Preview
FILED: NEW YORK COUNTY CLERK 04/04/2019 12:27 PM INDEX NO. 152189/2018
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 04/04/2019
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;
Amended April 11, 1995
FILED: NEW YORK COUNTY CLERK 04/04/2019 12:27 PM INDEX NO. 152189/2018
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 04/04/2019
TABLEOFCONTENTS
Article Page
I Definitions........................................................ 2
II Lease............................................................ 2
III Treatmentofcapitalcosts............................................ 5
IV PaymentsbytheCity ............................................... 6
V Pendingactionsandproceedings ...................................... 7
VI Particularcovenants ................................................ 7
VII Declarationsofintentionandunderstanding ............................. 11
VIII SewerandotherrightsreservedtotheCity .............................. 12
IX Advancementandcompletionof
Rockawayimprovement ............................................ 12
X SouthBrooklynRailwayCompany .................................... 13
XI Dispositionofbuslines ............................................. 13
XII Inspectionofaccounts ............................................. 14
XIII Adjustments ..................................................... 14
XIV Proceduresineventofdisputes....................................... 15
XV Covenantoffurtherassurances ...................................... 16
XVI Termandrenewal ................................................ 16
XVII EffectofterminationofAgreement ................................... 17
XVIII Personalliability ................................................. 17
XIX Waiversandamendments .... ...................................... 17
XX Notices ......................................................... 19
XXI Separability ..................................................... 19
XXII Headings ....................................................... 20
XXIII ExecutionofAgreement............................................ 20
XXIV Financingofcertaincapitalcosts..................................... 20
FILED: NEW YORK COUNTY CLERK 04/04/2019 12:27 PM INDEX NO. 152189/2018
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 04/04/2019
AGREEMENT OF LEASE
AGREEMENT OF LEASE made this 1st day of June, 1953 between THE CITY
UF NEW YORK ("City") and the NEW YORK CITY TRANSIT AUTIHORITY
("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
Lawl
Public Authorities ("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 convenience and safety of the public on a basis which will enable the operations
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 purposes 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
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 provided 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 execution 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;
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 04/04/2019 12:27 PM INDEX NO. 152189/2018
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 04/04/2019
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
facilities"
to them by the Act, except that the term "transit shall also be deemed to
"property"
include street surface railroads and the term shall also be deemed to
include personal property.
"Agreement"
SECTION 1.2. As used herein the word shall mean this
Agreement of Lease.
SECTION 1.3. As used herein the following terms shall have the following
meanings:
Transportation"
"Board of shall mean the Board of Transportation of the City
as existing on the effective date of the Act.
Property"
"Leased shall mean transit
the 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
Property"
in Section 2.2 of Article II hereof, provided, however, that the term "Leased
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 Authority has not been totally
reimbursed by the City.
Agreement"
"Financing 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 corresponding 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
2
FILED: NEW YORK COUNTY CLERK 04/04/2019 12:27 PM INDEX NO. 152189/2018
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 04/04/2019
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 property on the effective date. The foregoing provisions of this Section
2.1 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 operation 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
possession 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 facilities. 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 Authority pursuant to this Section 2.2; provided,
however, that the obligation 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 facilities transferred by
this Agreement or the performance of the duties of 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 Transportation prior to
June 1, 1953
which the Board of Transportation had declared prior to such date, by formal
communication to the Board ofEstimate, to be property not used in connection with,
incidental 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 transferred to the jurisdiction of the Authority
*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.
3
FILED: NEW YORK COUNTY CLERK 04/04/2019 12:27 PM INDEX NO. 152189/2018
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 04/04/2019
until there is a determination whether such 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 Authority as provided by the Act. Such
determination shall be made by a committee 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 provisions 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
Authority 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 severance 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 controversy for determination in the manner provided by Section 14.1 of
Article XIV hereof. Pending determination as hereinabove prescribed, 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: necessary to, 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 promptly surrendered by
Authority the 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
suc
Preview
FILED: NEW YORK COUNTY CLERK 04/04/2019 12:27 PM INDEX NO. 152189/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 04/04/2019 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; Amended April 11, 1995 FILED: NEW YORK COUNTY CLERK 04/04/2019 12:27 PM INDEX NO. 152189/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 04/04/2019 TABLEOFCONTENTS Article Page I Definitions........................................................ 2 II Lease............................................................ 2 III Treatmentofcapitalcosts............................................ 5 IV PaymentsbytheCity ............................................... 6 V Pendingactionsandproceedings ...................................... 7 VI Particularcovenants ................................................ 7 VII Declarationsofintentionandunderstanding ............................. 11 VIII SewerandotherrightsreservedtotheCity .............................. 12 IX Advancementandcompletionof Rockawayimprovement ............................................ 12 X SouthBrooklynRailwayCompany .................................... 13 XI Dispositionofbuslines ............................................. 13 XII Inspectionofaccounts ............................................. 14 XIII Adjustments ..................................................... 14 XIV Proceduresineventofdisputes....................................... 15 XV Covenantoffurtherassurances ...................................... 16 XVI Termandrenewal ................................................ 16 XVII EffectofterminationofAgreement ................................... 17 XVIII Personalliability ................................................. 17 XIX Waiversandamendments .... ...................................... 17 XX Notices ......................................................... 19 XXI Separability ..................................................... 19 XXII Headings ....................................................... 20 XXIII ExecutionofAgreement............................................ 20 XXIV Financingofcertaincapitalcosts..................................... 20 FILED: NEW YORK COUNTY CLERK 04/04/2019 12:27 PM INDEX NO. 152189/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 04/04/2019 AGREEMENT OF LEASE AGREEMENT OF LEASE made this 1st day of June, 1953 between THE CITY UF NEW YORK ("City") and the NEW YORK CITY TRANSIT AUTIHORITY ("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 Lawl Public Authorities ("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 convenience and safety of the public on a basis which will enable the operations 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 purposes 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 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 provided 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 execution 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; 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 04/04/2019 12:27 PM INDEX NO. 152189/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 04/04/2019 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 facilities" to them by the Act, except that the term "transit shall also be deemed to "property" include street surface railroads and the term shall also be deemed to include personal property. "Agreement" SECTION 1.2. As used herein the word shall mean this Agreement of Lease. SECTION 1.3. As used herein the following terms shall have the following meanings: Transportation" "Board of shall mean the Board of Transportation of the City as existing on the effective date of the Act. Property" "Leased shall mean transit the 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 Property" in Section 2.2 of Article II hereof, provided, however, that the term "Leased 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 Authority has not been totally reimbursed by the City. Agreement" "Financing 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 corresponding 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 2 FILED: NEW YORK COUNTY CLERK 04/04/2019 12:27 PM INDEX NO. 152189/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 04/04/2019 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 property on the effective date. The foregoing provisions of this Section 2.1 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 operation 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 possession 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 facilities. 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 Authority pursuant to this Section 2.2; provided, however, that the obligation 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 facilities transferred by this Agreement or the performance of the duties of 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 Transportation prior to June 1, 1953 which the Board of Transportation had declared prior to such date, by formal communication to the Board ofEstimate, to be property not used in connection with, incidental 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 transferred to the jurisdiction of the Authority *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. 3 FILED: NEW YORK COUNTY CLERK 04/04/2019 12:27 PM INDEX NO. 152189/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 04/04/2019 until there is a determination whether such 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 Authority as provided by the Act. Such determination shall be made by a committee 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 provisions 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 Authority 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 severance 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 controversy for determination in the manner provided by Section 14.1 of Article XIV hereof. Pending determination as hereinabove prescribed, 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: necessary to, 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 promptly surrendered by Authority the 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 suc