Preview
FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022
EXHIBIT "E"
FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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JULIET CHIN,
AFFIDAVIT
Plaintiff(s),
Index No: 154992/2021
- against -
File No: 2021-011266
LONG ISLAND RAILROAD, METROPOLITAN
TRANSPORTATION AUTHORITY, NEW YORK CITY
TRANSIT AUTHORITY, MTA NEW YORK CITY
TRANSIT AUTHORITY, AND CITY OF NEW YORK,
Defendant(s).
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STATE OF NEW YORK )
: SS.:
COUNTY OF NEW YORK )
Steven M. Mortman, being duly sworn, deposes and says the following:
1. I am currently employed as a Deputy General Counsel-OGC/Real Estate for
have been
employed in this position since 2002. In this capacity, my duties include handling of and
authorized by the New York City Charter, to dispose of, acquire and manage interests in non-
residential real property. I am familiar with records pertaining to City of New York owned
documents and microfiche.
1
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2. DCAS is charged with oversight of various non-residential real estate and
facilities owned by the City of New York which includes the leasing of property for City agency
use. DCAS also provides leases and licenses for private use of City-owned non-residential
property and facilities. DCAS also maintains a copy of the Master Lease Agreement between the
3. At the request of the Corporation Counsel, I was asked to search for and
provide a copy of the Agreement of Lease and Amendments (
pertaining to real property owned by the City of New York and leased to the New York City
4. A copy of the most current Master Lease between the City of New York
and the NYCTA dated, June 1, 1953; Amended April 19, 1960 and March 6, 1962; Supplemented
by Agreement dated March 20, 1962; Amended and Renewed by Agreement dated October 5,
1962; Amended April 7, 1965; Amended by Agreement dated March 31, 1982; Amended April
5. The Master Lease was in effect on January 7, 2021, the date of the incident
underlying this action and continues in force and effect as of the present date.
Dated: New York, NY
July 30
________, 2021 ________________________________
Steve Mortman
Sworn to before me this day
of , 2021
_____________________________________
Alexander Harry Ansari
Notary Public, State of New York
No. 02AN6377877
Qualified in Westchester County 2
Commission Expires July 16, 2022
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COMPOSITE COPY
OF
AGREEMENT OF LEASE
BETWEEN
THE CITY OF NEW YORK
AND
NEW YORK CITY TRANSIT AUTHORITY
(Dated, June 1, 1953; Amended April 19, 1960 and
March 6, 1962; Supplemented by Agreement dated
March 20, 1962; Amended and Renewed by
Agreement dated October 5, 1962;
Amended April 7, 1965;
Amended by Agreement
dated March 31, 1982
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TABLE OF CONTENTS
Article Page
I Definitions .............................................................. 2
II Lease ...................................................................... 3
III Treatment of capital costs ........................................ 8
IV Payments by the City .............................................. 9
V Pending actions and proceedings ............................. 10
VI Particular covenants ............................................... 11
VII Declarations of intention and understanding 18
VIII Sewer and other rights reserved to the City ............... 20
IX Advancement and completion of
Rockaway improvement .......................................... 21
X South Brooklyn Railway Company .......................... 21
XI Disposition of bus lines ............................................ 22
XII Inspection of accounts ............................................. 23
XIII Adjustments ........................................................... 23
XIV Procedure in event of disputes .................................. 24
XV Covenant of further assurances ................................ 26
XVI Term and renewal ................................................... 26
XVII Effect of termination of Agreement .......................... 27
XV III Personal liability 28
XIX Waivers and amendments ....................................... 28
XX Notices ...................................................................29
XXI Separability ............................................................ 29
XXII Headings ................................................................ 30
XXIII Execution of Agreement .......................................... 30
XXIV Financing of certain capital costs............................ 30
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AGREEMENT OF LEASE
AGREEMENT OF LEASE made this 1st day of June, 1953
between THE CITY OF NEW YORK ( " City " )and the NEW YORK CITY
TRANSIT ALTHOHITY ("Authority"), a public benefit corporation
existing by virtue of Chapters 200 and 201 of the Laws of 1953, being
Sections 1200 to 1221, inclusive, of Article 5, Title 9 of the Public
Authorities Law* ( " Act " ).
WITNESSETH:
WHEREAS pursuant to the Act there was created the Authority for
the purposes of the acquisition of the transit facilities operated by the
Board of Transportation of the City and the operation of transit
facilities in accordance with the provisions of the Act for the conven-
ience and safety of the public on a basis which will enable the opera-
tions thereof, exclusive of capital costs, to be self-sustaining; and
WHEREAS pursuant to the provisions of the Act, the Authority
and the City may enter into an agreement for the transfer from the
City to the Authority, for use in the execution of the corporate pur-
poses of the Authority, of the transit facilities now owned or hereafter
acquired or constructed by the City and any other materials, supplies
and property incidental to or necessary for the operation of such
transit facilities; and
WHEREAS pursuant to the provisions of Section 1203 of the Act,
the City, by resolution of the Board of Estimate, has duly authorized
the execution of this Agreement on its behalf; and
WHEREAS the Authority by resolution has duly authorized the
execution of this Agreement on its behalf; and
WHEREAS, the Act, as amended by the Laws of 1981, provides
that the Authority may incur certain capital costs and may issue its
bonds or notes or lease, sublease and other contractual obligations in
connection therewith; and
* In this Composite Copy, the provisions of the Public Authorities Law are numbered in
accordance with L. 1957. C. 914, §3, eff. April 24, 1957.
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WHEREAS, the Act, as so amended, authorizes the extension and
amendment of this Agreement in a manner not inconsistent with the
provisions of or in derogation of the powers of the Authority as
p
rovided in the Act; and
WHEREAS, pursuant to the provisions of Section 1207-m of the
Act, the City and the Authority have each duly authorized the execu-
tion of and the Metropolitan Transportation Authority has approved
the Amendment of this Agreement dated March 31, 1982;
NOW THEREFORE, in consideration of the premises and of the
mutual covenants hereinafter contained, it is agreed as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Except where the context hereof otherwise
requires, all words and terms defined in the Act when used herein
shall have the meanings now assigned to them by the Act, except
that the term "transit facilities" shall also be deemed to include street
surface railroads and the term "property" shall also be deemed to
include personal property.
SECTION 1.2. As used herein the word "Agreement" shall mean
this Agreement of Lease.
SECTION 1.3. As used herein the following terms shall have the
following meanings:
"Board of Transportation" shall mean the Board of Trans-
portation of the City as existing on the effective date of the Act.
"Leased Property" shall mean the transit facilities and any
other materials, supplies and property incidental to or necessary
for the operation of such transit facilities referred to in Section
2.1 of Article II hereof and the real property referred to in Section
2.2 of Article II hereof, provided, however, that the term "Leased
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Property" shall, except as provided in Section 6.9 of Article VI of
this Agreement, not include any facilities, materials, supplies or
property which have not been furnished to the Authority by the
City or the Board of Transportation. or the total cost of which has
not been paid for by the City, or for the cost of which the Author-
ity has not been totally reimbursed by the City.
"Financing Agreement" shall mean any bond resolution of
the Authority, any bonds or notes or leases, subleases or other
contractual obligations or agreements issued or incurred by the
Authority or its subsidiaries pursuant to Sections 1207, 1207-b or
1207-m of the Act, including such corres p onding sections as may
from time to time be in effect during the term of this Agreement,
including any agreement of the Authority with Metropolitan
Transportation Authority pursuant to subdivision 4 of Section
1266-c of the Public Authorities Law, and any lease or sublease
entered into by the Authority or its subsidiaries for equipment or
facilities sold or transferred by the Authority or its subsidiaries
to a lessor or sublessor or entered into in connection with the
financing thereof.
SECTION 1.4. Words in the singular number shall include the
plural, and those in plural number shall include the singular.
ARTICLE II
LEASE
SECTION 2.1. The City hereby leases to the Authority for a term
of 10 years commencing with 12:01 A.M. Eastern Daylight Saving
Time, June 15, 1953 (herein called the "effective date") for use in the
execution of the corporate purposes of the Authority all of the transit
facilities now owned or hereafter acquired or constructed by the City
and any other materials, supplies and property incidental to or
necessary for the operation of such transit facilities. The City hereby
authorizes the Authority to take jurisdiction, control, possession and
supervision of such transit facilities, materials, supplies and prop-
erty on the effective date. The foregoing provisions of this Section 2.1
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limiting the term of this Agreement shall be superseded by, but only
to the extent of the provisions of, Article XVI of this Agreement.
(Amended October 5, 1962)*
Notwithstanding the provisions of Section 2.1 of the Agreement
of Lease between the City and the Authority, dated June 1, 1953, as
amended, renewed and supplemented or any other provisions of said
Lease, the City hereby transfers to the Authority title and ownership
to the materials and supplies incidental to or necessary for the opera-
tion of the transit facilities which were heretofore leased to the
Authority. (Amended April 7, 1965.)
SECTION 2.2. The Authority shall have on the effective date the
use and possesion of all real property owned or leased by the City and
used or occupied by the Board of Transportation on March 15, 1953 in
connection with or incidental to the operation of such transit facili-
ties. The Authority agrees to reimburse the City for any rentals paid
from and after the effective date by the City to the owners of the
property leased by the City (hereafter in this Section 2.2 referred to as
"rented property") which shall be used and possessed by the Author-
ity pursuant to this Section 2.2; provided, however, that the obliga-
tion of the Authority to make such reimbursement to the City shall
cease on the date when the Authority shall surrender or tender the
surrender of the use and possession of any of such rented property to
the City, except that the Authority shall not surrender possession of
the rented property now used by the Board of Transportation as the
Jamaica Bus Terminal if such surrender shall have the effect of
causing the City to incur any liability.
SECTION 2.3. Upon the filing by the Authority with the Clerk of
the City and the Secretary of State of a copy of this Agreement, the
Authority shall take possession and control of the Leased Property,
together with all contracts, books, maps, plans, papers and records of
or in the possession of the Board of Transportation of whatever
description incidental to or necessary for the operation of the facili-
ties transferred by this Agreement or the performance of the duties of
* By supplemental agreement between the City and the Authority, dated March 20, 1962,
provision was made for the operation of certain omnibus facilities to be acquired by the City
by the Manhattan and Bronx Surface Transit Operating Authority.
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the Authority as provided by the Act.
SECTION 2.4. The City does not by this Agreement lease to the
Authority (a) property under the jurisdiction of the Board of Trans-
portation prior to June 1, 1953 which the Board of Transportation
had declared prior to such date, by formal communication to the
Board of Estimate, to be property not used in connection with, incid-
ental to, or necessary for, the operation of the Leased Property, or (b)
the property or lease pursuant to which The Long Island Rail Road
Company operates in and on Atlantic Avenue.
SECTION 2.5. All other property under the jurisdiction of the
Board of Transportation on the effective date which is not expressly
excepted pursuant to Section 2.4 of this Article II, is hereby trans-
ferred to the jurisdiction of the Authority until there is a determina-
tion whether such property is incidental to, necessary for, or con-
nected with the operation of the transit facilities or other property
leased herein or the performance of the duties of the Authority as
provided by the Act. Such determination shall be made by a commit-
tee composed of a person or persons chosen by the Authority and of a
person or persons chosen by the City; the Authority and the City
shall have equal representation on such committee. The Authority
and the City recognize that determinations pursuant to the provi-
sions of this Section 2.5 whether property is incidental to, necessary
for, or connected with, the operation of the transit facilities or other
property leased herein or the performance of the duties of the Author-
ity as provided by the Act need not be made on the basis of lot
descriptions but may be made on the basis of an appropriate sever-
ance of the property under determination. In the event that such
committee is unable to make such determination by December 31,
1953, the Authority and the City agree to submit the matter in con-
troversy for determination in the manner provided by Section 14.1 of
Article XIV hereof. Pending determination as hereinabove pres-
cribed, all net revenues derived from the operation of property subject
to such determination shall be held in escrow by the Authority.
Jurisdiction of any of such property determined not to be incidental
to, necessary for, or connected with the operation of the transit facili-
ties or other property leased herein or the performance of the duties of
the Authority as provided by the Act, shall be promptly surrendered
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by the Authority to the City and any net revenues derived from the
operation of such property from the effective date to the date of such
surrender shall be remitted to the City. Such property as is finally
determined to be property incidental to, necessary for, or connected
with the operation of the transit facilities or other property leased
herein or the performance of the duties of the Authority as provided
by the Act, shall be deemed to be part of the Leased Property.
SECTION 2.6. The City has asserted that there may be rental or
other income derived from the Leased Property which is not revenue
as defined by the Act and the Agreement. (Such income is hereinafter
in this Section 2.6 referred to as "non-transit income".) Not later than
November 1, 1953, the City will serve a notice on the Authority
specifying the items which the City claims are non-transit income.
After the effective date all net income from such items shall be
collected and held by the Authority until there is a determination
whether the same is revenue as so defined. Such determination shall
be made by the committee and otherwise in the time and manner
prescribed in Section 2.5 of this Article II. The net amount of any such
income so determined not to be revenue as so defined shall be released
and remitted to the City and the remainder shall be retained by the
Authority for use in its operations.
SECTION 2.7. The Authority and the City will execute and
deliver to each other such further documents as may be necessary to
carry out the purposes of Sections 2.5 and 2.6 of this Article II.
SECTION 2.8. The Authority may use and occupy real property
(in addition to that transferred pursuant to Sections 2.1 and 2.2 of this
Article II) now or hereafter owned or leased by the City on such terms
as may, from time to time, be mutually agreed upon by the City and
the Authority.
SECTION 2.9. a. If any Leased Property, consisting of real prop-
erty or any interest therein, is determined by the Authority to be no
longer required by it, the Authority shall surrender its interest there-
in to the City.
b. If any Leased Property, not consisting of real property or any
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interest therein, is determined by the Authority to be no longer
required by it, the Authority shall notify the Director of Management
and Budget of the City or such other City official as the Mayor may
designate in writing of such determination and identify the property
which is the subject of such determination. The Authority shall sur-
render to the City its interestin any of such property requested by the
City within 30 days of such notice. If no such request shall be made by
the City with respect to such property or any portion thereof within
such period, the interest of the City in such property shall be deemed
to have been transferred to the Authority and the Authority may
dispose of such property in such manner and for such consideration
as it shall determine and any proceeds realized upon such disposition
shall be retained by the Authority.
c. If the Authority determines that any real property owned by
it is no longer required by it, the Authority shall notify the Director of
Management and Budget of the City or such other City official as the
Mayor may designate in writing of such determination, which notice
shall identify the property and the nature of any liens or encumbran-
ces thereon. If, pursuant to the terms of any Financing Agreement
the Authority is prohibited from transferring such property except
for value, such notice shall also identify the Financing Agreement or
Agreements containing such prohibition and describe the manner in
which the Authority intends to dispose of such property. The City
acknowledges that if proceeds of a Financing Agreement are utilized
to acquire or substantially improve any real property owned by the
Authority or if a Financing Agreement is entered into in connection
with the acquisition of any real property, such Financing Agreement
will prohibit the disposition of such property by the Authority other-
wise than for value. If the transfer of such property is not subject to
such prohibition and if so requested by the City within 60 days of
such notice, the Authority shall transfer its interest in any such
property, subject to such liens and encumbrances, to the City without
consideration upon the City undertaking, in a form satisfactory to
the Authority, to assume and hold the Authority harmless with
respect to any remaining or continuing obligations of the Authority
with respect to such property. (Amended March 31, 1982.)
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ARTICLE III
TREATMENT OF CAPITAL COSTS
SECTION 3.1. Capital costs of a nature not heretofore charged
as operating expenses and not paid or financed through Financing
Agreements or not paid or financed with funds granted to the Author-
ity for such purposes, shall be paid by the City, or at the option of the
Authority, may be paid in the first instance by the Authority, but in
such event, the Authority shall be entitled to recover from the City the
amount of such costs; provided, however, that the total amount of
such capital costs to be paid by or recovered from the City which the
Authority may incur without the approval of the Mayor in any fiscal
year of the City shall not exceed $5,000,000, and that no other such
capital costs to be paid by or recovered from the City may be incurred
by the Authority without such approval. Where the City is required to
reimburse the Authority for the amount of any capital costs pursuant
to the Agreement, serial bonds or capital notes may be issued by the
City, pursuant to the local finance law, to finance any such reimbur-
sement in the same manner and to the same extent as if such costs
were to be paid directly by the City. (Amended March 31, 1982.)
SECTION 3.2. The Authority shall submit annually to the Direc-
tor of Management and Budget on such date as the Mayor may direct
City agencies to submit departmental estimates for capital projects
pursuant to Section 214 of the New York City Charter, an estimate,
for inclusion in the Capital Budget of the City, of all capital costs of a
nature not heretofore charged as operating expenses and which are
to be paid by or recovered from the City. The City shall not be required
to include any proposed expenditure in its Capital Budget nor shall
the City be required, pursuant to this Agreement, to pay or reimburse
the Authority for any expenditure as a capital cost if such expendi-
ture is by reason of its nature or purpose such that it is not classifiable
as a capital expenditure under generally accepted accounting princi-
ples and therefore not legally includable in the City's Capital Budget
pursuant to Chapter 9 of the City Charter, the Municipal Assistance
Corporation for the City of New York Act or the New York State
Financial Emergency Act for the City of New York, all as the same
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may be amended from time to time. (Amended March 31, 1982.)
SECTION 3.3. (Deleted by amendment dated March 31, 1982.)
SECTION 3A. (Deleted by am. Pndrnent. dated March 31. 1982.)
SECTION 3.5. (Deleted by amendment date October 5, 1962.)
SECTION 3.6. Neither the Authority's right or power to issue or
enter into Financing Agreements as provided in the Act nor the
payment or financing of any capital costs through the issuance or
incurrence of any such Financing Agreements or with funds granted
to the Authority for such purposes shall relieve the City of any
obligations it may have under the Act or this Agreement with respect
to capital costs. (Amended March 31, 1982.)
ARTICLE IV
PAYMENTS BY THE CITY
SECTION 4.1 The City shall pay liabilities of the City or the
Board of Transportation for:
(a) Pension or retirement contributions on behalf of persons
who were employed on transit facilities acquired by the City prior to
the effective date of the Act.
(b) Contributions to the New York City Employees' Retirement
System on behalf of officers or employees whose compensation has
been paid out of the operating revenues of the Board of Transporta-
tion, which contributions have or shall after the effective date of the
Act become due or payable for fiscal years of the City ending on or
before dune 30, 1953; provided, however, that the City shall have no
liability for such contributions in respect of services rendered by such
officers or employees after the effective date.
(c) The City shall pay into the IRT Voluntary Relief Fund any
amount which the `Company' (Interborough Rapid Transit Coin-
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pany) was or would be required to pay into said fund under the
regulations of the IRT Voluntary Relief Department in effect when
the City acquired the facilities and assets of the Interborough Rapid
Transit Company. (Amended April 1, 1965.)
SECTION 4.2. The City shall pay all other liabilities of the Board
of Transportation accruing to the effective date.
SECTION 4.3. ( Deleted by amendment dated October 5, 1962.)
ARTICLE V
PENDING ACTIONS AND PROCEEDINGS
SECTION 5.1. The City hereby assumes, and agrees that it shall
be responsible for, the payment of, discharge of, defense against, and
final disposition of, any and all claims, actions or judgments, includ-
ing compensation claims and awards and judgments on appeal,
based upon any claim or a cause of action arising prior to the effective
date and heretofore or hereafter asserted against the Board of Trans-
portation. the City or the Authority.
SECTION 5.2. Subject to the provisions of Section 5.3 of this
Article V. the Authority agrees to permit the use by the City of its
facilities. including the services of the Torts Division of its Law
Department. its Workmen's Compensation Bureau and its Medical
Department in connection with the defense against and disposition
of such claims, actions and judgments.
SECTION 5.3. The City and the Authority shall cooperate in
determining methods of allocating to the City, and of assuring pay-
ment by the City to the Authority, of the City's proportionate share of
the cost of maintaining and conducting the facilities mentioned and
described in the foregoing Section 5.2 hereof. In the event of failure by
the City and the Authority to agree upon such methods prior to
September 1, 1953 the Authority shall not be bound by the provisions
of Section 5.2 hereof and in such event the City shall pay its propor-
tionate share of the cost of maintaining and conducting such facili-
ties to such date.
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ARTICLE VI
PARTICULAR COVENANTS
SECTION 6.1. If in the opinion of the Board of Estimate and the
Mayor the continued maintenance and operation of existing transit
facilities, service on which is discontinued by any present private
operator. would be expedient, practicable and in the public interest,
the Authority shall, subject to such prohibitions, limitations, restric-
tions and conditions as may be contained in any Financing Agree-
ments, prepare a plan for the acquisition by the City of such transit
facilities and maintenance and operation thereof by the Authority,
and when such plan shall have been approved by the Board of Esti-
mate and the Mayor and such transit facilities shall have been
acquired by the City, the Authority shall, subject to such prohibi-
tions, limitations, restrictions and conditions as may be contained in
any Financing Agreements, maintain and operate the same in
accordance with the provisions of the Act and this Agreement.
( Amended March 31, 1982.)
SECTION 62. The Authority convenants that it will not, with-
out the consent of' the Board of Estimate, enter into any contracts
requiring the payment of funds or the performance of work or the
delivery of goods beyond the term of this Agreement, or any renewal
thereof: provided, however, that nothing herein contained shall be
deemed to limit or restrict the power granted the Authority to man-
age, control or direct the maintenance and operation of the Leased
Property or any other ofits property incidental to or necessary for the
operation of the transit facilities or the service thereof or to fulfill its
obligations, covenants and agreements contained in any Financing
Agreements. (Amended March 31, 1982.)
SECTION 6.3 The Authority does hereby assume all contracts
made by the Board of Transportation or by the Board of Transporta-
tion on behalf of the City which require the payment of money or the
performance of any service by the City or the Board of Transporta-
tion for or in connection with the construction, maintenance and
operation of the Leased Property; provided, however, that the City
shall r
Preview
FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022 EXHIBIT "E" FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------ x JULIET CHIN, AFFIDAVIT Plaintiff(s), Index No: 154992/2021 - against - File No: 2021-011266 LONG ISLAND RAILROAD, METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, MTA NEW YORK CITY TRANSIT AUTHORITY, AND CITY OF NEW YORK, Defendant(s). ------------------------------------------------------------------------ x STATE OF NEW YORK ) : SS.: COUNTY OF NEW YORK ) Steven M. Mortman, being duly sworn, deposes and says the following: 1. I am currently employed as a Deputy General Counsel-OGC/Real Estate for have been employed in this position since 2002. In this capacity, my duties include handling of and authorized by the New York City Charter, to dispose of, acquire and manage interests in non- residential real property. I am familiar with records pertaining to City of New York owned documents and microfiche. 1 FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022 2. DCAS is charged with oversight of various non-residential real estate and facilities owned by the City of New York which includes the leasing of property for City agency use. DCAS also provides leases and licenses for private use of City-owned non-residential property and facilities. DCAS also maintains a copy of the Master Lease Agreement between the 3. At the request of the Corporation Counsel, I was asked to search for and provide a copy of the Agreement of Lease and Amendments ( pertaining to real property owned by the City of New York and leased to the New York City 4. A copy of the most current Master Lease between the City of New York and the NYCTA dated, June 1, 1953; Amended April 19, 1960 and March 6, 1962; Supplemented by Agreement dated March 20, 1962; Amended and Renewed by Agreement dated October 5, 1962; Amended April 7, 1965; Amended by Agreement dated March 31, 1982; Amended April 5. The Master Lease was in effect on January 7, 2021, the date of the incident underlying this action and continues in force and effect as of the present date. Dated: New York, NY July 30 ________, 2021 ________________________________ Steve Mortman Sworn to before me this day of , 2021 _____________________________________ Alexander Harry Ansari Notary Public, State of New York No. 02AN6377877 Qualified in Westchester County 2 Commission Expires July 16, 2022 FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022 COMPOSITE COPY OF AGREEMENT OF LEASE BETWEEN THE CITY OF NEW YORK AND NEW YORK CITY TRANSIT AUTHORITY (Dated, June 1, 1953; Amended April 19, 1960 and March 6, 1962; Supplemented by Agreement dated March 20, 1962; Amended and Renewed by Agreement dated October 5, 1962; Amended April 7, 1965; Amended by Agreement dated March 31, 1982 FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022 TABLE OF CONTENTS Article Page I Definitions .............................................................. 2 II Lease ...................................................................... 3 III Treatment of capital costs ........................................ 8 IV Payments by the City .............................................. 9 V Pending actions and proceedings ............................. 10 VI Particular covenants ............................................... 11 VII Declarations of intention and understanding 18 VIII Sewer and other rights reserved to the City ............... 20 IX Advancement and completion of Rockaway improvement .......................................... 21 X South Brooklyn Railway Company .......................... 21 XI Disposition of bus lines ............................................ 22 XII Inspection of accounts ............................................. 23 XIII Adjustments ........................................................... 23 XIV Procedure in event of disputes .................................. 24 XV Covenant of further assurances ................................ 26 XVI Term and renewal ................................................... 26 XVII Effect of termination of Agreement .......................... 27 XV III Personal liability 28 XIX Waivers and amendments ....................................... 28 XX Notices ...................................................................29 XXI Separability ............................................................ 29 XXII Headings ................................................................ 30 XXIII Execution of Agreement .......................................... 30 XXIV Financing of certain capital costs............................ 30 FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022 AGREEMENT OF LEASE AGREEMENT OF LEASE made this 1st day of June, 1953 between THE CITY OF NEW YORK ( " City " )and the NEW YORK CITY TRANSIT ALTHOHITY ("Authority"), a public benefit corporation existing by virtue of Chapters 200 and 201 of the Laws of 1953, being Sections 1200 to 1221, inclusive, of Article 5, Title 9 of the Public Authorities Law* ( " Act " ). WITNESSETH: WHEREAS pursuant to the Act there was created the Authority for the purposes of the acquisition of the transit facilities operated by the Board of Transportation of the City and the operation of transit facilities in accordance with the provisions of the Act for the conven- ience and safety of the public on a basis which will enable the opera- tions thereof, exclusive of capital costs, to be self-sustaining; and WHEREAS pursuant to the provisions of the Act, the Authority and the City may enter into an agreement for the transfer from the City to the Authority, for use in the execution of the corporate pur- poses of the Authority, of the transit facilities now owned or hereafter acquired or constructed by the City and any other materials, supplies and property incidental to or necessary for the operation of such transit facilities; and WHEREAS pursuant to the provisions of Section 1203 of the Act, the City, by resolution of the Board of Estimate, has duly authorized the execution of this Agreement on its behalf; and WHEREAS the Authority by resolution has duly authorized the execution of this Agreement on its behalf; and WHEREAS, the Act, as amended by the Laws of 1981, provides that the Authority may incur certain capital costs and may issue its bonds or notes or lease, sublease and other contractual obligations in connection therewith; and * In this Composite Copy, the provisions of the Public Authorities Law are numbered in accordance with L. 1957. C. 914, §3, eff. April 24, 1957. FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022 2 WHEREAS, the Act, as so amended, authorizes the extension and amendment of this Agreement in a manner not inconsistent with the provisions of or in derogation of the powers of the Authority as p rovided in the Act; and WHEREAS, pursuant to the provisions of Section 1207-m of the Act, the City and the Authority have each duly authorized the execu- tion of and the Metropolitan Transportation Authority has approved the Amendment of this Agreement dated March 31, 1982; NOW THEREFORE, in consideration of the premises and of the mutual covenants hereinafter contained, it is agreed as follows: ARTICLE I DEFINITIONS SECTION 1.1. Except where the context hereof otherwise requires, all words and terms defined in the Act when used herein shall have the meanings now assigned to them by the Act, except that the term "transit facilities" shall also be deemed to include street surface railroads and the term "property" shall also be deemed to include personal property. SECTION 1.2. As used herein the word "Agreement" shall mean this Agreement of Lease. SECTION 1.3. As used herein the following terms shall have the following meanings: "Board of Transportation" shall mean the Board of Trans- portation of the City as existing on the effective date of the Act. "Leased Property" shall mean the transit facilities and any other materials, supplies and property incidental to or necessary for the operation of such transit facilities referred to in Section 2.1 of Article II hereof and the real property referred to in Section 2.2 of Article II hereof, provided, however, that the term "Leased FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022 3 Property" shall, except as provided in Section 6.9 of Article VI of this Agreement, not include any facilities, materials, supplies or property which have not been furnished to the Authority by the City or the Board of Transportation. or the total cost of which has not been paid for by the City, or for the cost of which the Author- ity has not been totally reimbursed by the City. "Financing Agreement" shall mean any bond resolution of the Authority, any bonds or notes or leases, subleases or other contractual obligations or agreements issued or incurred by the Authority or its subsidiaries pursuant to Sections 1207, 1207-b or 1207-m of the Act, including such corres p onding sections as may from time to time be in effect during the term of this Agreement, including any agreement of the Authority with Metropolitan Transportation Authority pursuant to subdivision 4 of Section 1266-c of the Public Authorities Law, and any lease or sublease entered into by the Authority or its subsidiaries for equipment or facilities sold or transferred by the Authority or its subsidiaries to a lessor or sublessor or entered into in connection with the financing thereof. SECTION 1.4. Words in the singular number shall include the plural, and those in plural number shall include the singular. ARTICLE II LEASE SECTION 2.1. The City hereby leases to the Authority for a term of 10 years commencing with 12:01 A.M. Eastern Daylight Saving Time, June 15, 1953 (herein called the "effective date") for use in the execution of the corporate purposes of the Authority all of the transit facilities now owned or hereafter acquired or constructed by the City and any other materials, supplies and property incidental to or necessary for the operation of such transit facilities. The City hereby authorizes the Authority to take jurisdiction, control, possession and supervision of such transit facilities, materials, supplies and prop- erty on the effective date. The foregoing provisions of this Section 2.1 FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022 4 limiting the term of this Agreement shall be superseded by, but only to the extent of the provisions of, Article XVI of this Agreement. (Amended October 5, 1962)* Notwithstanding the provisions of Section 2.1 of the Agreement of Lease between the City and the Authority, dated June 1, 1953, as amended, renewed and supplemented or any other provisions of said Lease, the City hereby transfers to the Authority title and ownership to the materials and supplies incidental to or necessary for the opera- tion of the transit facilities which were heretofore leased to the Authority. (Amended April 7, 1965.) SECTION 2.2. The Authority shall have on the effective date the use and possesion of all real property owned or leased by the City and used or occupied by the Board of Transportation on March 15, 1953 in connection with or incidental to the operation of such transit facili- ties. The Authority agrees to reimburse the City for any rentals paid from and after the effective date by the City to the owners of the property leased by the City (hereafter in this Section 2.2 referred to as "rented property") which shall be used and possessed by the Author- ity pursuant to this Section 2.2; provided, however, that the obliga- tion of the Authority to make such reimbursement to the City shall cease on the date when the Authority shall surrender or tender the surrender of the use and possession of any of such rented property to the City, except that the Authority shall not surrender possession of the rented property now used by the Board of Transportation as the Jamaica Bus Terminal if such surrender shall have the effect of causing the City to incur any liability. SECTION 2.3. Upon the filing by the Authority with the Clerk of the City and the Secretary of State of a copy of this Agreement, the Authority shall take possession and control of the Leased Property, together with all contracts, books, maps, plans, papers and records of or in the possession of the Board of Transportation of whatever description incidental to or necessary for the operation of the facili- ties transferred by this Agreement or the performance of the duties of * By supplemental agreement between the City and the Authority, dated March 20, 1962, provision was made for the operation of certain omnibus facilities to be acquired by the City by the Manhattan and Bronx Surface Transit Operating Authority. FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022 5 the Authority as provided by the Act. SECTION 2.4. The City does not by this Agreement lease to the Authority (a) property under the jurisdiction of the Board of Trans- portation prior to June 1, 1953 which the Board of Transportation had declared prior to such date, by formal communication to the Board of Estimate, to be property not used in connection with, incid- ental to, or necessary for, the operation of the Leased Property, or (b) the property or lease pursuant to which The Long Island Rail Road Company operates in and on Atlantic Avenue. SECTION 2.5. All other property under the jurisdiction of the Board of Transportation on the effective date which is not expressly excepted pursuant to Section 2.4 of this Article II, is hereby trans- ferred to the jurisdiction of the Authority until there is a determina- tion whether such property is incidental to, necessary for, or con- nected with the operation of the transit facilities or other property leased herein or the performance of the duties of the Authority as provided by the Act. Such determination shall be made by a commit- tee composed of a person or persons chosen by the Authority and of a person or persons chosen by the City; the Authority and the City shall have equal representation on such committee. The Authority and the City recognize that determinations pursuant to the provi- sions of this Section 2.5 whether property is incidental to, necessary for, or connected with, the operation of the transit facilities or other property leased herein or the performance of the duties of the Author- ity as provided by the Act need not be made on the basis of lot descriptions but may be made on the basis of an appropriate sever- ance of the property under determination. In the event that such committee is unable to make such determination by December 31, 1953, the Authority and the City agree to submit the matter in con- troversy for determination in the manner provided by Section 14.1 of Article XIV hereof. Pending determination as hereinabove pres- cribed, all net revenues derived from the operation of property subject to such determination shall be held in escrow by the Authority. Jurisdiction of any of such property determined not to be incidental to, necessary for, or connected with the operation of the transit facili- ties or other property leased herein or the performance of the duties of the Authority as provided by the Act, shall be promptly surrendered FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022 6 by the Authority to the City and any net revenues derived from the operation of such property from the effective date to the date of such surrender shall be remitted to the City. Such property as is finally determined to be property incidental to, necessary for, or connected with the operation of the transit facilities or other property leased herein or the performance of the duties of the Authority as provided by the Act, shall be deemed to be part of the Leased Property. SECTION 2.6. The City has asserted that there may be rental or other income derived from the Leased Property which is not revenue as defined by the Act and the Agreement. (Such income is hereinafter in this Section 2.6 referred to as "non-transit income".) Not later than November 1, 1953, the City will serve a notice on the Authority specifying the items which the City claims are non-transit income. After the effective date all net income from such items shall be collected and held by the Authority until there is a determination whether the same is revenue as so defined. Such determination shall be made by the committee and otherwise in the time and manner prescribed in Section 2.5 of this Article II. The net amount of any such income so determined not to be revenue as so defined shall be released and remitted to the City and the remainder shall be retained by the Authority for use in its operations. SECTION 2.7. The Authority and the City will execute and deliver to each other such further documents as may be necessary to carry out the purposes of Sections 2.5 and 2.6 of this Article II. SECTION 2.8. The Authority may use and occupy real property (in addition to that transferred pursuant to Sections 2.1 and 2.2 of this Article II) now or hereafter owned or leased by the City on such terms as may, from time to time, be mutually agreed upon by the City and the Authority. SECTION 2.9. a. If any Leased Property, consisting of real prop- erty or any interest therein, is determined by the Authority to be no longer required by it, the Authority shall surrender its interest there- in to the City. b. If any Leased Property, not consisting of real property or any FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022 7 interest therein, is determined by the Authority to be no longer required by it, the Authority shall notify the Director of Management and Budget of the City or such other City official as the Mayor may designate in writing of such determination and identify the property which is the subject of such determination. The Authority shall sur- render to the City its interestin any of such property requested by the City within 30 days of such notice. If no such request shall be made by the City with respect to such property or any portion thereof within such period, the interest of the City in such property shall be deemed to have been transferred to the Authority and the Authority may dispose of such property in such manner and for such consideration as it shall determine and any proceeds realized upon such disposition shall be retained by the Authority. c. If the Authority determines that any real property owned by it is no longer required by it, the Authority shall notify the Director of Management and Budget of the City or such other City official as the Mayor may designate in writing of such determination, which notice shall identify the property and the nature of any liens or encumbran- ces thereon. If, pursuant to the terms of any Financing Agreement the Authority is prohibited from transferring such property except for value, such notice shall also identify the Financing Agreement or Agreements containing such prohibition and describe the manner in which the Authority intends to dispose of such property. The City acknowledges that if proceeds of a Financing Agreement are utilized to acquire or substantially improve any real property owned by the Authority or if a Financing Agreement is entered into in connection with the acquisition of any real property, such Financing Agreement will prohibit the disposition of such property by the Authority other- wise than for value. If the transfer of such property is not subject to such prohibition and if so requested by the City within 60 days of such notice, the Authority shall transfer its interest in any such property, subject to such liens and encumbrances, to the City without consideration upon the City undertaking, in a form satisfactory to the Authority, to assume and hold the Authority harmless with respect to any remaining or continuing obligations of the Authority with respect to such property. (Amended March 31, 1982.) FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022 8 ARTICLE III TREATMENT OF CAPITAL COSTS SECTION 3.1. Capital costs of a nature not heretofore charged as operating expenses and not paid or financed through Financing Agreements or not paid or financed with funds granted to the Author- ity for such purposes, shall be paid by the City, or at the option of the Authority, may be paid in the first instance by the Authority, but in such event, the Authority shall be entitled to recover from the City the amount of such costs; provided, however, that the total amount of such capital costs to be paid by or recovered from the City which the Authority may incur without the approval of the Mayor in any fiscal year of the City shall not exceed $5,000,000, and that no other such capital costs to be paid by or recovered from the City may be incurred by the Authority without such approval. Where the City is required to reimburse the Authority for the amount of any capital costs pursuant to the Agreement, serial bonds or capital notes may be issued by the City, pursuant to the local finance law, to finance any such reimbur- sement in the same manner and to the same extent as if such costs were to be paid directly by the City. (Amended March 31, 1982.) SECTION 3.2. The Authority shall submit annually to the Direc- tor of Management and Budget on such date as the Mayor may direct City agencies to submit departmental estimates for capital projects pursuant to Section 214 of the New York City Charter, an estimate, for inclusion in the Capital Budget of the City, of all capital costs of a nature not heretofore charged as operating expenses and which are to be paid by or recovered from the City. The City shall not be required to include any proposed expenditure in its Capital Budget nor shall the City be required, pursuant to this Agreement, to pay or reimburse the Authority for any expenditure as a capital cost if such expendi- ture is by reason of its nature or purpose such that it is not classifiable as a capital expenditure under generally accepted accounting princi- ples and therefore not legally includable in the City's Capital Budget pursuant to Chapter 9 of the City Charter, the Municipal Assistance Corporation for the City of New York Act or the New York State Financial Emergency Act for the City of New York, all as the same FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022 9 may be amended from time to time. (Amended March 31, 1982.) SECTION 3.3. (Deleted by amendment dated March 31, 1982.) SECTION 3A. (Deleted by am. Pndrnent. dated March 31. 1982.) SECTION 3.5. (Deleted by amendment date October 5, 1962.) SECTION 3.6. Neither the Authority's right or power to issue or enter into Financing Agreements as provided in the Act nor the payment or financing of any capital costs through the issuance or incurrence of any such Financing Agreements or with funds granted to the Authority for such purposes shall relieve the City of any obligations it may have under the Act or this Agreement with respect to capital costs. (Amended March 31, 1982.) ARTICLE IV PAYMENTS BY THE CITY SECTION 4.1 The City shall pay liabilities of the City or the Board of Transportation for: (a) Pension or retirement contributions on behalf of persons who were employed on transit facilities acquired by the City prior to the effective date of the Act. (b) Contributions to the New York City Employees' Retirement System on behalf of officers or employees whose compensation has been paid out of the operating revenues of the Board of Transporta- tion, which contributions have or shall after the effective date of the Act become due or payable for fiscal years of the City ending on or before dune 30, 1953; provided, however, that the City shall have no liability for such contributions in respect of services rendered by such officers or employees after the effective date. (c) The City shall pay into the IRT Voluntary Relief Fund any amount which the `Company' (Interborough Rapid Transit Coin- FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022 10 pany) was or would be required to pay into said fund under the regulations of the IRT Voluntary Relief Department in effect when the City acquired the facilities and assets of the Interborough Rapid Transit Company. (Amended April 1, 1965.) SECTION 4.2. The City shall pay all other liabilities of the Board of Transportation accruing to the effective date. SECTION 4.3. ( Deleted by amendment dated October 5, 1962.) ARTICLE V PENDING ACTIONS AND PROCEEDINGS SECTION 5.1. The City hereby assumes, and agrees that it shall be responsible for, the payment of, discharge of, defense against, and final disposition of, any and all claims, actions or judgments, includ- ing compensation claims and awards and judgments on appeal, based upon any claim or a cause of action arising prior to the effective date and heretofore or hereafter asserted against the Board of Trans- portation. the City or the Authority. SECTION 5.2. Subject to the provisions of Section 5.3 of this Article V. the Authority agrees to permit the use by the City of its facilities. including the services of the Torts Division of its Law Department. its Workmen's Compensation Bureau and its Medical Department in connection with the defense against and disposition of such claims, actions and judgments. SECTION 5.3. The City and the Authority shall cooperate in determining methods of allocating to the City, and of assuring pay- ment by the City to the Authority, of the City's proportionate share of the cost of maintaining and conducting the facilities mentioned and described in the foregoing Section 5.2 hereof. In the event of failure by the City and the Authority to agree upon such methods prior to September 1, 1953 the Authority shall not be bound by the provisions of Section 5.2 hereof and in such event the City shall pay its propor- tionate share of the cost of maintaining and conducting such facili- ties to such date. FILED: NEW YORK COUNTY CLERK 03/24/2022 03:04 PM INDEX NO. 154992/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/24/2022 11 ARTICLE VI PARTICULAR COVENANTS SECTION 6.1. If in the opinion of the Board of Estimate and the Mayor the continued maintenance and operation of existing transit facilities, service on which is discontinued by any present private operator. would be expedient, practicable and in the public interest, the Authority shall, subject to such prohibitions, limitations, restric- tions and conditions as may be contained in any Financing Agree- ments, prepare a plan for the acquisition by the City of such transit facilities and maintenance and operation thereof by the Authority, and when such plan shall have been approved by the Board of Esti- mate and the Mayor and such transit facilities shall have been acquired by the City, the Authority shall, subject to such prohibi- tions, limitations, restrictions and conditions as may be contained in any Financing Agreements, maintain and operate the same in accordance with the provisions of the Act and this Agreement. ( Amended March 31, 1982.) SECTION 62. The Authority convenants that it will not, with- out the consent of' the Board of Estimate, enter into any contracts requiring the payment of funds or the performance of work or the delivery of goods beyond the term of this Agreement, or any renewal thereof: provided, however, that nothing herein contained shall be deemed to limit or restrict the power granted the Authority to man- age, control or direct the maintenance and operation of the Leased Property or any other ofits property incidental to or necessary for the operation of the transit facilities or the service thereof or to fulfill its obligations, covenants and agreements contained in any Financing Agreements. (Amended March 31, 1982.) SECTION 6.3 The Authority does hereby assume all contracts made by the Board of Transportation or by the Board of Transporta- tion on behalf of the City which require the payment of money or the performance of any service by the City or the Board of Transporta- tion for or in connection with the construction, maintenance and operation of the Leased Property; provided, however, that the City shall r