Appendix O1 2014 Restrictive Declaration
RESTRICTIVE DECLARATION FOR THE WESTERN RAILYARD 

DATED AS OF APRIL 10, 2014 

PREMISES: 

NIA WEST 30TH STREET 

TO BE: 646 WEST 30TH STREET AND 656 WEST 33RD STREET 

MANHATTAN BLOCK 676, PIO LOT 3, TO BE NEW LOTS 1 AND 5 

Return and Record: 

Fried, Frank, Harris, Shriver and Jacobson LLP 

One New York Plaza 

New York, New York 10004 

Attn: Stephen Lefkowitz, Esq. 

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RESTRICTIVE DECLARATION FOR 

THE WESTERN RAILY ARD 

TO .BE RECORDED IN ACCORDANCE WITH 

SECTION 93-06 OF THE NYC ZONING RESOLUTION 

RESTRICTIVE DECLARATION 

THIS DECLARATION, made as of the 10th day of April, 2014 by WRY TENANT LLC (f/k/a 

RG WRY LLC), having an office located do The Related Companies, L.P., 60 Columbus Circle, 

New York, N.Y. 10023 (hereinafter referred to as "Declarant"). 

WITNESSETH: 

WHEREAS: 

A. Declarant is, as of the date hereof, the lessee of certain real property located in the 

Borough of Manhattan, and the City, County and State of New York, consisting of 

the Facility Airspace Parcel, as the same is defined and described in that certain 

Declaration of Easements (Western Rail Yard Section of The John D. Caemmerer 

West Side Yard), dated as of May 26, 2010 made by Metropolitan Transportation 

Authority of the State of New York ("MTA''), as declarant, and recorded at Reel 

CRFN No. 2010041501079003 (as the same has been amended, modified or 

supplemented from time to time, the "Declaration of Easements"), and designated for 

real property tax purposes as p/o Lot 3, to be new Lots 1 and 5 of Tax Block 676, and 

as more particularly described on Exhibit A to this Declaration (the "Subject 

Property"); and 

B. The MT A is, as of the date hereat: the fee owner of the Subject Property; and 

C. Declarant has made applications to the City Planning Commission of the City of New 

York (the "CPC"): (a) under Application Number C 090433 ZMM to amend the 

Zoning Resolution of the City of New York (the "Zoning Resolution" or "ZR") to 

establish a C6_,4 zoning district for the Subject Property; (b) under Application 

Number N 090434 ZRM to amend the Zoning Resolution to establish regulations for 

a new Subdistrict F within the Special Hudson Yards District applicable to the 

Subject Property; and (c) under Application Numbers C 090435 ZSM and C 090436 

ZSM for special permits pursuant to ZR 93-052 as amended and 13-561 for attended 

accessory parking garages to be located on the Subject Property (collectively, the 

"Applications") in order to facilitate a mixed-use development thereon (the "Western 

Rail Yard Project"); and 

D. The CPC adopted resolutions approving the Applications, with modifications, on 

October 19, 2009, under Calendar Numbers 14, 15, 16 and 17 (the "CPC Actions"); 

and 

E. The New York City Council adopted resolutions approving the CPC Actions, with 

further modifications, on December 21, 2009, under Calendar Numbers 2328-2009 

(the "Approvals"); and 

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F. CPC and MT A acted as co-lead agencies and conducted an environmental review of 

the Applications pursuant to CEQR (as hereinafter defined) and SEQRA (as 

hereinafter defined); and 

G. CPC and MTA prepared a Final Environmental Impact Statement for the Western 

Rail Yard Project (the "FEIS") and issued a Notice of Completion of FEIS on 

October 19, 2009; and 

H. The analyses and conclusions set forth in the .FEIS were based upon the incorporation 

into the Western Rail Yard Project of certain project components related to the 

environment (the "Project Components Related to the Environment" or "PCREs"), 

including measures relating to construction on the Subject Property and the design 

and operation of buildings, open space and other features of development thereon; 

and 

I. The PETS identified certain significant adverse impacts and proposed mitigation 

measures with respect thereto (the "Mitigation Measures"); and 

J. CPC issued findings pursuant to 6 NYC RR Section 617.l l ( d) with respect to the 

FEIS on October 19, 2009 on the basis that the PCREs and the Mitigation Measures 

would be incorporated as conditions to the decision by means of a declaration of 

restrictions, and a fonn of declaration of restrictions containing provisions with 

respect to the PCREs and the Mitigation Measures was referenced in and made an 

exhibit to such findings; and 

K. MTA issued findings pursuant to 6 NYCRR Section 617.1 l(d) with respect to the 

FEIS; and 

L. Section 93-06 of the Zoning Resolution provides that no building permit shall be 

issued for any development or enlargement within Subdistrict F of the Special 

Hudson Yards District unless a declaration of restrictions in substantially the form 

reviewed by the CPC and referenced in and made an exhibit to the CPC findings 

pursuant to 6 NYCRR Section 617.1 l(d) with respect to the FEIS (as such declaration 

may be revised prior to filing and recordation in accordance with the provisions 

thereof applicable to amendments made subsequent to filing and recordation) shall 

have been filed and duly recorded in the Borough Office of the City Register of the 

City of New York and indexed against all property in Subdistrict F of the Special 

Hudson Yards District proposed for development or enlargement pursuant to Article 

IX Chapter 3 of the Zoning Resolution; and 

M. The New York City Department of City Planning (the "DCP") has detern1ined that 

this Declaration is in substantially the form reviewed by the CPC and referenced in 

and made an exhibit to the CPC findings pursuant to 6 NYC RR Section 617 .11 ( d) 

with respect to the FEIS, and that all revisions have been made in accordance with the 

provisions thereof applicable to amendments made subsequent to filing and 

recordation; and 

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N. Royal Abstract of New York has certified in a certification attached to this 

Declaration as Exhibit B that, as of April 10, 2014, Declarant and MTA are the sole 

"Parties-in-Interest" (as defined in subdivision (d) of the definition of the term 

"zoning lot" in Section 12-10 of the Zoning Resolution), in the Subject Prope1ty; and 

0. The MT A has agreed to permit this Declaration to be recorded by Declarant against 

the Subject Property in the form of the consent attached as Exhibit C-1 to this 

Declaration, with the intention of binding the interest of Declarant and/or a Successor 

Declarant as lessee under a ground or net lease from MTA of all or any portion of the 

Subject Property and/or as the subsequent owner in fee of all or any portion of the 

Subject Property, and upon the provisions of Sections 6.04 and 6.08 with respect to 

MTA's interest in the Subject Property; and 

P. All parties not executing have waived their right to execute this Declaration and have 

subordinated their interest in the Subject Property to this Declaration and all of the 

documents appended as Exhibits to this Declaration or to be entered into and recorded 

as prescribed by this Declaration, by execution and delivery of a document in the 

form of the Waiver attached to this Declaration as Exhibit C-2; and 

Q. Declarant, to insure that development of the Subject Property is consistent with the 

analysis in the FEIS, and that the development of the Subject Property incorporates 

the PCREs and the Mitigation Measures to be undertaken by Declarant at various 

times, and that the development of the Subject Property incorporates certain other 

features relevant to the Approvals, has agreed to restrict the development, operation, 

use and maintenance of the Subject Property in certain respects, which restrictions are 

set forth in this Declaration; and 

R. Declarant represents and warrants that, except with respect to mortgages or other 

instruments specified herein, the holders of which have given their consent or waived 

their right to object hereto, no restriction of record on the development or use of the 

Subject Prope.rty, nor any present or any presently existing estate or interest in the 

Subject Property, nor any lien, obligation, covenant, easement, limitation or 

encumbrance of any kind precludes, presently or potentially, the imposition of the 

restrictions, covenants, obligations, easements and agreements of this Declaration or 

the development of the Subject Property in accordance herewith. 

NOW THEREFORE, Declarant does hereby declare that the Subject Property shall be held, sold, 

conveyed, developed, used, occupied, operated and maintained, subject to the following 

restrictions, covenants, obligations, easements and agreements, which shall run with the Subject 

Property and bind Declarant, its successors and assigns as herein set forth. 

1.01 Definitions. 

ARTICLE I 

ARTICLE HDEFINITlONS 

All terms as used in this Declaration shall have the meaning set forth herein and, in addition, the 

following terms shall mean as follows: 

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(a) "AASHTO" shall mean the American Association of State Highway and Transportation 

Officials. 

(b) "ACS" shall mean the New York City Administration for Children Services, or any 

successor to its jurisdiction. 

(c) "Allee" shall have the meaning set forth in Section 93-761 of the Zoning Resolution. 

(d) "Alteration Permit" shall mean a construction pennit issued by DOB authorizing major 

or minor alterations (including, but not limited to, 'ALTl ', 'ALT2' and 'ALT3' permits) 

to an existing building. 

(e) "Applications" shall have the meaning given in the Recitals to this Declaration. 

(t) "Approval .Date" shall mean the date that the Applications are approved by the New 

York City Council. 

(g) "Building Permit" shall mean any of an Excavation Permit, Demolition Permit, 

Foundation Permit, or New Building Permit. 

(h) "Caemmerer Rail Yard" shall mean the John D. Caemmerer West Side Yard operated 

by the LIRR on property other than the Subject Property within Subdistrict F of the 

Special Hudson Yards District. 

(i) "CEQR" shall mean New York City Environmental Quality Review, pursuant to 

Executive Order No. 91 of 1977, as amended, and the regulations promulgated at 62 

RCNY Section 5-01 et. seq. 

(j) "Chair" shall mean the Chair of the New York City Planning Commission, or any 

successor to his or her jurisdiction. 

(k) "City" shall mean the City ofNew York. 

(I) "Connector" shall have the meaning set forth in Section 93-764 of the Zoning 

Resolution. 

(m) "Construction Commencement" shall mean the issuance of the first Building Permit by 

DOB to Declarant for work on the Subject Property, whether in the form of an 

Excavation Permit, Foundation Permit, Demolition Permit, or New Building Permit. 

(n) "£E£" shall mean the New York City Planning Commission, or any successor to its 

jurisdiction. 

( o) ",!!£f" shall mean the New York City Department of City Planning, or any successor to 

its jurisdiction. 

(p) "DEC" shall mean the New York State Department of Environmental Conservation, or 

any successor to its jurisdiction. 

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(q) "Declarant" shall have the meaning given in the Recitals of this Declaration; and shall 

include any Successor Declarant as defined in Section 3.07(a) of this Declaration. 

(r) "Declaration" shall mean this Declaration, as the same may be amended or modified 

from time to time in accordance with its provisions. 

(s) "Demolition Permit" shall mean a permit issued by DOB authorizing the dismantling, 

razing or removal of a building or structure, including the removal of structural members, 

floors, interior bearing walls and/or exterior walls or portions thereof. 

(t) "DEP" shall mean the New York City Department of Environmental Protection, or any 

successor to its jurisdiction. 

(u) "!!Q!!" shall mean the New York City Department of Buildings, or any successor to its 

jurisdiction. 

(v) "DOB Commissioner" shall mean the Commissioner of the New York City Department 

of Buildings, or any successor to his or her jurisdiction. 

(w) "DOT" shall mean the New York City Department of Transportation, or any successor to 

its jurisdiction. 

(x) "DPR" shall mean the New York City Department of Parks and Recreation, or any 

successor to its jurisdiction. 

(y) "E.2£" shall mean the New York City Economic Development Corporation, or any 

successor to its functions and responsibilities. 

(z) "Effective Date" shall mean the date that MT A delivers to Declarant leasehold title to 

and possession of the entirety of the Subject Property sufficient to allow Declarant to 

undertake the development of the Subject Property in the manner contemplated by this 

Declaration. 

(aa) "Excavation Permit" shall mean any permit issued by DOB authorizing excavations, 

including those made for the purposes of removing earth, sand, gravel, or other material 

from the Subject Property. 

(bb) ".FEIS" shall have the meaning given in the Recitals to this Declaration. 

(cc) "Foundation Permit" shall mean any permit issued by DOB authorizing foundation 

work at the Subject Property. 

( dd) "Garage" shall mean the attended accessory parking garages authorized pursuant to 

ULURP Nos. C 090435 ZSM and C 090436 ZSM. 

(ee) "GHG Credit Category" shall have the meaning given in Exhibit D. 

(ft) "High Line" shall have the meaning set forth in Section 93-01 of the Zoning Resolution. 

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(gg) "HPD" shall mean the New York City Department of Housing Preservation and 

Development, or any successor to its jurisdiction. 

(hh) "LEED" shall mean the Leadership in Energy and Environmental Design certification 

and rating system developed by the USGBC, or a successor rating or ce1tification system 

thereto. 

(ii) "LEED Certification" shall mean 'Certified' or higher level of certification under the 

latest version of the USGBC LEED rating system that is in effect eighteen ( 18) months 

prior to application for a New Building Permit, and (i) for a building developed primarily 

for hotel use or for residential use, shall refer to the LEED rating system for 'New 

Construction'; and (ii) for a building developed primarily for office use, shall refer to the 

LEED rating system for 'Core and Shell'. 

(jj) "LEED Construction Review" shall mean review of a 'Construction Application' 

submitted pursuant to the LEED 'Split Design and Construction Review' path. 

(kk) "LEED Design Review" shall mean review of a 'Design Application' submitted 

pursuant to the 'Split Design and Construction Review' path. 

(II) "LEED Silver Certification" shall mean 'Silver' or higher level of certification under 

the latest version of the USGBC LEED rating system that is in effect eighteen (18) 

months prior to application for a New Building Permit, and (i) for a building developed 

primarily for hotel use or for residential building use, shall refer to the LEED rating 

system for 'New Construction'; and (ii) for a commercial building developed primarily 

for office use, shall refer to the LEED rating system for 'Core and Shell'. 

(mm) "LlRR" shall mean the Long Island Rail Road Company and any successor to its 

jurisdiction. 

(nn) "LPC" shall mean the New York City Landmarks Preservation Commission, and any 

successor to its jurisdiction. 

(oo) "Midblock Connection" shall have the meaning set forth in Section 93-755 of the 

Zoning Resolution. 

(pp) "Mil" shall mean the Metropolitan Transportation Authority of the State of New York 

and its subsidiaries and affiliates (including LIRR), and any successor to its jurisdiction. 

(qq) "New Building" shall mean a new residential, mixed use, or commercial building on the 

Subject Property 

(rr) "New Building Permit" shall mean, with respect to any New Building, a work permit 

issued by DOB under a New Building application authorizing construction of the New 

Building. 

(ss) "Northeast Plaza" shall have the meaning set forth in Section 93-754 of the Zoning 

Resolution. 

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(tt) "Northern Garage" shall mean the Garage described in Application No. C090435 ZSM. 

(uu) "NYPD" shall mean the New York City Police Department, and any successor to its 

jurisdiction. 

(vv) "Open Space Maintenance and Repair Requirements" shall have the meaning set 

fo1th in Section 2.02(g) hereof 

(ww) "OPRHP" shall mean the New York State Office of Parks, Recreation and Historic 

Preservation, and any successor to its jurisdiction. 

(xx) "Permanent Certificate of Occupancy" or "PCO" shall mean a permanent certificate of 

occupancy issued by DOB for any new Building under Section 605 of the New York City 

Charter or any successor provision thereto. 

(yy) "Platform" shall mean the platform, together with the structural elements supporting the 

platform to be constructed within the Subject Prope1ty over the Caemmerer Rail Yard. 

(zz) "Project" shall mean all or any portion of the future development of the Subject Property 

as a mixed-use development and publicly accessible open space in accordance with the 

Zoning Resolution 

(aaa) "Project Component Related to the Environment" or "PCRE" shall refer to any one 

or all of the project components related to the environment for construction, set forth in 

Section 3.01 hereof; project components related to the environment for design and 

operation of any New Building, set forth in Section 3.02 hereof; and project components 

related to the environment related to sustainability, set forth in Section 3.03 hereof. 

(bbb) "Public Access Areas" shall have the meaning set forth in Section 93-56 of the Zoning 

Resolution. 

(ccc) "Public Access Area Phase" shall mean a phase for development of a Public Access 

Area approved pursuant to Section 93-78 of the Zoning Resolution. 

(ddd) "Publicly Accessible Open Spaces" shall have the meaning set forth in Section 93-56 of 

the Zoning Resolution. 

(eee) "Public School" shall mean a PS/IS school of approximately 120,000 gross square feet, 

to be operated by the New York City Department of Education, and having 

approximately 750 seats (assumed in the FEIS to be 420 elementary and 330 intermediate 

seats) proposed to be located on the Subject Property in accordance with Section 3.04(a) 

hereof. 

(fff) mean the New York City School Construction Authority, or any successor 

to its jurisdiction. 

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(ggg) "SEQRA" shall mean the State Environmental Quality Review Act, New York State 

Environmental Conservation Law Sections 8-0 l 0 l et. seq. and the regulations 

promulgated thereunder at 6 NYCRR Part 617. 

(hhh) "Site" shall mean any or all of Sites 1, 2, 3, 4, 5 and 6 as defined on Map 6, Subdistrict F 

Site Plan, of the Special Hudson Yards District. 

(iii) "Site and Landscape Plan" shall have the meaning set forth in 93-78 of the Zoning 

Resolution. 

(jjj) "Subject Property" shall have the meaning given in the Recitals to this Declaration. 

(kkk) "Technical Memorandum" shall mean: (i) the SEQRA/CEQR Technical Memorandum 

issued by CPC and MTA on October 19, 2009; and (ii) any Technical Memorandum 

approved pursuant to Section 3.04(a)(ii)(ee). 

(Ill) "Temporary Certificate of Occupancy" or ".!£Q" shall mean a temporary certificate 

of occupancy issued by DOB under Section 605 of the New York City Charter. 

(mmrn) "Temporary Public Access Area Plan" shall have the meaning set forth in 

Section 93-781 of the Zoning Resolution. 

(nnn) "Tier l", "Ik!:.1" and "Tier 3" shall mean the federal non-road diesel engine emissions 

ce1tification levels of the same name as defined in 40 CFR §89. l 12(a) as of the date 

hereof. 

(ooo) "I1£!:...i" shall mean the federal non-road diesel engine emissions certification levels of 

the same name as defined in 40CFR§1039.l 01 and§ 1039.102, as of the date hereof. 

(ppp) "Uncontrollable Circumstances" shall mean occurrences beyond Declarant's 

reasonable control, and for which Declarant has taken all steps within Declarant's control 

reasonably necessary to control or minimize, which cause delay in the performance of 

Obligations under this Declaration, including, without limitation, delays resulting from (i) 

governmental restrictions, limitations, regulations or controls (provided that such are 

other than ordinary restrictions, limitations, regulations or controls); (ii) orders of any 

court of competent jurisdiction (including, without limitation, any litigation which results 

in an injunction or a restraining order prohibiting or otherwise delaying the construction 

of any portion of the Subject Property); (iii) labor disputes (including strikes, lockouts not 

caused by Declarant, slowdowns and similar labor problems); (iv) accident, mechanical 

breakdown, shortages or inability to obtain labor, fuel, steam, water, electricity, 

equipment, supplies or materials (for which no substitute is readily available at a 

comparable price); (v) acts of God (including severe weather conditions); (vi) removal of 

hazardous substances that could not have been reasonably foreseen; (vii) war, sabotage, 

hostilities, invasion, insurrection, riot, acts of terrorism, mob violence, malicious 

mischief, embargo, quarantines, national, regional or local disasters, calamities or 

catastrophes, national emergencies, enemy or hostile governmental action, civil 

disturbance or commotion, ea1thquake, flood, fire or other casualty of which Declarant 

has given DCP notice; (viii) a taking of the whole or any relevant portion of the Subject 

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Prope1ty by condemnation or eminent domain; (ix) soil conditions that could not have 

been reasonably foreseen that substantially delay construction of any relevant portion of 

the Subject Project or substantially impair the ability to develop the Subject Property in 

the manner contemplated by this Declaration; (x) denial to Declarant by any party of a 

right of access to any adjoining real property or to the Subject Property which right is 

vested in Declarant, by contract or pursuant to applicable law, if such access is required 

to accomplish the obligations of Declarant pursuant to this Declaration; (xi) inability of a 

public utility to provide power, heat or light or any other utility service, despite 

reasonable efforts by Declarant to procure same from the utility; and (xii) unusual delays 

in transpo1tation, as determined by the Chair in accordance with Section 3.08(a) of this 

Declaration. 

(qqq) "USGBC" shall mean the U.S. Green Building Council, the Green Building Certification 

Institute, or any successor organization that administers the LEED certification and 

ratings system. 

(rrr) "Water Credit Category" shall have the meaning given in Exhibit D. 

(sss) "West 30th Street Corridor" shall have the meaning set forth in Section 93-763 of the 

Zoning Resolution. 

(ttt) "West 31st Street Extension" shall have the meaning set forth in Section 93-762 of the 

Zoning Resolution. 

(uuu) "West 32nd Street Extension" shall have the meaning set forth in Section 93-761 of the 

Zoning Resolution. 

(vvv) "Zoning Resolution" shall have the meaning given in the Recitals to this Declaration. 

ARTICLE II 

.DEVELOPMENT OF THE SUBJECT PROPERTY 

2.01 Affordable Housing. 

(a) Declarant shall include in rental buildings or condominiums within the Project, 

residential rental units that will be affordable to persons or families of low income who 

qualify for occupancy pursuant to the requirements of (a) the "80/20" program under 

Section 142 of the Code or (b) any program for the development of affordable rental units 

selected by the Declarant, including the Section 421-a "80/20" program as applied to a 

condominium building with affordable units (the "Affordable Housing Units"), subject 

to: (i) the provision to Declarant of sufficient tax-exempt bond financing including the 

allocation of private activity tax-exempt bond volume cap or other equivalent low-cost 

financing to fund the full development costs of each rental building or condominium 

containing Affordable Housing Units ("Affordable Financing Programs") as and when 

required by the Declarant; and (ii) the availability to Declarant of Section 421-a tax 

abatements or equivalent tax abatements/exemptions/incentives as are available on the 

date hereof for rental buildings or condominiums containing Affordable Housing Units in 

the City of New York ("Tax Abatement Programs"), including without limitation a 

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twenty year Section 421-a tax abatement for such rental buildings or condominiums. 

Subject to the caveats set forth in the preceding sentence, Declarant shall include a 

minimum of two hundred and sixty-five (265) Affordable Housing Units within the 

Project, and shall in addition include within the Project an adequate number of 

Affordable Housing Units on the Project site such that the total number of Affordable 

Housing Units on the Project site and the eastern portion of the Caemmerer Rail Yard 

collectively is not less than four hundred thirty-one ( 431 ). 

(b) In the event that Declarant utilizes the floor area bonus available under Section 93-23 of 

the Zoning Resolution for the provision of permanent Affordable Housing Units (the 

"Affordable Housing Bonus"), Declarant covenants and agrees to maintain the 

affordability of all Affordable Housing Units required to generate the Affordable 

Housing Bonus for so long as the bonus floor area is included within the Project. 

Declarant fu1ther covenants and agrees that, notwithstanding whether or not the 

Affordable Housing Bonus is utilized, upon the expiration of the benefits of the initial 

Tax Abatement Program, Declarant shall maintain the Affordable Housing Units as 

permanent rentals affordable to persons or households having a maximum income not to 

exceed 125% of area median income, provided that there are incentives, programs, 

exemptions, credits, or abatements that will reduce the taxes for any of the rental 

buildings or condominiums containing such Affordable Housing Units to a level 

consistent with the real estate taxes paid prior to any phase out of the real estate tax 

abatement under the initial Section 421-a tax benefit or similar real property tax 

abatement or exemption program for such building or condominium unit. 

Notwithstanding Declarant's obligations under this Section 2.01 to provide Affordable 

Housing Units, Declarant agrees that any New Building containing Affordable Housing 

Units built with "public funding," as such term is defined in Section 23-91 of the Zoning 

Resolution, shall not be used as a "generating site" for purposes of Section 23-90 et. seq. 

of the Zoning Resolution. 

(c) The Affordable Housing Units in 80/20 rental buildings shall be distributed throughout 

the rental portion of the New Building in a manner consistent with the following (i) no 

more than fifty percent (50%) of the residential units on any floor shall be Affordable 

Housing Units, and (ii) at least one Affordable Housing Unit shall be located on eighty 

percent (80%) of the floors that are part of the rental portion. 

(d) For purposes of this Section 2.01 (i) "Code" means the Internal Revenue Code of 1986, 

as amended, and (ii) "Section 421-a" means Section 421-a of the New York Real 

Property Tax Law as applicable to the Project and any rules or regulations promulgated 

thereunder. 

2.02 Public Access Areas. 

Declarant shall construct, develop and maintain the Public Access Areas in accordance with the 

following: 

(a) Public Access Areas Construction Phasing and Easement. 

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(i) Subject to compliance with the prov1s10ns of Section 93-78 of the Zoning 

Resolution, Declarant may construct the Public Access Areas on the Subject Property in 

such sequence as Declarant shall determine. 

(ii) Subject to clause (v) hereof, Declarant covenants that, immediately upon 

certification by the Chair pursuant to Section 93-78( d) of the Zoning Resolution that a 

Public Access Area Phase is substantially complete, the City shall hereby enjoy, wield, 

and have the right to and the benefit of and be granted, conveyed and transferred a nonexclusive easement (the "Public Access Area Easement") in perpetuity, for the benefit of 

the general public, encompassing the area of the Public Access Area Phase, unobstructed 

from the surface thereof to the sky, for the purposes of: (aa) in the case of the Publicly 

Accessible Open Spaces (1) passive and active recreational use by the general public, and 

(2) pedestrian access over and through the area of the Public Accessible Open Spaces to 

and from other developed portions of the Subject Property and City streets; (bb) in the 

case of the Midblock Connection, the West 30th Street Corridor, and the Connector ( 1) 

pedestrian access over and through the Midblock Connection, the West 30th Street 

Corridor, and the Connector, as the case may be, to and from other developed portions of 

the Subject Property and City streets, and (2) access for fire, police and other emergency 

vehicles over the Connector; and (cc) in the case of the West 31st Street Extension and 

the West 32nd Street Extension, (I) pedestrian access over and through sidewalks with 

respect to both the West 31st Street Extension and the West 3 2nd Street Extension and, in 

the case of the West 32nd Street Extension, the Allee, to and from other developed 

portions of the Subject Property and City streets, and (2) general vehicular and 

emergency vehicle ingress and egress through and over the West 32nd Street Extension 

and the West 3 lst Street Extension, subject in each case to all provisions of this 

Declaration applicable to the use of Public Access Areas. 

(iii) The Declarant covenants that all liens, including but not limited to judgment liens, 

mo1tgage liens, mechanics' liens and vendees liens, and all burdens, covenants, 

encumbrances, leases, licenses, easements, profits, security interests in personal property 

or fixtures, and all other interests subsequent thereto, excepting governmental tax liens 

and assessments, and public utilities and related easements, shall be, at and after the time 

of vesting of the Public Access Area Easement in the City, subject and subordinate to the 

rights, claims, entitlements, interests and priorities created by the Public Access Area 

Easement. 

(iv) The Public Access Area Easement shall commence for the benefit of and shall 

vest in the City commensurate with and on the date of substantial completion of each 

Public Access Area Phase and shall encompass all of the Public Access Area included in 

such Public Access Area Phase and all Public Access Areas completed in an earlier 

Public Access Area Phase, subject to clause (v) hereof. Declarant waives its rights to 

assert the rule against perpetuities as a defense in any proceeding to compel the 

conveyance of the Public Access Area Easement. 

(v) Notwithstanding anything to the contrary in this Section 2.02(a), Declarant shall 

be entitled to and hereby reserves and retains the right to close to the public any portion 

of a Public Access Area Phase that has been built by Declarant to the extent and for the 

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period of time that such c.losure is reasonably required to allow for the construction of a 

New Building in a safe, efficient, and reasonable manner, or to replace temporary 

features under a Temporary Public Access Area Plan certified pursuant to Section 93-782 

of the Zoning Resolution with permanent features under the Site and Landscape Plan 

approved pursuant to Section 93-78 of the Zoning Resolution, or to build a subsequent 

Public Access Area Phase, and the easement granted pursuant to clause (ii) of this 

Section 2.02(a) is limited to such extent. Declarant shall notify the Chair of the need to 

close any portion of the Public Access Area Phase not less than sixty (60) days prior to 

such closure, and shall provide the Chair with a description of the need, extent and 

estimated period ohime of closure reasonably required pursuant to this clause. 

(b) Hours of Access and Closure. 

(i) Declarant covenants that the Public Access Areas shall remain open and 

accessible to the public pursuant to the Public Access Easement as follows: (aa) Publicly 

Accessible Open Spaces shall be open each day between the hours of 6:00AM to 

1 :OOAM, provided that the Northeast Plaza shall be open each day between the hours of 

7:00 AM and 10:00 PM from April 15 to October 31 and from 7:00 AM to 8:00 PM from 

November 1 to April 14 or as otherwise provided in the Zoning Resolution; and (bb) the 

West 32nd Street Extension, the West 31st Street Extension and the West 30th Street 

Corridor shall be open and accessible to the public at all times 

(ii) Notwithstanding clause (i) of this Section 2.02(b ), Declarant may clok the Public 

Access Areas or the most limited portions thereof as may be necessary in order: (aa) to 

accomplish maintenance, repairs or replacements; (bb) to make emergency repairs to 

mitigate hazardous site conditions; (cc) to address other emergency conditions; and (dd) 

to allow for public events approved by the Open Space Advisory Board under Section 

2.02(e) hereof. In addition, (aa) Declarant shall be entitled to close all or any portion of 

the Public Access Areas not more than one ( l) day of each calendar year in order to 

preserve Declarant's ownership interest therein, provided that any closure made for such 

purpose shall not occur on a weekend or public holiday; and (bb) Declarant shall be 

entitled to close the Central Open Space lawn area required under Section 93-752(c)(1) of 

the Zoning Resolution together with an access point thereto, not more than four (4) times 

in any calendar year (and not more than one (1) such event shall occur within in any two 

(2) month period) for purposes of hosting a private event for the benefit of owners or 

occupants of any of the New Buildings. Such private events shall not take place on a 

public holiday and shall be for no more than six (6) hours. Declarant shall notify DCP of 

any such event not less than thirty (30) says prior to closure. "Emergency conditions" for 

which the Public Access Areas may be dosed pursuant to this clause shall be limited to 

actual or imminent emergency situations, including but not limited to: security alerts, 

riots, casualties, disasters, hazardous or dangerous conditions or other events endangering 

public safety or property, provided that no such emergency closure shall continue for 

more than twelve ( 12) consecutive hours without Declarant having notified the NYPD or 

DOB, as appropriate, and having followed NYPD's or DOB's direction, if any, with 

regard to the emergency situation. Declarant shall promptly notify the Chair in writing of 

any closure which extends more than twelve (12) hours. Declarant shall close or permit to 

be closed only those portions of the Public Access Areas which must or should 

12 

US\CHERKMA \934 7934.2 
reasonably be closed to effect the maintenance, repairs or replacements to be undertaken, 

and will exercise due diligence in the performance of such repairs or mitigation in order 

that it is completed expeditiously and the temporarily closed areas (or any portions 

thereof) are re-opened to the public promptly. 

(c) Maintenance and Repair of Public Access Areas. 

Declarant shall, at Declarant's sole cost and expense, operate, maintain and repair the 

Public Access Areas in a sound and good condition in accordance with the requirements 

set forth in the Maintenance and Repair of Public Access Areas schedule annexed to this 

Declaration as Exhibit E (the "Public Access Area Maintenance and Repair 

Requirements"). Notwithstanding the foregoing, at such time and in the event that 

Declarant establishes a Property Owners' Association in accordance with Section 2.02(g) 

hereof, the Property Owners' Association shall be responsible for the operation, 

maintenance, and repair of the Public Access Areas in accordance with the tenns of this 

Restrictive Declaration. 

(d) Operating Rules for Publicly Accessible Open Spaces. 

The activities, uses and conduct permitted within Publicly Accessible Open Spaces shall 

comply with all app Ii cable laws and regulations of the City, in addition to being subject 

to the policies set forth in the schedule annexed hereto as Exhibit F. Declarant may 

modify the policies set forth in Exhibit F with the prior written approval of DCP, which 

shall not be unreasonably withheld, conditioned or delayed. 

(e) Publicly Accessible Open Space Programming Management Advisory Board. 

(i) Declarant shall have the right, at Declarant's election, to undertake and implement 

a program of public activities and events within the Publicly Accessible Open Spaces, 

subject to subclause (iii) Such public programming shall be limited to (aa) arts, 

music, theater or other cultural or similar events of a public character; and (bb) 

celebrations, participatory neighborhood events or similar activities of a public nature, all 

of which shall be open to the general public (the "Event Programming"). Any Event 

Programming shall be non-commercial in nature and shall not be conducted for profit, 

provided that in no event shall this provision be interpreted to prevent any sponsor or host 

of a public event from identifying such sponsorship or hosting as part of the public Event 

Programming, including in writing. 

(ii) In order to develop any Event Programming, Declarant shall establish, at 

Declarant's sole cost and expense, a not-for-profit entity (the "Open Space Advisory 

Board" or "Board") to advise Declarant with regard to the possible programming of 

events in the Publicly Accessible Open Spaces. The Open Space Advisory Board shall be 

comprised of nine (9) members, five (5) of whom shall be appointed by the Declarant, 

and one (1) of whom shall be appointed by each of the Community Board, the local City 

Councilmember, the Manhattan Borough President, and the Manhattan Borough 

Commissioner ofDPR. 

13 

US\CHERKM A \934 7934.2 
(iii) The Open Space Advisory Board shall meet on a quarterly basis, and at such 

additional times as may be requested in writing by a majority of the members of the 

Board to consider any proposals for Event Programming allowed under clause (i) hereof 

that may occur from time to time. Any proposed Event Programming (whether 

considered at a regularly scheduled semi-annual meeting or at a special meeting 

convened for such purpose) that would result in the use of any one or more of the 

Publicly Accessible Open Spaces for a period in excess of four (4) hours in any day, or an 

aggregate of more than eight (8) hours in any seven (7) day period, shall be subject to the 

approval of a majority the members of the Open Space Advisory Board. With the 

exception of the right to approve such Event Programming, the Open Space Advisory 

Board's role with respect to programming of Events shall be advisory. 

(t) Property Owners' Association. 

(i) In order to perform the Public Access Area Maintenance and Repair 

Requirements, Declarant may form a property-owners association under the New York 

State Not-For-Profit Corporation Law or as an unincorporated association, or a 

cooperative corporation under the New York State Business Corporation Law (any of the 

entities in any combination thereof hereinafter referred to separately or collectively as the 

"Property Owners' Association"). The decision of whether or not to create a Property 

Owners' Association shall be at the sole option of Declarant, provided that until such 

time as a Property Owners' Association is formed complying with the terms of this 

Paragraph (f) and such Association assumes the obligations of the Declarant with respect 

to the Open Space Maintenance and Repair Requirements as set forth in clause (ii) of this 

Section, Declarant shall be responsible in all respects for the Public Access Area 

Maintenance and Repair Requirements. 

(ii) If a Property Owners' Association is formed, it shall assume all of the obligations 

of the Declarant relating to the Public Access Area Maintenance and Repair 

Requirements with respect to all of the Public Access Areas, commencing at such time as 

each Public Access Area is determined to be substantially complete in accordance with 

the requirements of Section 93-78 of the Zoning Resolution, and shall be organized with 

all of the powers that may be necessary and proper to allow the Property Owners' 

Association to carry out the duties, obligations and requirements of this Declaration with 

respect to the Open Space Maintenance and Repair Requirements. Notwithstanding the 

foregoing, Declarant at its option may exclude the Public Access Area Maintenance and 

Repair Requirements as they apply to the Northeast Plaza from the area governed by the 

Property Owners' Association, in which event the Public Access Area Maintenance and 

Repair Requirements as they apply to the Northeast Plaza shall be the obligation of the 

fee O\vners of the New Building located on Site 2 or, if such New Building is subjected to 

a declaration of condominium, the board of managers of such condominium. 

(iii) In connection with its obligations under this Section, the Property Owners' 

Association shall comply with the following requirements: 

(aa) Members. The members of the Property Owners' Association (the 

"Association Members") shall consist of (1) the fee owners of any portion of the 

14 

US\CHERKMA \934 7934.2 
Subject Property other than any fee owner of the High Line and other than any fee 

owner of an individual condominium unit within any New Building that is the 

subject of a declaration of condominium, and (2) the board of managers of any 

portion of the Subject Property that is subject to a declaration of condominium. 

(bb) Powers. To the extent permitted by, law Declarant shall cause the Property 

Owners' Association to be established with the power, responsibility, and 

authority to: 

(l) Undertake and be responsible for the Public Access Area 

Maintenance and Repair Requirements; 

(2) Be subject to enforcement by DCP and the City in the event that it 

fails to comply with the Public Access Area Maintenance and Repair 

Requirements, including imposing liens therefor for the pw·poses of 

funding the Open Space Maintenance and Repair Requirements; 

(3) In the event and at such time as Declarant existing as of the date of 

this Declaration no longer holds any interest in the Subject Property, allow 

for the Property Owners' Association to undertake the design and 

construction of the Public Access Areas in accordance with Section 93-78 

of the Zoning Resolution and Section 2.02(a) of this Declaration (the 

"Open Space Construction Obligation"); 

( 4) Impose fees or assessments against the Association Members 

through a formula to be determined by Declarant in Declarant's discretion, 

for the purpose of collecting funds reasonably necessary and sufficient to 

fund the Public Access Area Maintenance and Repair Requirements, and 

to the extent that the Property Owners' Association has assumed the Open 

Space Construction Obligation, the Open Space Construction Obligation; 

( 5) Collect, receive, administer, protect, invest, and dispose of funds; 

(6) Bring and defend actions under this Declaration, and negotiate and 

settle claims to recover fees or assessments owed to the Property Owners' 

Association either directly under the formation documents, or indirectly 

pursuant to any declaration of condominium imposed against any New 

Building or portion thereof; 

(7) To the extent permitted by law, impose liens, fines or assessments 

against individual lot or unit owners for the purpose of collecting funds 

reasonably necessary and sufficient to fund the Public Access Area 

Maintenance and Repair Requirements and, to the extent that the Property 

Owners' Association has assumed the Open Space Construction 

Obligation, the Open Space Construction Obligation; and 

(8) Exercise any and all such powers as may be necessary or 

appropriate for purposes of this Declaration and as may be granted to the 

15 

US\CHERKMA\9347934.2 
Property Owners' Association in furtherance of the Property Owners' 

Association's purposes hereunder. 

(cc) By-Laws. The by-laws and charter or certificate of incorporation of the 

Property Owners' Association shall be consistent in all respects with the terms of 

this Declaration and shall not allow for amendments or changes that are not 

consistent with this Declaration. 

(iv) For purposes of this Declaration, any Property Owners' Association shall be 

deemed a successor and assign of Declarant and shall succeed to the obligations of 

Declarant under Paragraph ( c) of this Section with respect to the portions of the 

Development Site governed by the Property Owners' Association. 

(v) Declarant shall cause the Property Owners' Association to be authorized to act on 

behalf of each party holding legal title to an affected lot or unit so that it shall not be 

necessary for each lot- or unit-owner to execute or waive the right to execute an 

application to modify, amend, cancel this Declaration in accordance with the provisions 

hereof or to approve the modified, amended or cancelled Declaration. 

(g) High Line. 

The provisions of Paragraphs (a), (b), (d) and (e) of this Section shall not apply to the High Line, 

and public access, hours of access and closure, operating rules, programming and other features 

relating to the operation of the High Line shall be as set forth in other agreements and 

understandings with respect thereto. Declarant's obligation to implement the provisions of 

Paragraph (c) of this Section with respect to the High Line, whether by Declarant or by means of 

a Property Owners' Association formed pursuant to Paragraph (f) of this Section, shall be only as 

set forth in such agreements and understandings as may be agreed to with respect maintenance 

and repair. 

(h) High Line Access Points and Maintenance Facility. 

(i) Declarant shall cooperate with the City with regard to the identification and 

provision of public pedestrian access to the High Line under a Site and Landscape Plan 

reviewed and approved pursuant to Section 93-78 of the Zoning Resolution. For that 

purpose, Declarant shall provide: (aa) a permanent public pedestrian access easement to 

and from the High Line consistent with Section 93-753 (General requirements for the 

Southwest Open Space) of the Zoning Resolution; and (bb) a permanent public pedestrian 

access easement to and from the High Line from the portion of Site 6 located at the 

corner of 11th A venue and West 30th Street and/or the portion of the West 30th Street 

Corridor adjacent to the High Line at the corner of 11th A venue and West 30th Street, 

consistent with Section 93-756(c) (Core Elements for the High Line) of the Zoning 

Resolution, if determined to be necessary by DCP and other relevant city agencies. Such 

pedestrian access easements shall accommodate one or more of a paved path, stairwell 

and elevator, as appropriate. The locations and dimensions of such easements shall be 

identified during preliminary planning for a Site and Landscape Plan for the High Line 

and easement agreements shall be delivered to the City upon approval thereof pursuant to 

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Section 93-78 of the Zoning Resolution. Declarant acknowledges that the process of 

planning for and approval of a Site and Landscape Plan for the High Line pursuant to 

Section 93-78 may take place prior to Declarant's own design and construction of a New 

Building on Site 6 or development of a Site and Landscape Plan for the West 30th Street 

Corridor and that such shall not diminish Declarant's obligations under this clause. In the 

event that Declarant anticipates construction of a New Building on Site 6 and/or 

development of a Site and Landscape Plan for the West 30th Street Corridor prior to the 

City's own development of a Site and Landscape Plan for the High Line, it shall notify 

DCP at the earliest possible date and shall cooperate in good faith with DCP and other 

relevant city agencies to determine the location and dimensions of an access easement on 

Site 6 and/or the portion of the West 30th Street Corridor adjacent to the High Line at the 

corner of 11th Avenue and West 30th Street, if deemed necessary by DCP and such other 

agencies. As an alternative to provision of access to and from Site 6 and/or such portion 

of the West 30th Street Corridor, Declarant may propose to DCP and the other relevant 

city agencies for their consideration an access point from the Eastern Rail Yard 

proximate to the corner of 11th Avenue and West 30th Street. If an access easement on 

Site 6 and/or such portion of the West 30th Street Corridor is identified pursuant to such 

discussions, Declarant shall design the New Building on Site 6 and/or the West 30th 

Street Corridor to accommodate such easement and shall deliver the easement agreement 

to the City prior to accepting a New Building Permit for the New Building on Site 6 

and/or commencing work on the West 30th Street Corridor. 

(ii) Declarant shall, consistent with Section 93-756 (c) (Core Elements for the High 

Line) of the Zoning Resolution, consider in good faith (without any obligation with 

respect thereto) a request by DCP or other relevant city agency to locate space on the 

Subject Property for support facilities for the operation, maintenance and public 

enjoyment of the High Line, as determined by DCP and other relevant city agencies 

during the planning process for the Site and Landscape Plan for the High Line. 

2.03 Garage. 

(a) The Garage may be built by Declarant in one or more phases, at Declarant's sole option, 

provided that the occupancy of such shall be phased in accordance with this Section 2.03. 

(b) DOB shall not issue, and Declarant shall not accept, a TCO or PCO for the Garage or 

amended TCO or PCO for the Garage or any portion thereof allowing accessory parking 

spaces on the Subject Property: (i) equal to more than the sum of the following amounts: 

(aa) accessory parking to residential uses equal to a weighted average percentage, 

calculated by multiplying the number of market rate residential units located on the 

Subject .Property from time to time by thirty percent (30%) and the number of affordable 

residential units located on the Subject Property from time to time by eight percent (8%); 

(bb) accessory parking to commercial office uses equal to the product of 0.16 and the 

amount of floor area used for commercial office space existing on the Subject Prope1ty 

from time to time divided by 1,000; and (cc) accessory parking to hotel uses equal to the 

lesser of (1) fifteen percent (15%) of all hotel rooms existing on the Subject Property 

from time to time, (2) 225, and (3) the product of 0.16 and the amount of floor area used 

for hotel space on the Subject Property from time to time divided by 1,000; (ii) which 

17 

US\CHERKMA\9347934.2 
exceed in the aggregate 1 ,600 spaces accessory to residential and commercial uses; and 

(iii) which exceed 270 spaces for all parking accessory to commercial uses (office space 

and hotel) combined. 

(c) Notwithstanding the provisions of Paragraph (b) of this Section, and subject to the 

provisions of Paragraph (d) of this Section, at the time of issuance of a TCO for a New 

Building, Declarant may seek and accept an amended TCO or PCO for the Garage or any 

portion thereof for a number of parking spaces that is not more than twenty-five (25) 

parking spaces greater than the number of parking spaces otherwise allowed under 

Paragraph (b), subject to the further limitations that, at no time can the number of parking 

spaces accessory to commercial uses exceed 270, and that at the time of issuance of a 

TCO for the last New Building which may be constructed on the Subject Property 

pursuant to the Zoning Resolution, Declarant shall not accept an amended TCO or PCO 

for the Garage or any portion thereof for a number of parking spaces any greater than is 

allowed under Paragraph (b ). 

(d) The number of accessory parking spaces allowed under Paragraph (b) of this Section 

shall be reduced by the number of Car Sharing Spaces required pursuant to Section 

3.03(e) of this Declaration. 

(e) All portions of the Garage located above the Platform=shall be enclosed and shall either 

be located (i) behind occupiable commercial, community facility or residential floor area, 

or (ii) behind walls designed with materials and architectural or landscaping treatment to 

promote visual interest and be compatible with surrounding buildings. During design 

development of the Garage, and in any event no later than ninety (90) days prior to filing 

a Building Permit for the Garage or any portion thereof, Declarant shall provide DCP 

design drawings and other material demonstrating compliance with the provisions of this 

Section 2.03(e) and shall consider and respond to DCP comments and recommendations 

regarding its design approach with respect thereto. 

2.04 Arts and Cultural Space. 

(a) The Project shall include a minimum of sixteen thousand ( 16,000) gross square feet of 

space to be made available for local cultural institutions or other local arts not-for-profits 

approved by Developer, in accordance with the terms of this Section 2.04 (the "Cultural 

Space Obligation"). At Declarant's sole option, the Cultural Space Obligation may be 

fulfilled in not less than two (2) facilities within the Project or in more than two (2) 

facilities within the Project, provided that each such facility shall have a minimum size of 

1,200 gross square feet (each such facility, a "Cultural Space," and all of such facilities, 

the "Cultural Spaces"). 

(b) The Cultural Spaces may be located in any New Building, at Developer's Option, and 

may be constructed in any phase of the Project as Developer sees fit, provided that any 

Cultural Space shall be accessible directly from the outside. 

(c) The Cultural Spaces shall be leased to neighborhood theatrical, dance, arts or other 

similar local cultural organizations (each, a "Cultural Institution" and each such cultural 

18 

l.JS\CHERKMA \934 7934.2 
use, a "Cultural Use") selected by Declarant in consultation with and based on the 

recommendation of the Community Board pursuant to a lease acceptable to Declarant and 

complying with the terms of Section 2.04(e) hereof (a "Cultural Facilities Lease"). 

Nothing herein shall be construed to require Declarant to accept a Cultural .Institution as 

tenant if Declarant reasonably determines that such Cultural Institution does not have (or 

is reasonably likely in the future to not have) the :financial wherewithal to fulfill, or is 

otherwise unable to comply (or is reasonably likely in the future to be unable to comply) 

with, any of its responsibilities under the Cultural Facilities Lease. 

(d) Declarant shall be responsible at Declarant's sole cost and expense for constructing the 

core and shell of the Cultural Spaces, including the distribution of reasonable base 

building systems to the Cultural Spaces. Such distribution shalI include: 

(i) Heating, Ventilation and Air Conditioning (HVAC) equipment including access 

from base building condensers, chillers, fresh air intakes and exhaust louvers. Such 

equipment shall also be of a type that creates minimal noise to pennit performances to be 

conducted; and 

(ii) Electrical service shall include at least l ,000 amps to service theatrical lighting 

needs. 

Declarant shall have no obligation to provide for the fit-out of any of the Cultural Spaces, 

including without limitation no obligation to provide: lighting; fixtures; distribution of 

utilities and mechanical systems within the Cultural Spaces; furniture; interior partitions; 

stage areas; or acoustical separation beyond that provided by the core and shell 

construction, all of which shall be the responsibility of the Cultural Institution, provided 

that at any Cultural Institution's request, Declarant agrees that it will enter into good faith 

discussions with such Cultural Institution to perform the :fit-out work on the Cultural 

Institution's behalf and at the Cultural Institution's sole cost and expense. 

(e) Each Cultural .Facilities Lease shall have a term of not less than ten (10) years or such 

longer term as may be agreed to by Declarant in its sole discretion and shall include a 

rent of one dollar ($1.00) per year. Each Cultural Facilities Lease shall include terms 

reflecting the following: 

(i) Providing that each Cultural Facilities Lease shall be triple net to the Cultural 

Institution, and shall require the Cultural Institution to pay for its proportional share of 

insurance, maintenance, and other operating costs applicable to the Subject Property; 

(ii) Providing for review and approval rights by Declarant with respect to the design, 

construction, and construction logistics of the flt-out of the Cultural Spaces, and require 

that the Cultural Institution proceed with the fit-out in a timely, expeditious and first class 

manner without liability or loss to Developer; 

(Hi) Requiring Declarant approval, in consultation with the Community Board, of any 

assignment or sublease of any pottion of the Cultural Spaces or other area covered by the 

Cultural Facilities Lease; 

19 

US\CHERKMA\9347934.2 
(iv) Requiring that the Cultural Institution maintain appropriate insurance covering the 

Cultural Space and the operations therein; 

(v) Providing remedies for breach of the Cultural Facilities Lease by the Cultural 

Institution, including self-help remedies where appropriate; and 

(vi) Providing other terms and conditions reasonably typical for a commercial tenant 

lease to allow for the fit-out, lease, and operation of the Cultural Space within a larger 

building. 

(t) Notwithstanding anything to the contrary contained herein, in the event that (i) the 

Community Board has failed to identify an acceptable Cultural Institution within two (2) 

years from the date that Declarant notifies the Community Board in writing that a 

Cultural Space is expected to be completed in twelve (12) months time, (ii) an acceptable 

Cultural Institution has been identified by the Community Board but has failed to enter 

into a Cultural Facilities Lease with Declarant within twelve {12) months of the date such 

Cultural Institution was so identified, or (iii) a Cultural Facilities Lease has expired or 

otherwise been abandoned or terminated and the Community Board has failed to identify 

an acceptable alternate Cultural Institution within twelve (12) months of such termination 

or abandonment, then, in each case, Declarant may, upon written notice to the 

Community Board, select a Cultural Institution to lease and occupy the Cultural Spaces 

without consultation with and solicitation of the recommendation of the Community 

Board pursuant to Paragraph (c) of this Section. In such event, in the event that Declarant 

is unable to identify an acceptable Cultural Institution after good faith efforts during an 

additional six (6) month period, Declarant may use up to 8,000 sf of such Cultural Space 

for another use at Declarant's Option. 

ARTICLE Ill 

PROJECT COMPONENTS RELATED TO THE ENVIRONMENT AND MI TI GA TION 

MEASURES 

3.0l Project Components Related to the Environment for Construction. 

Declarant shall implement and incorporate as part of its construction of New Buildings, as 

appropriate, the following PCREs: 

(a) Construction Air Emissions Reduction Measures. 

(1) Declarant shall: (a) prior to Construction Commencement and subject to DCP 

review pursuant to Section 3.09 of this Declaration, develop a plan for implementation 

of; and (b) thereafter implement, the following measures for all construction activities 

(including, but not limited to, demolition and excavation) related to the development of 

the Subject Property: 

(aa) Non-road diesel vehicles and all equipment used in construction activities 

shall comply, at a minimum, with the United States Environmental Protection 

Agency ("EPA") Tier 3 Non-road Diesel Engine Emission Standard, and, once 

20 

US\CHERKM A \93 4 79 34 .2 
Tier 4-compliant equipment is widely available, with the Tier 4 standard, and in 

all cases shall comply with the Tier 2 standard. 

(bb) Gasoline-powered non-road engines used in construction activities shall meet 

the latest emissions standards for newly manufactured engines in effect at the time 

they are first rented, purchased or otherwise put into use for constmction at the 

Subject Property. 

(cc) All non-road, diesel-powered construction equipment with engine power 

output rating 50 horsepower or greater (except with respect to a diesel-powered 

non-road vehicle that is used to satisfy the requirements of a specific construction 

contract lasting fewer than twenty (20) calendar days) shall utilize the best 

available tailpipe technology to reduce diesel particulate emissions. Construction 

contracts shall specify that all diesel non-road engines rated at 50 horsepower or 

greater shall utilize active or passive diesel particle filters (either original 

equipment manufacturer or retrofit technology) verified under either the EPA or 

California Air Resources Board verification programs. 

(dd) All diesel-powered engines shall be operated exclusively with ultra-low 

sulfur diesel fuel. 

(ee) Idling of all construction vehicles including non-road engines for longer than 

three minutes shall be prohibited on the Subject Property, and within 10 feet of 

the perimeter of the Subject Property, except for vehicles being used to operate a 

loading, unloading or processing device, or as required for engine maintenance 

and repair. 

(ft) The use of diesel and gasoline engines, including generators, shall be 

minimized through the maximum practical use of electric engines operating on 

grid power, and lighting devices and illuminated traffic control signals and signs 

operating on either grid power, on-site renewable, or solar power. Construction 

contracts shall require the use of electric engines where practicable. Declarant 

shall ensure the distribution of power connections throughout the Subject Property 

as needed. Equipment that shall use grid power rather than diesel engine power 

shall include, but not be limited to, tower cranes, personnel/material hoists, 

dewatering pumps, welders, saws, and small compressors. All forklifts (not 

including skylifts) shall be powered either by electticity from the grid or by 

compressed natural gas or liquid petroleum gas. 

(gg) Large emissions sources, such as concrete trucks and pumping operations, 

shall be located, to the extent practicable, away from operable windows, fresh air 

intakes, parks, and playgrounds. 

(hh) All ready-mix concrete delivery trucks and concrete pumping trucks must be 

either retrofitted with a diesel particle filter as specified in (cc) above, or come 

equipped with an OEM emissions control package meeting 2007 or newer model 

21 

US\CHERKMA \934 7934.2 
year on-highway engine certification levels for particulate matter emissions of 

0.01 g/bhp-hr (as per 40 CFR § 86.007-11). 

(ii) Declarant shall include enforceable contractual requirements with contractors and 

subcontractors to implement the provisions of this Paragraph (a) as applicable with 

respect to such work. 

(b) Fugitive Dust Control Plan. 

(i) Declarant shall: (a) prior to Construction Commencement and subject to DCP 

review pursuant to Section 3.09 of this Declaration, develop; and (b) thereafter 

implement, a plan for control of fugitive dust during construction ("Fugitive Dust Control 

Plan") in compliance with applicable rules pertaining to the prevention of the emission of 

dust from construction related activities, containing the following measures: 

(aa) Fugitive dust from excavation, demolition, transfer of spoils, and loading and 

unloading of spoils shall be controlled through water spraying. 

(bb) Large piles of soil, rock or sediment shall be kept wet, coated with a nonhazardous, biodegradable dust suppressant and/or covered to prevent wind erosion 

and fugitive dust. Longer term stockpiles shall be covered with a tarp weighted 

down with sand bags. 

(cc) Concrete and rock grinding, drilling and saw cutting operations shall be wet 

blade or misted if significant dust is being generated. Such operations, if 

occurring in an enclosed space, shall utilize vacuum collection or extraction fans. 

(dd) All trucks hauling loose soil, rock, sediment, or similar material shall be 

equipped with tight fitting tailgates and covered prior to leaving construction 

areas. 

( ee) Stabilized areas shall be established for washing dust off of the wheels of all 

trucks that exit construction areas. All vehicle wheels will be cleaned as necessary 

prior to leaving the construction sites in order to control tracking. 

(ff) Truck routes and surfaces on which nonroad vehicles are operating within 

construction areas shall be watered as needed; or, in cases where. such routes will 

remain in the same place for extended petiods, the soil on such surfaces and 

roadways shall be stabilized with a biodegradable dust suppressant solution, 

covered with gravel, or temporarily paved to avoid the re-suspension of dust. 

(gg) In addition to regular cleaning by the City, roads adjacent to construction . 

areas shall also be cleaned by Declarant on a regular basis using wet sweeping to 

minimize fugitive dust emissions. 

(hh) Materials and waste during demolition shall be brought to grade by hoist. 

Alternatively, chutes shall be used for material drops during demolition. If chutes 

are used, the bottom end of drop chutes shall be inserted into covered trucks or 

22 

US\CHERKMA\934 7934.2 
bins in a sealed manner so as to ensure that dust is not released from the truck or 

bin. 

(ii) A vehicular speed limit of 5 miles per hour shall be observed within construction 

areas. 

(iii) Declarant shall include enforceable contractual requirements with contractors and 

subcontractors to implement the provisions of this Paragraph (b) consistent with such 

Fugitive Dust Control Plan as applicable with respect to such work. 

(c) Construction Noise Reduction Measures. 

(i) Declarant shall: (a) prior to Construction Commencement and subject to DCP 

review pursuant to Section 3.09 of this Declaration, develop a plan for implementation 

of; and (b) thereafter implement, the following measures for all construction activities 

(including demolition and excavation) related to the development of the Subject Property: 

(aa) All construction activities shall comply with Chapter 2 of Title 24 of the New 

York City Administrative Code (the "City Noise Control Code"), and with the 

rules on Citywide Construction Noise Mitigation, Chapter 28 of Title 15 of the 

Rules of the City ofNew York. 

(bb) Declarant shall develop and implement a plan for minimization of 

construction noise (the "Noise Mitigation Plan"). The Noise Mitigation Plan shall 

contain the following measures: 

(1) Noise barriers shall be erected around the perimeter of areas where 

construction activities are taking place for the purpose of minimizing 

construction noise consistent with reasonable construction procedures and 

IIRR operating and safety requirements, provided this subclause shall not 

be construed as requiring sound barriers around construction work 

conducted more than twelve (12) feet above the height of the Platform. 

(2) The noise emission levels of all construction equipment shall not 

exceed those found in the Federal Highway Administration Roadway 

Construction Noise Model (the "FHW A RCNM"). 

(3) Construction laborers shall be trained in quieter work methods. 

(4) Declarant shall maintain a website or implement another program 

to inform the affected public about the construction work schedule. 

(5) Quieter-type adjustable backup alarms shall be used on all 

construction equipment. 

(6) For construction activities involving the use of pile drivers, hoerams, jackhammers, or blasting, additional noise mitigation measures 

23 

US\CHERKMA \934 7934.2 
chosen from a list of options to be set forth in the Noise Mitigation Plan 

shall be implemented where feasible. 

(ii) If construction work will occur after 6:00 PM or before 7:00 AM, Declarant shall 

prepare an additional noise mitigation plan (the "Alternative Noise Mitigation Plan") in 

accordance with the City Noise Control Code prior to commencing such nighttime work. 

(iii) Declarant shall include enforceable contractual requirements with contractors and 

subcontractors to implement the provisions of this Section 3.01 ( c) consistent with such 

Noise Mitigation Plan and, if applicable, Alternative Noise Mitigation Plan, as applicable 

with respect to such work. 

(d) Construction Soil Erosion and Sediment Reduction Measures. 

(i) Declarant shall: (a) prior to Construction Commencement and subject to DCP 

review pursuant to Section 3.09 of this Declaration, develop a plan for implementation 

of; and (b) thereafter implement, a plan for soil erosion and sediment 'control for all 

construction activities (including demolition and excavation) related to the development 

of the Subject Property, in conformance with the requirements of the New York State 

Standards and Specifications for Erosion and Sediment Control (the "Soil Erosion and 

Sediment Control Plan"), containing the following measures: 

(aa) The wheels or treads of vehicles and equipment that could track soil from 

areas under construction shall be washed before leaving such areas. To reduce the 

use of potable water for this purpose, the wheel wash shall be supplied by 

collecting precipitation or using water collected during dewatering operations, 

where practicable. 

(bb) Rinse water from the wheel wash shall be reabsorbed into the ground or 

pumped into tanks holding storm water or dewatering water. The wheel wash 

shall not be used for concrete trucks. 

(cc) Concrete trucks shall be rinsed into watertight dedicated bins. The captured 

washout water shall be left to evaporate, be treated, or be returned to the concrete 

manufacturer. 

( dd) Concrete from trucks, chutes, buckets and other equipment shall be removed 

and collected in dedicated waste bins prior to equipment rinsing. Concrete 

spillage on the Subject Property shall be collected in dedicated waste bins. 

( ee) Disturbed areas shall be stabilized for the duration of construction activity or 

until construction work resumes on the inactive disturbed areas. All disturbed 

areas of construction, including exposed ground and subgrade surfaces, storage 

piles of fill, dirt and other bulk materials, which are not being actively utilized for 

construction purposes for a period of seven (7) calendar days or more, shall be 

stabilized using: water as a dust suppressant; chemical dust stabilizer or 

suppressant; physical barriers or covers; or vegetative ground cover. 

24 

US\CHERKMA\9347934.2 
(ii) Declarant shall include enforceable contractual requirements with contractors and 

subcontractors to implement the provisions of this Paragraph (d) consistent with such Soil 

Erosion and Sediment Control Plan, as applicable with respect to such work. 

(e) Construction Dewatering Plan. 

(i) Declarant shall: (a) prior to Construction Commencement and subject to DCP 

review pursuant to Section 3.09 of this Declaration, develop a plan for implementation 

of; and (b) thereafter implement a plan for dewatering during construction ("Dewatering 

Plan"), which shall set forth procedures for handling site runoff and groundwater 

encountered during construction activities (including excavation) related to the 

development of the Subject Property. Such plan shall: 

(aa) Provide a description of the methods used to collect, store and dispose of 

water collected during dewatering activities. 

(bb) Identify the necessary permits required from DEP and/or DEC to discharge 

dewatering water into the City's sewers or surface waters. 

(cc) Require that dewatering water be pumped into sedimentation tanks for 

removal of sediments prior to reuse on the Subject Property or discharged into the 

City's sewer system or surface waters, require the water in such tanks to be tested 

periodically for pH, turbidity and contaminants, and if unacceptable levels of 

turbidity or contaminants are identified, require treatment prior to discharge off 

site in accordance with applicable DEP or DEC regulations. 

(dd) Suitable drainage means shall be provided for the removal of surface runoff 

from the site and sludge which drains from the operation. 

(ii) Declarant shall include enforceable contractual requirements with contractors and 

subcontractors to implement the provisions of this Paragraph ( e) consistent with such 

Construction Dewatering Plan, as applicable with respect to such work. 

(t) Construction Pest Management Plan. 

(i) Declarant shall: (a) prior to Construction Commencement and subject to DCP 

review pursuant to Section 3.09 of this Declaration, develop a plan for implementation 

of; and (b) thereafter implement an integrated plan for construction pest management 

("Construction Pest Management Plan") for all construction activities (including 

demolition and excavation) related to the development of the Subject Property, to control 

pests (unwanted vermin, insects and weeds) in accordance with DOB requirements. Such 

plan shall contain the following requirements: 

(aa) Food waste shall be segregated from construction waste and deposited in 

covered bins. 

(bb) Vegetation fostering vermin shall be kept trimmed. 

25 

US\CHERKMA \934 7934.2 
(cc) Construction trailers, dumpsters, and sheds shall be elevated off of the ground 

to discourage vermin from burrowing or hiding in them. 

(dd) Standing water shall be pumped out before the water becomes septic. 

(ii) Declarant shall include enforceable contractual requirements with contractors and 

subcontractors to implement the provisions of this Paragraph (t) consistent with such 

Construction Pest Management Plan, as applicable with respect to such work. 

(g) Hazardous Materials Remediation and Protection Measures. 

(i) Prior to Construction Commencement, Declarant shall undertake a pre-demolition 

survey of any buildings to be demolished for asbestos containing materials ("ACM"), 

lead-based paint ("LBP") and equipment suspected to contain polychlorinated biphenyls 

("PCBs"). If such materials are identified during the survey, Declarant shall develop and 

implement procedures for pre-demolition removal of such materials, as part of the 

Construction Health and Safety Plan ("CHASP") described in clause (ii) below. 

(ii) Prior to Construction Commencement, Declarant shall prepare and submit to DEP 

a site-specific CHASP describing in detail precautionary measures and safety procedures 

to be followed to minimize pathways of exposure to contaminants. The CHASP shall 

include the following: 

(aa) If determined necessary following the pre-demolition survey, the CHASP 

shall include an ACM management plan, which shall set forth procedures for 

handling, removal and disposal of ACM in conformance with federal, New York 

State, and New York City requirements. The ACM management plan shall 

provide for appropriate engineering controls (e.g., wetting and other dust control 

measures) to minimize asbestos exposure throughout demolition of existing 

buildings on the Subject Property. 

(bb) If the pre-demolition survey finds that LBP-coated surfaces are present in 

any structures to be demolished on the Subject Prope1ty, the CHASP shall include 

an LBP management plan. This plan shall require that an exposure assessment be 

performed to determine whether lead exposure may occur during demolition 

activities. If the exposure assessment indicates the potential to generate airborne 

dust or fumes with lead levels exceeding health-based standards, a higher personal 

protection equipment standard shall be required to counteract the exposure. In all 

cases, appropriate methods to control dust and air monitoring, as required by the 

Occupational Health and Safety Administration, shall be required during 

demolition activities. 

(cc) The CHASP shall require that suspected PCB-containing equipment that will 

be disturbed by construction activities on the Subject Property shall be removed 

and disposed of in accordance with applicable federal, State, and local 

regulations. Unless labeled "non-PCB", types of equipment usually suspected to 

contain PCBs (e.g., transformers, electrical feeder cables, hydraulic equipment, 

26 

US\CHERKMA \934 7934.2 
and fluorescent light ballasts) shall be tested or asswned to contain PCBs and 

disposed of at properly licensed facilities. 

(dd) The CHASP shall include a Materials Handling Plan identifying specific 

protocols and procedures for stockpiling, testing, loading, transporting, and 

properly disposing of all excavated material, in accordance with applicable 

regulations. 

(ee) The CHASP shall designate appropriate personnel to ensure the 

implementation of its requirements, including a Health and Safety Officer 

("HSO") and an on-site Site Safety Officer ("SSO"). The HSO shall oversee the 

SSO and be responsible for coordinating and reporting all health and safety 

activities. The HSO must have completed a 40-hour Hazardous Waste Operations 

training course, supervisory training, and updated annual refresher courses 

pursuant to requirements codified in 29 CFR Part 1910, Occupational Safety and 

Health Standards. The SSO shall be a highly competent person who is responsible 

for the implementation of the CHASP. The SSO shall have the authority to stop 

work upon detennination of an imminent safety hazard, emergency situation, or 

other potentially dangerous situation. If the HSO is to be absent from the 

construction area, the HSO shall designate a suitably qualified replacement who is 

familiar with the CHA SP. 

(ff) The CHASP shall impose training requirements for all construction personnel 

entering the Subject Property in the vicinity of areas where intrusive activities are 

being performed. Before entering the Subject Property at such times and at such 

locations, all construction personnel shall be required to attend a training meeting, 

conducted by the HSO, SSO, or other suitably trained individuals to: (1) make 

workers aware of the potential hazards they may encounter; (2) provide the 

knowledge and skills necessary for them to perform the work with minimal risk to 

health and safety; (3) make workers aware of the purpose and limitations of safety 

equipment; and ( 4) ensure that they can safely avoid or escape from emergencies. 

Others who enter the Subject Property during intrusive activities without having 

attended a training session shall be accompanied by a trained construction worker. 

(gg) The CHASP shall provide that all excavation shall be continuously 

monitored for the presence of buried tanks, drums, or other containers; sludges; or 

soil that shows evidence of potential contamination, staining, or odors, and shall 

include contingency response plans to be implemented upon detection of any of 

these items. 

(hh) The CHASP shall include an emergency response plan to be implemented in 

the event that monitoring data indicate a potential major hazard. 

(ii) The CHASP shall define protocols for reporting spills or other concerns to 

relevant government agencies. 

27 

US\CHERKMA \934 7934.2 
Uj) The CHASP shall set forth dust control measures to be implemented during all 

soil-disturbing activities, comprised of the measures set forth in Section 3.02(b). 

(kk) The CHASP shall identify measures to be taken to address contaminated 

material that will remain on the Subject Property after construction is completed, 

including the use of impermeable barriers to achieve isolation from contaminants 

such as semi-volatile organic compounds. 

(II) DOB shall not issue, and Declarant shall not accept, any Building Permit for 

work at the Subject Property, until DCP shall have certified to the DOB 

Commissioner that: (1) a CH ASP consistent with the provisions of this Paragraph 

(g) has been approved by DEP; and (2) Declarant has included enforceable 

contractual requirements with contractors and subcontractors to implement the 

provisions of this Paragraph (g) consistent with such CH ASP, as applicable with 

respect to such work. 

(iii) Declarant shall undertake investigations, as appropriate, to evaluate the extent of 

soil, groundwater, and soil vapor contamination present at the Subject Property in 

accordance with relevant regulatory protocols for site investigations and remediation. 

(iv) Declarant shall have no responsibility for the remediation associated with the 

known petroleum spill at the Subject Property (DEC Spill No. 04-07411) to be completed 

in accordance with the existing DEC consent order, which remediation shall be the 

responsibility of the MT A. 

(v) Soil Vapor Mitigation. 

(aa) Declarant shall, if required by DEP, install appropriate soil vapor barrier 

measmes to protect New Buildings constructed within the terra firma portion of 

the Subject Property. 

(bb) Declarant shall have the opportunity to propose to DEP soil vapor mitigation 

measures it deems appropriate based on soil and/or groundwater testing, the 

proposed building parameters (e.g., building layout, foundation type, operation of 

HV AC systems, etc.), and environmental influencing factors (e.g., current soil and 

groundwater conditions, underground conduits, contaminant source location and 

concentration, etc.). 

(cc) DOB shall not issue, and Declarant shall not accept, a New Building Permit 

for a New Building to be constructed within the terra firma portion of the Subject 

Property, until DCP shall have certified to the DOB Commissioner that DEP has 

either (1) approved in writing Declarant's proposal for soil vapor barrier measures 

for such New Building, or (2) determined that Declarant has demonstrated to 

DEP's satisfaction that no soil vapor mitigation measures are required for such 

New Building. 

(dd) Any plans and drawings submitted by Declarant to DOB in connection with a 

New Building Permit application or amendment thereof shall reflect and be 

28 

US\CHERKMA \934 7934.2 
consistent with any soil vapor measures approved by DEP and Declarant shall 

construct the New Building in accordance with such plan. 

( ee) Following issuance of a TCO or PCO for a New Building, Declarant shall not 

eliminate or modify a soil vapor mitigation measure without the approval of DEP. 

(h) Historic Resource Protection Measures. 

(i) Prior to commencing construction within ninety (90) feet of the High Line, 

Declarant shall develop a Construction Protection Plan ("CPP") in coordination with 

OPRHP and LPC to avoid any adverse physical, construction-related impacts to the High 

Line, such as those from ground-borne vibrations, falling objects, dewatering, flooding, 

subsidence, collapse, or damage from construction machinery and shall submit same to 

DCP. 

(ii) DOB shall not issue, and Declarant shall not accept, a Building Permit allowing 

work within ninety (90) feet of the High Line until DCP shall have certified to the DOB 

Commissioner that both OPRHP and LPC have determined that the CPP is acceptable. 

(iii) All construction activities (including demolition and excavation) within 90 feet of 

the High Line shall be undertaken in accordance with the CPP. 

(iv) The CPP shall follow the guidelines set forth in LPC's Guidelines for 

Construction Adjacent to a Historic Landmark and Protection Programs for Landmark 

Buildings as appropriate, except as may be otherwise approved by LPC and OPRHP. The 

CPP shall also follow the requirements established in DOB's Technical Policy and 

Procedure Notice #10188, in addition to the guidelines set forth in Section 523 of the 

CEQR Technical Manual. 

(v) Construction procedures included in the CPP to protect the foundations and 

structures of the High Line shall be developed and monitored by structw-al and 

foundation engineers. 

(vi) The CPP shall: 

(aa) Describe in detail the demolition, excavation and construction procedures 

anticipated to occur. 

(bb) Provide for the inspection and reporting of existing conditions. 

(cc) Establish protection procedures, including the types and locations of barriers 

that will be used to protect the High Line during construction activities. 

(dd) Establish a monitoring program to measure vertical and lateral movement 

and vibration. 

(ee) Establish methods and materials to be used for any repairs. 

29 

l.JS\CHERKMA \934 7934.2 
(ff) Establish and monitor construction methods to limit vibrations. Specifically, 

the CPP shall establish vibration mitigation measures to be implemented should 

construction activities involve the use of certain equipment within specified 

distances from the High Line, as specified below: 

Clam Shovel Drop 15 feet 

Augur Drill Rig 16 feet 

Jackhammer 6 feet 

Mounted Hoe Ram 70 feet 

Vibratory Pile Driver 120 feet 

Impact Pile Driver 73 feet 

(gg) Authorize the structural and foundation engineers to issue 'stop work' orders 

to prevent damage to the High Line and establish procedures for the 

recommencement of work following same. 

(i) Construction Materials. 

Declarant shall use locally purchased materials and recycled materials, including concrete made 

with slag or fly ash, to the extent practicable for construction on the Subject Property. For 

purposes of this Paragraph (i), "locally" shall mean within 500 miles of the Subject Property. As 

an alternative to slag or fly ash, ultra low-carbon cement or cement replacements (such as cement 

made from recycled materials or using a salt water and carbon dioxide process) may be 

considered. Following Commencement of Construction, Declarant shall provide DCP with an 

annual report, due January 31 s' of each year until issuance of a TCO for all of the floor area to 

be included in the New Buildings on the Subject Property, describing the amounts of locally 

purchased and recycled materials utilized in construction during the prior year and any proposed 

measures to increase such amounts in future construction. 

(j) Maintenance and Protection of Traffic Plan. 

(i) Prior to Construction Commencement, Declarant shall prepare a Maintenance and 

Protection of Traffic ("MPT") plan and submit it to DOT for review and approval, 

provided that completion of the MPT shall not be necessary for preliminary site work 

unless DOT determines that an MPT is required. Such plan shall provide diagrams of 

proposed temporary lane and sidewalk alterations, including the duration such alterations 

will be implemented, and the width and length of affected segments. 

(ii) Declarant shall include provisions in the contracts of all relevant contractors and 

subcontractors requiring adherence to the provisions of the MPT plan. 

(iii) Subject to DOT's approval, the MPT plan shall include the following provisions: 

(aa) At no time shall access to existing occupied buildings on the Subject Prope1ty 

be closed, and at no time shall access by LIRR personnel and equipment to any 

Caemmerer Rail Yard facilities be restricted without consent of the LIRR. 

30 

l.JS\CHERKMA \934 7934.2 
(bb) In areas where temporary sidewalk closure is required, either (1) the 

pedestrian path shaII be relocated to the curb lane and a barrier shall be erected to 

separate motor vehicle traffic from pedestrian traffic; or (2) if access to the 

adjacent lot is not needed, pedestrians shall be routed to the opposite side of the 

street at the nearest crosswalk. 

(cc) The width of any relocated or modified pedestrian path shall be at least five 

(5) feet. 

(dd) Emergency access to fire hydrants, fire alarm boxes, and critical utility vaults 

and chambers shall be maintained. 

3.02 Project Components Related to the Environment for Design and Operation of New 

Buildings. 

Declarant shall implement and incorporate the following PCREs relating to design and operation 

of New Buildings: 

(a) Operational Air Emissions Controls. 

(i) DecJarant shall: (a) prior to acceptance of a New Building Permit, submit plans 

for DCP review pursuant to Section 3.09 of this Declaration demonstrating compliance 

with; and (b) thereafter implement, the following controls relating to emissions from the 

heating systems of New Buildings ("HY AC Controls"): 

(aa) For all New Buildings, the use of fuel oil shall be restricted to the four (4) 

winter months (December, January, February, and March). During other months, 

natural gas shall be used to power heating systems. 

(bb) Boiler exhaust stacks on all New Buildings shall be a minimum of twenty 

(20) feet in height, except where a greater minimum height is specified below. 

(cc) For New Building WC-l (Site 2), there shall be one boiler exhaust stack 

located at the center of the roof. Air intake ducts on the south and west facades of 

this New Building shall be located at a minimum height of 400 feet. Air intake 

ducts on the east facade of this New Building shall be located at a minimum 

height of 650 feet. 

(dd) For New Building WR-1 (Site 4 ), there shall be one boiler exhaust stack, 

which shall be located: (1) if the 'Maximum Commercial Scenario', as defined in 

the FEIS, is pursued, at the center of the roof; (2) if the 'Maximum Residential 

Scenario -- Office Option', as defined in the FEIS, is pursued, at the northern end 

of the roof; or (3) if the 'Maximum Residential Scenario -- Hotel Option', as 

defined in the FEIS, is pursued, at the northwest corner of the roof. 

(ee) For New Building WR-2 (Site 6), there shall be one boiler exhaust stack, 

which shall be located at the southern end of the roof. 

31 

US\CHERKMA\9347934.2 
(ft) For New Building WR-3 (Site 6), there shall, be one boiler exhaust stack, 

which shall be located: (l) ifthe 'Maximum Commercial Scenario', as defined in 

the FEIS, is pursued, at the center of the roof; or (2) if either of the 'Maximum 

Residential Scenarios', as defined in the FE.IS, is pursued, at the southwest corner 

of the roof. 

(gg) For New Building WR-4 (Site 5), there shall be one boiler exhaust stack, 

which shall be located at the center of the roof. If either of the 'Maximum 

Residential Scenarios', as defined in the FEIS, is pursued, the stack shall be a 

minimum of 40 feet in height. 

(hh) For New Building WR-5 (Site 3), there shall be one boiler exhaust stack, 

which shall be located: (l) if the 'Maximum Commercial Scenario', as defined in 

the FEIS, is pursued, at the center of the roof; (2) if the 'Maximum Residential 

Scenario -- Office Option', as defined in the FEIS, is pursued, at the southwest 

corner of the roof; or (3) if the 'Maximum Residential Scenario -- Hotel Option', 

as defined in the FEIS, is pursued, at the southeast comer of the roof. If either of 

the 'Maximum Residential Scenarios', as defined in the FElS, is pursued, the 

stack shall be a minimum of 40 feet in height. 

(ii) For New Building WR-6 (Site I), there shall be one boiler exhaust stack, 

which shall be located at the center of the roof. 

Uj) For New Building WR-7 (Site l ), there shall be two boiler exhaust stacks, 

which shall be located at the western end of the roof. 

(ii) In the event that the building height for a New Building differs from that shown in 

Table 19-9 of the FEIS, Declarant shall demonstrate to the satisfaction of DCP, that the 

HV AC Controls for such building set forth in clause (i) remain adequate. Alternatively, 

Declarant shall propose adjustments to the HV AC Controls which, upon review and 

approval by DCP, shall become the applicable HVAC Controls for that building. 

Notwithstanding the foregoing, Declarant shall be allowed to modify the location of 

stacks and the location of air intake vents if Declarant demonstrates to DCP, based on the 

technologies employed and the height and location of other New Buildings on the Subject 

Property, that the Project with such controls will not result in any significant adverse air 

quality impacts not identified in the FEIS. 

(iii) Any plans and drawings submitted by Declarant to DOB in connection with a 

New Building Permit application or amendment thereof shall reflect and be consistent 

with such controls. 

(iv) Following issuance of a TCO or PCO for a New Building, Declarant shall not 

eliminate or modify an HV AC Control unless Declarant shall have obtained the written 

approval of DCP authorizing such change, and DOB shall not issue, and Declarant shall 

not accept, a Demolition Permit or Alteration Permit from DOB which would result in 

elimination or modification of any such HV AC Control. In no event shall this clause (iv) 

be construed as prohibiting or preventing Declarant from undertaking any maintenance, 

32 

US\CHERKM A \934 7934.2 
repair or replacement of any po1tion of the HVAC system (including replacement of any 

element with a more efficient or cleaner system), provided same is consistent with the 

tenns of this Section 3.02(a). 

(b) New Building Noise Attenuation. 

(i) Declarant shall: (a) prior to acceptance of a New Building Permit, submit plans 

for DCP review pursuant to Section 3.09 of this Declaration demonstrating compliance 

with; and (b) thereafter implement the following noise attenuation requirements for New 

Buildings: 

(aa) New Building WR-I (Site 4) shall have a closed window condition providing 

a minimum of (1) 35 dBA of window/wall attenuation on its northern and 

southern facades; (2) 30 dBA of window/wall attenuation on its western facade; 

and (3) 40 dBA of window/wall attenuation on its eastern facade. 

(bb) New Building WR-2 (Site 6) shall have a closed window condition providing 

a minimum of ( 1) 30 dBA of window/wall attenuation on its northern facades and 

shorter western facade (at the northern end of the building); (2) 35 dBA of 

window/wall attenuation on its westernmost facade; and (3) 40 dBA "of 

window/wall attenuation on its easternmost and southern facades. 

(cc) New Building WR-3 (Site 6) shall have a closed window condition providing 

a minimum of ( 1) 30 dBA of window/wall attenuation on its northern and western 

facades; and (2) 35 dBA of window/wall attenuation on all of its other facades. 

(dd) New Building WR-4 (Site 5) shall have a closed window condition providing 

a minimum of (I) 40 dBA of window/wall attenuation on its northwestern and 

southwestern facades; and (2) 30 dBA of window/wall attenuation on both of its 

other facades. 

(ee) New Building WR-5 (Site 3) shall have a closed window condition providing 

a minimum of (I) 35 dBA of window/wall attenuation on its western and southern 

facades; and (2) 30 dBA of window/wall attenuation on both of its other facades. 

(ff) New Building WR-6 (Site l) shall have a closed window condition providing 

a minimum of (1) 35 dBA of window/wall attenuation on its western and northern 

facades; and (2) 30 dBA of window/wall attenuation on both of its other facades. 

(gg) New Building WR-7 (Site l) shall have a closed window condition providing 

a minimum of (1) 40 dBA of window/wall attenuation on its western facade; and 

(2) 35 dBA of window/wall attenuation on all of its other facades. 

(hh) If either the 'Maximum Commercial Scenario' or the 'Maximum Residential 

Scenario -- Office Option', as defined in the FElS, is pursued, New Building WC1 (Site 2) shall have a closed window condition providing a minimum of (1) 35 

dBA of window/wall attenuation on its eastern facade; (2) 25 dBA of 

33 

l.JS\CHERKMA \934 7934.2 
window/wall attenuation on its westernmost facade; and (3) 30 dBA of 

window/wall attenuation on all of its other facades. 

(ii) If the 'Maximum Residential Scenario -- Hotel Option', as defined in the 

FEIS, is pursued, New Building WC-1 (Site 2) shall have a closed window 

condition providing a minimum of (l) 35 dBA of window/wall attenuation on its 

eastern facade; (2) 25 dBA of window/wall attenuation on its westernmost facade; 

and (3) 30 dBA of window/wall attenuation on all of its other facades. 

Uj) For all New Buildings, an alternative form of ventilation shall be provided. 

(ii) Following issuance of a TCO or PCO for a New Building, Declarant shall not 

eliminate or modify a noise attenuation measure unless DCP has approved such 

modification or elimination in accordance with Section 3.06(b) hereof. DOB shall not 

issue, and Declarant shall not accept, a Demolition Permit or Alteration Permit from 

DOB which would result in elimination or modification of any such noise attenuation 

measure. In no event shall this clause (ii) be construed as prohibiting or preventing 

Declarant from undertaking any maintenance, repair or replacement of any portion of the 

Noise attenuation system, provided same is consistent with the terms of this Section 

3.03(a). 

(c) Pedestrian Wind Conditions. 

(i) During architectural design development for a Nev.: Building and, in any event, 

prior to preparation of a final architectural design, Declarant shall cause a qualified 

consultant ("Wind Conditions Consultant") to undertake wind tunnel testing to assess the 

effect of the architectural design on pedestrian-level wind conditions. Where the results 

of wind tunnel testing indicate that implementation of the architectural design would have 

the potential to result in pedestrian-level wind conditions exceeding the performance 

criterion referenced in Appendix K to the ',EIS (the "Appendix K Criteria"), Declarant 

shall incorporate design features into the final architectural design, which: (aa) are 

determined through further testing to be effective in reducing or eliminating such 

exceedance; (bb) are compatible with the overall architectural design and location of the 

New Building and are consistent with the bulk and urban design controls contained in the 

Zoning Resolution; and (cc) are feasible from a structural, engineering and cost 

standpoint (the "Wind-Reduction Design Modifications"). Wind tunnel testing pursuant 

to this Section 3.02(c) shall be conducted in accordance with a methodology and protocol 

acceptable to DCP. 

(ii) No later than ninety (90) days prior to obtaining a New Building Permit from 

DOB, Declarant shall submit copies of a draft report to DCP describing: (aa) the results 

of wind tunnel testing and (bb) in the event such testing shows the potential for 

exceedance of the Appendix K Criteria based on the proposed design, an explanation and 

description of any Wind-Reduction Design Modifications which have been incorporated 

into the final architectural design (the "Wind Conditions Report"). In the event that 

Wind-Reduction Design Modifications have not been incorporated into the final 

architectural design, or have been incorporated but do not fully eliminate all exceedances 

34 

US \CHERKM A \934 79 34 .2 
of the Appendix K Criteria, then such report shall be accompanied by a written joint 

certification of the Wind Conditions Consultant and Declarant stating either that: (aa) no 

Wind-Reduction Design Modifications are required to cause the Project to meet the 

Appendix K Criteria; (bb) no Wind-Reduction Design Modifications or additional WindReduction Design Modifications are available that would be effective in materially 

reducing or eliminating the potential for an exceedance of the Appendix K Criteria; or 

(cc) potential Wind-Reduction Design Modifications are not compatible with the overall 

architectural design and location of the New Building, do not comply with the bulk or 

urban design controls contained in the Zoning Resolution, or are not feasible from a 

structural, engineering or cost standpoint. DCP shall, from the date of receipt, have thirty 

(30) days to review the draft Wind Conditions Report and provide Declarant with written 

comments. Declarant shall thereafter cause the Wind Conditions Consultant to submit a 

final Wind Conditions Report to DCP, which shall incorporate responses to such 

comments. DOB shall not issue, and Declarant shall not accept, any New Building Permit 

for a New Building until DCP shall have certified in writing to DOB that a final Wind 

Conditions Report has been submitted in compliance with this clause (ii) and that such 

report reflects a reasonable application of the standards set forth herein. Declarant shall 

also provide copies of all final Wind Conditions Reports to Community Board 4, 

Manhattan, the local Councilmem ber, the Manhattan Borough President, and any 

Construction Consultation Process Committee established pursuant to Section 6.01 of this 

Declaration. 

(iii) Implementation of any Wind-Reduction Design Modifications identified in a final 

Wind Conditions Report submitted in accordance with this Section 3.02(c) shall be 

deemed a requirement of this Declaration and any plans and drawings submitted by 

Declarant to DOB in connection with a New Building Permit application or amendment 

thereof shall reflect and be consistent with such Wind-Reduction Design Modifications. 

(iv) Following issuance of a TCO or PCO for a New Building, Declarant shall not 

eliminate or modify a Wind-Reduction Design Modification identified in a final Wind 

Conditions Report submitted in accordance with this Section 3.02(c) except as set forth in 

this clause (iv) or pursuant to Section 3.06 hereof. DOB shall not issue, and Declarant 

shall not accept a Demolition or Alteration Permit which would result in elimination or 

modification of any such Wind-Reduction Design Modification unless and until the Chair 

shall have certified to the DOB Commissioner that Declarant has demonstrated to the 

satisfaction of DCP that such Wind-Reduction Design Modification is no longer required 

or that an alternate Wind-Reduction Design Modification will be incorporated that will 

result in equivalent or improved wind conditions on and around the Subject Property. In 

no event shall this clause (iv) be construed as prohibiting or preventing Declarant from 

undertaking any maintenance, repair, replacement of or improvement to any portion of a 

Wind Reduction Design Modification provided that the same is consistent with this 

Section 3.02(c). 

(v) The provisions of clauses (i)-(iv) of this Paragraph (e) shall not apply to a New 

Building in the event that Declarant demonstrates to the satisfaction of the Chair, based 

on a report and analysis prepared by a consultant expert and experienced in the field of 

wind conditions analysis, that the New Building, by virtue of its size, location, massing or 

35 

l.JS\CHERKMA \934 7934.2 
other features, does not have the potential to result in an exceedance of the Appendix K 

Criteria, such that wind tunnel testing of its architectural design as provided in this 

Section 3.02(c) is not required under the circumstances. Jn that event, the Chair shall 

certify to the DOB Commissioner that DOB may issue a New Building Permit. Such 

certification shall apply to the relevant New Building only and shall have no application 

to any other New Building on the Subject Property. 

(d) Ventilation Fan Plants. 

(i) Declarant shall ensure that exterior noise levels from the ventilation system for 

the Platform shall comply with the City Noise Control Code through implementation of 

the following measures ("Ventilation Noise Controls"): 

(aa) Ventilation operations shall not increase the noise levels by 3 dBA or more 

over the levels identified in the FEIS as the Future No Build Noise Levels, and 

shall comply with all applicable provisions of the City Noise Control Code. 

Declarant shall meet these requirements by establishing appropriate noise-related 

specifications for the ventilation system, including ventilation duct work, airflow 

velocities, louvered openings in the ventilation plant exterior walls, fan type, fan 

size, pressure drop, and silencer characteristics. 

(bb) Fan noise shall be controlled using a combination of in-duct splitter 

attenuators that can achieve between 20 to 30 dBA reductions in noise, sound 

absorptive plenums (large rooms enclosed by acoustic materials that can achieve 

between 10 and 15 dBA reductions), and acoustic louvers. 

(cc) The ventilation plants shall be designed structurally to accommodate HVAC 

and mechanical equipment within the plants to minimize noise and groundvibration impacts to adjacent sensitive uses and public areas. 

(dd) Silencers and/or enclosures and anti-vibration mounts for fans and motors 

shall be used. 

(ii) Following construction of the Platfonn, Declarant shall not eliminate or modify a 

Ventilation Noise Control except pursuant to Section 3 .06 hereof and with such approval 

as may required by the LIRR. In no event shall this clause (ii) be construed as prohibiting 

or preventing Declarant from undertaking any maintenance, repair or replacement of any 

portion of the Ventilation Fan Plant (including replacement of any element with a more 

efficient and quieter system), provided same is consistent with the terms of this Section 

3.03(d). 

(e) Use ofLIRR Outfall. 

(i) Declarant shall install drainage mechanisms on the Subject Property that shall 

direct all stormwater runoff from Sites 5 and 6 to URR's existing 43" by 68" box culvert, 

which drains the Caemmerer Rail Yard directly into the Hudson River ("LIRR Outfall"). 

Additional Sites may use the LIRR Outfall based upon the DEP Approved Drainage Plan 

for the Subject Property. 

36 

l.JS\CHERKMA \934 7934.2 
(ii) Use of the LIRR Outfall, including any use of such outfall by Sites other than 

Sites 5 and 6, shall also be governed by an agreement between MTA/LIRR and 

Declarant. 

(iii) Any plans and drawings submitted by Declarant to DOB in connection with a 

New Building Permit application or amendment thereof for construction on any of the 

Sites shall reflect and be consistent with the DEP Approved Drainage Plan. 

(t) Tri-Generation Energy Supply System. 

If Declarant chooses to install tri-generation energy supply systems in New Buildings (to 

generate electricity, heat and cooling), such systems shall use exclusively natural gas for fuel. In 

supplemental boilers installed in all New Buildings, the use of fuel oil shall be restricted to the 

four winter months (December, January, February, and March). During other months, natural gas 

shall be used to power the supplemental boilers. Declarant shall adhere to all HV AC Controls set 

forth in Section 3.02(a), and shall obtain and comply with all required DEP and DEC permits in 

connection with the operation of such tri-generation system. 

3.03 Project Components Related to the Environment Relating to Sustainability. 

Declarant shall implement and incorporate as part of its design and operation of New Buildings, 

the following PCREs relating to sustainability: 

(a) Energy Efficiency. 

(i) Declarant shall incorporate energy efficiency measures with respect to fuel 

consumption and energy use ("EEMs") in each New Building that will result in at least 

14% less energy consumption in building systems and by building tenants than the 

standard set forth in the American Society of Heating, Refrigerating, and AirConditioning Engineers ("ASHRAE") standard 90.1-2007 in effect as of the date hereof 

(the "Minimum Energy Savings"). EEMs may include, but are not limited to, building 

design, high-performance glazing, increased insulation, high-efficiency lighting 

(occupancy sensors), higher efficiency HVAC equipment, variable frequency drives for 

pumps and fans, premium efficiency motors, improved temperature controls, and use of 

EnergyStar appliances. 

(ii) Declarant shall cause to be prepared by a qualified building energy consultant (the 

"BEC"), a report identifying the EEMs for a New Building that will result in the 

Minimum Energy Savings (the "Energy Report"). The Energy Report sha.11 demonstrate 

how such EEMs, once implemented, will achieve and maintain the Minimum Energy 

Savings. Nothing herein shall be deemed to preclude Declarant from achieving a greater 

amount of energy savings. 

(iii) (iii) No later than ninety (90) days prior to submitting an application for a New 

Building Permit to DOB, Declarant shall cause the BEC to submit copies of a draft 

Energy Report to DCP, which shall, from the date of receipt, have thirty (30) days to 

review the draft Energy Report, based on consultation with the Energy Division of EDC, 

and to provide Declarant with written comments detailing any issues regarding the 

37 

US\CHERKMA \934 7934.2 
sufficiency of the proposed EEMs to achieve the Minimum Energy Savings. Declarant 

shall cause the BEC to submit to DCP a final Energy Report, which shall include 

responses to such comments. The final Energy Report shall be accompanied by a written 

certification of the BEC stating that, in its opinion, the EEMs described in the final 

Energy Report are sufficient to achieve and maintain the Minimum Energy Savings. 

DOB shall not issue, and Declarant shall not accept, any New Building Permit for a New 

Building until DCP shall have certified in writing to the DOB Commissioner that a final 

Energy Report has been submitted in accordance with the procedures of this clause (iii). 

(iv) Implementation of the EEMs identified in the final Energy Report submitted in 

accordance with this Paragraph shall be deemed a requirement of this Declaration, 

provided that Declarant may modify the EEMs incorporated in any New Building as such 

New Building is being constructed provided that such alternate EEM is approved by DCP 

in accordance with Section 3.06 hereof. 

(b) LEED Silver Certification. 

(i) Except as otherwise provided in this Section 3.0l(b), Declarant shall design and 

construct each New Building in accordance with the standards and criteria required to 

achieve a minimum of LEED Silver Certification, and shall apply for and use reasonable 

and good faith effo1ts to obtain LEED Silver Certification from the USGBC. 

(ii) DOB shall not issue, and Declarant shall not accept, any New Building Permit for 

a New Building, until the Chair shall have certified to the DOB Commissioner that 

Declarant has submitted the following to DCP: 

(aa) A LEED checklist for the New Building demonstrating that the number of 

points Declarant intends to pursue during LEED 'Construction Review' will make 

the New Building eligible to obtain LEED Silver Ce1tification. Such checklist 

shall demonstrate that Declarant is providing a minimum of 32% of possible 

points in the GHG Credit Categories, as set forth in Exhibit D; and 50% of 

possible points in the Water Credit Categories, as set forth in Exhibit D 

(collectively, the "GHG and Water Credit Requirements"). New Buildings for 

which Declarant seeks LEED Silver Certification under future versions of the 

USGBC LEED rating system shall demonstrate performance at least equivalent to 

that which would have been required to meet the GHG and Water Credit 

Requirements under version 2009 of the USGBC LEED rating system. 

(bb) A signed affirmation from a LEED-accredited professional stating that he or 

she has reviewed the plans and drawings submitted or to be submitted to the DOB 

for purposes of a New Building Permit and that such plans and drawings are 

consistent with the LEED checklist and meet the intent of the criteria for LEED 

Silver Certification of the New Building. 

(iii) DOB shall not issue, and Declarant shall not accept, any TCO, until the Chair 

shall have certified to the DOB Commissioner that Declarant has submitted the following 

to DCP: 

38 

US\CHERKMA\9347934.2 
(aa) Documentation demonstrating that Declarant has completed LEED 'Design 

Review' and showing the number of points 'anticipated' as a result of the LEED 

'Design Review'. In the event that USGBC has 'denied' any points applied for by 

Declarant in the LEED 'Design Review', Declarant shall provide a report 

describing the following: (1) the basis for the USGBC determinations, as \Veil as 

any related technical advice provided by the USGBC review team; and (2) the 

steps taken by Declarant in response to the USGBC determinations, including 

appeals thereof. 

(bb) A LEED checklist for the New Building, demonstrating that the number of 

points 'anticipated' by the USGBC during LEED 'Design Review', in 

combination with the number of points that Declarant intends to pursue during 

LEED 'Construction Review', will make the New Building eligible to obtain 

LEED Silver Certification. Such checklist shall demonstrate that the GHG and 

Water Credit Requirements will be met. 

(iv) DOB shall not issue, and Declarant shall not accept, a PCO for a New Building, 

until the Chair shall have certified to the DOB Commissioner that Declarant has 

submitted the following to DCP: 

(aa) If the New Building has received LEED Silver Certification: 

(1) Documentation demonstrating that the New Building has received 

LEED Silver Certification, in the form of a USGBC 'Certificate of 

Recognition' or equivalent document. 

(2) A LEED checklist for the New Building demonstrating the number 

of LEED points that the New Building was 'awarded' by the USGBC. 

Such checklist shall demonstrate that the GHG and Water Credit 

Requirements have been met. 

(bb) If the application for LEED 'Construction Review' is still pending: 

(1) Documentation demonstrating that the complete application for 

LEED 'Construction Review' was submitted to the USGBC within nine 

(9) months of receiving the Final TCO for the New Building and 

Declarant has thereafter diligently pursued its application for LEED Silver 

Certification. 

(2) A LEED checklist for the New Building demonstrating that the 

number of points 'anticipated' by the USGBC during LEED 'Design 

Review', in combination with the number of points that Declarant has 

applied for in LEED 'Construction Review', will make the New Building 

eligible to obtain LEED Silver Certification. Such checklist shall 

demonstrate that the GHG and Water Credit Requirements are anticipated 

to be met. 

39 

US\CHERKMA \934 7934.2 
(3) A signed affirmation from a LEED-accredited professional stating 

that he or she has reviewed the application submitted to USGBC for 

LEED 'Construction Review', and that the application is consistent with 

the checklist and meets the intent of the criteria for LEED Silver 

Certification of the New Building. 

(cc) In the event that the New Building has failed to receive LEED Silver 

Certification after Declarant has accepted the final results of the LEED 

'Construction Review', a report including the following: 

(l) Documentation describing: (I) USGBC determinations which 

resulted in an inability to receive LEED Silver Certification, including a 

list of standards or criterion for which points were 'denied' during LEED 

'Design Review' or LEED 'Construction Review' ("USGBC Denial 

Determination"), the basis for such determinations and any related 

technical advice provided by the USGBC review team; (II) the steps taken 

by Declarant in response to the USGBC Denial Determination, including 

appeals thereof; and (III) alternative elements proposed by Declarant to 

the USGBC in order to receive LEED Silver Certification, and USGBC 

determinations with respect thereto . 

(2) DOcumentation demonstrating that Declarant has (I) designed and 

constructed the New Building according to the LEED Silver Certification 

standards or criteria then in effect, but without the standards or criterion 

which were subject to the USGBC Denial Determination; and (II) applied 

for and used reasonable good faith and efforts to obtain LEED 

Certification from the USG BC for the highest level of LEED Certification 

available in absence of such standards or criterion. The provisions of 

Section 3.02(b)(ii)(JI) shall continue to apply with respect to the categories 

equivalent to the GHG Credit Categories and Water Credit Categories, 

except to the extent that the USGBC Denial Determination is applicable to 

such standard or criterion. 

(v) In the event that, subsequent to October 19, 2009, any LEED Silver Certification 

standards or criterion change materially (including any new rating or guideline system as 

successor to the foregoing), and Declarant determines both that: (aa) implementation of 

the new standards or criterion would be impracticable from a design or engineering 

standpoint or would materially increase the costs of construction or operation of a New 

Building in and above any costs that are associated with implementation of the LEED 

Silver Certification standards or criterion in effect as of October l 9, 2009 ("LEED 

2009"); and (bb) as a result of such material change, it cannot otherwise qualify for 

LEED Silver Certification through alternative measures (the "LEED Silver Changed 

Criteria Determination"), it shall so notify DCP during the design development process 

for a New Building and, in any event, prior to fiiing an application for a New Building 

Permit for the New Building. In the event that, within sixty (60) days following receipt of 

such notice, DCP provides Declarant with a written determination disputing the LEED 

Silver Changed Criteria Determination, then such disagreement shall be resolved through 

40 

US\CHERKMA \934 7934.2 
a dispute resolution procedure mutually agreeable to the parties. For the purposes of this 

clause (v), any change in a standard or criteria that would result in an incremental cost 

(above the cost to construct in accordance with LEED 2009) to Declarant that Declarant 

has reasonably demonstrated will not be recovered within five (5) years from the first 

date of occupancy subsequent to receiving a TCO shall be deemed a material increase in 

the cost of construction or operation of a New Building. If it is found or determined 

through such dispute resolution procedure that the LEED Silver Changed Criteria 

Determination has a sound and reasonable basis, such that Declarant cannot otherwise 

qualify for LEED Silver Ce1tification through alternative measures, then Declarant shall 

(aa) design and construct the New Building according to the LEED Silver Certification 

standards or criteria then in effect, but without the standard or criterion which was the 

subject of the LEED Silver Changed Criteria Determination, and shall document 

compliance therewith in a manner acceptable to DCP, as a condition for receipt of a PCO 

for the New Building; and (bb) apply for and use reasonable and good faith efforts to 

obtain LEED Certification from the USGBC for the highest level of LEED Certification 

then available in the absence of compliance with such standard or criterion, in accordance 

with the provisions of this Paragraph. The provisions of Section 3.02 (b)(ii)(bb) shall 

continue to apply with respect to the categories equivalent to the GHG Credit Categories 

and Water Credit Categories, except to the extent that the LEED Silver Changed Criteria 

Determination is applicable to such standards or criterion. 

(vi) Within three (3) years of either {aa) LEED Silver certification for the New 

Building, or {bb) substantial occupancy of the New Building (the decision as to which 

point begins the three (3) year period to be at Declarant's discretion), Declarant shall 

provide DCP with a report summarizing the results of any measurement and verification 

and/or corrective action performed pursuant to the LEED 'Measurement and Verification 

Plan'. In addition, if not available prior to PCO, documentation demonstrating that the 

New Building has received LEED Silver Certification, in the form of a USGBC 

'Certificate of Recognition' or equivalent document within three months of Declarant's 

receipt thereof. 

(c) Stormwater Management Measures. 

(i) Prior to Construction Commencement, Declarant shall prepare and submit to DEP 

a Stormwater Pollution Prevention Plan. ("SWPPP") for construction activities and postconstruction stormwater management. The SWPPP shall incorporate feasible measures to 

reduce runoff rates below baseline levels and shall implement storm water management 

techniques to address water quality concerns associated with the uncontrolled discharge 

of stormwater runoff into the Hudson River, and shall provide for: (aa) the capture of 

stormwater from New Building roofs for beneficial reuse as cooling tower makeup and 

irrigation for site landscaping; (bb) incorporation of softscapes and features into the 

design of the Subject Property that shall serve to retain stormwater runoff; and (cc) green 

roofs on other selected buildings. The SWPPP shall be subject to review and approval by 

DEP, and by DEC to the extent required under applicable law or regulation. 

(ii) DOB shall not issue, and Declarant shall not accept, a Building Permit for work at 

the Subject Property until DCP shall have certified to the DOB Commissioner that a 

41 

US\CHERKM A \934 7934.2 
SWPPP has been approved by DEP in accordance with applicable law and regulation 

and, to the extent required by applicable law or regulation, by DEC. 

(iii) Any plans and drawings submitted by Declarant to DOB in connection with a 

Building Permit shall reflect and be consistent with the SWPPP. 

(iv) Declarant shall have the right to modify and add to the SWPPP as development of 

the Project proceeds, as may be approved by DEP and to the extent required by law or 

regulation DEC, in order to address additional New Buildings on the Subject Property 

and new Public Access Areas on the Subject Property, provided that such revised SWPPP 

is consistent with the requirements of this Declaration. 

(v) Prior to accepting a TCO for a New Building, Declarant shall certify to DCP that 

provisions of the SWPPP required for that New Building have been implemented. 

(d) Water Conservation Measures. 

(i) Dishwashers and clothes washers installed in all residential New Buildings shall 

be water-conserving models meeting at least EnergyStar standards for waterconservation. 

(ii) Water-conserving toilets and faucets shall be installed in all New Buildings. 

(iii) Prior to accepting a TCO for a New Building, Declarant shall certify to DCP that 

provisions of clauses (i) and (ii) of this Paragraph (d) have been implemented for such 

New Building. 

(e) Car Sharing Spaces. 

(i) Declarant shall, subject to the provisions of clause (iv) hereof, dedicate spaces in 

the Garage for parking of automobiles owned or operated as part of an automobile rental 

establishment use as listed in Section 32-17 (UG 8) of the Zoning Resolution in 

association with use of the Garage for accessory parking which: (aa) makes available to 

and permits customers to utilize its automobiles for hourly periods, or longer, in 

exchange for a fee seven days a week and for such hours as the Garage is open to other 

vehicles; and (bb) allows customers to reserve, pick up and return automobiles at the 

Subject Property through a self-service method (the "Car Sharing Service"), and shall 

cause the Car Sharing Service to be operated for so long as the Garage remains in service. 

(ii) Declarant shall not accept a TCO or PCO for all or any portion of the Garage that 

would result in excess of 400 spaces accessory to the residential use on the Subject 

Property, unless and until Declarant has commenced the Car Sharing Service and has 

provided a minimum of twenty (20) spaces within the Garage for the exclusive use by the 

Car Sharing Service. Thereafter, Declarant shall not accept a TCO or PCO for all or any 

p01tion of the Garage that would allow for in excess of 800 spaces accessory to the 

residential use on the Subject Prope1ty, unless and until Declarant has provided an 

additional ten (10) spaces within the Garage for the exclusive use of the Car Sharing 

Service, and shall not accept a TCO or PCO for all or any portion of the Garage that 

42 

US\CHERKMA \934 7934.2 
would allow for in excess of 1,200 spaces accessory to the residential use on the Subject 

Property, unless and until Declarant has provided an additional ten (l 0) spaces within the 

Garage for the exclusive use of the Car Sharing Service (the foregoing spaces, the "Car 

Sharing Spaces"). 

(iii) The number of residential accessory parking spaces in the Garage allowed 

pursuant to Section 2.03 of this Declaration shall be reduced by the number of Car 

Sharing Spaces required to be provided under this Section 3.03(e). 

(iv) Notwithstanding the foregoing, in the event that Declarant demonstrates to the 

reasonable satisfaction of the Chair that the Car Sharing Service cannot generate lease 

rates comparable to those charged to residential occupants for accessory parking spaces, 

or that the number of Car Sharing Services required under this Declaration exceeds the 

demand by Car Sharing Service operators for spaces on the Subject Property, then 

Declarant may use spaces otherwise required under this Section 3.03(e) to be utilized as 

Car Sharing Spaces as residential accessory parking spaces, subject to the provisions of 

Section 2.03 of this Declaration. 

(t) Electric Vehicle Battery-Charging Station. 

(i) Declarant shall install one or more battery-charging stations within the Garage for 

use by residents and 'occupants of the Subject Property who own, lease or otherwise use 

electric-powered vehicles. In determining the number of battery-charging stations to be 

installed in the Garage, Declarant shall evaluate trends at the time of the construction of 

the Garage and anticipated future trends relating to use of electric-powered vehicles, 

practices regarding the installation of battery-charging stations in residential and 

commercial buildings, and any relevant technology, design or engineering considerations. 

(ii) Not less than sixty (60) days prior to accepting a TCO or PCO for all or any 

portion of the Garage allowing for parking spaces for more than 400 accessory residential 

vehicles, the Declarant shall certify to DCP that provisions of clause (i) have been 

implemented and in connection therewith shall provide to DCP a written explanation of 

its determination as to the number of battery-charging stations to be included in the 

Garage. Installation of battery-charging stations may be phased in relation to increases in 

the number of parking spaces allowed at any given time pursuant to Section 2.03 of this 

Declaration. 

(iii) Notwithstanding the prov1s10n of clauses (i) and (ii), Declarant shall not be 

required to install battery-charging stations in the Garage if Declarant determines, with 

the concurrence of the Chair, that battery-charging stations are not likely to be utilized on 

a frequent basis by residents or occupants of the New Buildings under existing or 

reasonably foreseeable future market conditions; or that there are technology, design or 

engineering considerations which make installation of a battery-charging station in the 

Garage infeasible or cost-prohibitive. 

(g) Base Flood Elevation. 

43 

US\CHERKM A \934 7934.2 
(i) All New Buildings on Sites 5 and 6 within the terra firm a portion of the Subject 

Property: (aa) shall be consistent with the New York City Building Code requirement that 

residential buildings have a finished floor elevation at or above the base flood elevation 

for the 100-year flood; (bb) shall meet the minimum elevation requirements for the 

lowest floor relative to the design flood elevation as specified in Appendix G, "Flood 

Resistant Construction," of the New York City Building Code for the applicable building 

category (see Table 1604.5 of the New York City Building Code or Table 1-1 of 

Appendix G to the New York City Building Code); and (cc) in the case of a New 

Building to be located on Site 5, the elevation of the lowest floor shall be no less than one 

foot above the base flood elevation. 

(ii) Declarant shall prior to acceptance of a New Building Permit for a New Building 

on Site 5, submit plans for DCP review pursuant to Section 3.09 of this Declaration 

demonstrating compliance with clause (i) of this Section 3.03(g). 

3.04 Environmental Mitigation. 

Declarant shall, in accordance with the FEIS, undertake the mitigation measures set forth therein 

(the "Mitigation Measures"), as follows: 

(a) Public School. 

(i) Declarant shall, subject to clause {iv) hereof, perform the following with respect 

to the Public School: (aa) engage in a collaborative design development process with 

SCA, which shall include collaboration on schematic design, design development and 

contract documentation; (bb) perform construction of 'School Base Building Work', as 

defined under the SCA Agreement; (cc) enter into a condominium regime with respect to 

the Public School and the remainder of the building, or other regime acceptable to SCA 

and Declarant, as a means of transferring the Public School to SCA; and (dd) transfer the 

Public School to SCA ((aa) to (dd) collectively, the "Public School Obligations"), the 

Public School Obligations to be performed pursuant to, in accordance with, and 

conditioned upon the terms and conditions of a School Design, Construction, Funding 

and Purchase Agreement with SCA (the "SCA Agreement") intended to be entered into 

pursuant to the October 16, 2009, Letter of Intent executed by the SCA and accepted and 

agreed to by Declarant, as amended on December, 2009, attached to this Declaration as 

Exhibit G (the "SCA Letter oflntent"). 

(ii) (ii) Declarant shall perfom1 the Public School Obligations in accordance with 

the following milestones: 

(aa) Within three {3) months of the date of this Declaration, Declarant shall send 

written notice to SCA asking whether SCA is prepared to commence negotiations 

on the SCA Agreement in anticipation of the development of the Public School. If 

SCA responds in writing that it is prepared to commence negotiations, Declarant 

shall promptly commence negotiations with SCA on the SCA Agreement and 

shall diligently and in good faith pursue such negotiations with SCA in order to 

finalize and execute the SCA Agreement. If SCA responds in writing that it is not 

44 

US\CHERKMA \934 7934.2 
prepared to commence negotiations, or fails to respond within fifteen ( 15) days of 

the written notice from Declarant, Declarant shall have no obligation to 

commence discussions, but shall repeat such written notice and request every six 

(6) months thereafter until such time as SCA advises Declarant that SCA is 

prepared to commence negotiations on the SCA Agreement, at which time. 

Declarant shall promptly commence negotiations with the SCA and thereafter 

diligently pursue the completion and execution of the SCA Agreement. 

(bb) Not less than eighteen ( 18) months prior to the date Declarant anticipates 

filing for a New Building Permit for a New Building on Site 6, Declarant shall 

provide written notice to the SCA (the "School Election Notice") advising the 

SCA of the plan to file for such New Building Permit and offering the SCA a 

location within the base of such New Building for the Public School (the 

"Proposed School Site"). Declarant shall provide a copy of the School Election 

Notice to the district manager of Community Board 4 within ten (l 0) days of delivery thereof to 

the SCA. Following delivery of the School Election Notice: 

(I) If SCA advises Declarant in writing within thirty (30) days of 

receipt of the School Election Notice that SCA accepts the Proposed 

School Site as the location for the Public School, intends to proceed with 

the Public School on the Proposed School Site, and has or anticipates 

receipt of the capital funding to complete the Public School in the manner 

set forth in the SCA Agreement, Declarant and the SCA shall promptly 

commence and thereafter diligently and expeditiously pursue the 

development of plans to incorporate the Public School into the New 

Building in accordance with the SCA Agreement. DOB shall not issue, 

and Declarant shall not file for or accept, a New Building Permit for a 

New Building including the Proposed School Site unless and until the 

SCA has approved the construction documents to be filed with the 

application for the New Building Permit insofar as such documents pe1tain 

to the core and shell of the Public School, as more particularly set forth in 

the SCA Agreement. 

(2) In the event that the SCA advises Declarant in writing within thirty 

(30) days of receipt of the School Election Notice that SCA does not 

accept the Proposed School Site as the location of the Public School, and 

in any event if the SCA fails to respond to Declarant's notice within such 

thirty (30) day period, SCA shall be deemed to have rejected the Proposed 

School Site, and Declarant shall be permitted to construct the New 

Building identified in the School Election Notice without including a 

Public School in the New Building, and Declarant shall have no further 

obligation under this Section 3.04(a). 

(3) Declarant covenants to seek a New Building Permit for a New 

Building on Site 6 as one of the first three New Building Permits issued 

for New Buildings containing residential units. 

45 

US\CHERKMA \934 7934.2 
(cc) Provided that the SCA has accepted the Proposed School Site and has agreed 

to proceed with the Public School in the manner set forth in subclause (bb) above 

and in the SCA Agreement, DOB shall not issue, and Declarant shall not accept, 

TCOs or PCOs for more than 712 residential units on the Subject Prope1ty (the 

"Unit Threshold") until such time as (I) Declarant has completed the core and 

shell of the Public School, and (II) has delivered the core and shell to the SCA or 

otherwise made the Public School core and shell available for fit-out in the 

manner set forth in the SCA Agreement, provided that in no event shall this 

subclause (cc) be construed in any manner to preclude DOB from issuing or 

Declarant from accepting TCOs or PCOs for any residential unit located in a New 

Building constructed pursuant to a New Building Permit issued prior to the New 

Building Permit for the New Building containing the Public School. 

Notwithstanding the foregoing, in the event that Declarant's obligations under this 

Section 3.04(a) have tetminated pursuant to subclause (ii)(bb )(2) hereof, 

Declarant may apply for and DOB may issue TCOs and PCOs for any and all 

residential units in the Project without regard to this subclause (ii)( cc). 

( dd) The Unit Threshold set forth in this clause (ii) may be modified with the 

consent of Declarant, SCA, and DCP in the event that, as demonstrated to the 

satisfaction of DCP in a Technical Memorandum, such modification is warranted 

in relation to actual school utilization rates or residential growth in the study area 

identified in the FEIS. 

(iii) For purposes of this Section 3.04(a), Uncontrollable Circumstances may include, 

in addition to the elements set forth in the definition thereof under Article I of this 

Declaration, a failure or delay by SCA resulting from the following: (aa) a failure or 

delay in approval of a site selection for the Public School pursuant to the New York State 

Public Authorities Law; (bb) a failure or delay in approval of the SCA Agreement; (cc) a 

failure or delay in securing funds for Public School pre-development and construction 

costs; (dd) a failure or delay in review of design submissions in accordance with time 

frames established under the SCA Agreement; (ee) a failure or delay in reimbursement of 

Declarant through progress payments in accordance with the SCA Agreement; and (ff) a 

failure or delay in change orders initiated or otherwise caused by SCA. 

(b) Open Space. 

(i) DOB shall not issue, and Declarant shall not accept, a TCO for the last residential 

unit in the second residential building on the Subject Prope1ty, until DCP shall have 

certified to DOB that Declarant has paid into an account (the "Open Space Fund") an 

amount that is equal to $1,000,000, as increased 3% per annum from the Approval Date 

to the date of payment. Following such initial contribution to the Open Space Fund, DOB 

shall not issue, and Declarant shall not accept a TCO for the last residential unit in the 

fourth residential building constructed on the Subject Property, until DCP shall have 

certified to DOB that Declarant has contributed to the Open Space Fund, with respect to 

each such building, an amount that is equal to $1,000,000, as increased 3% per annum 

from the Approval Date to the date of payment. Nothing herein shall be construed as 

limiting the ability of Declarant to deposit funds in the Open Space Fund at earlier dates 

46 

US\CHERKM A \934 7934.2 
than required under this Paragraph. Notwithstanding the foregoing, in the event that the 

number of residential units in the second residential building, together with the residential 

units in the first residential building, totals less than five hundred (500), the first 

contribution to the Open Space Fund provided for herein shall be a prerequisite to 

issuance of a TCO for the last residential unit in the third residential building on the 

Subject Property and the second contribution to the Open Space Fund provided for herein 

shall be a prerequisite to issuance of a TCO for the last residential unit in the fifth 

residential building on the Subject Property. 

(ii) The Open Space Fund shall be solely for purposes of programs or improvements 

which would improve or increase capacity for active recreation within Community 

District 4, Manhattan, including, but not limited to: (aa) creation of new active open 

space; (bb) renovation or repairs to existing park facilities; (cc) expansion of hours of 

operation of existing facilities; and (dd) funding of active recreation programs at park 

facilities. The Open Space Fund shall not be used for any other purpose and the City shall 

not use the Open Space Fund to reduce its level of support for open space programs, 

facilities and activities within Community District 4. DPR shall identify its priorities for 

use of the Open Space Fund to Declarant, Community Board 4, Manhattan and the local 

Council Member, and shall consult with Community Board 4, Manhattan and the local 

Council Member with regard thereto, prior to any expenditure from the Open Space 

Fund. 

(iii) Declarant's contribution to the Open Space Fund shall be made by check payable 

to DPR at its principal office or such other office within the City as DPR may from time 

to time designate, or by wire transfer to an account designated by DPR. Such funding 

shall be disbursed by Declarant to DPR pursuant to a funding agreement reasonably 

acceptable to Declarant, which funding agreement shall among other things provide that 

the Open Space Fund shall be dedicated for use within Community District 4 for the 

purposes set forth in clause (ii) hereof. 

(c) Day Care. 

(i) Following the issuance of a TCO or PCO for the first New Building containing 

residential rental units, Declarant shall notify ACS at its Division of Child Care and Head 

Start and request a day-care needs assessment to determine if development of the Subject 

Property, both existing and anticipated, would have the potential to create a need for 

additional day care capacity within the study area boundary shown on Figure 5-3 to the 

FEIS. In the event ACS determines that such development would result in a need for 

additional day care capacity within such study area boundary, the Declarant shall offer 

ACS approximately 10,000 sf of ground floor space suitable for use as a child care center 

(including either a facility to be operated under contract with ACS or by a day care 

provider identified by ACS that accepts ACS vouchers), in a New Building or at another 

· existing location within the study area boundary identified in the FEIS as the study 

boundary in Chapter 5 (Community Facilities), at a rate affordable to ACS providers 

(currently $10 psf) (the "Day Care Space Offer"). The ACS shall notify Declarant in 

writing ninety (90) days of receipt of Declarant's request, whether the Day Care Space 

47 

US\CHERKMA \934 7934.2 
Offer is accepted or declined, either for some or all of the 10,000 sf space, subject to all 

City requirements governing the leasing of property. 

(ii) In the event that ACS does not accept Declarant's Day Care Space Offer pursuant 

to clause (i) above, Declarant shall contact ACS in the manner provided in clause (i) 

following the issuance of a TCO or PCO for each successive New Building containing 

residential rental units and, in the event ACS determines that development on the Subject 

Property would result in a need for additional day care capacity within the study area 

boundary, shall make a Day Care Space Offer in the manner provided in clause (i), 

provided that Declarant shall have no obligation to make a Day Care Space Offer for 

New Buildings other than for the New Buildings to be located on Sites 1, 2 , and 4. 

(iii) DOB shall not issue, and Declarant shall not accept, a TCO or PCO for the next 

New Building containing residential rental units constructed on the Subject Property 

subsequent to Declarant making a request under clauses (i) or (ii) above, until DCP 

notifies DOB that: (aa) DCP has received a determination by ACS that the provisions of 

this Paragraph (c) have been complied with; (bb) ACS has declined a Day Care Space 

Offer made pursuant to clauses (i) or (ii) above; or (cc) ACS has failed to respond to 

Declarant's request made pursuant to clauses (i) or (ii) within ninety (90) days ofreceipt 

thereof. In the event of any of the foregoing, Declarant shall not be precluded from 

obtaining a TCO or PCO with respect to such New Building. 

(iv) Declarant shall have no further obligation or further responsibilities under clauses 

(i) and (ii) of this Paragraph (c) in the event that ACS: (aa) accepts a Day Care Space 

Offer in a New Building on the Subject Property or at another existing location within the 

FEIS study area boundary; (bb) detennines in response to each of the requests made by 

Declarant pursuant to clauses (i) and (ii) that there is no need for additional day care 

capacity within the study area boundary; (cc) fails to respond to each of Declarant's 

request made pursuant to clauses (i) or (ii) above; or (dd) following the date hereof, after 

consultation with the Chair, notifies the Chair and Declarant that it does not intend to 

expand day care capacity within the study area boundary in conjunction with 

development on the Subject Property. 

(v) As an alternative to the foregoing provisions with respect to Day Care Offers, 

ACS may request Declarant to implement other measures within the study area boundary, 

or other proximate locations within Community District 4, Manhattan, which would 

result in program or physical improvements at existing child care centers to support 

additional capacity. Declarant shall consider any such request in good faith, but shall 

have no obligation under this Declaration to implement alternative measures. In the event 

that Declarant agrees to implement such other measures as may be requested by ACS, 

Declarant's obligations under this Section 3.04(c) shall be deemed complete upon the 

performance of such other measures by or on behalf of Declarant. 

(d) Traffic!Pedestrians. 

(i) Declarant shall not accept a Building Permit for any work on the Subject 

Property, unless and until: 

48 

US\CHERKMA \934 7934.2 
(aa) Declarant has sent written notice to the DOT (which notice shall include an 

anticipated construction schedule) no later than sixty (60) days prior to acceptance 

of such Building Permit, requesting that the DOT implement the construction 

period traffic and pedestrian mitigation measures set forth in the FEIS, or 

measures having comparable benefits as specified by DOT based on any 

determinations as of such date under the Hudson Yard Traffic and Pedestrian 

Monitoring and Management Program (the "HYTPMMP"), as may be identified 

by DOT as necessary to be implemented during construction of the stage of 

development being proposed on the Subject Property pursuant to such Building 

Permit; and 

(bb) Declarant has notified DOT of its willingness to enter into an agreement, 

acceptable to DOT and consistent with DOT requirements, concerning the 

operational period traffic and pedestrian measures set forth in Exhibit H or 

measures having comparable benefits as specified by DOT based on any 

determinations as of such date under the HYTPMMP, identified by DOT as 

necessary to be implemented in connection with operation of the stage of 

development being proposed on the Subject Property which is facilitated by such 

Building Permit. To the extent that DOT deems unnecessary one or more of the 

traffic measures set forth in Exhibit H, and has not identified measures having 

comparable benefits based on the results of the HYTPMMP, Declarant shall have 

no further obligation under this subclause (bb). 

(ii) Declarant shall not accept a TCO for any New Building on the Subject Property, 

unless and until: 

(aa) Declarant has sent written notice to DOT no later than ninety (90) days prior 

to acceptance of such TCO, requesting that DOT implement the traffic and 

pedestrian mitigation measures set forth in Exhibit I, or measures having 

comparable benefits as specified by DOT based on any determinations as of such 

date under the HYTPMMP, which DOT may identify as necessary to be 

implemented in connection with operation of such New Building; and 

(bb) Declarant has implemented the traffic and pedestrian measures set forth in 

the agreement entered into pursuant to subclause (bb) of clause (i) hereof, which 

DOT has identified as necessary to be implemented in connection with operation 

of such building, unless, as previously directed by DOT, Declarant has paid 

DOT/City of New York for the ordinary and customary costs, if any, of 

implementing such improvements (including but not limited to the reasonable 

costs of the design and construction of capital improvements). Declarant shall 

submit all of the required drawings/designs as per DOT specifications for DOT 

review and approval. To the extent that, prior to acceptance by Declarant of a 

TCO for such New Building DOT deems no longer necessary one or more of the 

traffic or pedestrian measures set forth in the agreement entered into pursuant to 

subclause (bb) of clause (i), Declarant shall have no further obligation under this 

subclause (bb ). 

49 

US\CHERKMA \934 7934.2 
(iii) Declarant shall not accept, a TCO for the Northern Garage, unless and until: 

(aa) Declarant has sent written notice to the DOT requesting that the DOT 

implement a traffic signal at 12th Avenue and 33rd Street, or a measure having 

comparable benefits as may be specified by DOT based on any determinations as 

of such date under HYTPMMP. 

(bb) Declarant has implemented such measures as directed by DOT, or, if directed 

by DOT, has paid DOT/City of New York for the ordinary and customary costs, if 

any, of implementing the traffic signal (including but not limited to the reasonable 

costs of the design and construction thereof). To the extent. DOT deems 

unnecessary the traffic signal at 12th A venue and 3 31-d Street, and has not 

identified a measure having comparable benefits based on determinations under 

the HYTPMMP, Declarant shall have no further obligation under this subclause 

(bb). 

3.05 Inconsistencies with the FEIS. 

If this Declaration inadvertently fails to include a PCRE or Mitigation Measure set forth in the 

FEIS, such PCRE or Mitigation Measure shall be deemed incorporated in this Declaration by 

reference. Ifthere is any inconsistency between a PCRE or Mitigation Measure as set forth in the 

FEIS and as incorporated in this Declaration, the more restrictive provision shall apply. 

3.06 Innovation; Alternatives; Modifications Based on Further Assessments. 

(a) Innovation and Alternatives. 

In complying with Sections 3.01, 3.02, 3.03 or 3.04 of this Declaration, Declarant may, at 

its election, implement innovations, technologies or alternatives that are or become 

available, including replacing any equipment, technology, material, operating system or 

other measure previously located on the Subject Property or used within the Project 

which Declarant demonstrates to the satisfaction of DCP would result in equal or better 

methods of achieving the relevant PCRE or Mitigation Measure, than those set forth in 

this Declaration. 

(b) Modifications Based on Further Assessments. 

In the event that Declarant believes, based on changed conditions, that a PCRE or 

Mitigation Measw-e required under Sections 3.01, 3.02, 3.03, or 3.04 should not apply or 

could be modified without diminishment of the environmental standards which would be 

achieved by implementation of the PCRE or Mitigation Measure, it shall set forth the 

basis for such belief in an analysis submitted to DCP. In the event that, based upon 

review of such analysis, DCP determines that the relevant PCRE or Mitigation Measure 

should not apply or could be modified, Declarant may eliminate or modify the PCRE or 

Mitigation consistent with the DCP determination, provided that Declarant records a 

notice of such change against the Subject Property in the office of the City Register. 

50 

US\CHERKMA \934 7934.2 
3.07 Appointment and Role of Independent Monitor. 

(a) Declarant shall, with the consent of DCP, appoint an independent third party (the 

"Monitor") reasonably acceptable to DCP to oversee, on behalf of DCP, the 

implementation and performance by Declarant of the construction period PCREs and 

Mitigation Measures required under Section 3.01 and Section 3.04(d)(i) of this 

Declaration (the "Construction Monitoring Measures" or "CMMs"). The Monitor shall be 

a person holding a professional engineering degree and with significant experience in 

environmental management and construction management (or a :finn including such 

persons), including familiarity with the means and methods for implementation of the 

CMMs. In the event that the Declarant that is signatory to this Declaration shall have 

sold, leased transferred or conveyed to a third party (other than MT A) fee title to, or a 

ground or net lease of, one or more tax lots within the Subject Property, then such, third 

party shall be deemed a successor Declarant (a "Successor Declarant") with respect to 

such lots so sold, leased, transferred or conveyed to it, and, with the prior written 

approval of DCP, there may exist more than one Monitor with respect to multiple 

developments proceeding simultaneously on the Subject Property, pursuant to separate 

Monitor Agreements (hereafter defined). 

(b) The scope of services described in any agreement between Declarant and the Monitor 

pursuant to which the Monitor is retained (the "Monitor Agreement") shall be subject to 

prior review by and approval of DCP, such approval not to be unreasonably withheld, 

conditioned or delayed. Such agreement shall include provisions in a form acceptable to 

DCP that, among others, shall: (i) ensure that the Monitor is independent ofDeclarant in 

all respects relating to the Monitor's responsibilities under this Declaration (provided that 

the Monitor shall be responsible to Declarant with regard to practices generally 

applicable to or expected of consultants and independent contractors of Declarant) and 

has a duty of loyalty to DCP; (ii) provide for appropriate DCP management and control 

of the performance of services by the Monitor; (iii) authorize DCP to direct the 

tennination of services by the Monitor for unsatisfactory perfonnance of its 

responsibilities under the Monitoring Agreement; (iv) allow for the retention by the 

Monitor of sub-consultants with expertise appropriate to assisting the Monitor in its 

performance of its obligations to the extent reasonably necessary to perform its 

obligations under this Declaration and the Monitor Agreement; and (v) allow for 

termination by Declarant for cause, but only with the express written concurrence of 

DCP, which concurrence will not be unreasonably withheld or delayed. Jf DCP shall fail 

to act upon a proposed Monitor Agreement within sixty (60) days after submission of a 

draft form of Monitor Agreement, the form of Monitor Agreement so submitted shall be 

deemed acceptable by DCP and may be executed by Declarant and the Monitor. The 

Monitor Agreement shall provide for the commencement of services by the Monitor at a 

point prior to Construction Commencement (the timing of such earlier point to be at the 

sole discretion of Declarant) and shall continue in effect at all times that construction 

activities are occurring on the Subject Property with respect to an identified stage(s) of 

development on the Subject Property including, with respect to New Buildings, until 

issuance of TCOs or PC Os therefor, unless the Declarant, with the prior consent of DCP 

or at the direction of DCP, shall have terminated a Monitor Agreement and substituted 

therefor another Monitor under a new Monitor Agreement, in accordance with all 

51 

US\CHERKM A \9 34 79 34 .2 
requirements of this Section 3.07. If the stage of development of the Subject Prope1iy 

identified in a Scope of Services under the Monitor Agreement is completed, Declarant 

shall not have any obligation to retain the Monitor for subsequent stage(s) of 

development of the Subject Property, provided that Declarant shall not recommence any 

construction until it shall have retained a new Monitor in compliance with the provisions 

ofthis Section. 

(c) The Monitor shall: (i) assist and advise DCP with regard to review of plans and measures 

proposed by Declarant for purposes of satisfying CMMs in connection with 

detenninations required under this Declaration as a prerequisite to Construction 

Commencement or the issuance or acceptance by Declarant of a Building Permit, TCO or 

PCO as the case may be; (ii) provide reports of Declarant's compliance with the CMMs 

during any period of construction on a schedule reasonably acceptable to DCP, but not 

more frequently than once per month; (iii) prepare a quarterly report summary of 

activities for distribution to any Construction Consultation Committee established under 

Section 6.01 of this Declaration; and (iv) liaise with any Construction Consultation 

Committee established under Section 6.0 l of this Declaration, as directed by DCP. The 

Monitor may at any time also provide Declarant and DCP with notice of a detennination 

that a CMM has not been implemented, accompanied by supporting documentation 

establishing the basis for such determination, provided that any such notice shall be 

delivered to both parties. The Monitor shall: (i) have full access to the Subject Site, 

subject to compliance with all generally applicable site safety requirements imposed by 

law, pursuant to construction contracts, or imposed as part of the site safety protocol in 

effect for the Subject Property; (ii) be provided with access to all books and records of 

Declarant either on or outside the Subject Property pe1iaining to the development of the 

Project which it reasonably deems necessary to carry out its duties, including the 

preparation of periodic reports; and (iii) be entitled to conduct any tests on the Subject 

Property that the Monitor reasonably deems necessary to verify Declarant's 

implementation and performance of the CMMs, subject to compliance with all generally 

applicable site safety requirements imposed by law, site operations, or pursuant to 

construction contracts in effect for the Subject Property and provided further that any 

such additional testing shall be coordinated with Declarant's construction activities and 

use of the Subject Property by the occupants of and visitors to any New Buildings and 

Public Access Areas then located on the Subject Property, and shall be conducted in a 

manner that will minimize any interference with the Project. The Monitor Agreement 

shall provide that Declarant shall have the right to require Monitor to secure insurance 

customary for such activity and may hold the Monitor liable for any damage or harm 

resulting from such testing activities. 

( d) Declarant shall be responsible for payment of all fees and expenses due to the Monitor in 

accordance with the terms of the Monitoring Agreement and any consultants retained by 

the Monitor as may be necessary to determine Declarant's compliance with the CMMs, in 

accordance with the tenns of the Monitor Agreement. 

(e) If the Monitor detennines, either in a monthly report or otherwise, that Declarant has 

failed to implement or to cause its contractors to implement a CMM, the Monitor shall 

notify DCP and Declarant of such alleged violation, and provide documentation 

52 

US\CHERKMA \934 7934.2 
establishing the basis for its detem1ination. If DCP determines, based on consultation 

with the Monitor and others, as appropriate, that there is a basis for concluding that such 

a violation has occurred, DCP may thereupon give Declarant written notice of such 

alleged violation (each, a "CMM Default Notice"), transmitted by hand or via overnight 

courier service to the address for Notices for Declarant set forth in Section 6.07. 

Notwithstanding any provisions to the contrary contained in Section 5.01 of this 

Declaration, following receipt of a CMM Default Notice, Declarant shall: (i) effect a cure 

of the alleged violation within three (3) business days; (ii) seek to demonstrate to DCP in 

writing within two (2) business days of receipt of the CMM Default Notice why the 

alleged violation did not occur and does not then exist; or (iii) seek to demonstrate to 

DCP in writing within two (2) business days of receipt of the CMM Default Notice that a 

cure period greater than three (3) business days would not be harmful to the environment 

(such longer cure period, a "Proposed Cure Period"). lf DCP accepts within one (1) 

business day of receipt of a writing from Declarant that the alleged violation did not 

occur and does not then exist, DCP shall withdraw the CMM Default Notice and 

Declarant shall have no obligation to cure. If DCP accepts a Proposed Cure Period in 

writing within one (1) business day ofreceipt of a writing from Declarant, then this shall 

become the applicable cure period for the alleged violation (the "New Cure Period"), 

provided that if DCP does not act with respect to a Proposed Cure Period within one (1) 

business day of after receipt of a writing from Declarant with respect thereto, the three (3) 

day cure period for the alleged violation shall be deemed to continue unless and until 

DCP so acts. If Declarant fails to: (i) effect a cure of the alleged violation; (ii) cure the 

alleged violation within a New Cure Period, if one has been established; or (iii) 

demonstrate to DCP' s satisfaction that a violation has not occurred, then representatives 

of Declarant shall, promptly at DCP's request, and upon a time and date acceptable to 

DCP, convene a meeting at the Site with the Monitor and DCP representatives. If 

Declarant is unable reasonably to satisfy the DCP representatives that no violation exists 

or is continuing and the Declarant, the Monitor and DCP are unable to agree upon a 

method for curing the violation within a time period acceptable to DCP, DCP shall have 

the right to exercise any remedy available at law or in equity or by way of administrative 

enforcement, to obtain or compel Declarant's performance under this Declaration, 

including seeking an injunction to stop work on the Subject Property, as necessary, to 

ensure that the violation does not continue, until the Declarant demonstrates that it has 

cured the violation. 

3.08 UncontroHable Circumstances Involving a PCRE or Mitigation Measure. 

(a) Notwithstanding any provision of Section 5.05 to the contrary, where the Obligation as to 

which an Uncontrollable Circumstance applies is a PCRE or Mitigation Measure set forth 

in this Article III of the Declaration, Declarant may not be excused from performing such 

PCRE or Mitigation Measure that is affected by Uncontrollable Circumstances unless and 

until the Chair, based on consultation with the Monitor designated under Section 3.07 of 

this Declaration has made a determination in his or her reasonable discretion that not 

implementing the PCRE or Mitigation Measure during the period of Uncontrollable 

Circumstances, or implementing an alternative proposed by Declarant, would not result 

in any new or different significant adverse environmental impact not addressed in the 

FEIS. 

53 

US\CHERKM A \934 7934.2 
3.09 DCP Review. 

(a) Not less than ninety (90) days prior to the date Declarant anticipates (i) to be the date of 

Construction Commencement, and (b) obtaining any Building Permit from DOB, 

Declarant shall send written notice to DCP, with a copy to the Monitor if DCP has 

previously requested in writing that Declarant copy the Monitor, advising of Declarant's 

intention to undertake Construction Commencement or obtain such Building Permit as 

the case may be (each such notice, a "Permit Notice"). Any Permit Notice shall be 

accompanied by: (i) a summary of the provisions of this Declaration imposing conditions 

or criteria that must be satisfied as a condition to or in conjunction with Construction 

Commencement or issuance of the relevant Building Permit; (ii) materials or 

documentation demonstrating compliance with such requirements or criteria to the extent 

Declarant believes that compliance has been achieved by the date of the Permit Notice; 

and (iii) to the extent that Declarant believes that compliance with any condition or 

criteria has not been achieved by the date of the Permit Notice, an explanation of why 

compliance has not yet been achieved to date, the steps that are or will be taken prior to 

issuance of the Building Permit to achieve compliance and the method proposed by 

Declarant to assure DCP that the elements will be achieved in the future. 

(b) Following the delivery of a Permit Notice to DCP in accordance with Paragraph (a) 

hereof, Declarant shall meet with DCP (and at DCP's option, the Monitor) to respond to 

any questions or comments on the Permit Notice and accompanying materials, and shall 

provide additional information as may reasonably be requested by DCP or the Monitor in 

writing in order to allow DCP to determine, acting in consultation with the Monitor and 

City agency personnel as necessary in relation to the subject matter of the Permit Notice, 

that the conditions and criteria for Construction Commencement or issuing the Building 

Permit have been or will be met in accordance with the requirements of this Declaration. 

Declarant shall not accept any Building Permit subject to review pursuant to this Section 

3.09 until DCP has certified to Declarant and DOB that the conditions and criteria set 

forth in this Declaration for issuance of the Building Permit have been met. 

Notwithstanding the foregoing, (x) in the event that DCP has failed to respond in writing 

to Declarant within forty five (45) days of receipt of the Permit Notice, or (y) has failed 

to respond in writing to Declarant within fifteen (15) days of receipt of additional 

materials provided to DCP under this Paragraph (b), DCP shall be deemed to have 

accepted the Permit Notice and any subsequent materials related thereto under clause (iii) 

of this Paragraph (b) as demonstrating compliance with the requirements for issuance of 

the Building Permit and Declarant shall be entitled to Commence Construction or accept 

the Building Permit and to undertake any and all activities authorized thereunder. 

(c) Not less than thirty (30) days prior to the date that Declarant anticipates obtaining the 

first TCO or PCO for any New Building on the Subject Property, Declarant shall send 

written notice to DCP, with a copy to the Monitor if DCP has previously requested in 

writing that Declarant copy the Monitor, advising of Declarant's intention to obtain such 

TCO or PCO (each such notice, a "CO Notice"). Within twenty (20) days of delivery of 

any CO Notice, DCP shall have the right to inspect the New Building and review 

construction plans and drawings, as necessary to confirm that the PCRE and/ or 

Mitigations Measures required to be incorporated into the New Building have been 

54 

l.JS\CHERKM A \934 7934.2 
installed in accordance with the plans initially submitted as part of the New Building 

Pennit. DOB shall not issue, and Declarant shall not accept, a TCO or PCO if DCP has 

provided written notice to Declarant, copied to DOB, within five (5) days following any 

such inspection advising that Declarant has failed to include a required PCRE and/or 

Mitigation Measure within the New Building, or has failed to fully satisfy the PCRE 

and/or Mitigation Measure, and specifying the nature of such omission or failure. In the 

event that DCP provides such notice, Declarant and DCP shall meet promptly to review 

the claimed omission or failure, develop any measures required to respond to such claim, 

and Declarant shall take all steps necessary to remedy such omission or failure, and upon 

the completion of such steps to the satisfaction of DCP, shall be entitled to obtain the 

TCO or PCO as the case may be. 

(d) In the event of a continued disagreement between DCP or other City agency and 

Declarant under Paragraph (c) as to whether any PCRE and/or mitigation measure has 

been included or fully satisfied or will be included or fully satisfied by the measures 

proposed by Declarant, Declarant shall have the right to appeal such matter to the Deputy 

Mayor of Planning and Economic Development, or any successor Deputy Mayor, and to 

seek resolution within forty-five ( 45) days of Declarant's appeal thereto. 

ARTICLE IV 

EFFECTIVE DATE; CANCELLATION; AMENDMENT OR MODIFICATION OF THIS 

DECLARATION 

4.01 Effectiveness of Declaration. 

This Declaration and the provisions and covenants hereof shall become effective upon the 

Effective Date. 

4.02 Recording. 

Promptly, and no later than ten (10) business days after the Effective Date, Declarant shall file 

and record this Declaration and any related waivers executed by Mortgagees or other Parties-inInterest, in the Office of the New York City Register for New York County (the "Register's 

Office"), indexing them against the Subject Property, and deliver to DCP within ten ( 10) days of 

the date of any such submission for recording, a copy of such documents as submitted for 

recording (the "Recording Documents"), together with an affidavit of submission for 

recordation, recording and endorsement cover pages for each document submitted for recording 

and recording payment receipts. Declarant shall deliver to DCP a copy of all Recording 

Documents, as recorded, certified by the Register's Office, promptly upon receipt of such 

documents. If Declarant fails to record the Recording Documents .• then the City may record 

duplicate originals of the Recording Documents; however, all fees paid or payable for the 

purpose of recording the Recording Documents and obtaining certified copies thereof, whether 

undertaken by Declarant or by the City, shall be borne by Declarant. 

4.03 Cancellation. 

Notwithstanding anything to the contrary contained in this Declaration, if the Approvals are 

declared invalid or otherwise voided by a final judgment of any court of competent jurisdiction 

55 

US\CHERKMA\9347934.2 
from which no. appeal can be taken or for which no appeal has been taken within the applicable 

statutory period provided for such appeal, then, upon entry of said judgment or the expiration of 

the applicable statutory period for such appeal, this Declaration shall be cancelled and shall be of 

no further force or effect and an instrument discharging them may be recorded. Prior to the 

recordation of such instrument, Declarant shall notify the Chair of Declarant's intent to cancel 

and terminate this Declaration and request the Chair's approval, which approval shall be limited 

to insuring that such cancellation and termination is in proper form and that any provisions of 

this Declaration necessary to protect the environment with respect to any work performed as of 

the date of cancellation survive such termination. The Chair shall respond to such notice and 

request within thirty (30) days of receipt by the Chair of such notice, and the failure of the Chair 

to respond within such thirty (30) day period shall be deemed an approval by the Chair of the 

cancellation of the Declaration. Upon recordation of such instrument, Declarant shall provide a 

copy thereof certified by the Register's Office to the CPC. Notwithstanding the foregoing, the 

MT A may terminate this Declaration in accordance with Paragraph 4 of the consent attached as 

Exhibit C-1 to this Declaration. 

4.04 Modification and Amendment. 

(a) This Declaration may be amended or modified (other than pursuant to Section 4.04(b) 

hereof) only upon application by Declarant, with the express written approval of the CPC 

or an agency succeeding to the CPC's jurisdiction. No other approval or consent shall be 

required from any public body, private person or legal entity of any kind, including, 

without limitation, any other present Party-in-Interest or future Pmty-in-Interest who is 

not a Successor Declarant, except that: (i) Sections 6.04 and 6.08 (in the case of Section 

6.08, insofar as such Section relates to the MTA) of this Declaration shall not be 

modified in any respect without the prior written consent of the MTA; and (ii) Sections 

2.01, 2.02(a)-(e) and (h), 2.04, 3.04(a)-(c), 4.04(a), and 6.01 shall not be modified so as 

to diminish or alter the obligations of Declarant thereunder in any respect without the 

approval of the City Council. In the event that at any time Declarant or a Successor 

Declarant does not have an interest in a portion of the Subject Property, this Declaration 

may be amended with respect to such portion of the Subject Property upon application by 

MTA, subject to the applicable provisions of this Section 4.04. 

(b) Notwithstanding the provisions of Section 4.04(a), any change to this Declaration that the 

Chair deems to be a minor modification may be approved administratively by the Chair 

and no other approval or consent shall be required from any public body, private person 

or legal entity of any kind (other than Declarant), including, without limitation, any 

present or future Party-in-Interest who is not a Successor Declarant, except that: (a) 

Sections 6.04 and 6.08 (in the case of Section 6.08, insofar as such Section relates to the 

MT A) of this Declaration shall not be modified in any respect without the prior written 

consent of the MTA; and (b) a modification to a PCRE or Mitigation Measure shall not 

be deemed a minor modification unless DCP detennines that such modification may be 

made without diminishment of the environmental standards which would be achieved by 

implementation of the PCRE or Mitigation Measure. Minor modifications shall not be 

deemed amendments requiring the approval of the CPC. 

56 

US\CHERKMA \934 7934.2 
(c) Any modification or amendment of this Declaration shall be executed and recorded in the 

same manner as this Declaration. Declarant shall record any such modification or 

amendment immediately after approval or consent has been granted pursuant to Section 

4.04(a) or (b) above, as applicable, and provide an executed and certified true copy 

thereof to CPC and, upon Declarant's failure to so record, permit its recording by CPC at 

the cost and expense of Declarant. 

(d) For so long as Declarant has an interest in the Subject Property or any portion thereof, all 

Parties-in-Interest (other than Declarant) and their heirs, successors, assigns and legal 

representatives hereby irrevocably (i) consent to any modification, amendment, 

cancellation, revision or other change in this Declaration, (ii) waive any rights they may 

have to enter into an amended Declaration or other instrument modifying, cancelling, 

revising or otherwise changing this Declaration, and (iii) nominate, constitute and appoint 

Declarant their true and lawful attorney-in-fact, coupled with an interest, to execute any 

documents or instruments of any kind that may hereafter be required to modify, amend, 

cancel, revise or otherwise change this Declaration or to evidence such Party-in-Interest's 

consent or waiver of rights. Notwithstanding the foregoing, Sections 6.04 and 6.08 of this 

Declaration (in the case of Section 6.08, insofar as such Section relates to the MT A) shall 

not be modified in any respect without the prior written consent of the MT A. 

5.0l Default. 

ARTICLE V 

COMPLIANCE; DEFAULTS; REMEDIES 

Except as otherwise provided in Sections 3.07 and 5.02 of this Declaration, if Declarant fails to 

observe any of the terms or conditions of this Declaration, the Chair shall give Declarant and any 

Mortgagees of whom the City has received notice in accordance with Section 6.07 hereof written 

notice of such alleged violation, and upon receipt of such notice Declarant shall within forty-five 

( 45) days thereof either (i) effect a cure of such alleged violation, or commence a cure if the 

violation is not capable of cure within such forty-five ( 45) day period, or (ii) demonstrate to the 

City why the alleged violation has not occurred. If Declarant and/or Mortgagee commences to 

effect such cure within such forty-five ( 45) business day period (or if cure is not capable of being 

commenced within such forty-five (45) business day period, Declarant and/or Mortgagee 

commences to effect such cure when such commencement is reasonably possible), and thereafter 

proceeds diligently toward the effectuation of such cure, the aforesaid forty-five ( 45) day period 

(as such may be extended in accordance with the preceding clause) shall be extended for so long 

as Declarant and/or Mortgagee continues to proceed diligently with the effectuation of such cure. 

If more than one Declarant and Mortgagee exists at any time on the Subject Property, notice 

shall be provided to all Declarants and Mortgagees from whom the City has received notice in 

accordance with Section 6.07 hereof, and the right to cure shall apply equally to all Declarants 

and Mortgagees. If, after the notification procedures set forth above, Declarant and/or Mortgagee 

fails to cure such alleged violation of Declarant's obligations under this Declaration, the City 

shall have the right to exercise any remedy available at law or in equity or by way of 

administrative enforcement to obtain or compel Declarant's performance under this Declaration 

and may decline to approve and may disapprove any amendment, modification or cancellation of 

this Declaration on the sole ground that Declarant is in default under this Declaration. The time 

57 

US\CHERKMA \934 7934.2 
period for curing any violation by Declarant and/or Mo1tgagee shall be subject to extension for 

Uncontrollable Circumstances pursuant to Section 5.05 of this Declaration. 

5.02 Denial of Public Access. 

Notwithstanding any provisions of Sections 5.0 I of this Declaration to the contrary, in the event 

of a denial of public access to a Public Access Area of an on-going nature in violation of the 

Public Access Easement established under Section 2.02(a) of this Declaration, Declarant shall 

have the opportunity to effect a cure within twenty four (24) hours after receipt of notice thereof 

from the Chair. If such denial of access continues beyond such period, the City may thereupon 

exercise any and all of its rights hereunder, including seeking a mandatory injunction. In 

addition, if the City has reason to believe that the use and enjoyment of a Public Access Area by 

any member of the public has been denied by Declarant, the City may treat the denial of access 

as a violation of the Zoning Resolution and seek civil penalties at the Environmental Control 

Board for the violation relating to privately owned public space. 

5.03 Benefits to Subject Property and City. 

Except to the extent otherwise explicitly provided herein, this Declaration is for the benefit of the 

City and Declarant only and creates no enforceable interest or rights in any third person or entity, 

other than the express rights granted herein to MT A. The City, acting through the agencies 

described in this Declaration, shall be deemed to be the only entity with standing to enforce the 

provisions of this Declaration against Declarant, and nothing herein contained shall be deemed to 

confer upon any other person or entity, public or private, any interest or right in enforcement of 

any provision of this Declaration against Declarant or any document or instrument executed or 

delivered in connection with the Applications, including any claim by any public or private 

landowner to be the beneficiary of any privileges of access appurtenant to lands adjoining the 

Subject Property which could or might be affected by enforcement of the provisions of this 

Declaration. Declarant acknowledges that the restrictions, covenants and obligations of this 

Declaration will protect the value and desirability of the Subject Property and benefit the City, 

and consents to enforcement by the City, administratively, at law or equity, of the covenants, 

obligations, conditions and restrictions contained herein. 

5.04 Indemnification of Certain City Expenses. 

If Declarant is found by a court of competent jurisdiction to have been in default and such 

finding is upheld on final appeal, or the time for further review of such finding on appeal or by 

other proceeding has lapsed, Declarant shall indemnify and hold harmless the City from and 

against all of its reasonable legal and administrative expenses arising out of or in connection with 

the enforcement of such Obligation 

5.05 Uncontrollable Circumstances. 

(a) In the event that, as the result of Uncontrollable Circumstances, Declarant is unable to 

perform or complete any requirement of this Declaration (an "Obligation") (i) at the time 

or times required by this Declaration; (ii) at the date set forth in this Declaration for such 

action, if a specific date for such requirement is set forth herein; or (iii) prior to 

submitting an application for a New Building Pennit or other permit or certificate of 

58 

l.JS\CHERKMA \934 7934.2 
occupancy (TCO or PCO) which is tied to the completion of such requirement, where 

applicable, Declarant shall promptly after the occurrence of Uncontrollable 

Circumstances becomes apparent so notify the Chair in writing. Such notice (the "Delay 

Notice") shall include a description of the Uncontrollable Circumstances, and, if known 

to Declarant, their cause and probable duration. In the exercise of his or her reasonable 

judgment the Chair shall, within thirty (30) days of its receipt of the Delay Notice (i) 

certify in writing that the Uncontrollable Circumstances have occurred; or (ii) notify 

Declarant that it does not reasonably believe that the Uncontrollable Circumstances have 

occurred. Upon a certification that Uncontrollable Circumstances have occurred, the 

Chair may grant Declarant appropriate relief and, as a condition thereto, may require that 

Declarant post a bond, letter of credit or other reasonable security in a form reasonably 

acceptable to the City in order to ensure that the Obligation will be completed in 

accordance with the provisions of this Declaration. 

(b) Any delay caused as the result of Uncontrollable Circumstances shall be deemed to 

continue only as long as the Uncontrollable Circumstances continue. Upon cessation of 

the Uncontrollable Circumstance causing such delay, Declarant shall promptly 

recommence the work or implement the measure needed to complete the Obligation, in 

accordance with any applicable directive of the Chair previously issued in connection 

with a grant of relief, unless an alternative has been specified and agreed to in accordance 

with this Section 5.05 

ARTICLE VI 

MISCELLANEOUS 

6.01 Construction Consultation Process Committee and Liaison. 

Declarant shall participate in a construction consultation process (the "CPP"), as described 

below, if the Borough President of the Borough of Manhattan and/or Community Board 4, 

Manhattan, shall hereafter elect to conduct such process. If such a CCP Committee (the 

"Committee") is hereafter established, the Declarant shall designate an individual as a liaison 

("Liaison") to the Committee before Construction Commencement. Upon request of the 

Committee, and beginning at the time of issuance of the first Foundation Pem1it for a New 

Building on the Subject Property, the Liaison shall address, on a regular basis, the questions and 

concerns of the Committee about construction related issues. The Liaison and the Declarant 

shall, in good faith and promptly, work with the Committee and others, if necessary, to address 

such questions and concerns, as appropriate. Declarant's obligations hereunder shall expire when 

TCOs have been issued for all New Buildings on the Subject Property. The Committee shall in 

addition be provided with the quarterly reports prepared by the Independent Monitor appointed 

pursuant to Section 3.07 of this Declaration, and such Independent Monitor shall liaise with the 

Committee as specified therein. 

6.02 Incorporation by Reference. 

All exhibits, appendices or attachments referenced in this Declaration are incorporated by 

reference herein and made an integral part of this Declaration. 

59 

US\CHERKMA \934 7934.2 
6.03 Binding Effect. 

The provisions of this Declaration shall be considered covenants running with the Subject 

Property and shall inure to the benefit of and be binding upon Declarant and all heirs, successors, 

legal representatives, assigns, sublessees and mortgagees of Declarant's interest or any portion 

thereof in the Subject Prope1ty. Subject to Section 6.04 of this Declaration, the obligations 

contained in this Declaration shall be binding upon Declarant and any other individual or entity, 

for the period during which Declarant or such other individual or entity is the holder of a fee or 

other interest in the Subject Prope1ty and only to the extent of its interest in the Subject Property 

and upon the sale, transfer, assignment or conveyance (each, a "Disposition") of the Declarant's 

interest in the Subject Prope1ty or a portion of such interest, Declarant shall be released from and 

have no further obligations with respect to this Declaration or any covenant, obligation or 

indemnity unde1taken, provided or given hereunder as to the entire Subject Property (upon 

Disposition of Declarant's interest in the entire Subject Property) or (in the case of a Disposition 

of a portion of the Property), as to such portion(s ). 

Declarant, and any Successor Declarant, for so long as Declarant and/or Successor Declarant is 

(i) the lessee under a ground or net lease from MT A of all or any portion of the Subject Property 

and/or (ii) the owner in fee of all or any portion of the Subject Property, shall be solely 

responsible for satisfying the obligations of Declarant set forth in this Declaration. In no event 

shall MT A have any responsibility or liability for the obligations of Declarant as set forth in this 

Declaration, nor shall MTA be deemed a Successor Declarant for purposes of this Declaration, 

nor shall MTA's interest in the Subject Property or in the Yards Parcel (as defined and described 

in the Declaration of Easements) be subject to levy, execution or other enforcement procedure 

for the satisfaction of the remedies of the City or of any other party or person under or with 

respect to this Declaration. In the event that at any time that MT A shall be the fee owner of all or 

a portion of the Subject Property and there shall cease to exist a ground or net lease of such 

portion of the Subject Property, MTA shall not be obligated to perform or otherwise be liable for 

the obligations of Declarant as set forth in this Declaration, but any disposition by MT A to a 

party which is not affiliated with MT A ("Subsequent MT A Transferee"), by sale or lease or 

otherwise, of such po1tion of the Subject Property shall be subject to the terms of this 

Declaration, and such a Subsequent MTA Transferee shall be deemed a Successor Declarant 

with respect to such portion of the Facility Airspace Parcel. Notwithstanding the foregoing, a 

Subsequent MTA Transferee shall have no liability for, nor shall the rights of a Subsequent MTA 

Transferee to obtain a building permit, ce1tificate of occupancy, or otherwise to use, develop and 

occupy its portion of the Subject Property pursuant to this Declaration be impaired by any 

default under this Declaration by Declarant or a Successor Declarant on any other portion of the 

Subject Property, 

6.05 Laws of the State of New York. 

This Declaration shall be governed by and construed in accordance with the laws of the State of 

New York. 

60 

l.JS\CHERKMA \934 7934.2 
6.06 Severability. 

In the event that any provision of this Declaration shall be deemed, decreed, adjudged or 

detennined to be invalid or unlawful by a court of competent jurisdiction, such provision shall be 

severed and the remainder of this Declaration shall continue to be of full force and effect. 

6.07 Notices. 

All notices, demands, requests, consents, approvals, and other communications (each, a 

"Notice") which may be or are pe1mitted, desirable, or required to be given under this 

Declaration shall be in writing and shall be sent or delivered as follows: 

(a) lfto Declarant: to do The Related Companies, L.P., 60 Columbus Circle, New 

York, N.Y. 10023, New York, New York 10023, Attention: Jay Cross, with a 

copy to Fried Frank Harris Shriver & Jacobson LLP, One New York Plaza, New 

York, New York 10004, Attention: Melanie Meyers, Esq.; 

(b) If to the City, DCP or the Chair, Attention: Office of the General Counsel, NYC 

Department of City Planning, 22 Reade Street, New York, New York 10007 (or 

the then official address); and 

( c) If intended for a Mortgagee, by mailing or delivery to such Mortgagee at the 

address given in its notice to DCP. 

Declarant, the City, DCP, the Chair and any Mortgagee may, by notice provided in accordance 

with this Section 6.07, change any name or address for purposes of this Declaration. In order to 

be deemed effective any Notice shall be sent or delivered in at least one of the following 

manners: (a) sent by registered or certified mail, postage pre-paid, return receipt requested, in 

which case the Notice shall he deemed delivered for all purposes hereunder five days after 

mailing; (b) sent by overnight courier service, in which case the Notice shall be deemed 

delivered for all purposes hereunder one business day after placed under the control of the 

delivery service, provided that a receipt for the delivery is obtained, or (c) delivered by hand, in 

which case the Notice will be deemed delivered for all purposes hereunder on the date the Notice 

was actually received. In the event that there is more than one Declarant at any time, any Notice 

from the City or the CPC shall be provided to all Declarants of whom CPC has notice. 

6.08 Limitation of Liability. 

Notwithstanding anything to the contrary contained in this Declaration, the City will look solely 

to the estate and interest of Declarant, or its successors and assigns or the subsequent holders of 

any interest in the Subject Property (but excluding MT A and its interest in the Subject Property), 

to the extent of their respective interests in the Subject Property, for the collection of any 

judgment or the enforcement of any remedy based upon any breach by any such pa1ty of any of 

the terms, covenants or conditions of this Declaration. No other property of any such party or its 

principals, disclosed or undisclosed, or its trustees, partners, shareholders, directors, officers or 

employees, or said successors, assigns and holders, shall be subject to levy, execution or other 

enforcement procedure for the satisfaction of the remedies of the City or of any other party or 

person under or with respect to this Declaration, and no such party shall have any personal 

61 

US\CHERKMA \934 7934.2 
liability under this Declaration. In the event Declarant shall hereafter sell one or more Sites to a 

third party and the City shall, prior to such sale, obtain a judgment against Declarant, the City 

shall look only to the estate and interest of the Declarant in the portions of the Subject Property 

still owned by such Declarant at the time of levy, execution or other enforcement procedure for 

the satisfaction of the City's remedies and shall not pursue such remedies against the portion of 

the Subject Prope1ty that has been sold. In the event that any building in the Development is 

subject to a declaration of condominium, every condominium unit shall be subject to levy or 

execution for the satisfaction of any monetary remedies of the City solely to the extent of each 

Unit Owner's Individual Assessment Interest. The "Individual Assessment Interest" shall mean 

the Unit Owner's percentage interest in the common elements of the condominium in which such 

condominium unit is located applied to the total assessment imposed by the Board of Managers 

or other governing body of the condominium in which such condominium unit is located. In the 

event of a default in the obligations of the condominium, the City shall have a lien upon the 

property owned by each Unit Owner solely to the extent of each such Unit Owners' unpaid 

Individual Assessment Interest, which lien shall include such Unit Owner's obligation for the 

costs of collection of such Unit Owners' unpaid Individual Assessment Interest. Such lien shall 

be subordinate to the lien of any prior recorded mortgage in respect of such property given to a 

bank or other institutional lender (including but not limited to a governmental agency), the lien 

of any real property taxes, and the lien of the Board of Managers of any such condominium for 

unpaid common charges of the condominium. The City agrees that, prior to enforcing its rights 

against a Unit Owner, the City shall first attempt to enforce its rights under this Declaration 

against the Declarant, and the Board of Managers of any condominium association. In the event 

that a condominium shall default in its obligations under this Declaration, the City shall have the 

right to obtain from the Board of Managers of any condominium association, the names of the 

Unit Owners who have not paid their Individual Assessment Interests. Notwithstanding the 

foregoing, nothing herein shall be deemed to preclude, qualify, limit or prevent the City's 

exercise of any of its governmental rights, powers or remedies, including, without limitation, 

with respect to the satisfaction of the remedies of the City, under any laws, statutes, codes or 

ordinances. 

6.09 Parties-in-Interest. 

Any and all mortgages or other liens encumbering the Subject Property after the recording date 

of this Declaration shall be subject and subordinate hereto as provided herein. Notwithstanding 

anything to the contrary contained in this Declaration, if a portion of the Subject Property is held 

in condominium ownership, the board of managers of the condominium association shall be 

deemed to be the sole Party-in-Interest with respect to the premises held in condominium 

ownership, and the owner of any unit in such condominium, the holder of a lien encumbering 

any such condominium unit, and the holder of any other occupancy or other interest in such 

condominium unit shall not be deemed to be a Party-in-Interest. 

6.10 Applications. 

Declarant shall include or shall cause a copy of this Declaration to be included as part of any 

application pertinent to the construction, improvement, operation or maintenance of the Subject 

Property or the development of any of the sites on the Subject Property to which the provisions 

of this Declaration are applicable, submitted to any governmental agency or depa1tment having 

62 

US\CHERKMA \934 7934.2 
jurisdiction over the Subject Prope1ty, including, without limitation, DEC, DOB and DEP. ff 

Declarant files any application with the Attorney General of the State of New York to subdivide 

the Subject Prope1ty, or any portion of the Subject Property, Declarant shall include in any 

written or printed offering materials associated with the offer to sell interests in such 

condominium or other association (including, without limitation, an offering plan, prospectus or 

no action letter), a true copy of this Declaration or a complete and accurate summary of the 

material terms hereof, except as otherwise directed by the Attorney General, and shall otherwise 

ensure that all terms of the offering are consistent with the terms of this Declaration. 

6.11 Right to Convey. 

Nothing contained herein shall be construed as requiring the consent of the DCP, CPC, the city 

or any agency thereof, or of any other person or entity, to any sale, transfer, conveyance, 

mortgage, lease or assignment of any direct or indirect interest of Declarant in the Subject 

Property. 

6.12 Yards Parcel Not Subject to Declaration. 

In no event shall the Subject Property mean or include the Yards Parcel, or any portion thereof, 

as de.fined and described in the Declaration of Easements. 

[Balance of Page lntentionalJy Left Blank] 

63 

US\CHERKMA \934 7934.2 
WRY TENANT LLC, a Delaware limited liability 

company 

By: 

Na 

STATEOFNEWYORK ) 

) ss.: 

COUNTY OF NEW YORK ) 1 1 

On the \ of in the year 2014, before me, the undersigned, a NoJary 

Public in and for said State, personally appeared L , personally 

known to me or proved to me on the basis of satisfactory evlence to be the individual(s) whose 

name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they 

executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the 

instrument, the individual(s), or the person upon behalf of which the individual(s) acted, 

executed the instrument. 

ALLISON EGGLESTON 

NOTARY PUBLIC-STATE OF NEW YORK 

No. 01EG6103706 

Qualified In Suffolk County 

My Commission Expires January 06, 2016 

Signature Page to WRY Restrictive Declaration 
LIST OF EXHlBITS 

Exhibit A: Metes and Bounds Description of Subject Property 

Exhibit B: Certification of Parties-in-Interest 

Exhibit C-1: Consent to Execution of Restrictive Declaration and Agreement to Subordinate 

Future Fee Encumbrances 

Exhibit C-2: Waiver and Subordination 

Exhibit D: LEED Credit Categories 

Exhibit E: Maintenance and Repair of Public Access Areas 

Exhibit F: Rules and Regulations for Public Use of Publicly Accessible Open Space 

Exhibit G: SCA Letter of Intent 

Exhibit H: Declarant: Traffic and Pedestrian Mitigation Measures 

Exhibit I: City: Traffic and Pedestrian Mitigation Measures 

US\CHERKMA \934 7934.2 
.EXHIBIT A - METES AND BOUNDS DESCRIPTION OF THE SUBJECT PROPERTY 

Facilitv Airspace Parcel: Airspace Above Lower Limiting Plane 

All of the airspace above a lower limiting plane of 40.55 feet (Manhattan Borough Datum) 

within the following horizontal boundary: 

Beginning at a point formed by the intersection of the southerly line of West 33rd Street (60' 

R.O.W.) and the easterly line of Twelfth Avenue (R.O.W. varies); running thence 

I. Along said southerly line of West 33rd Street, South 89°56'53" East, a distance of 800.00 

feet to a point formed by the intersection of said southerly line of West 33" Street and the 

westerly line of Eleventh Avenue (JOO' R.O. W.); thence 

2. Along said westerly line of Eleventh Avenue, South 00°03'07" West, a distance of 538.26 

feet to a point; thence 

3. Leaving Eleventh Avenue, North 89°49'42" West, a distance of 439.40 feet to a point; 

thence 

4. North 69°32'56" West, a distance of 61.90 feet to a point; thence 

5. North 89°57'45" West, a distance of302.58 feet to a point on the said easterly line of 

Twelfth A venue; thence 

6. Along said easterly line of Twelfth Avenue, North 00°03'07" East, a distance of 515.85 

feet to the Point of Beginning. 

Encompassing an area of 422,936 S.F./9.709 acres, more or less. 

Facility Airspace Parcel: Terra Pinna Parcel 

All that certain plot, piece or parcel of land, situate, lying and being in the Borough of 

Manhattan, County, City and State of New York, bounded and described as follows: 

Beginning at a point formed by the intersection of the n01therly line of West 30th Street ( 60' 

R.0.W.) and the easterly line of Twelfth Avenue (R.O.W. varies); running thence 

1. Along said easterly line of Twelfth Avenue, North 00°03'07" East, a distance of 196.65 

feet to a point; thence 

2. Leaving Twelfth Avenue, South 89°57'45" East, a distance of 302.58 feet to a point; 

thence 

3. South 69°32'56" East, a distance of 61.90 feet to a point; thence 

A-1 

US\CHERKMA \934 7934.2 
4. South 89°49'42" East, a distance of 439 .40 feet to a point on the westerly line of Eleventh 

Avenue (100' R.O.W.); thence 

5. Along said westerly line of Eleventh Avenue, South 00°03'07" West, a distance of 174.24 

feet to a point formed by the intersection of said westerly line of Eleventh A venue and 

the aforementioned northerly line of West 30th Street; thence 

6. Along said northerly line of west 30th Street, North 89°56'53" West, a distance of 800.00 

feet to the Point of Beginning. 

Encompassing an area of 147,064 S.F./3.376 acres, more or less. 

A-2 

US\CHERKM A \9 34 79 34 .2 
EXHIBIT B - CERTlFICATION OF PARTIES-IN-INTEREST 

B-1 

l.JS\CHERKMA \934 7934.2 
ZONING LOT EXHIBIT I File No. 905167 page one 

N.B. # _____ _ 

EXHIBIT "I" 

CERTIFICATION PURSUANT TO ZONING LOT 

SUBDIVISION C OF SECTION 12-10 

or 

ALT.# ____ _ 

OF THE ZONING RESOLUTION OF DECEMBER 15, 1961 

OF THE CITY OF NEW YORK AS AMENDED 

EFFECTIVE AUGUST 18, 1977 

ROYAL ABSTRACT OF NEW YORK LLC, an abstract company licensed to do business in the State of New York 

and having its principal office at 500 Fifth Avenue, New York, New York, hereby certifies that as to the land hereafter 

described being a tract of land, either unsubdivided or consisting of two or more lots of record, contiguous for a minimum 

of ten linear feet, located within a single block and that the parties of interest constituting a "party of interest" as defined 

in Section 12-10, subdivision (c) of the Zoning Resolution of the City of New York, effective December 15, 1961, as 

amended, are the following: 

NAME AND ADDRESS 

1) Metropolitan Transportation Authority 

347 Madison Avenue 

New York, New York 10017 

2) WRY Tenant, LLC 

c /o the Related Companies, L.P. 

60 Columbus Circle 

New York, NY 10023 

NATURE OF INTEREST 

Fee Owner 

Lessee 

The subject tract of land with respect to which the foregoing parties are the parties in interest as aforesaid, is known as 

Block 676 Lot 3 on the Tax Map of the City of New York, New York County, and more particularly described as follows: 
ZONING LOT EXHIBIT I File No. 905167 page two 

ALL THAT CERTAIN plot, piece or parcel ofland, situate, lying and being in the Borough of Manhattan, City, County 

and State of New York, bounded and described as follows: 

Airspace Above a Plane Parcel: 

All of the airspace above a lower limiting plane of 40.55 feet (Manhattan Borough Datum) within the following horizontal 

boundary: 

Beginning at a point formed by the intersection of the southerly side of West 33rd Street (60' R.O.W.) and the easterly side 

of Twelfth Avenue (R.O.W. varies); running thence 

1. Along said West 33rd Street, South 89 degrees 56 minutes 53 seconds East, a distance of 800.00 feet to a point formed 

by the intersection of said West 33rd Street and the westerly line of Eleventh Avenue (100' R.O.W.); thence 

2. Along the westerly line of Eleventh Avenue, South 00 degrees 03 minutes 07 seconds West, a distance of 538.26 feet 

to a point; thence 

3. North 89 degrees 49 minutes 42 seconds West, a distance of 439.40 feet to a point; thence 

4. North 69 degrees 32 minutes 56 seconds West, a distance of 61.90 feet to a point; thence 

5. North 89 degrees 57 minutes 45 seconds West, a distance of 302.58 feet to a point on the said easterly side of Twelfth 

A venue; thence 

6. Along said easterly line of Twelfth Avenue, North 00 degrees 03 minutes 07 seconds East, a distance of 515.85 feet 

to the Point of Beginning. 

Terra Firina Parcel: 

Beginning at a point formed by the intersection of the northerly line of West 30th Street (60' R.O.W.) and the easterly 

line of Twelfth Avenue (R.O.W. varies); running thence 

1. Along said easterly line of Twelfth Avenue, North 00 degrees 03 minutes 07 seconds East, a distance of 196.65 feet to 

a point; thence 

2. South 89 degrees 57 minutes 45 seconds East, a distance of 302.58 feet to a point; thence 

3. South 69 degrees 3 2 minutes 5 6 Seconds East, a distance of 61.90 feet to a point; thence 

4. South 89 degrees 49 minutes 42 seconds East, a distance of 439.40 feet to a point on the westerly line of Eleventh 

Avenue (100' R.0.W.); thence 

5. Along said westerly line of Eleventh Avenue, South 00 degrees 03 minutes 07 seconds West, a distance of 174.24 feet 

to a point formed by the intersection of said westerly line of Eleventh A venue and the aforementioned northerly line 

of West 30th Street; thence 

6. Along said northerly line of West 30th Street, North 89 degrees 56 minutes 53 seconds West, a distance of 800.00 feet 

to the Point of Beginning. 
ZONING LOT EXHIBIT I File No. 905167 page three. 

That the said premises are known as and by the street address 601-659 West 30th Street a/k/a 319-379 Eleventh Avenue 

a/k/a 600-658 West 33rd Street a/k/a 280-338 Twelfth Avenue, New York, NY as shown by the following: 

DIAGRAM 

1'500 

I 

";:.:. 

"' 

0 

iJ) 

-si . 

r{ 

- "'6 r-

·-. ; 

NOTE: A Zoning Lot may or may not coincide with a lot shown of the Official Tax Map of the City of New York, or on any 

recorded subdivision plot or deed. A Zoning Lot may be subdivided into two or more zoning lots, provided all the 

resulting Zoning Lots and all the buildings· thereon shall comply with the applicable provisions of the Zoning Lot 

resolution. 
ZONJNG LOT EXHIBIT I File No. 905167 page four 

TIDS CERTIFICATE IS MADE FOR AND ACCEPTED BY THE APPLICANT UPON THE EXPRESS 

UNDERSTANDING THAT LIABILITY HEREUNDER IS LIMITED TO ONE THOUSAND ($1,000.00) DOLLARS. 

Certified: 4110/14 

STATE OF NEW YORK ) 

ss.: 

COUNTY OF NEW YORK ) 

On the 10th day of April, 2014, before me, personally appeared Mary Gleason-Kane personally known to me or proved to 

me on the basis of satisfactory evidence to the individual(s) whose name(s) is (are) subscribed to the within instrument 

and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their 

signature(s) on the instrument, the individual(s) or the person upon behalf of which the individual(s) acted, executed the 

instrument. 

, () Ki GVVJll1 t . !) 

Notary Public - Ste of New York 
EXHIBIT C-1 - CONSENT TO EXECUTION OF RESTRICTIVE DECLARATION AND AGREEMENT 

TO SUBORDINATE FUTURE FEE ENCUMBRANCES 

CONSENT TO EXECUTION OF RESTRICTIVE DECLARATION AND AGREEMENT 

TO SUBORDINATE FUTURE FEE ENCUMBRANCES 

THJS CONSENT TO EXECUTION OF RESTRICTIVE DECLARATION AND 

AGREEMENT TO SUBORDINATE FUTURE FEE ENCUMBRANCES (this "Consent") 

made this l01h day of April, 2014 by METROPOLITAN TRANSPORTATION AUTHORITY, a 

body corporate and politic constituting a public benefit corporation of the State of New York, 

having an office at 347 Madison Avenue, New York, New York 10017-3739 (the "MTA''). 

WITNESSETH: 

WHEREAS, MTA is the owner of fee title in and to certain real property located in the Borough 

of Manhattan, and the City, County and State of New York, consisting of the Facility Airspace 

Parcel, as the same is defined and described in that certain Declaration of Easements (Western 

Rail Yard Section of The John D. Caemmerer West Side Yard), dated as of May 26, 2010, made 

by MT A, as Declarant, and recorded in the Office of the City Register, New York County, at 

CRFN No. 2010041501079003 (the "Declaration of Easements"), and designated for real 

property tax purposes as Lot(s) l and 5 of Tax Block 676, and as more particularly described on 

Schedule A to this Consent (the "Subject Propertv"); 

WHEREAS, MTA has leased the Subject Property to WRY TENANT LLC (f/k/a RG WRY 

LLC, a Delaware limited liability company ("Declarant"), pursuant to a lease dated as of the date 

hereof {the "WRY Lease"), a memorandum of which is intended to be recorded in the Office of 

the City Register, New York County, immediately prior to the recordation of the Restrictive 

Declaration (as hereinafter defined); 

WHEREAS, Declarant is concurrently herewith executing a Restrictive Declaration encumbering 

its leasehold interest in the Subject Property, in the form to which this Consent is attached as an 

exhibit (the "Restrictive Declaration"; all capitalized tem1s used but not defined in this Consent 

have the respective meanings set forth in the Restrictive Declaration); 

WHEREAS, the Restrictive Declaration, which is intended to be recorded in the Office of the 

City Register, New York County, simultaneously with the recording subjects the Subject 

Property to certain restrictions, covenants, obligations, easements and agreements contained in 

the Declaration; and 

WHEREAS, the City and Declarant have requested that MT A execute and record this Consent 

with respect to the Restrictive Declaration, and MT A has agreed to do so. 

NOW, THEREFORE, MT A hereby consents and agrees as follows: 

1. MT A consents to the execution by the Declarant of the Restrictive Declaration and 

recording of the Restrictive Declaration against the Subject Property. 

C-1-1 

US\CHERKMA \934 7934.2 
2. MTA consents to be bound by, and to benefit from, the provisions of Sections 6.04, 

6.08 and 6.09 of the Restrictive Declaration, and any other provisions of the Restrictive 

Declaration which specifically reference MT A and/or LIRR. 

3. MTA agrees and acknowledges that any liens or encumbrances imposed on MTA's 

fee interest in the Subject Property following the Effective Date of the Declaration (a "MT A 

Future Lien") shall be subject and subordinate to the lien of the Declaration, and no foreclosure 

of any MT A Future Lien shall extinguish the Declaration. 

4. MT A is executing this Consent solely for the purpose of facilitating the development 

of the Subject Property by Declarant or Successor Declarant in accordance with the provisions of 

Article IX, Chapter 3 of the Zoning Resolution. If at any time (i) the WRY Lease is no longer in 

full force or effect, (ii) MTA is the sole party-in-interest (as defined in Section 12-.10 of the 

Zoning Resolution) with respect to the Subject Property, and (iii) no development or enlargement 

pursuant to Article IX, Chapter 3 of the Zoning Resolution has been constructed on the Subject 

Property, and no building permit for any development or enlargement within Subdistrict F of the 

Special Hudson Yards District is then in full force and effect, MTA shall be entitled at its sole 

discretion to terminate the Declaration with respect to the Subject Property by executing and 

recording a termination thereof, and no consent of Declarant, the City or any other person or 

entity shall be required for such termination. 

5. Nothing in this Consent shall be deemed to constitute a waiver of MTA 's rights and 

exemptions under New York law, including without limitation New York Public Authorities 

Law § 1266(8); provided that MTA acknowledges and agrees that the City may enforce the 

provisions of Article IX, Chapter 3 of the Zoning Resolution and of this Restrictive Declaration 

against Declarant and any Successor Declarants which are developing the Subject Property 

pursuant to Article IX, Section 3 of the Zoning Resolution. 

6. This Consent shall be binding upon MT A and its legal representatives, successors and 

assigns. 

[Remainder of the Page Left Intentionally Blank] 

C-1-2 

US\CHERKMA \934 7934.2 
IN WITNESS WHEREOF, the MT A has duly executed this Consent as of the date and 

year first above written. 

METROPOLITAN TRANSPORT A TI ON 

AUTHORITY 

By: 

Name: 

Title: 

C-1-3 

US\CHERKMA \934 7934.2 
ACKNOWLEDGMENT 

STATE OF NEW YORK ) 

COUNTY OF NEW YORK ) ss: 

On the __ day of in the year 20 14 before me, the undersigned, a notary public 

in and for said state, personally appeared--------------------

personally known to me or proved to me on the basis of satisfactory evidence to be the 

individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to 

me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their 

signature(s) on the instrument, the individual(s), or the person upon behalf of which the 

individual(s) acted, executed the instrument. 

C-1-4 

US\CHERKMA \934 7934.2 
Schedule A 

LEGAL DESCRIPTION OF SUBJECT PROPERTY 

Facility Airspace Parcel: Airspace AboveLower Limiting Plane 

All of the airspace above a lower limiting plane of 40.55 feet (Manhattan Borough Datum) 

within the following horizontal boundary: 

Beginning at a point formed by the intersection of the southerly line of West 33rd Street (60' 

R.O.W.) and the easterly line of Twelfth Avenue (R.0.W. varies); running thence 

I. Along said southerly line of West 33rd Street, South 89°56'53" East, a distance of 800.00 

feet to a point formed by the intersection of said southerly line of West 33" Street and the 

westerly line of Eleventh Avenue (100' R.O.W.); thence 

2. Along said westerly line of Eleventh Avenue, South 00°03'07" West, a distance of 538.26 

feet to a point; thence 

3. Leaving Eleventh Avenue, North 89°49'42" West, a distance of 439.40 feet to a point; 

thence 

4. North 69°32'56" West, a distance of 61.90 feet to a point; thence 

5. North 89°57'45" West, a distance of 302.58 feet to a point on the said easterly line of 

Twelfth A venue; thence 

6. Along said easterly line of Twelfth Avenue, No 1th 00°03'07" East, a distance of 515.85 

feet to the Point of Beginning. 

Encompassing an area of 422,936 S.F./9.709 acres, more or less. 

Facility Airspace Parcel: Terra Firma 

All that certain plot, piece or parcel of land, situate, lying and being in the Borough of 

Manhattan, County, City and State of New York, bounded and described as follows: 

Beginning at a point formed by the intersection of the northerly line of West 30th Street (60' 

R.O.W.) and the easterly line of Twelfth Avenue (R.0.W. varies); running thence 

I. Along said easterly line of Twelfth Avenue, North 00°03'07" East, a distance of 196.65 

feet to a point; thence 

C-1-5 

US\CHERKMA \934 7934.2 
2. Leaving Twelfth Avenue, South 89°57'45" East, a distance of 302.58 feet to a point; 

thence 

3. South 69°32'56" East, a distance of 61.90 feet to a point; thence 

4. South 89°49'42" East, a distance of 439.40 feet to a point on the westerly line of Eleventh 

Avenue (100' R.O.W.); thence 

5. Along said westerly line of Eleventh Avenue, South 00°03'07" West, a distance of 174.24 

feet to a point formed by the intersection of said westerly line of Eleventh A venue and 

the aforementioned northerly line of West 30th Street; thence 

6. Along said northerly line of west 30th Street, North 89°56'53" West, a distance of 800.00 

feet to the Point of Beginning. 

Encompassing an area of 147,064 S.F./3.376 acres, more or less. 

C-1-6 

US\CHERKMA\934 7934.2 
EXHIBIT C-2 - W AIYER AND SUBORDINATION 

WAIVER OF EXECUTION OF RESTRICTIVE DECLARATION 

AND SUBORDINATION OF MORTGAGE 

WA IVER OF EXECUTION OF RESTRICTIVE DECLARATION AND 

SUBORDINATION OF MORTGAGE, made this day of _____ , 200_ by 

________ , a (the "Mortgagee"), having its 

principal place of business at ---------------

WITNESSETH: 

WHEREAS, the Mortgagee is the lawful holder of that certain mortgage, dated 

(the "Mortgage") made by a 

_______ (the "Mortgagor"), in favor of the Mortgagee, in the original principal amount 

of$ , recorded in the Office of the Register/Clerk of the City of New York, 

County of on in Reel Page 

________ ;and 

WHEREAS, the Mortgage encumbers all or a portion of the property (the "Premises") 

known as Block , Lot(s) on the Tax Map of the City of New York, County of 

_____ , and more particularly described in Schedule A attached hereto and made a part 

hereof, and an.y improvements thereon (such improvements and the Premises are collectively 

refeJTed to herein as the "Subject Property"), which Subject Property is the subject of a 

restrictive declaration dated , (the "Declaration"), made by ; and 

WHEREAS, Mortgagee represents that the Mortgage represents its sole interest in the 

Subject Property; and 

WHEREAS, the Declaration, which is intended to be recorded in the Office of said 

Register/Clerk simultaneously with the recording hereof, shall subject the Subject Property and 

the sale, conveyance, transfer, assignment, lease, occupancy, mortgage and encumbrance thereof 

to certain restrictions, covenants, obligations, easements and agreements contained in the 

Declaration; and 

WHEREAS, the Mortgagee agrees, at the request of the Mortgagor, to waive its right to 

execute the Declaration and to subordinate the Mortgage to the Declaration. 

NOW, THEREFORE, the Mortgagee (i) hereby waives any rights it has to execute, and 

consents to the execution by the Morgagor of, the Declaration and (ii) hereby agrees that the 

Mortgage, any liens, operations and effects thereof, and any extensions, renewals, modifications 

and consolidations of the Mortgage, shall in all respects be subject and subordinate to the terms 

and provisions of the Declaration. 

This Waiver of Execution of Restrictive Declaration and Subordination of Mortgage shall 

be binding upon the Mortgagee and its heirs, legal representatives, successors and assigns. 

C-2-1 

US\CHERKMA \934 7934.2 
IN WITNESS WHEREOF, the Mortgagee has duly executed this Waiver of Execution of 

Restrictive Declaration and Subordination of Mortgage as of the date and year first above 

written. 

MORTGAGEE: 

By: 

Name: 

Title: 

C-2-2 

l.JS\CHERKMA \934 7934.2 
ST ATE OF NEW YORK ) 

COUNTY OF NEW YORK) ss: 

ACKNOWLEDGMENT 

On the _ day of in the year before me, the undersigned, a notary 

public in and for said state, personally appeared----------------

personally known to me or proved to me on the basis of satisfactory evidence to be the 

individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to 

me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their 

signature(s) on the instrument, the individual(s), or the person upon behalf of which the 

individual(s) acted, executed the instrument. 

C-2-3 

US\CHERKMA \934 7934.'.2 
Schedule A 

LEGAL DESCRIPTION OF SUBJECT PROPERTY 

Facility Airspace Parcel: Airspace Above Lower Limiting Plane 

All of the airspace above a lower limiting plane of 40.55 feet (Manhattan Borough Datum) 

within the following horizontal boundary: 

Beginning at a point formed by the intersection of the southerly line of West 33rd Street (60' 

R.0.W.) and the easterly line of Twelfth Avenue (R.0.W. varies); running thence 

1. Along said southerly line of West 33rd Street, South 89°56'53" East, a distance of 800.00 

feet to a point formed by the intersection of said southerly line of West 3311 Street and the 

westerly line of Eleventh Avenue (100' R.O.W.); thence 

2. Along said westerly line of Eleventh Avenue, South 00°03'0711 West, a distance of 538.26 

feet to a point; thence 

3. Leaving Eleventh Avenue, North 89°49'42" West, a distance of 439.40 feet to a point; 

thence 

4. North 69°32'56" West, a distance of 6 l.90 feet to a point; thence 

5. North 89°57'45" West, a distance of302.58 feet to a point on the said easterly line of 

Twelfth Avenue; thence 

6. Along said easterly line of Twelfth Avenue, North 00°03'0711 East, a distance of 515.85 

feet to the Point of Beginning. 

Encompassing an area of 422,936 S.F./9.709 acres, more or less. 

Facility Airspace Parcel: Terra Firma 

All that certain plot, piece or parcel of land, situate, lying and being in the Borough of 

Manhattan, County, City and State of New York, bounded and described as follows: 

Beginning at a point formed by the intersection of the northerly line of West 30th Street (60' 

R.0.W.) and the easterly line of Twelfth Avenue (R.O.W. varies); running thence 

1. Along said easterly line of Twelfth Avenue, North 00°03'0711 East, a distance of 196.65 

feet to a point; thence 

2. Leaving Twelfth Avenue, South 89°57'45" East, a distance of 302.58 feet to a point; 

thence 

3. South 69°32'56" East, a distance of 61.90 feet to a point; thence 

C-2-4 

l.JS\CHERKMA \934 7934.2 
4. South 89°49'42" East, a distance of 439.40 feet to a point on the westerly line of Eleventh 

Avenue (100' R.O.W.); thence 

5. Along said westerly line of Eleventh Avenue, South 00°03'07" West, a distance of 174.24 

feet to a point formed by the intersection of said westerly line of Eleventh Avenue and 

the aforementioned northerly line of West 30th Street; thence 

6. Along said northerly line of west 30th Street, North 89°56'53" West, a distance of800.00 

feet to the Point of Beginning. 

Encompassing an area of 147,064 S.F./3.376 acres, more or less. 

C-2-5 

US\CHER KMA \9 3 4 7934 .2 
EXHIBIT D - LEED CREDIT CATEGORIES 

GHG Credit Categories 

Optimize Energy Performance EA er. l in LEED NC v. 3.0, EA er. I in LEED 

CS V. 3.0 

Enhanced Commissioning EA er. 3 in LEED NC v. 3.0, EA er. 3 in LEED 

cs v. 3.0 

Measurement & Verification EA er. 5 in LEED NC v. 3.0, EA er. 5.1 & 5.2 

in LEED CS v. 3.0 

Recycled Content MR er. 4 in LEED NC v. 3.0, MR er. 4 in 

LEED CS v. 3.0 

Regional Materials MR er. 5 in LEED NC v. 3.0, MR er. 5 in 

LEED CS v. 3.0 

Certified Wood MR er. 7 in LEED NC v. 3.0, MR er. 6 in 

LEED CS v. 3.0 

Alternative Transportation - Low Emitting SS er. 4.3 in LEED NC v. 3.0, SS er. 4.3 in 

and Fuel Efficient Vehicles LEED CS v. 3.0 

Water Credit Categories 

Stormwater Design- Quantity Control SS er. 6.1 in LEED NC v. 3.0, SS er. 6.1 in 

LEED CS v. 3.0 

Heat Island Effect - Non-Roof (except only Option 2 of SS er. 7.1 in LEED NC v. 3.0, 

credits achieved through means of a vegetated Option 2 of SS er. 7.1 in LEED CS v. 3.0 

green roof) 

Heat Island Effect - Roof (except only credits Option 2 of SS er. 7.2 in LEED NC v. 3.0, 

achieved through means of a vegetated roof Option 2 of SS er. 7.2 in LEED CS v. 3.0 

that covers at least 50% of the roof area) 

Water Efficient Landscaping WE er. 1 in LEED NC v. 3.0, WE er. l in 

LEED CS v. 3.0 

Innovative Wastewater Technologies WE er. 2 in LEED NC v. 3.0, WE er. 2 in 

LEED CS v. 3.0 

Water Use Reduction WE er. 3 in LEED NC v. 3.0, WE er. 3 in 

LEED CS v. 3.0 

D-1 

US\CHERKMA \934 7934.2 
EXHIBIT E - MAlNTENANCE AND REPAIR OF PUBLIC ACCESS AREAS 

A. Publicly Accessible Open Space Maintenance and Repair Work 

Declarant shall be responsible for the following maintenance and repair activities. 

1. Cleaning. 

(a) Dirt, litter and obstructions shall be removed as needed and trash and 

leaves collected and removed as needed so as to maintain the Publicly Accessible 

Open Space in a clean, neat and good condition. 

(b) All walkways, sidewalks and all other improvements and facilities 

installed in the Publicly Accessible Open Space shall be routinely cleaned and 

maintained so as to keep such improvements and facilities in a clean, neat and 

good condition. 

(c) Graffiti shall be regularly and promptly painted over or removed as 

appropriate to the nature of the surface. 

(d) Drains, sewers and catch basins shall be cleaned regularly to prevent 

clogging. 

(e) Branches and trees damaged or felled by winds, ice, vandalism, or by any 

other reasons whatsoever, shall be promptly removed. 

2. Snow Removal. Snow and ice shall be removed from all walkways so as not to 

interfere with safe passage in a prompt fashion, and from all other paved surfaces used 

for pedestrian movement within twenty-four (24) hours after each snowfall or 

accumulation of ice. 

3. Landscape Maintenance. A maintenance program for the planted portions of the 

Publicly Accessible Open Space shall be implemented consisting of a ''Spring Start-up 

Period" program, a "Season Closing Period" program, and a continuing maintenance 

program through the "Growing Season". 

(a) Spring Start-up Period: The Spring Start-up Period shall commence on March 

I st and terminate not later than the end of the fourth week of April of each 

calendar year. Declarant shall complete the following work annually during the 

Spring Start-up Period: 

(i) Remove any winter protectives from trees, shrubs and other 

planting materials. 

(ii) Remove all landscape debris including leaves and dead branches. 

(iii) Prune and trim trees as necessary to maintain natural form. 

E-1 

l.JS\CHERKMA\9347934.2 
(iv) Remove or destroy any weeds growing between paving blocks, 

pavement, cobbled and concrete areas. 

(v) Apply fertilizer to trees, shrubs, plants and other lawn areas, as 

appropriate. 

(vi) Remove any sand deposited as a result of winter sandings. 

(vii) Replace any plant material or trees that are dead, diseased and/or 

otherwise unhealthy with healthy specimens of substantially equal type 

and reasonable size. 

(viii) Reseed grass areas as needed. 

(b) Season Closing Period: The Season Closing Period shall begin not later than 

October 15th and shall terminate not later than November 30th of each calendar 

year. Declarant shall undertake and complete the following work annually during 

the Season Closing Period: 

(i) Rake and collect leaves. 

(ii) Wrap trees, shrubs and other plant material as necessary to ensure 

adequate winter protection. 

(iii) Apply fertilizer to all lawn areas as needed. 

(iv) Reseed grass areas as needed. 

(c) Growing Season: The Growing Season shall commence with the 

commencement of the Spring Start-up Period and shall terminate at the end of the 

Season Closing Period. Declarant shall undertake and carry out the following 

work during the Growing Season: 

(i) Inspect trees on a regular basis and spray when necessary. 

(ii) Water all trees, shrubs, plantings and grass areas as necessary to 

maintain in a healthy condition. In extended periods of drought, i.e. little 

precipitation/high temperatures for more than one week, ground cover, 

trees, shrubs and other plantings shall be thoroughly watered, subject to 

any City or State regulations governing water usage. 

(iii) Mow lawn areas on a not less than bi-weekly basis and reseed as 

needed. 

(iv) Weed as needed, no less than on a bi-weekly basis. 

4. Repairs and Replacement. Repair and replacement of all facilities within the Publicly 

Accessible Open Space shall be performed as needed to maintain such facilities in good 

E-2 

US\CHERKM A \934 7934.2 
order and working condition. Declarant shall exercise due diligence in commencing the 

repair or replacement of same as promptly as possible and shall complete the same within 

a reasonably expeditious time after commencement. All repairs and replacements shall be 

performed so as to be substantially compliant with the Site and Landscape Plan approved 

for the Publicly Accessible Open Space under Section 93-78 of the Zoning Resolution. 

Repairs shall include, but not be limited to, the following, as applicable to the facilities in 

the Publicly Accessible Open Space: 

(a) Benches or Other Seating: Undertake all maintenance, including 

replacement of any broken or missing slats and painting, as necessary. 

(b) Walls, Barriers and/or Fencing: Any broken or materially cracked walls, 

barriers and/or fencing shall be repaired or removed and replaced. 

(c) Paving: All paved smfaces shall be maintained so as to be safe and 

attractive. 

(d) Signage: All graphics shall be maintained in a first class condition and all 

vandalized or damaged signage shall be promptly cleaned or replaced with new 

signage to match other installed signs. 

( e) Painting: All items with painted surfaces shall be painted on an "as 

needed" basis. Surfaces shall be scraped free of rust or other extraneous matter 

and painted. 

(g) Plant Materials and Trees: Plant materials and trees that are dead, diseased 

and/or otherwise unhealthy shall be replaced with healthy specimens of 

substantially equal type and of reasonable size. 

(h) Construction Defects & Hazardous Conditions: Declarant shall 

periodically inspect the Publicly Accessible Open Space for construction defects 

and hazardous conditions, shall promptly repair or replace any portion or feature 

of the Publicly Accessible Open Space that exhibits such defects or hazardous 

conditions, and shall institute appropriate measures to protect the public from 

harm, including but not limited to the erection of warning signs and temporary 

barriers, during the period ofrepair or replacement work. 

B. Maintenance and Repair of West 31st Street Extension and West 32nd Street Extensions 

1. Declarant shall maintain the street and sidewalk areas of the West 3 I St Street 

Extension and West 32nd Street Extension in a good state of repair and cleanliness, 

including but not limited to the following: 

(a) Maintaining the paved surfaces of the streets in good repair; 

(b) Maintaining street and sidewalk lights, if any, in good working order; 

E-3 

l.JS\CHERKMA \934 7934.2 
( c) Assuring that street and sidewalk lights, if any, operate during hours of 

darkness; 

(d) Replacing street and sidewalk lights, if any, when needed; 

(e) Snow plowing at such times as the accumulated snow fall so requires; and 

(f) Maintaining any required stonn and sanitary drainage systems in a clear, 

workable and efficient manner. 

E-4 

US\CHERKMA \934 7934.2 
EXHIBIT F - RULES AND REGULATIONS FOR PUBLIC USE OF PUBLICLY ACCESSIBLE OPEN 

SPACE ("PAOS") 

1. No person shall throw or deposit any litter within a PAOS. 

2. No persons shall affix or post any commercial or non-commercial handbill, poster 

or notice in or upon a PAOS, unless authorized by Declarant in writing. 

3. No person shall engage in the commercial or non-commercial distribution of 

products and/or material in or upon PAOS (other than non-commercial printed or 

similar expressive material), unless authorized by Declarant in writing. 

4. No peddler, solicitor or street vendor shall be permitted to operate within a PAOS 

unless it receives the written permission of Declarant and is in compliance with 

all applicable laws, rules and regulations of the City of New York (collectively, 

"Applicable Laws"). 

5. No persons shall drive, stop, stand or park a motor vehicle within a PAOS (except 

to the extent required for persons with disabilities or Declarant employees 

performing security, maintenance or repair work). 

6. No persons shall loiter for illegal purposes in or upon a PAOS, or conduct any 

activity that would obstruct pedestrian traffic or be detrimental or injurious to 

public safety. 

7. No person shall deface, injure, destroy, displace or carry away any property, 

structure, ornament or landscaping. 

8. No person, corporation, organization or other entity shall hold or sponsor any 

meeting, exhibition, musical, theatrical or other performance, or other scheduled 

or unscheduled event in a PAOS, unless authorized in writing by Declarant 

pursuant to the provisions of Section 2.02 of the Declaration and open to the 

public. 

9. The following shall be prohibited: 

• excessive noise, including from radio and other music playing, noxious 

odors, objectionable vibrations, or any other use constituting a nuisance; 

• nudity; 

• cooking or alcohol (other than as may be served, in accordance with 

Applicable Laws, by any restaurant or food facility located in the PAOS or 

in connection with any scheduled event authorized in accordance with 

Paragraph 9. ); 

• illegal drugs; 

F-1 

l.JS\CHERKMA \934 7934.2 
• obscenity; 

• prostitution or any other conduct for immoral purposes; 

• uses in violation of Applicable Laws; 

• use or possession of dangerous, .flammable, or combustible objects or 

materials; and 

• explosives, firearms and weapons. 

F-2 

US\CHERKMA \934 7934.2 
EXHIBIT G - SCA Letter ofintent (SEE ATTACHED) 

G-1 

US\CHERKMA\9347934.2 
October J 6, 2009 

ROWRYLLC 

c/o The Related Companies, LP 

60 Columbus Circle 

New York, New York 10023 

Attention Mr. Jay Cross 

P.01 

Re: Proposed Construction of a Public School at the · 

Western Rail Yard in Manhattan 

Dear Mr. Cross: 

Set forth below arc the basio tenns upon which RO WRY LLC or an affiliate 

proposes to enter into a School Design. Construction, Funding and 

'Purchase Agreement (the •'School Funding Agreement") with the New York City 

School Construction Authority («SCA") for construction of a public: school · 

facility serving pre-kindcrgartcn through eighth giade students at the.Western Rail 

Yard in Manhattan: · 

WESTERN RAILYARD 

SITE SCHOOL 

THE DEVELOPMENT 

The site is a ponion of the block bounded by 

30th Street to tho Twelfth Avenue to 

the west, 33rd Street to the north, and 11111 

Avenue to the such portion identified 

as Site 6 or another Site on the block if 

accepted by DOE/SCA itt accordance with 

the Restrictive Declaration, as shown in 

more detail on J!xhibit A hereto. 

Developer intends to constroet on the 

Western Rail Yard Site, subject to the 

receipt of the necessary public approvals. a 

mixed-use development comprised of 

residential, commercial. and retail uses, and, 

subject to the School Funding · 

(as defined belowh the Public School 

facility (as defined below) contemplated by 

this letter of intent (the .. Deye)QpJDCDt")-
CX::T-16-2009 09:52 LEGAL DEPT 

TJIE PUBLIC SCHOOL 

CONSTR1JCTION OF THE 

PUBLIC SCHOOL BY 

DEVELOPER 

THE CONDOMINIUM 

P.02 

The school facility will provide 

approximately 750 seats serving public 

school students in pre-kindergarten through 

eighth grade. 1'he facility shall consist of 

approximately 120,000 gross square feet 

(the '"£.ublie Public School 

will be constructed as part of the 

Development pursuant to a school program, 

including outdoor playground space on the 

site, to be developed within the reasonable 

discretion of the DOF/SCA at the 

appropriate time and provided to Developer. 

Such Public School will be an independently 

functioning facility located within the base 

of the building on Site 6 or another building, 

if accepted by DOE/SCA in accordance with 

the tenns of the Restrictive Declaration, and 

the Public School and sc;hool program wilJ 

be constructed and operated without c::ost or 

liability to Developer, except as provided 

below under" Developer Responsibility for 

Change Order and Delays" . 

Developer will complete the design of the 

Public School and perform the construction 

of the School Base Building Work and, if 

agiee<t between the parties, any School FitOut Work in accordance with the School 

Funding Agreement. SCA shall be 

responsible for the purchase and installation 

of all tumiture, fixtures and equipment and, 

if detormined between the parties, the 

School Pit-Out Work. The parties hereto 

ape that the definitions and scope of 

"School Base Building Work'' ud "School 

Fit-Oirt Work'' will be agreed to between the 

parties during the negotiation of the School 

Funding Agreement. 

Upon completion of the School Base 

Building Work or, if Developer undertakes 

the School Fit-Out Work, the School Fit-Out 

Work, Developer and SCA shall enter into a 

2 
OCT-16-2009 09:52 LEGAL DEPT 

condominium regime with respect to the 

Public School and the remainder of the 

Development as a means of conveying the 

Public School to SCA; howover, the parties 

may also consider alternative means Cs&. a 

long-term ground lease) for convoying the 

Public School to SCA in lieu of a 

condominium regime. The unit to be 

conveyed for the public school. whether 

pursuant to the condominium regime or 

otherwise, is hereinafter referred to as the 

".Public School Umt". 

PURCHASE OP PUBLIC Upon completion of the School Base 

SCHOOL UNIT Building Work and the School Fit-Out 

Work, if applicable, in accordance with the 

School Funding Agreement. Developer shall 

transfer the Public School Unit to SCA (or a 

public entity designated by SCA), for S 1.00. 

COLLADO RA TIVE DESIGN Commencing promptly aft.er execution and 

DEVELOPMENT PROCESS delivery of a School Funding Agreement 

and notice of the availability of funds 

pursuant thereto, Developer and SCA shall 

engage in a collaborative design 

development process as shall be set forth in 

the Funding AgJ'eement. 

COMPETITIVE BIDDING In the event Developer performs School fit· 

Out Work. Developer shall comply with the 

SCA 's pnx;urernent and ptequalification 

requirements,. 

SCA REIMBURSEMENT OF Upon commcncemi:mt of wodc pursuant to 

DEVELOPMENT COSTS the School Funding Agreement and 

continuing through final completion of the 

School Base Building Work, and, if 

appUcable., the School Fit-Out Work, SCA 

shall reimburse Developer in accordance 

with the School Funding Agreement for all 

costs in connection with the design and 

thereof, including without 

3 

P.03 
OCT-16-2009 09:52 LEGAL DEPT 

· SCA RESPONSmlLITY FOR 

CHANGE ORDERS AND 

DELAYS 

DEVELOPER. 

RESPONSIBILITY FOli 

CHANGE ORDER AND 

DELAYS 

· TRANSFER TAXES 

P.04 

limitation Developer's hard and soft costs of 

consttuction, through customary progress 

payments (i&., requi&itions based on 

percent.age completion, with agreed 

rctainage ). 

SCA shall be responsible for all costs of 

change orders initiated or otherwise caused 

by SCA that impact the costs of the School 

Base Building Work. and, if applicable, 

School SCA shall be 

responsible for any additional costs incurred 

by Developer bc<;ause of delays caused by 

SCA (including without limitation delays 

caused by change orders initiated or 

otherwise caused by SCA). 

DcveJoper shall be responsible for all costs 

of change orders that impact the Public 

School if, and to the extent, they are caused 

by De"leJoper changes to the scope of the 

School Based Bui14ing Work after 

commencement of construction, design 

defects that are the responsibility of the 

Development architect. or defects or 

material deviations in construction. 

Developer shall be responsible for any 

additional costs incurred by SCA directly 

related to the Public School because of 

delays caused by Developer after . 

commencement of construction (including 

without limitation delays caused by change 

orders initiated by Developer). 

Developer is proceeding upon the 

assumption that no transfer taxes will be 

payable by Developer in connection with the 

transfer of the Public Schoo) UniL 

4 
OCT-16-2009 09:52 LEGAL DEPT 

SCHOOL FUNDING 

AGREEMENT 

AV AILABJLITY OF FUNDS 

NO BROKER 

LETTER OF INTENT NOT 

BINDING 

P.0S 

Following execution of this letter of intenL 

by the parties, Developer and SCA will 

commence negotiating in good faith, a 

School Construction, Design, Funding and 

Purchase Agreement (the "School Funding 

Asreement") in form mutually acceptable to 

tho parties thereto, providing. among other 

things. for completion of the design; 

development and budgeting in 

accordance with an agreed scope; 

construction of the School Base Building 

Work and if applicable, SchooJ Fit-Out 

Work, by Developer; reimbursement by 

SCA of Developer's ¢OStS allocable to the 

Public School; transfer ot the Public School 

Unit to SCA; and such other matters as the 

partic:s may agree. 

SCA acknowledges that funds for 

development and construction of the Public 

School must be included in SCA's fiV'e year 

capital plan in order for work to begin lDlder 

the School Funding Agreement, SCA will 

furnish Developer evidence of available 

funds, prior to its commencement of work 

under the School Fwiding Agreement. 

Developer and SCA each represents and 

warrants that it bas dealt with no broker or 

finder in connection wjth this transaction. 

Bach party hereby indemnities and holds the 

other hannle.ss against any claims, cost, 

losses or liabilities (including, without 

limitation, reasonable attorney's f'ees) 

arising from a claim for a commission or 

other compensation asserted by a broker or 

finder alleging dealings with the such party 

in connection with this transaction. 

By executing this Jetter of int.ent, the parties 

are .merely expressing their interest in 

negotiating a mutually acceptable School 

Funding Agreement. Except for the 

s 
OCT-16-2009 09:53 LECR.. DEPT P.06 

immediately preceding paragraph 

concerning brokerage, neither party shall be 

bound unless and unu1 a School Funding 

Asreemcnt. with all requited consents and 

approvals, has been obtained by the parties. 

If the foregoing is consistent with your understanding. please counter-sign and 

return tho enclosed duplicate copy of this letter of intent. 

Very uvly youn. 

OL CONSTRUCI'ION AVTHORITY 

By: 

6 

TnTRI P.An 
EXHIBIT H - DECLARANT: OPERATIONAL TRAFFIC AND PEDESTRIAN MITIGATION 

MEASURES 

3.04( d) Traffic/Pedestrians 

Miti2ation Measure Description 

Traffic and Pedestrian Stripine 

Removal of Bollards (on Route 9A to allow for crosswalk widening) 

Installation of Cross Walk Markings 

Traffic Siena) 

Installation of Traffic Signal at intersection ofW 33rd Street and 12th Avenue 

Miscellaneous Pedestrian Improvements 

Bulb Out Installation (assumed 6 ft x 20 ft dimensions) 

Bulb Out Installation with Relocation of Utilities or Catch Basins 

Maintenance & Protection of Traffic 

Temporary Maintenance & Protection of Traffic Allowance 

H-1 

US\CHERKMA \934 7934.2 
EXHIBIT I - CJTY: OPERATIONAL TRAFFIC AND PEDESTRIAN MlTIGATION MEASURES 

3.04( d) Traffic/Pedestrians 

Mitigation Measure Description 

Traffic and Pedestrian Striping 

Removal of Exclusive Lane Markings (Arrows) 

Removal of Lane Striping 

Installation of Lane Striping 

Installation of Exclusive Lane Markings (Arrows) 

Installation of Cross Walk Markings 

Traffic Si2na2e 

Removal of Traffic Signs 

Installation of Parking Signs 

Traffic Signals 

Installation of Traffic Signal at intersection of West 4 7th Street and 12th A venue 

Miscellaneous Pedestrian Improvements 

Bulb Out Installation (assumed 6 ft x 20 ft dimensions) 

Maintenance & Protection of' Traffic 

Temporary Maintenance & Protection of Traffic Allowance 

I-1 

US\CHERKMA\934 7934.2 
Appendix O2 2010 Letter of Resolution