NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Division of Environmental Remediation, Office of the Director 625 Broadway, 12th Floor, Albany, New York 12233-70 11 P: (51 8) 402-9706 I F (518) 402-9020 ,vww.dec.ny.qov JUL 24 2019 The Rector, Church-Wardens, and Vestrymen of Trinity Church, in the city of New-York Matthew Fox c/o Trinity Real Estate 120 Broadway, 38th Floor New York, NY 10271
RE : Site Name: 561 Greenwich Street Site No .: C231129 Location of Site: 561 Greenwich Street, New York County, New York, NY 10014
Dear Mr. Fox:
To complete your file , attached is a fully executed copy of the Brownfield Cleanup Agreement for the 561 Greenwich Street Site.
If you have any further questions relating to this matter, please contact the project attorney for this site, Michael Murphy, Esq., NYS Department of Environmental Conservation, Office of General Counsel, 625 Broadway Albany, NY 12233-1500 or by email at [email protected].
Sincerely, •
Michael J. yan, P.E. Director Division of Environmental emediation
Enclosure
ec: Michael Maccabe, Project Manager
cc: Michael Murphy, Esq. Jennifer Andalora, Esq./Lisa Kranick
~ Dep_artment of 0yoRK I o•'"""' Envtronmental Conservation NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION BROWNFIELD CLEANUP PROGRAM ECL §27-1401 et seq.
In the Matter of a Remedial Program for BROWNFIELD SITE CLEANUP AGREEMENT Index No. C231129-06-19 561 Greenwich Street DEC Site No:C231129 Located at: 561 Greenwich Street New York County New York, NY 10014 Hereinafter referred to as "Site" by: The Rector, Church-Wardens, and Vestrymen of Trinity Church, in the city of New-York c/o Trinity Real Estate, 120 Broadway, 38th Floor, New York, NY 10271
561 HH LLC c/o Trinity Real Estate, 120 Broadway, 38th Floor, New York, NY 10271
Remainderman 561 Greenwich LLC c/o Trinity Real Estate, 120 Broadway, 38th Floor, New York, NY 10271 Hereinafter referred to as "Applicant"
WHEREAS, the Department of Environmental Conservation ("Department") is authorized to administer the Brownfield Cleanup Program ("BCP") set forth in Article 27, Title 14 of the Environmental Conservation Law ("ECL"); and
WHEREAS, the Applicant submitted an application received by the Department on December 11 , 2018; and
WHEREAS, the Department has determined that the Site and Applicant are eligible to participate in the BCP.
NOW, THEREFORE, IN CONSIDERATION OF AND IN EXCHANGE FOR THE MUTUAL COVENANTS AND PROMISES, THE PARTIES AGREE TO THE FOLLOWING:
I. Applicant Status
The Applicant, The Rector, Church-Wardens, and Vestrymen of Trinity Church, in the city of New-York is participating in the BCP as a Participant as defined in ECL 27- 1405(1 )(a) .
In addition to the requirement to pay future state costs as set forth in Appendix "A", within forty-five (45) days after the effective date of this Agreement, Applicant shall pay to the Department the sum set forth on Exhibit "B", which shall represent reimbursement for past State Costs incurred prior to the effective date of this Agreement. See Appendix A, Paragraph V.C for payment instructions. Applicant acknowledges that all State Costs incurred prior to the effective date of this Agreement are not included on the cost summary and that additional charges may be billed at a later date.
Invoices shall be sent to Applicant at the following address:
The Rector, Church-Wardens, and Vestrymen of Trinity Church, in the city of New-York c/o Trinity Real Estate 120 Broadway, 38th Floor New York, NY 10271 mfox@tri n itywa II street. org
561 HH LLC, is participating in the BCP as a Participant as defined in ECL 27-1405(1 )(a) .
In addition to the require·ment to pay future state costs as set forth in Appendix "A", within forty-five (45) days after the effective date of this Agreement, Applicant shall pay to the Department the sum set forth on Exhibit "B", which shall represent reimbursement for past State Costs incurred prior to the effective date of this Agreement. See Appendix A, Paragraph V.C for payment instructions. Applicant acknowledges that all State Costs incurred prior to the effective date of this Agreement are not included on the cost summary and that additional charges may be billed at a later date.
Invoices shall be sent to Applicant at the following address:
561 HH LLC c/o Trinity Real Estate 120 Broadway, 38th Floor New York, NY 10271 mfox@tri n itywa II street. org
Remainderman 561 Greenwich LLC , is participating in the BCP as a Participant as defined in ECL 27-1405(1)(a).
In addition to the requirement to pay future state costs as set forth in Appendix "A", within forty-five (45) days after the effective date of this Agreement, Applicant shall pay to the Department the sum set forth on Exhibit "B", which shall represent reimbursement for past State Costs incurred prior to the effective date of this Agreement. See Appendix A, Paragraph V.C for payment instructions. Applicant acknowledges that all State Costs incurred prior to the effective date of this Agreement are not included on the cost summary and that additional charges may be billed at a later date.
Invoices shall be sent to Applicant at the following address:
Remainderman 561 Greenwich LLC c/o Trinity Real Estate 120 Broadway, 38th Floor New York, NY 10271 [email protected] For clarification purposes, State Costs due hereunder may be paid by any one or a combination of the Applicants. The sum set forth on Exhibit "B" is the current total amount of past State Costs incurred and due by the Applicant.
II. Tangible Property Tax Credit Status
The Site is located in a City having a population of one million or more and the Applicant has not requested a determination that the Site is eligible for tangible property tax credits. It is therefore presumed that the Site is not eligible for tangible property tax credits. In accordance with ECL § 27-1407(1-a), the Applicant may request an eligibility determination for tangible property tax credits at any time from application until the site receives a certificate of completion except for sites seeking eligibility under the underutilized category.
111. Real Property
The Site subject to this Brownfield Cleanup Agreement (the "BCA" or "Agreement") consists of approximately 0.460 acres, a Map of which is attached as Exhibit "A", and is described as follows:
Tax Map/Parcel No.: 1-598-42 Street Number: 551 - 561 Greenwich Street, New York Owner: 561 HH LLC
IV. Communications
A. All written communications required by this Agreement shall be transmitted by United States Postal Service, by private courier service, by hand delivery, or by electronic mail.
1. Communication from Applicant shall be sent to:
Michael Maccabe New York State Department of Environmental Conservation Division of Environmental Remediation 625 Broadway Albany, NY 12233 [email protected]
Note: one hard copy (unbound) of work plans and reports is required , as well as one electronic copy.
Christine Vooris (electronic copy only) New York State Department of Health Bureau of Environmental Exposure Investigation Empire State Plaza Corning Tower Room 1787 Albany, NY 12237 christine.vooris@health .ny.gov Michael Murphy, Esq . (correspondence only) New York State Department of Environmental Conservation Office of General Counsel 625 Broadway Albany, NY 12233 [email protected]
2. Communication from the Department to Applicant shall be sent to:
The Rector, Church-Wardens, and Vestrymen of Trinity Church in the city of New-York Attn: Matthew Fox c/o Trinity Real Estate 120 Broadway, 38th Floor New York, NY 10271 [email protected]
561 HH LLC Attn: Matthew Fox c/o Trinity Real Estate 120 Broadway, 38th Floor New York, NY 10271 [email protected]
Remainderman 561 Greenwich LLC Attn: Matthew Fox c/o Trinity Real Estate 120 Broadway, 38th Floor New York, NY 10271 [email protected]
B. The Department and Applicant reserve the right to designate additional or different addressees for communication on written notice to the other. Additionally, the Department reserves the right to request that the Applicant provide more than one paper copy of any work plan or report.
C. Each party shall notify the other within ninety (90) days after any change in the addresses listed in this paragraph or in Paragraph Ill.
V. Miscellaneous
A. Applicant acknowledges that it has read , understands, and agrees to abide by all the terms set forth in Appendix A - "Standard Clauses for All New York State Brownfield Site Cleanup Agreements" which is attached to and hereby made a part of this Agreement as if set forth fully herein.
B. In the event of a conflict between the terms of this BCA (including any and all attachments thereto and amendments thereof) and the terms of Appendix A, the terms of this BCA shall control. C. The effective date of this Agreement is the date it is signed by the Commissioner or the Commissioner's designee.
DATED: THIS BROWNFIELD CLEANUP AGREEMENT IS HEREBY APPROVED, Acting by and Through the Department of Environmental Conservation as Designee JUL 24 2019 of the Commissioner,
By: CONSENT BY APPLICANT
Applicant hereby consents to the issuing and entering of this Agreement, and agrees to be bound by this Agreement.
The Rector, Church-Wardens, and Vestrymen of Trinity Church, in the city of New-York
By:~ ~ -_____.___,_~ --=---=--- - - /1 r-->. Title: ---~u~ ------Date:---1-- :1 7-1--'-----'-~/; r7 f-'-.,__be; ______STATE OF NEW YORK )
COUNTY OF f\.-}/iv.:J y 4 s:
On the ,? day of Jlll L~ in the year 20--1.:f, before me, the undersigned, personally appeared VL.Af2Ae:::--! µA.cf;,« H ?o~ personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name 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.
Signature and Offi e of individual taking acknowledgment
- '\ ~ ~------...,.PATRICIA GRAHAM Notary Public - Sta te of New York NO. 01 GR 5004034 Q ua lified In New York C My Commission Expi res J CONSENT BY APPLICANT
Applicant hereby consents to the issuing and entering of this Agreement, and agrees to be bound by this Agreement.
Remainderman 561 Greenwich LLC
By: ~~~ 7
Title:__ -=-vR; ---'-----='------Date:- --~ ,-/21~ +-,/1------STATE OF NEW YORK ) ) ss : COUNTY OF Nbvv jut:J:- )
+"' ---, On the / 7 day of cJu \( in the year 201.i, before me, the undersigned, personally appealed :=>(,Af;zAf\.J H A.cfu¼/~ eo...J , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name 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.
~~~ Signature and Office of individual taking acknowledgment
.. _; ~I
PATRICIA GRAHAM Notary Public - State of New York NO. 01G ~~ 5004034 Q ualified In New York Co nt J; My Commission Exp ires · I CONSENT BY APPLICANT
Applicant hereby consents to the issuing and entering of this Agreement, and agrees to be bound by this Agreement.
561 HH~j' ~ By: /h_~~--- .> ~ /7 ;-::::;.---:" Title:----=- ~ ------u ------0 ate: ,,. 7 ---+--/;::1.-+ 7/2?---01 ------
STATE OF NEW YORK ) . ) ss: COUNTY OF Nw Y~
On the J-1':'_ day of :1A I ~ in the year 20 I "I , before me, the undersigned, personally appered '.=1.AS A °'-1 MK,.,~C~t:-o"-.J , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name 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.
~~ Signature and Office of individual taking acknowledgment
••«>••····~ Notary :~~~~c ~~~~:~7~ew York NO. Cl GR5004034 Q ualified In New York C My Commission Exp ires EXHIBIT A SITE MAP The Applicant sent a revised Site Map showing the Site as one parcel since the two lots were merged. The revised Site Map is in the Applicant's Amendment Form.
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I '"11.>.. " SASl ,,,_:, lA.(>"\ -R'.'W T11l MV.' YQII-. C-Y O::P.r;:tt•A·:111 Of '"-4'-Cl fl/A\,! 1,rAN JORC.JClt - ,o: 11 11:> ;O'i/1S/2C•1:- l [
-•ole('.1 'llo !lq,r•o No LANGAN ,.,.., '9clJ4.)7!)1 561 GREENWICH TAX LOT 1!):; --- ~ {l ' ,.,., .. .,,, .... ,. ~--,.--___ STREET s::i0, '< rFT ··-···--.. ,----. ,. ,..,,.., LOCATION , ...... ·--"'_....,.... (--'4- ,., .. ],..w u... -, ... )to,,,it-1 ·:.,t(lo,:11 ,..,,.~_r,.._t.-,:. "'- 81.. Pursuant to Paragraph I, within forty-five (45) days after the effective date of this Agreement, Applicant shall pay to the Department the sum set forth in this Exhibit. The Exhibit includes a summary of past State Costs incurred prior to the effective date of the Agreement. The payment shall be made payable to "Commissioner of NYSDEC" and shall be sent to: Director, Bureau of Program Management Division of Environmental Remediation New York State Department of Environmental Conservation 625 Broadway, Albany, New York 12233-7012 EXrllBIT I EW YORK STATE EPARTM EN OF£ VIRON ENTAL CONSERVATION DIVI SI ON OF EN VIRO M E TAL EM EDIAT10N BUR AU OF PROGRAM MA AGEMENT COS SUMMARY S1TE AME: 561 Greenwich Street SlTE NO .: (231129 IME FRAME: DEC life · 12/26/18 COST CATEG ORY AMOU TS EX HIB I NO. DI Rf CT PERSONAL SERVICES $626 .67 FRI GE $400.38 IN IRECT $386.58 PERSONAL SERVfCES SUBTOTAL $1,413.63 II CONTRACTUAL $0.00 TRAVEL $0.00 OT HER NPS $0.00 NON-PERSONAL SERVICES SUBTOTAL $0.00 DEC TO AL $1,413.63 OOH l OTAL (NOT VAi BL } N/A Ml S PREVIO SLY REIM URS DA OUNT (IF APPL ICABL ) /A DEC & DOH TOTAL $1, 413.63 COST CAP (I AP PLI CAB LE). N/A GRAND TOTAL $1,413.63 Cost Query Pag I of I EXHJBIT 11 •AA r Of crv .mgsyste tRnet Cost Query - Ad Hoc Criteria : 1mecard Begin Dae 11/29/2018 And Timecard End Date 12/26/2018 And Task Code 735 59 Leave Charges : Ind uded Cost Ind icator: Direct Ra te ype : Non-Federal Download E«el ReP!lfl Pnnt Jump To m ployee: JAfl ~ aud 1Jie• W o,,lilo~h- .. , Ch•d. Dale e~~ Yl11Jibl Lo m1i1DrR>:2•-- ,., ,o ,.~ M,u, 158 ti 400 2't6 ,1.t, 6J\ lnM.,._~ '"' .. :1,l.J/20l9 · 1419 6J!il27 St.91 ll&59 l,- ◄ 4 l.', ~201.! ... 170 JL &00 JI '"t, 53 1D .S 626 ♦ 1 , t111port r ... ~,.: °'DOU }E{, 5S 10 ,,o 6Jt. bl Close Se••,er hr .A;,,pO Copyr1t;1 t __ 200 1 - :'01 ;i CMA. !re. All nyrts, reserved. I reosed IO NVS BSC -rME04 LArs•·•• vers,on: 10.3 o 12~ APPENDIX A STANDARD CLAUSES FOR ALL NEW YORK STATE BROWNFIELD SITE CLEANUP AGREEMENTS The parties to the Brownfield Site Cleanup 3. "IRM Work Plan" if the Work Plan Agreement (hereinafter "BCA" or "Agreement") provides for an interim remedial measure; or agree to be bound by the following clauses which are hereby made a part of the BCA. The word 4. "Site Management Plan" if the Work "Applicant" herein refers to any party to the Plan provides for the identification and Agreement, other than the New York State implementation of institutional and/or engineering Department of Environmental Conservation controls as well as any necessary monitoring (herein after "Department") . and/or operation and maintenance of the remedy. I. Citizen Participation Plan 5. "Supplemental" if additional work plans other than those set forth in I I.A.1-4 are Within twenty (20) days after the effective required to be prepared and implemented. date of this Agreement, Applicant shall submit for review and approval a written citizen participation B. Submission/Implementation of Work plan prepared in accordance with the Plans requirements of Environmental Conservation Law (ECL) § 27-1417 and 6 NYCRR §§ 375-1.10 1. The first proposed Work Plan to be and 375-3.10. Upon approval, the Citizen submitted under th is Agreement shall be Participation Plan shall be deemed to be submitted no later than thirty (30) days after the incorporated into and made a part of th is effective date of this Agreement. Thereafter, the Agreement. Applicant shall submit such other and additional work plans as determined in a schedule to be II. Development, Performance , and Reporting approved by the Department. of Work Plans 2. Any proposed Work Plan shall be A. Work Plan Requirements submitted for the Department's review and approval and shall include, at a minimum, a The work plans ("Work Plan" or "Work chronological description of the anticipated Plans") under th is Agreement shall be prepared activities to be conducted in accordance with and implemented in accordance with the current guidance, a schedule for performance of requirements of ECL Article 27, Title 14, 6 those activities, and sufficient detail to allow the NYCRR §§ 375-1.6(a) and 375-3.6, and all Department to evaluate that Work Plan. The applicable laws, rules, regulations, and guidance Department shall use best efforts in accordance documents. The Work Plans shall be captioned with 6 NYCRR § 375-3.6(b) to approve, modify, as follows: or reject a proposed Work Plan within forty-five (45) days from its receipt or within fifteen (15) 1. "Remedial Investigation Work Plan" days from the close of the comment period , if if the Work Plan provides for the investigation of applicable, whichever is later. the nature and extent of contamination within the boundaries of the Site and , if the Applicant is a i. Upon the Department' s written "Participant", the extent of contamination approval of a Work Plan , such Department emanating from such Site. If the Applicant is a approved Work Plan shall be deemed to be "Volunteer" it shall perform a qualitative exposure incorporated into and made a part of this assessment of the contamination emanating from Agreement and shall be implemented in the Site in accordance with ECL § 27-1415(2)(b) accordance with the schedule contained therein. and Department guidance; All work undertaken as part of a remedial program for a Site must be detailed in a 2. "Remedial Work Plan" if the Work department-approved Work Plan or a submittal Plan provides for the development and approved in form and content by the Department. implementation of a Remedial Program for contamination within the boundaries of the Site ii . If the Department requires and , if the Applicant is a "Participant", the modification of a Work Plan, the reason for such contamination that has emanated from such Site; modification shall be provided in writing and the provisions of 6 NYCRR § 375-1.6(d)(3) shall apply. D. Review of Submittals other than Work Plans iii. If the Department disapproves a Work Plan , the reason for such disapproval shall 1. The Department shall timely notify be provided in writing and the provisions of 6 Applicant in writing of its approval or disapproval NYCRR § 375-1 .6(d)(4) shall apply. of each submittal other than a Work Plan in accordance with 6 NYCRR § 375-1.6. All 3. A Site Management Plan , if Department-approved submittals shall be necessary, shall be submitted in accordance with incorporated into and become an enforceable the schedule set forth in the IRM Work Plan or part of this Agreement. Remedial Work Plan. 2. If the Department disapproves a C. Submission of Final Reports submittal covered by this Subparagraph, it shall specify the reason for its disapproval and may 1. In accordance with the schedule request Applicant to modify or expand the contained in an approved Work Plan , Applicant submittal. Within fifteen (15) days after receiving shall submit a Final Report for an Investigation written notice that Applicant's submittal has been Work Plan prepared in accordance with ECL § disapproved, Applicant shall elect in writing to 27-1411(1) and 6 NYCRR § 375-1 .6. If such Final either (i) modify or expand it within thirty (30) days Report concludes that no remediation is of receipt of the written notice of disapproval; (ii ) necessary, and the Site does not meet the complete any other Department-approved Work requirements for Track 1, Applicant shall submit Plan(s); (iii) invoke dispute resolution pursuant to an Alternatives Analysis prepared in accordance Paragraph XIII ; or (iv) terminate this Agreement with ECL § 27-1413 and 6 NYCRR § 375-3.B(f) pursuant to Paragraph XII. If Applicant submits a that supports such determination. revised submittal and it is disapproved, the Department and Applicant may pursue whatever 2. In accordance with the schedule remedies may be available under this Agreement contained in an approved Work Plan , Applicant or under law. All work undertaken as part of a shall submit a Final Engineering Report certifying remedial program, including work undertaken that remediation of the Site has been performed pursuant to submittals other than Work Plans, in accordance with the requirements of ECL §§ must be approved by the department prior to 27-1419(1) and (2) and 6 NYC RR§ 375-1 .6. The implementation by the Applicant. Department shall review such Report, the submittals made pursuant to this Agreement, and E. Department's Determination of Need for any other relevant information regarding the Site Remediation and make a determination as to whether the goals of the remedial program have been or will The Department shall determine upon its be achieved in accordance with established approval of each Final Report dealing with the timeframes; if so, a written Certificate of investigation of the Site whether remed iation, or Completion will be issued in accordance with ECL additional remediation as the case may be , is § 27-1419, 6 NYCRR §§ 375-1 .9 and 375-3.9. needed for protection of public health and the environment. 3. Within sixty (60) days of the Department's approval of a Final Report, 1. If the Department makes a Applicant shall submit such additional Work Plans preliminary determination that remediation , or as it proposes to implement. In addition, Applicant additional remediation, is not needed for shall include with every report submitted to the protection of public health and the environment, Department a schedule for the submission of any the Department shall notify the public of such subsequent work plan required to meet the determination and seek public comment in requirements of ECL Article 27 Title 14. Failure to accordance with ECL § 27-1417(3)(f). The submit any additional Work Plans within such Department shall provide timely notification to the period shall, unless other Work Plans are under Applicant of its final determination following the review by the Department or being implemented close of the public comment period . by Applicant, result in the termination of this Agreement pursuant to Paragraph XII. 2. If the Department determines that A. Applicant hereby agrees to provide additional remediation is not needed and such access to the Site and to all relevant information determination is based upon use restrictions, regarding activities at the Site in accordance with Applicant shall cause to be recorded an the provisions of ECL § 27-1431 . Applicant Environmental Easement in accordance with 6 agrees to provide the Department upon request NYCRR § 375-1 .S(h). with proof of access if it is not the owner of the Site. 3. If the Department determines that remediation , or additional remediation , is needed, B. The Department shall have the right to Applicant may elect to submit for review and periodically inspect the Site to ensure that the use approval a proposed Remedial Work Plan (or of the property complies with the terms and modify an existing Work Plan for the Site) for a conditions of this Agreement. The Department remedy selected upon due consideration of the will generally conduct such inspections during factors set forth in ECL § 27-1415(3) and 6 business hours, but retains the right to inspect at NYCRR § 375-1 .S(f) . A proposed Remedial Work any time. Plan addressing the Site's remediation will be noticed for public comment in accordance with C. Failure to provide access as provided for ECL § 27-1417(3)(f) and the Citizen Participation under this Paragraph may result in termination of Plan developed pursuant to this Agreement. If the this Agreement pursuant to Paragraph XII. Department determines following the close of the public comment period that modifications to the V. Payment of State Costs (Applicable only to proposed Remedial Work Plan are needed, Applicants with Participant Status) Applicant agrees to negotiate appropriate modifications to such Work Plan . If Applicant A. Within forty-five (45) days after receipt of elects not to develop a Work Plan under this an itemized invoice from the Department, Subparagraph then this Agreement shall Applicant shall pay to the Department a sum of terminate in accordance with Paragraph XII. If the money which shall represent reimbursement for Applicant elects to develop a Work Plan, then it State Costs as provided by 6 NYCRR § 375-1 .5 will be reviewed in accordance with Paragraph (b )(3)(i). I1.D above. B. Costs shall be documented as provided F. Institutional/Engineering Control by 6 NYCRR § 375-1 .5(b)(3)(ii). The Department Certification shall not be required to provide any other documentation of costs, provided however, that In the event that the remedy for the Site, if the Department's records shall be available any, or any Work Plan for the Site, requires consistent with, and in accordance with, Article 6 institutional or engineering controls, Applicant of the Public Officers Law. shall submit a written certification in accordance with 6 NYCRR §§ 375-1 .8(h)(3) and 375- C. Each such payment shall be made 3.8(h)(2). payable to the "Commissioner of NYSDEC" and shall be sent to: Ill. Enforcement Director, Bureau of Program Management Except as provided in Paragraph V, this Division of Environmental Remediation Agreement shall be enforceable as a contractual New York State Department of Environmental agreement under the laws of the State of New Conservation 625 Broadway York. Applicant shall not suffer any penalty Albany, New York 12233-7 012 except as provided in Paragraph V, or be subject to any proceeding or action if it cannot comply D. Each party shall provide written with any requirement of this Agreement as a notification to the other within ninety (90) days of result of a Force Majeure Event as described at 6 any change in the foregoing addresses. NYCRR § 375-1 .5(b)(4) provided Applicant complies with the requirements set forth therein. E. If Applicant objects to any invoiced costs under this Agreement, the provisions of 6 NYC RR IV. Entry upon Site §§ 375-1 .5 (b)(3)(v) and (vi) shall apply. Objections shall be sent to the Department as Applicant shall indemnify and hold the provided under subparagraph V.C above. Department, the State of New York, and their representatives and employees harmless from F. In the event of non-payment of any any claim, suit, action , and cost of every name invoice within the 45 days provided herein, the and description arising out of or resulting from the Department may seek enforcement of this fulfillment or attempted fulfillment of this provision pursuant to Paragraph Ill or the Agreement by Applicant prior to the Termination Department may commence an enforcement Date except for those claims, suits, actions, and action for non-compliance with ECL § 27-1409(2) costs arising from the State's gross negligence or and ECL § 71-4003. willful or intentional misconduct by the Department, the State of New York, and/or their VI. Liability Limitation representatives and employees during the course of any activities conducted pursuant to this Subsequent to the issuance of a Certificate of Agreement. In the event that the Applicant is a Completion pursuant to this Agreement, Participant, this provision shall also include the Applicant shall be entitled to the Liability Trustee of the State's Natural Resources. The Limitation set forth at ECL § 27-1421 , subject to Department shall provide Applicant with written the terms and conditions stated therein and to the notice no less than thirty (30) days prior to provisions of6 NYCRR §§ 375-1 .9 and 375-3.9. commencing a lawsuit seeking indemnification pursuant to this Paragraph. VII . Reservation of Rights IX. Change of Use A. Except as provided in Subparagraph VII .B, Applicant reserves all rights and defenses Applicant shall notify the Department at least under applicable law to contest, defend against, sixty (60) days in advance of any change of use, dispute, or disprove any action, proceeding, as defined in ECL § 27-1425, which is proposed allegation, assertion, determination, or order of for the Site, in accordance_with the provisions of the Department, including any assertion of 6 NYCRR § 375-1 .11(d). In the event the remedial liability by the Department against Department determines that the proposed Applicant, and further reserves all rights including change of use is prohibited, the Department shall the rights to notice, to be heard, to appeal, and to notify Applicant of such determination within forty any other due process respecting any action or five (45) days of receipt of such notice. proceeding by the Department, including the enforcement of this Agreement. The existence of X. Environmental Easement this Agreement or Applicant's compliance with it shall not be construed as an admission of any A. Within thirty (30) days after the liability, fault, wrongdoing , or violation of law by Department's approval of a Remedial Work Plan Applicant, and shall not give rise to any which relies upon one or more institutional and/or presumption of law or finding of fact which shall engineering controls, or within sixty (60) days inure to the benefit of any third party. after the Department's determination pursuant to Subparagraph 11 .E.2 that additional remediation B. Notwithstanding the foregoing, Applicant is not needed based upon use restrictions, hereby waives any right it may have to make a Applicant shall submit to the Department for claim pursuant to Article 12 of the Navigation Law approval an Environmental Easement to run with with respect to the Site and releases the State the land in favor of the State which complies with and the New York Environmental Protection and the requirements of ECL Article 71 , Title 36 and 6 Spill Compensation Fund from any and all legal NYCRR § 375-1 .8(h)(2). Applicant shall cause or equitable claims, suits, causes of action , or such instrument to be recorded with the recording demands whatsoever with respect to the Site that officer for the county in which the Site is located Applicant may have as a result of Applicant's within thirty (30) days after the Department's entering into or fulfilling the terms of this approval of such instrument. Applicant shall Agreement. provide the Department with a copy of such instrument certified by the recording officer to be VIII. Indemnification a true and faithful copy within thirty (30) days of such recording (or such longer period of time as may be required to obtain a certified copy provided Applicant advises the Department of the status of its efforts to obtain same within such A In the event disputes arise under this thirty (30) day period), which shall be deemed to Agreement, Applicant may, within fifteen (15) be incorporated into this Agreement. days after Applicant knew or should have known of the facts which are the basis of the dispute, B. Applicant or the owner of the Site may initiate dispute resolution in accordance with the petition the Department to modify or extinguish provisions of 6 NYCRR § 375-1 .5(b)(2). the Environmental Easement filed pursuant to th is Agreement at such time as it can certify that B. All cost incurred by the Department the Site is protective of public health and the associated with dispute resolution are State costs environment without reliance upon the subject to reimbursement pursuant to Paragraph restrictions set forth in such instrument. Such V of Appendix A of this Agreement, if applicable. certification shall be made by a Professional Engineer or Qualified Environmental Professional C. Notwithstanding any other rights as defined at 6 NYCRR § 375-1 .2(ak) approved otherwise authorized in law or equity, any by the Department. The Department will not disputes pursuant to this Agreement shall be unreasonably withhold its consent. limited to Departmental decisions on remedial activities. In no event shall such dispute authorize XL Progress Reports a challenge to the applicable statute or regulation. Applicant shall submit a written progress XIV Miscellaneous report of its actions under this Agreement to the parties identified in Subparagraph Ill.A 1 of the A If the information provided and any Agreement by the 10th day of each month certifications made by Applicant are not materially commencing with the month subsequent to the accurate and complete, this Agreement, except approval of the first Work Plan and ending with with respect to Applicant's obligations pursuant to the Termination Date, unless a different Paragraphs V, if applicable, and VII.B, and VIII , frequency is set forth in a Work Plan . Such shall be null and void ab initio fifteen (15) days reports shall, at a minimum, include: all actions after the Department's notification of such relative to the Site during the previous reporting inaccuracy or incompleteness or fifteen (15) days period and those anticipated for the next reporting after issuance of a final decision resolving a period ; all approved activity modifications dispute pursuant to Paragraph XIII , whichever is (changes of work scope and/or schedule); all later, unless Applicant submits information within results of sampling and tests and all other data that fifteen (15) day time period indicating that the received or generated by or on behalf of Applicant information provided and the certifications made in connection with this Site, whether under this were materially accurate and complete. In the Agreement or otherwise, in the previous reporting event this Agreement is rendered null and void, period, including quality assurance/quality control any Certificate of Completion and/or Liability information; information regarding percentage of Limitation that may have been issued or may completion; unresolved delays encountered or have arisen under this Agreement shall also be anticipated that may affect the future schedule null and void ab initio, and the Departmenf shall and efforts made to mitigate such delays; and reserve all rights that it may have under law. information regarding activities undertaken in support of the Citizen Participation Plan during B. By entering into this Agreement, the previous reporting period and those Applicant agrees to comply with and be bound by anticipated for the next reporting period . the provisions of 6 NYCRR §§ 375-1 , 375-3 and 375-6; the provisions of such subparts that are XII. Termination of Agreement referenced herein are referenced for clarity and convenience only and the failure of this Applicant or the Department may terminate Agreement to specifically reference any particular this Agreement consistent with the provisions of regulatory provision is not intended to imply that 6 NYCRR §§ 375-3.5(b), (c), and (d) by providing such provision is not applicable to activities written notification to the parties listed in performed under this Agreement. Paragraph IV of the Agreement. C. The Department may exempt Applicant XIII. Dispute Resolution from the requirement to obtain any state or local permit or other authorization for any activity 2. i. Except as set forth herein , if conducted pursuant to this Agreement in Applicant desires that any provision of this accordance with 6 NYCRR §§ 375-1.12(b), (c) , Agreement be changed, Applicant shall make and (d) . timely written application to the Commissioner with copies to the parties in Subparagraph IV.A.1 D. 1. Applicant shall use "best efforts" to of the Agreement. obtain all Site access, permits, easements, approvals, institutional controls, and/or ii. If Applicant seeks to modify an authorizations necessary to perform Applicant's approved Work Plan, a written request shall be obligations under this Agreement, including all made to the Department's project manager, with Department-approved Work PlarJs and the copies to the parties listed in Subparagraph schedules contained therein . If, despite IV.A.1 of the Agreement. Applicant's best efforts, any access, permits, easements, approvals, institutional controls, or iii . Requests for a change to a time authorizations cannot be obtained, Applicant frame set forth in this Agreement shall be made shall promptly notify the Department and include in writing to the Department's project attorney and a summary of the steps taken . The Department project manager; such requests shall not be may, as it deems appropriate and within its unreasonably denied and a written response to authority, assist Applicant in obtaining same. such requests shall be sent to Applicant promptly. 2. If an interest in property is needed to G. 1. If there are multiple parties signing implement an institutional control required by a this Agreement, the term "Applicant" shall be read Work Plan and such interest cannot be obtained, in the plural, the obligations of each such party the Department may require Applicant to modify under this Agreement are joint and several, and the Work Plan pursuant to 6 NYCRR § 375- the insolvency of or failure by any Applicant to 1.6(d)(3) to reflect changes necessitated by implement any obligations under this Agreement Applicant's inability to obtain such interest. shall not affect the obligations of the remaining Applicant(s) under this Agreement. E. The paragraph headings set forth in this Agreement are included for convenience of 2. If Applicant is a partnership, the reference only and shall be disregarded in the obligations of all general partners (including construction and interpretation of any provisions limited partners who act as general partners) of this Agreement. under this Agreement are joint and several and the insolvency or failure of any general partner to F. 1. The terms of this Agreement shall implement any obligations under this Agreement constitute the complete and entire agreement shall not affect the obligations of the remaining between the Department and Applicant partner(s) under this Agreement. concerning the implementation of the activities required by this Agreement. No term, condition, 3. Notwithstanding the foregoing understanding, or agreement purporting to Subparagraphs XIV.G.1 and 2, if multiple parties modify or vary any term of this Agreement shall sign this Agreement as Applicants but not all of be binding unless made in writing and subscribed the signing parties elect to implement a Work by the party to be bound . No informal advice, Plan, all Applicants are jointly and severally liable guidance, suggestion, or comment by the for each and every obligation under this Department shall be construed as relieving Agreement through the completion of activities in Applicant of its obligation to obtain such formal such Work Plan that all such parties consented approvals as may be required by this Agreement. to; thereafter, only those Applicants electing to In the event of a conflict between the terms of this perform additional work shall be jointly and Agreement and any Work Plan submitted severally liable under this Agreement for the pursuant to this Agreement, the terms of this obligations and activities under such additional Agreement shall control over the terms of the Work Plan(s). The parties electing not to Work Plan(s). Applicant consents to and agrees implement the additional Work Plan(s) shall have not to contest the authority and jurisdiction of the no obligations under this Agreement relative to Department to enter into or enforce this the activities set forth in such Work Plan(s). Agreement. Further, only those Applicants electing to implement such additional Work Plan(s) shall be eligible to receive the Liability Limitation referenced in Paragraph VI. L. Applicant's obligations under this Agreement shall not be deemed to constitute any 4. Any change to parties pursuant to type of fine or penalty. this Agreement, including successors and assigns through acquisition of title, is subject to M. In accordance with 6 NYCRR § 375- approval by the Department, after submittal of an 1.6(a)(4), the Department shall be notified at least application acceptable to the Department. 7 days in advance of, and be allowed to attend, any field activities to be conducted under a H. Applicant shall be entitled to receive Department approved work plan, as well as any contribution protection and/or to seek contribution pre-bid meetings, job progress meetings, to the extent authorized by ECL § 27-1421(6) and substantial completion meeting and inspection, 6 NYCRR § 375-1.5(b)(5). and final inspection and meeting; provided , however that the Department may be excluded I. Applicant shall not be considered an from portions of meetings where privileged operator of the Site solely by virtue of having matters are discussed. executed and/or implemented this Agreement. N. In accordance with 6 NYCRR § 375- J. Applicant and Applicant's agents, 1.11 (a), all work plans; reports, including all grantees, lessees, sublessees, successors, and attachments and appendices, and certifications, assigns shall be bound by this Agreement. Any submitted by a remedial .party shall be submitted change in ownership of Applicant including, but in print, as well as in an electronic format not limited to, any transfer of assets or real or acceptable to the Department. personal property, shall in no way alter Applicant's responsibilities under this Agreement. 0 . This Agreement may be executed for the convenience of the parties hereto, individually or K. Unless otherwise expressly provided in combination, in one or more counterparts, each herein , terms used in this Agreement which are of which shall be deemed to have the status of an defined in ECL Article 27 or in regulations executed original and all of which shall together promulgated thereunder shall have the meaning constitute one and the same. assigned to them under said statute or reg ulations.