARTICLE XII.
COOPERATION
-----------
The State agrees that its engineers and the State's Designee will
cooperate with such engineers and contractors that the Power Company may from
time to time employ in connection with the installation, construction,
maintenance, repair or reconstruction of the Transmission
26
System, and any Connecting Lines, so as to secure the best and most satisfactory
results for both parties hereto.
ARTICLE XIII.
ASSIGNMENT
----------
The Power Company shall not assign this Agreement without the written
consent of the State, provided that this shall not be construed to prevent the
Power Company from making a general mortgage in the usual form of any or all of
its property, rights, privileges and franchises, including this Agreement, or
from entering into any merger or consolidation, or from selling all or
substantially all of its transmission assets to another entity, and in case of
foreclosure of such mortgage or of any such merger, consolidation or sale, the
rights and obligations of the Power Company hereunder shall pass to and be
acquired and assumed by the foreclosing mortgagee, or the merging, consolidated
or purchasing company, as the case may be, provided all governmental approvals
necessary for such merger, consolidation or purchase have been obtained,
including without limit, any such necessary approvals from the Department of
Public Utility Control and/or the Federal Energy Regulatory Commission.
The State and its successors in interest shall have the right to assign
this Agreement as part of a sale by the State of the Use Area, subject to all of
the obligations, duties, agreements and approvals of the State hereunder.
ARTICLE XIV.
DISPUTE RESOLUTION
------------------
The State, the State's Designee and the Power Company shall attempt to
resolve all controversies or disputes arising under this Agreement through
negotiations pursued diligently in good faith. As part of this obligation, each
party will submit each controversy or dispute, except
27
on-site construction disputes that require a prompt resolution, to a member of
each party's management team (defined to be at the Manager's level or above for
the Power Company and at the Rail Administrator level or above for the State and
the State's Designee).
ARTICLE XV.
APPRAISAL
---------
The appraisal process to determine the Base Rent for renewal periods
shall be started at least eighteen (18) months prior to the anticipated
effective date of such renewal.
The appraisal process will be conducted as follows:
(a) The Power Company will designate an appraiser and the State will
designate an appraiser. Each appraiser acting independently of the other will
express, in writing, his opinion of the fair market rent and the State and the
Power Company will exchange copies of the appraisals. If the appraisers
determine values that are within ten percent (10%) of each other, the average of
the two appraisals will be deemed to be the fair market rent. If the appraisals
differ by more than ten percent (10%), the Power Company and the State will try
to resolve the divergence of opinion by mutual negotiations conducted in good
faith.
(b) All appraisers must be State certified general appraisers, must be
recognized as competent in the field as an appraiser for the purpose of
establishing such values and must be either on the State or Power Company lists
of approved appraisers or otherwise acceptable to both the Power Company and the
State.
(c) For the purposes of the appraisals, the premises leased herein
shall be deemed to consist of two air rights corridors, one of which is located
on the north side of the railroad tracks, and the other of which is located on
the south side of the railroad tracks. The width and location
28
of each of these corridors for purposes of the appraisals will be as shown on
Power Company drawings.
(d) Each appraisal shall determine a fee value for the land of the
State that is included in this Agreement, based on the assumption that the
abutting zoning also applies to said State land. A percentage, to be determined
by the appraiser, will be applied to the resulting fee value to reflect the
current value of the rights in the two corridors. An appropriate rate of return,
also to be determined by the appraiser, will then be applied to said current
value of the rights to then determine the annual fair market rent.
(e) Each appraisal shall also express an annual fair market rent, as so
determined, per linear foot of Connecting Line, which will be used for the
purpose of any rent computations under subparagraph (g) of Article III of this
Agreement.
(f) Each appraiser shall be given the same scope of work and the
requisite maps, drawings and other pertinent information or data. It is
contemplated that each appraiser will complete his work within six (6) months
after the receipt of the foregoing.
ARTICLE XVI.
DEFAULTS
--------
(a) Each of the following shall be deemed to be a default by the Power
Company hereunder:
(1) The Power Company's failure to make due and punctual
payment of any rents payable under this Agreement when and as the
same shall become due and payable, and such default in payment
continues for a period of thirty (30) days after written notice
thereof from the State to the Power Company; or
29
(2) The Power Company's failure in the performance of or
compliance with any of its obligations under the covenants,
agreements, terms, or provisions contained in this Agreement,
other than those referred to in the foregoing subsection (1), and
such default continues for a period of ninety (90) days after
written notice thereof from the State to the Power Company, except
that in connection with a default that is not susceptible of being
cured with due diligence within ninety (90) days, the time the
Power Company has to cure the same shall be extended for such time
as may be necessary to cure the same with all due diligence,
provided the Power Company commences promptly and proceeds
diligently to cure the same; and
(3) The issuance of a lien (other than the lien of any
mortgage as referred to in Article XIII hereof) or attachment,
arising out of acts of the Power Company, against the State to the
extent the same encumbers the premises leased herein, unless (i)
the same shall be vacated, bonded or otherwise discharged within
one hundred eighty (180) days from the date the Power Company
receives notice thereof or (ii) within said period of one hundred
eighty (180) days, the Power Company commences an action to vacate
or remove the same and thereafter proceeds diligently with said
action.
Then and in any such event, the State may, while such
default is continuing, give written notice to the Power Company
specifying such event or events of default and stating that this
Agreement shall expire and
30
terminate on the date specified in such notice, which date shall
be not less than ninety (90) days after the giving of such notice,
unless the Power Company has cured such default or defaults prior
to the date specified in such notice, and this Agreement shall
expire and terminate.
(b) If the State defaults in the performance of or compliance with any
of its obligations under the covenants, agreements, terms or provisions
contained in this Agreement and such default continues for a period of ninety
(90) days after written notice thereof from the Power Company to the State,
except that in connection with a default that is not susceptible of being cured
with due diligence within ninety (90) days, the time the State has to cure the
same shall be extended for such time as may be necessary to cure the same with
all due diligence, provided the State commences promptly and proceeds diligently
to cure the same. If any default is not so cured, the Power Company may, while
such default is continuing, give written notice to the State specifying such
event or events of default and stating that the Power Company will, at the
expense of the State, cure such default by taking such appropriate actions as it
deems reasonably necessary. Upon the completion of such work, the State shall
reimburse the Power Company for its costs and expenses in connection thereof
within thirty (30) days after receipt of a notice therefor from the Power
Company, together with reasonable documentation supporting its costs and
expenses. In the event of a dispute regarding such reimbursement, the parties
shall negotiate diligently in good faith pursuant to Article XIV.
ARTICLE XVII.
NOTICE
------
It is mutually understood and agreed by the parties hereto that any
official notice from one such party to the other such party, in order for such
notice to be binding thereon, shall:
31
(a) be in writing addressed to:
(1) when the State is to receive such notice -
Commissioner of Transportation
Connecticut Department of Transportation
P. O. Box 317546
Newington, Connecticut 06131-7546;
(2) when the Power Company is to receive such notice -
The United Illuminating Company
157 Church Street
P.O. Box 1564 New Haven, Connecticut 06506-0901
Attention: Its President and Chief Operating Officer
(b) be delivered in person or be mailed United States Postal Service
"Certified Mail - Return Receipt Requested" to the address recited herein as
being the address of the party to receive such notice, at which time said notice
shall be deemed to have been received; and
(c) contain complete and accurate information in sufficient detail to
properly and adequately identify and describe the subject matter thereof.
The term "official notice", as used herein, shall be construed to
include, but not be limited to, any request, demand, authorization, direction,
waiver, and/or consent of the party as well as any document(s) provided,
permitted, or required for the making or ratification of any change, revision,
addition to or deletion from this Lease.
Further, it is understood and agreed that nothing hereinabove contained
shall preclude the parties hereto from subsequently agreeing, in writing, to
designate alternate persons (by name, title, and affiliation) to which such
notice(s) is(are) to be addressed; alternate means of conveying such notice(s)
to the particular party; and/or alternate locations to which the delivery of
such notice(s) is(are) to be made, provided such subsequent agreement(s) is(are)
concluded pursuant hereto.
32
ARTICLE XVIII.
QUIET ENJOYMENT
---------------
If and so long as the Power Company pays the rent due hereunder and
performs and observes all of the agreements and provisions hereof that are its
obligations, the Power Company shall quietly enjoy the premises and rights
leased herein during the term of this Agreement.
ARTICLE XIX.
MISCELLANEOUS
-------------
(a) The parties acknowledge that the State's Designee is not a party to
this Agreement, but as long as it does not conflict with the terms and
conditions of the Metro-North Service Agreement, the State shall use its best
efforts to cause the State's Designee to comply with all obligations imposed on
it by the terms and conditions of this Agreement, including without limit, the
provisions of Article XIV as long as such provisions are in compliance with the
Metro-North Service Agreement.
(b) This Agreement shall inure to and be binding upon the parties hereto
and their successors and assigns, but subject to the provisions of Article XIII
hereof.
(c) The Power Company shall record within one (1) year and give State
documentation of recording this Agreement, including any supplements hereto and
all renewals thereof, if any, in the land records of Fairfield, Bridgeport,
Stratford, Milford, Orange, West Haven and New Haven, at no expense to the
State. The recording of this Agreement by the Power Company shall be done as
soon as practical (but in no event later than one year from the date of
completion by the State of the following) upon delivery by the State to the
Power Company of (i) this Agreement duly executed in quadruplicate by the State
and (ii) written notification by the State that the Agreement has been duly
executed and approved on behalf of
33
the State. Failure of the Power Company to record this Agreement as specified
herein, shall be deemed to be a default hereunder and the rights of the State
will be as set forth in Article XVI hereof.
(d) It is further mutually understood and agreed by the parties hereto that
this Agreement shall not be effective until said Agreement has been approved by
the Attorney General of the State of Connecticut.
(e) The Agreement, when fully executed by both parties, shall constitute
the entire agreement between the parties hereto and shall supersede all previous
communications, representations, or agreements, either oral or written, between
the parties hereto with respect to the subject matter hereof, including without
limit, the 1966 Agreement; and no agreement or understanding varying or
extending the same shall be binding upon either party hereto unless in writing
signed by both parties hereto; and nothing contained in the terms or provisions
of this Agreement shall be construed as waiving any of the rights of the State
under the laws of the State of Connecticut.
(f) If any of the provisions of this Agreement, or the application thereof
to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such
provision or provisions to persons or circumstances other than those as to whom
or which it is held invalid or unenforceable, shall not be affected thereby, and
every other provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
(g) This Agreement shall be governed in all respects by the laws of the
State of Connecticut.
34
(h) This Agreement will be executed in four or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
but one and the same Agreement.
(i) The parties hereto agree that each has played a material role in
the negotiation and drafting of this Agreement and that the document shall not
be construed against any party merely because of that party's role in the
drafting thereof.
ARTICLE XX.
POWER COMPANY TERMINATION RIGHTS
--------------------------------
(a) The Power Company shall have the right to terminate this Agreement
during the Extended Term only, if the option to reject shall not have been
exercised, at any time on at least three (3) year's prior written notice to the
State.
(b) The Power Company shall have the right, exercisable during the
30-Year Term and during the Extended Term, if the option to reject shall not
have been exercised, at any time and from time to time on at least three (3)
year's prior written notice to the State, to abandon, with respect to all or any
portion of the State's Structures or land, or both, situated within the Use
Area, all or any portion of the rights leased and granted to the Power Company
in Article 1. In the event all of the rights leased and granted herein to the
Power Company are so abandoned with respect to all the State's Structures and
land that are situated within the limits designated in such notice, the annual
rent payable hereunder shall be reduced by the product of the rent per linear
foot then payable hereunder and the number of linear feet between such limits,
such reduced rent to commence with the first quarterly payment after such
abandonment and the completion of the removal of the Power Company's
Transmission System as set forth below. In the event of the abandonment of a
portion of such rights only with respect to designated structures or land, or
35
both, of the State, the rent payable thereafter under the provisions of this
Agreement shall be revised to an amount to be agreed upon by the parties hereto,
taking into consideration the rights so abandoned by the Power Company. If the
parties shall not agree as to the amount of rent payable by the Power Company
under the provisions of this Section (b), the parties shall attempt to resolve
such matters in accordance with the provisions of Article XIV. To the extent
that such partial abandonment by the Power Company involves an abandonment of
its right to use, for its Transmission System, any portion or portions of the
structures or land, or both, of the State, the Power Company shall thereupon
remove from such State Structures or land, or both, as the case may be, to the
satisfaction of the State, the portion of the Transmission System on such
portion or portions of such State Structures or land, except for buried ground
wires and foundations and those parts of the Transmission System which the State
agrees may remain, and, if the Power Company is in default of performing these
obligations under Article XVI hereof, the Power Company shall reimburse the
State or State's Designee for any expenses to which the State or State's
Designee may incur removing the Transmission System from such State Structures
and from such portion or portions of such land.
ARTICLE XXI.
ATTACHMENTS
-----------
Attached to this Agreement are the "Standard Railroad License
Specifications & Covenants For Wire, Pipe and/or Cable Transverse Crossings
and/or Longitudinal Occupations Within the Railroad Right of Way" dated October
1, 2001 (the "Specifications & Covenants"), the terms and provisions of which,
as amended, are incorporated into this Agreement and hereby made a part hereof
with the following changes:
36
(a) All references therein to "Facilities" and "FACILITIES" shall be
deemed to mean the "Transmission System" and any Connecting Lines; and
(b) All references to "Licensee" shall be deemed to mean the "Power
Company". In the event of any conflict between the terms and provisions set
forth in the body of this Agreement with those in the Specifications &
Covenants, such conflict shall be resolved in favor of the terms and provisions
in the body of this Agreement.
37
Agreement No. 5.15-99(03)
---------------
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
as of the day and year first above written.
WITNESSES: STATE OF CONNECTICUT
DEPARTMENT OF TRANSPORTATION
James F. Byrnes, Jr., Commissioner
/s/ Elizabeth A. Mosca By: /s/ Harry P. Harris (Seal)
- ----------------------------- -------------------------------
Name: Elizabeth A. Mosca Harry P. Harris
Bureau Chief
Bureau of Public Transportation
/s/ Laurie Lint May 15, 2003
------------------------ -------------------------------
Name: Laurie Lint Date:
WITNESSES: THE UNITED ILLUMINATING COMPANY
/s/ Talaine R. Fraser By: /s/ Anthony J. Vallillo (Seal)
---------------------------- ------------------------------
Name: Talaine R. Fraser Anthony J. Vallillo
Its President and Chief Operating Officer
/s/ Bernice L. Herring 5/06/03
------------------------ -----------------------------
Name: Bernice L. Herring Date:
38
Agreement No. 5.15-99(03)
---------------
STATE OF CONNECTICUT)
) ss. Newington May 15, A.D., 2003
COUNTY OF HARTFORD )
Personally appeared for the State, Harry P. Harris, Signer and Sealer
of the foregoing Instrument and acknowledged the same to be the free act and
deed of the State of Connecticut, Department of Transportation, and his free act
and deed as Bureau Chief, Bureau of Public Transportation, before me.
Elizabeth H. Mosca /s/ Elizabeth H. Mosca
Notary Public -------------------------------
My Commission Expires Notary Public
Nov. 30, 2007 My Commission Expires:
STATE OF CONNECTICUT)
) ss. New Haven May 6, A.D., 2003
COUNTY OF NEW HAVEN )
Personally appeared for The United Illuminating Company, Anthony J.
Vallillo, Signer and Sealer of the foregoing Instrument and acknowledged the
same to be the free act and deed of The United Illuminating Company and his free
act and deed as President and Chief Operating Officer, before me.
/s/ Theodore R. Grave
---------------------------------
Notary Public: Theodore R. Grave
My Commission Expires: 9/30/06
APPROVED AS TO FORM:
Attorney General Date: June 2, 2003
State of Connecticut
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