Supreme Court of the State of ‘New York, County of New York at the Courthouse, 60 Centre Street, onthe day of January 2018 PRESENT: Hon, SEN. LIZ KRUEGER, COUNCIL MEMBER BEN KALLOS, CARNEGIE HILL NEIGHBORS, INC., FRIENDS OF THE UPPER EAST SIDE HISTORIC DISTRICTS, Petitioners, QRDER TO SHOW For a Judgment Pursuant to CPLR Art. 78 and a Declaration CAUSE and Pursuant to CPLR 3001 TEMPORARY , RESTRAING ORDER -against- NEW YORK CITY DEPARTMENT OF BUILDINGS, NEW dndexiNo. YORK CITY BOARD OF STANDARDS AND APPEALS, DDG PARTNERS LLC, 180 EAST 88th STREET REALTY LLC, CARNEGIE GREEN LLC, and ALLIED THIRD AVENUE LLC, Respondents TO: the above-named Respondents: UPON the Verified Petition of Petitioners dated January 26, 2018, and upon the exhibits annexed thereto, including the Affidavits of Council Member Ben Kallos, dated January 24, 2018, Lo van der Valk, dated January 25, 2018, Rachel Levy, dated January 25, 2018, and George Janes, dated January 25, 2018, and the Affirmation of Emergency of John Low-Beer, dated January 26, 2018, And sufficient cause appearing therefor, it is hereby, ORDERED, that, at a hearing to be held on sat o'clock in the fore/afternoon, or as soon thereafter as counsel may be heard, at the Courthouse, 60 CentreStreet, New York, New York, Courtroom . Respondents shall appear and show cause why the Court should not enter a preliminary injunction pursuant to CPLR §§ 6301 and 6311, preliminarily enjoining any further construction work on the building under construction at Block 1516 Lots 32, 37 and 138 of the City Tax Map in the Borough of Manhattan, a/k/a 180 East 88" Street, New York, New York, a/k/a 1558 Third Avenue, New York, New York, pending final adjudication of the captioned proceeding or earlier Order of this Court to the contrary; fixing a schedule for pleading, briefing and presenting further evidence; and granting such other and further relief as the Court may deem just and proper; and ORDERED, that, pending the hearing and determination of Petitioners’ application for a preliminary injunction, Respondents DDG Partners LLC, 180 East 88" Street Realty LLC, and Camegie Green LLC, their construction contractors, and all other agents, are hereby temporarily restrained from conducting any construction activity on said building and premises; and ORDERED, that service of a copy of this Order together with the papers upon which it was granted, on the Respondents, or their counsel agreeing to accept such service, on or before ; shall be deemed good and sufficient service, An affidavit or other proof of such service shall be presented to this Court on the return date. Dated: New York, New York January, 2018 ENTER:SUPREME COURT OF THE COUNTY OF NEW YORK STATE OF NEW YORK SEN, LIZ KRUEGER, COUNCIL MEMBER BEN KALLOS, CARNEGIE HILL NEIGHBORS, INC., FRIENDS OF THE UPPER EAST SIDE HISTORIC DISTRICTS, Petitioners, AFFIRMATION OF JOHN R. LOW-BEER pursuant t0 22 NYCRR § 202.7 For a Judgment Pursuant to CPLR Art. 78 and a Declaration Pursuant to CPLR 3001 -against- Index No. NEW YORK CITY DEPARTMENT OF BUILDINGS, NEW YORK CITY BOARD OF STANDARDS AND APPEALS, DDG PARTNERS LLC, 180 EAST 88th STREET REALTY LLC, CARNEGIE GREEN LLC, and ALLIED THIRD AVENUE LL Respondents x JOHN R. LOW-BEER, an attomey duly admitted to practice before the courts of the State of New York, affirms under penalty of perjury the following: 1. Together with Michael S. Gruen, I represent the Petitioners in this § 202.7 of the Uniform Rules proceeding. I submit this affirmation pursuant to 22 N.Y.CRR. for the Supreme Court and the County Court, which provides: (©) Any application for temporary injunctive relief, including but not limited to a motion for a stay or a temporary restraining order, shall contain... an affirmation demonstrating there will be significant prejudice to the party seeking the restraining order by the giving of notice. In the absence of a showing of significant prejudice, the affirmation must demonstrate that a good faith effort has been made to notify the party against whom the temporary restraining order is sought of the time, date and place that the application will be made in a manner sufficient to permit the party an opportunity to appear in response to the application. 2. As required by the above rule, I have made a good faith effort to notify the parties against whom the temporary restraining order is sought of the time, date and place thatthe application will be made in a manner sufficient to permit the party an opportunity to appear in response to the application, 3. Specifically, on January 24, 2018, I contacted Kramer, Levin, Naftalis & Frankel, LLP, transactional counsel for Respondents DDG Partners LLC, 180 East 88th Street Realty LLC (“Realty”) and Carnegie Green LLC, who informed me that Scott Mollen, Esq., @ partner of the law firm Herrick Feinstein LLP, Two Park Avenue, New York, NY 10016, would be representing these Respondents in this litigation. I then spoke to Mr. Mollen and informed him that I would be going to court to seek a TRO on January 26, 2018, and would tell him what time I would be going as the time drew closer. At his request, | sent him via email a copy of Petitioners’ filing with the Board of Standards and Appeals. 4. Also on January 24, 2018, I emailed and spoke to Michelle Goldberg- Cahn, Esq., Deputy Chief of the Administrative Law Division of the New York City Law Department, attorneys for the City Respondents. | informed her that I would be going to court to seek a TRO on January 26, 2018, and would tell her what time I would be going as the time drew closer, At her request, I sent her via email a copy of Petitioners’ filing with the Board of Standards and Appeals 5. Also on January 24, 2018, I emailed Ray Levin, Esq., a partner at Slater & Beckerman PC, 40 Exchange PI Suite 1502, New York, NY 10005, who represented Respondent Allied Third Avenue LLC (“Allied”) in a zoning lot merger with Respondent Realty, and Lori Mishali at Muss Development Corp., which shares an office with Allied Third Avenue, and on \ce been informed that Herrick Feinstein will be information and belief is its parent. I have representing Allied as well. 6. Petitioners seek immediate issuance of a temporary restraining order because construction of the building is progressing rapidly. Realty has even sought and repeatedly obtained from the Department of Buildings After Hours Variances to assist it in its 2race to complete the building. Pursuant to applicable law, such Variances should only be granted for short periods, and in special circumstances which, on information and belief, do not exist here, While the construction is far from completion, the framework has risen to a height which, in one section, exceeds the permissible height under the zoning as properly construed. Continued construction adds to the excess on a daily basis. 1. As recognized by the Court of Appeals in Dreikausen v. Zoning Board of Appeals of City of Long Beach, 98 N.¥.24 165 (2002), continuation of construction in such a situation may give rise to equitable claims that the developer would be prejudiced by ultimate relief to petitioners requiring zoning compliance; preliminary injunctive relief is therefore required to maintain the status quo and stop a “race to completion. Dated: Brooklyn, New York January 26, 2018SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SEN. LIZ KRUEGER, COUNCIL MEMBER BEN KALLOS, CARNEGIE HILL NEIGHBORS, INC., FRIENDS OF THE UPPER EAST SIDE HISTORIC DISTRICTS, Petitioners, VERIFIED PETITION For a Judgment Pursuant to CPLR Art. 78 and a Declaration Pursuant to CPLR 3001 Index No. -against- NEW YORK CITY DEPARTMENT OF BUILDINGS, NEW YORK CITY BOARD OF STANDARDS AND APPEALS, DDG PARTNERS LLC, 180 EAST 88th STREET REALTY LLC, CARNEGIE GREEN LLC, and ALLIED THIRD AVENUE LLC, Respondents Petitioners, by their attorneys, JOHN R. LOW-BEER and MICHAEL S. GRUEN, for their Verified Petition pursuant to CPLR Art. 78 and CPLR § 3001, allege as follows: 1. Petitioners Sen. Liz Krueger, Council Member Ben Kallos, Camegie Hill Neighbors, Inc. (“CHN”) and Friends of the Upper East Side Historic Districts (“FRIENDS”) seek to annul a building permit and enjoin ongoing construction by Respondents 180 East 88th Street Realty LLC Realty") and its parent DDG Partners LLC (“DDG,” and, together with Realty, “the developer”) of a residential building on Manhattan’s Upper East Side. Petitioners also seek a declaration that this building, if completed, would be in violation of the New York City Zoning Resolution. This Petition is brought within four months of the denial by the New York City Department of Buildings (“DOB”) of CHN’s Community Appeal challenging Realty’s permit.Petitioners seek an expeditious ruling on the merits of this Petition, which raises only a pure question of law based on the plain language and clear and manifest intent of the Zoning Resolution. 2. The Court is called upon here to give a proper interpretation to zoning provisions in the face of a deliberate attempt to circumvent and nullify them, The question before the Court, then, is first one of interpretation of the language and intent of the Zoning Resolution, and second whether credit is to be given to a transaction that seeks to avoid both. 3. Through a ministerial private transaction, Realty created a tiny new zoning lot (“the micro-lot”), initially only four feet deep and subsequently enlarged to ten feet, that purports to separate its building lot from 88th Street, and thereby to absolve it from complying with the zoning mandated for buildings fronting on 88th Street. By this trickery, the developer ‘would build a building in a form that has been explicitly prohibited since enactment of the “tower- on-a-base” regulations of ZR§ 23-651 in 1994: a building set back from the sidewalk, leaving a ‘gaping hole where zoning mandates a continuous street wall. This same trickery would also enable Realty to violate the 1983 “sliver regulations” of ZR § 23-692, titled “Height limitations for narrow buildings or enlargements,” by constructing a tower larger and closer to 88th Street than those regulations allow. The Zoning Resolution defines a “development” as being “on a zoning lot or a portion thereof,” not on two zoning lots. Because the space comprising the micro-lot is an integral part of Realty’s development, it cannot be a legal separate zoning lot. 4, It is questionable whether Realty would even be able to build such a tall building on this zoning lot if it followed the legal requirements of the Zoning Resolution. 5. Despite this trickery, the plain language of the Zoning Resolution prohibits this building. Moreover, the Zoning Resolution expressly prohibits, in its definition of “zoning lot,” ZR § 12-10, any zoning lot subdivision that would result in a noncomplying building.6. Realty purported to give substance to its zoning lot subdivision by transferring title to the micro-lot to a new “owner” created for the purpose: Camegie Green LLC (“Carnegie Green”). Carnegie Green, like the micro-lot that it owns, is a legal fiction, a puppet company controlled by the developer. Camegie Green paid nothing for the micro-lot, because it got nothing. The micro-lot is valueless on its own, Because the Building Code requires that the micro-lot be “maintained and kept clear and unobstructed” as an emergency exit from Realty’s new building, Realty retained an easement over it. It can never be used for any purpose other than as an entrance and exit plaza for the building behind it. The new building's main entrance is on 88th Street, and the building is being marketed as “180 East 88th Street,” proclaiming that notwithstanding its denials, it does, in reality, front on 88th Street. 7. _ Only by violating the Zoning Resolution can Realty build such a tall building. If allowed, this will not only lead to a building that violates zoning on this site, but will also provide aroadmap for the complete nullification of these and any other regulations dictated by fronting on astreet or an avenue. Any owner who wants to set its building back from the street line and build a prohibited sliver building need only shave a tiny strip off the front of its zoning lot and “Poof!” the regulations are gone. 8. Petitioners are requesting herewith a temporary restraining order and a preliminary injunction as well as a permanent injunction and annulment of Realty’s building permit and of DOB’s September 28, 2017 denial of their Community Appeal from denial of their initial Zoning Challenge. Petitioners also request that this Court expedite the hearing of this case, which involves no disputes of fact, but only questions of law concerning the interpretation of the Zoning Resolution.Parties 9. Petitioner Sen. Liz Krueger is the New York State Senator for the 28"" Senate District, which includes the Upper East Side and East Midtown neighborhoods of Manhattan. Since being elected to the State Senate in 2002, Senator Krueger has worked closely with local elected officials, community residents, and civic organizations on a wide range of land use, zoning, and historic preservation issues. She has been actively involved in public policy and direct service throughout her career, first for more than two decades in the non-profit sector and subsequently as an elected official. 10, Petitioner Council Member Ben Kallos is a member of the New York City Council. He represents the Fifth District in Manhattan, which covers most of the eastern portion of the Upper East Side, including Yorkville, Camegie Hill, and Lenox Hill. He has actively opposed inappropriate development, including the recent crop of “superskyscrapers” in his district and in other parts of Manhattan, On May 16, 2016, together with Manhattan Borough President Gale Brewer, he challenged the legality of this building by writing to the Department of Buildings. He subsequently endorsed the initial Zoning Challenge and the Community Appeal of CHN. On April 19, 2017, he wrote to the DOB Borough Commissioner to express his concen about the DOB?s repeated issuance of After Hours Variance permits for construction at 180 East 88th Street. Council Member Kallos’ Affidavit in support of this Petition, sworn to January 24, 2018, is attached hereto as Exhibit A. 11. Petitioner Carnegie Hill Neighbors was formed in 1970 to address planning, preservation and neighborhood improvement issues on Manhattan's Upper East Sidebetween 86th and 96th Streets and between Fifth and Third Avenues. CHN worked for the designation of the first Camegie Hill historic district in 1974 and the expanded historic district in 1993, CHN has members who live immediately adjacent to, or within a few hundred feet of, the new building, and who would be directly affected by its breach of the street wall and other requirements of the Zoning Resolution, Among those members are: Sandra Salmans, 170 B. 88th St., Apt. 2G; Walter and Ann Grist, 200 East 89th Street, Apt 42S; Robert Kramer, 170 88th St., PH8A, and Adele Morrissette, 170 East 88" Street, Apt 2E. 12. Because of its effect on the midblock streetscape and its flagrant attempt to circumvent the Zoning Resolution, and because of the precedent that its approval would set, CHN has assiduously opposed this building from the outset. 13. Petitioner Friends of the Upper East Side Historie District was founded 35 years ago for the purpose of preserving the architectural legacy, livability, and sense of place of the Upper East Side of Manhattan, generally covering the area between East 59th and East 96th Streets, and from the East River to Central Park.? FRIENDS has been a leader in successful efforts to improve the zoning laws governing the area's avenues and its residential side streets. Under the leadership of its founder, Halina Rosenthal, FRIENDS was instrumental in achieving contextual zoning for much of the neighborhood in the 1980s. In that spirit, FRIENDS has often intervened on issues involving changes in bulk. Several members of FRIENDS, including its President, Franny Eberhart, and members of the Board of Directors including Jeanne Sloane, Erin Gray, and ' CHN’s mission, members, and actions concerning 180 East 88th Street are described in greater detail in the Affidavit of Willem L. van der Valk, attached hereto as Exhibit B. Mr. van der Valk is President of CHN. 2 FRIENDS’ mission, members, and actions concerning 180 East 88th Street are described in greater detail in the Affidavit of Rachel Levy, sworn to January 25, 2017 (Exh. C). Rachel Levy is Executive Director of FRIENDS.Patricia Sullivan, live within two blocks of the subject building site and are directly affected by the threat of non-contextual development there. They enjoy the current uniformity of the mid- block human-scale streetscape on East 88th Street and recognize that those are qualities FRIENDS has fought long and hard to protect. 14, Respondent New York City Department of Buildings is an agency of the City of New York charged with issuing building permits and hearing challenges to same. DOB issued a permit for construction of 180 East 88th Street that Petitioners contend allows violations ofthe Zoning Resolution, DOB denied CHN’s Zoning Challenge to that permit and, on September 28, 2017, its subsequent Community Appeal from that denial. This Petition challenges that denial. 15. Respondent New York City Board of Standards and Appeals is a board appointed by the Mayor, empowered under the City Charter and Administrative Code to hear appeals from permitting decisions of the New York City Department of Buildings. On October 30, 2017, Petitioners appealed DOB’s denial of the Community Appeal to the BSA. That appeal has not yet been calendared. 16. Respondent DDG Partners LLC (“DDG”) is a Delaware limited liability company, first registered with the New York State Department of State (“DOS”) on March 24, 2008. DDG has a New York office at 60 Hudson Street, 18th floor, New York, NY 10013. ‘According to its website, DDG’s Chairman and CEO is Joseph A. McMillan, Jr., and itis engaged in real estate development in New York, California, and Florida. Among the buildings shown on the website under the tab “Portfolio” is 180 East 88th Street. DDG is named there as “Developer,” “Architect,” “Builder,” and “Property Manager.” 17. Respondent 180 East 88th Street Realty LLCis a Delaware limited liability company, first registered with the New York State Department of State on November 27, 2013.Its address is c/o DDG Partners LLC, 60 Hudson Street, 18th floor, New York NY 10013. It is the fee owner of tax lot 37, on which 180 East 88th Street is being built. It is also the mortgagor of that property. Realty’s authorized signatory on virtually all the recorded documents related to the tax and zoning lots at issue here is Joseph A. MeMillan, Chairman and CEO of DDG, On information and belief, Realty is wholly owned and controlled by DDG. 18. Respondent Carnegie Green LLC is a Delaware limited liability company registered in New York on August 6, 2015. Its address is c/o DDG Partners LLC, 60 Hudson Street, 18th floor, New York NY 10013. It is the fee owner of purported tax and zoning lot 138, which it acquired for no consideration from Realty. ‘The authorized signatory on many of the documents recorded on behalf of Camegie Green is Joseph A. MeMillan, Chairman and CEO of DDG. On information and belief, Camegie Green was created by, and is wholly owned and controlled by, DDG, and exists for the sole purpose of holding nominal title to lot 138, which in tum was created for the sole purpose of avoiding the requirements of the Zoning Resolution, 19. Respondent Allied Third Avenue LLC (“Allied”) is a New York limited liability company first registered on March 15, 2005. Its address is c/o Muss & Muss, 118-35 Queens Blvd., 16th floor, Forest Hills, NY 11375. Allied is the owner of tax lot 32, on the southwest comer of Third Avenue and 87th Street. On information and belief, Allied is not related to DDG. By virtue of a Zoning Lot Development and Easement Agreement dated December 11, 2013, tax lot 32 was merged into the zoning lots owned by Realty, and Allied ceded air rights to DDG, inclu the right to build over Allied’s building on lot 32. Allied is a necessary party to this action because its rights may be affected.FACTS A. The Building Site and Realty’s Micro-Lot 20. On the Upper East Side of Manhattan, on block 1516, Realty is building a 32- story mixed use tower 523 feet high with a non-commercial art gallery on one floor and the rest of the building devoted to residential use. This development spans three tax lots, lots — lots 37, 32 and 138 - ina C1-9 district. At ground level, the building's footprint is on the L-shaped lot 37, with 40 feet of frontage on the west side of Third Avenue and a 22-foot wide panhandle pointing north toward 88th Street and separated from that street only by the empty space of the 10 by 22 foot strip that is lot 138. 21. Lot 32, owned by Respondent Allied, is to the south of the new building, stretching to the comer of Third Avenue and 87th Street.> It is improved with a 6-story building fronting on Third Avenue adjoining the south side of the new building and a S-story building on the comer. To Petitioners’ knowledge, Allied is not related to Realty. Tax lot 32 and tax lot 37, ‘owned by Realty, have been merged into a single zoning lot. The new building obtains air rights from lot 32, and will also be cantilevered 14.5 feet over the adjoining 6-story building on that lot. Including the cantilever, the portion of the new building that fronts on Third Avenue is 54.25 feet wide. 22. A plan of the assembled site from the developer’s Zoning Plot Diagram Form (PDI) (see also Exh. D) is shown here: 3 The tax lots on the Third Avenue block between 87th and 88th Streets to the north of lot 37 are not part of the development lot. These are lot 39, fronting on Third Avenue, and lot 40, on the comer of 88th Street and Third Avenue. + Zoning lots may comprise two or more tax lots owned by different parties that have been merged for zoning purposes, This allows the construction of taller buildings which take unused floor area from adjacent lower buildings.oi-7hes ro -8 1/2" 10-8 12" BBTH STREET (60'-0" woe) THIRD AVENUE 100'-0" WIDE) Detail of Realty’s Form PDI 23. To the developer, the long panhandle fronting on 88th Street was an essential because, under §§ 1021.1 and 403.5.2 of the New York City Building Code, buildings of this height require two routes of egress. The frontage on both 88th Street and Third Avenue gave this site the capacity to meet that standard. On the other hand, it had problems deriving from its frontage on 88th Street. Because of the sliver regulations, the tower portion of the building could not extend into the panhandle, which extends back 100 feet from the street line on 88th Street. The height of that portion of the building would be limited to 100 feet. And because of the tower-on- base regulations, the building would have to have a base at least 60 feet high along the street line, or within eight feet of the street line, on 88th Street. Moreover, as explained in the Affidavit of 5 By cantilevering over lot 32, the portion of the building facing Third Avenue (former lots 37 and 38) gains sufficient width so as not to be governed by the sliver regulations of ZR § 23-692. 9Petitioners’ consultant, George M. Janes (Exh. B), the interplay between the sliver regulations and the tower-on-a-base regulations would have made the development unbuildable in its present form. 24, The developer purported to solve all of its problems with a trick that would nullify the Zoning Resolution: by severing a narrow strip along the street line of 88th Street and declaring that strip a separate zoning lot, it would eliminate the frontage on 88th Street. With no frontage, there would be no street wall; no street wall, no way of applying the sliver or tower-on- a-base regulations to the new building. 25. Realty’s zoning lot subdivision and the subsequent transfer of the micro-lot to Carnegie Green lacked any true substance. Realty and Carnegie Green were both created and controlled by DDG Partners LLC (“DDG”), which states on its website that itis building “a luxury condominium with grand proportions” at 180 East 88th Street.® They share the same address c/o DDG Partners LLC, 60 Hudson Street, 18th floor, New York, NY, 10013. The person signing the deeds and other recorded title documents on behalf of those companies is, with few exceptions, the chairman and chief executive officer of DDG, Joseph A. McMillan.” ‘The Real Property Transfer Report form RP-5217NYC (Exh. G) that accompanied the deed states that there was no consideration for the conveyance and confirms that the grantor and grantee are “Related Companies or Partners in Business.” 26. In short, Carnegie Green is nothing more than the alter ego of Realty and DDG. No independent party would have accepted, even as. gift, an unbuildable micro-lot, subject to an easement of egress prohibiting any kind of impediment to passage, while assuming the risk of injury to persons passing over the land, the responsibility for payment of taxes, and even shared © See Exh. F (hi 2018), 7 See hitp://ddgpartners.comvexecutive-team/, visited 10/27/17. sssed from. hitp://ddgpartners.com/portfolio/ , Jan 10. 10liability for a $47,500,000 mortgage on the entire building site including the micro-lot. Amended and Restated Acquisition Loan Mortgage (Exh. H) (ACRIS ID 2016010401058003).. 27. In law and in fact, Realty’s building still faces 88th Street, and the micro-lot, whose sole purpose is to evade the Zoning Resolution, is a nullity. B. _ Realty’s Assemblage and Subdivision of the Tax and Zoning Lots 28. The assemblage and subdivision of Realty’s zoning lot occurred through a dizzying number of steps beginning in or about December 2013 and ending in or about May 2017. ‘As shown on the map below (see also Exh. 1), prior to the initiation of the present development, the area at issue was comprised of tax lot 32 (the air rights parcel on the comer of Third Avenue and 87th Street owned by Allied), and lots 37 and 38 (fronting on Third Avenue, owned by Realty), and 140 (the panhandle fronting on 88th Street, also owned by Realty). 29. The first steps. completed in 2015, resulted in the creation of a four-foot deep ‘micro-lot (lot 138), subsequently enlarged to 10 feet, the combination of Realty’s three tax lots (37, 38, and 140) into a single tax lot (lot 37), and the merger of that lot 37 with Allied’s lot 32 into a single zoning lot. Those steps were as follows. 30. On December 11, 2013, Realty entered into a Zoning Lot Development And Easement Agreement (“ZLDA”) with Allied that allowed Realty’s lot 37 and Allied’s lot 32 to be considered as one zoning lot. (Exh. J).* Then, on February 27, 2015, Realty recorded a Declaration ® Recorded documents can be found on the City Automated City Register Information System database, known as ACRIS, accessible on the internet at https://a836- acris.nye.gov/DS/DocumentSearch/CityRegisterFileNumber. The ZLDA cited here can be found by entering its ACRIS ID number, which is 2013122200045008. WLof Zoning Lot Restrictions that described tax lots 32 (Allied’s ot), cee rr f HOOK & LADg 2. CO. Original configuration of the tax lots prior to assemblage and subdivision. Lots involved in the zoning lot outlined in red (from The Manhattan Land Book of the City of New York (First Am, Real state Solutions & Sanborn 1999 ed.)). 37, and 38 as a single zoning lot. (Exh. K). (ACRIS ID 2015022700681007). This Declaration es lot 38 as including all of lot 140 except for a 4-foot deep strip (the micro-lot) along 88th descr Street.? In other words, the description of lot 38 falls four feet short of reaching the street line of East 88" Street. 31. Also on February 27, 2015, Realty recorded a certification describing this 4 by 22 foot micro-lot — subsequently enlarged to 10 by 22 feet ~ that had been excluded from the newly merged zoning lot as new tax and zoning lot 138. (Exh. L) (ACRIS ID 201502270068 1003). 32. Between July 22, 2014 and March 23, 2015, Realty allegedly merged the three tax lots it owned — lots 37, 38, and 140 (excluding the 4-foot micro-lot) — into one tax lot that ° ‘Tax lot 140 (the panhandle lot) simply disappears. Petitioners have found no recorded document evidencing the merger of lots 38 and 140. 12it called “lot 37.” The new building was to rise on this lot. However, Petitioners can find no record of the merger of these tax lots on the ACRIS online database, which contains all recorded documents." 33. Having now allegedly separated its building lot from 88th Street, Realty needed to ensure that its emergency exit route onto 88th Street would nevertheless remain forever clear and unobstructed. To this end, on June 4, 2015, Realty recorded a Declaration by which, in its capacity as owner of the micro-lot, lot 138 (Which it referred to as Parcel A), it conveyed to itself, in its capacity as owner of lot 37 (referred to as Parcel B), an easement over “the entirety of Parcel A to afford access to the public street . .. . as may be necessary for the purpose of egress in the event of a fire or other emergency occurring on the property of Parcel B.” This “Egress Restrictive Declaration” further provided that, “The Easement Area shall at all times be maintained and kept clear and unobstructed.” (Exh. N) (ACRIS ID 2015052200499001). The whereas claus of the Declaration recited that the easement was necessitated by the fact that Realty had applied for a permit to build a new building on Parcel B, and “a second means of egress from Parcel B is required pursuant to Chapter 10 of the 2008 Building Code.” Lot 138 was described as a lot 4 feet deep with 22 feet of frontage on 88th Street. 33. This was how matters stood until Petitioners challenged Realty’s permit and DOB sustained Petitioners’ objections in part, causing the developer to record numerous other documents in an attempt to legalize its zoning lot subdivision. ‘0 These mergers are, however, reflected on the New York City Department of Finance’s historical Digital Tax Maps. (Exh. M). 13C.— Realty’s Buil ing Permit and the Challenges Thereto 34. An applicant for a building permit in the City must obtain approval of a Zoning Diagram, or “ZD1,” from DOB. The Rules of the City of New York, I RCNY § 101-15, set out procedures for members of the public to challenge DOB’s approval of a Zoning Diagram." Once a ZD1 is approved and posted, any member of the public has 45 days to bring a challenge. ‘The challenge is reviewed by the Borough Commissioner. If tis denied, the public has 15 calendar days to file a new challenge, known as a “Community Appeal.” ‘That appeal is reviewed by the First Deputy Commissioner, and his determination is in turn appealable to the Board of Standards and Appeals 35. Before filing its first ZD1, on February 25, 2014, Realty filed a Zoning Resolution Determination Form (ZRD1) DOB. This was a request for a legal determination “to confirm that the proposed building can be provided with light and air at certain north-facing windows on the zoning lot described below and shown on the attached plans.” (Exh. 0). By this request, Realty sought a determination that the north-facing windows would be legal under the Zoning Resolution, However, neither at this time nor at any subsequent time did Realty seek any determination concerning the legality of its micro-lot. Nor did it bring this micro-lot to the attention of DOB. 36. In fact, Realty’s request to DOB for a determination of legality misrepresented the size and possible use of the new zoning lot that it intended to subdivide out. ‘The accompanying plans showed a new zoning lot facing 88th Street, subdivided and excluded from the new building’s lot, that was 30 feet deep, not the unbuildable 4-foot deep lot that appeared '! Those procedures are also summarized on DOB’s website. See http://www nye. gov/site/buildings/homeowner/challenges.page a i 14in Realty’s subsequent application for a building permit, nor even the equally unbuildable 10-foot lot that Realty ultimately settled on. Realty stated that this 30-foot lot might be improved with a building: “The reconfigured portion of nts on E, 88th Street will not be part of th zoning lot and shall be left unimproved or developed with a complying commercial or community facility building,” 1d. at2 (underlining added). This suggests the possibility of zoning-compliant building on that lot. 37. Yet contrary to its representations to DOB, Realty surely knew that the space between its proposed building and 88th Street could not be built on, but rather would have to be kept open and unbuilt upon, because it was required as the second emergency exit. Realty also wanted the newly created lot to be as small as it could get away with, so as to maximize the size, and permissible floor area, of its building’s lot. 38. On August 1, 2014, Realty filed an application for a new building permit. And indeed, when, in support of that application, on December 19, 2014, Realty filed a Zoning Diagram Form (ZD1), it showed only a 4-foot micro-lot, not 2 30-foot lot, fronting 88th Street. (Exh, P).!? Subsequent events suggest that neither DOB or anyone else noticed this before the spring of 2016, DOB granted the permit application in June 2015 for a construction start date of July 7, 2015." 39. In the spring of 2016, prompted by questions from neighbors, CHIN hired a zoning expert, George Janes & Associates, LLC, to examine Realty’s plans. Mr. Janes noticed the " Also available at http://a810- bisweb.nye, gov/bisweb/BSCANJobDocumentContentServiet?passjobnumber=121186518éescan code=FS242528606&rObjectId=null&appType=null 8 Screenshot from N.Y.C. Dept. of Buildings, Building Information Search (BIS), New Building Permit, Document Overview, captured Jan, 13, 2018 (Exh. Q) (http://a810- bisweb.nye. gov/bisweb/JobsQueryByNumberServlet?requestid=10&passjobnumber=121 186518 &passdocnumber=01), 15micro-lot, and immediately brought it to the attention of Council Member Ben Kallos and Manhattan Borough President Gale Brewer. On May 16, 2016, they senta letter to Rick Chandler, Commissioner of Buildings, asking that a Stop Work Order be issued because the building “used a questionable subdivision strategy so that it could circumvent the explicit intent of the Zoning Resolution,” and “does not have the tower-on-base form intended by zoning.” Exh. R. The letter continued: The applicant shaved off a tiny 4 foot portion of their lot that fronts on 88th Street so that they could claim that their building does not front 88th Street, despite using the address of 180 East 88th Street, so that no base would be required on that part of the building. This development must be required to build a contextual base 60 to 85 feet high that extends continuously along the street line as is required by applicable tower-on-base zoning regulations, including on East 88th Street, Mr. Kallos and Ms. Brewer concluded: “The text of the Zoning Resolution is clear [that] the tiny 4 foot lot, Lot 138, must be considered part of the zoning lot that includes the applicant's development on lot 37.” Id. 40. Even though the zoning challenge period had passed, DOB responded by placing a Stop Work Order on the project on May 25, 2016. (Exh, $). It is clear from DOB’s response that DOB had not previously noted this attempt to evade the Zoning Resolution. In its Audit Comments, DOB stated: Zoning lot was improperly formed in that the tract of land was not properly subdivided into two or more zoning lots. Zoning lot cannot be subdivided into a 4 lot for sole purpose of avoiding a zoning lot requirement, in this case, the street wall requirements of ZR 23-65 and setback requirements of ZR 23-66. Additional Information Form (AI1) dated June 7, 2016 (Exh. T).'* '¢ DOB’s objections and Realty’s responses can also be found at http:/a810- iw gov/bisweb/BScan JobDocumentSe i jobnumber=121186518& passdocnumber=01 &allbin=1048054&scancode=ES875603647 1641. In response, Realty argued that it was in literal compliance with the Zoning Resolution and that DOB was therefore required to approve its permit application. Id Nevertheless, apparently to satisfy DOB’s objections, on October 27, 2016, Realty filed an amended Zoning Diagram that showed a slightly enlarged lot 138, from a depth of 4 feet to a depth errors not material here, of 10 feet. (Exh. U).!5 The current, third, ZD1A, which corrected cert was received by DOB on December 21, 2016. (Exh. V).'° On that same day, whether because its objection was satisfied by the enlargement of the lot from 4 feet to 10 feet or for some other reason, DOB lifted the Stop Work Order. (Exh. W)!” 42. In violation of basic principles of administrative law, DOB never explained why it had changed its previous position that a lot “cannot be subdivided into a 4’ lot for sole purpose of avoiding a zoning lot requirement.” 43. Taking further steps to attempt to legitimize its creation of the micro-lot, on January 25, 2017, the developer recorded a deed by which it transferred the micro-lot from itself to Camegie Green, an entity created for this sole illegitimate purpose.'® The lot was still described there as being 4 by 22 feet. (Exh. G) (ACRIS ID 2017012301681001). 44, Although, apparently in response to DOB's objections, Realty filed an amended Zoning Diagram representing that it had enlarged the micro-lot from 4 feet to 10 feet, passdocnumber=0 allbin= 10480548¢scancode=FS998689300 . "6 The December 21, 2016 ZDIA can also be found at http:/a810- bisweb.nyc. eov/bisweb/BScanJobDocumentServiet?requestid~3&epassjobnumber=121 1865188 passdocnumber=01 &allbin=1048054&escancode=ES272111912 " See link to BIS: hitp://a810- bisweb.nyc. gov/bisweb/ActionsByLocationServiet?requestid=1 &allbin=1048054&allinquirytyp e-BXS40CV3&stypeocv3=Vérestore=I '8 For reasons unknown, this deed us dated December 21, 2015, ie., over a year earlier. 7and although DOB lifted the stop-work order in apparent response to this representation, Realty did not in fact enlarge its micro-lot until fully five months later, on May 26, 2017, after CHN had filed a Zoning Challenge pointing out its failure to do so, and after DOB had issued a Notice of Intent to Revoke Approvals and Permits. 45. And even then, the developer did not, and still has not, recorded any restrictive declaration to extend the emergency exit easement over the additional six feet of the micro-lot, and so does not have the easement that it represented to DOB, on June 7, 2016, that it had. (Exh. T)!? The result is that the emergency exit path from Realty’s new building passes over six feet over which Realty has no easement. Therefore, the building is not in compliance with the exit discharge requirements of N.Y.C. City Building Code § 1027.6, which requires exit discharge areas to have direct access to a public way. 46. Before the Stop Work Order was lifted, on December 8, 2016, CHN, with support from Borough President Brewer, State Senator Liz Krueger, and Council Member Kallos, filed a formal Zoning Challenge with DOB. (Exh. X).2° This Zoning Challenge was filed at the earliest opportunity after CHN had leaned of the micro-lot, and within the 45-day window from Realty’s October 27, 2016 filing of an amended ZD1. CHN’s principal argument reiterated that made by Mr. Kallos and Ms. Brewer in their May 16, 2016 letter: “Primarily, they objectfed] to the developer's absurd efforts to gerrymander its tax and zoning lots to avoid zoning requirements for buildings facing East 88th Street.” Jd. at Exh. R. The challengers argued that lots 37 and 138 19 See also http://a810- bisweb.nye. gov/bisweb/BScanJobDocumentServlet?requestid~48passjobnumber=121 1865188 passdocnumber=01&allbin~1048054&scancode=ES875603647 . 2° The Zoning Challenge and DOB’s March 22, 2017 response can also be found on DOB’s Building Information Search database at http://a810- bisweb.nyc.gow/bisweb/BScanJobDocumentServlet?requestid=3&passjobnumber=121 1865188 passdocnumber=0 1 &allbin=1048054&scancode=SC032300001 18‘were one zoning lot, both because of the manner in which they had been created and documented and because of the fact that they were integral parts of the same development, with lot 138 providing the mandated egress route from the proposed building fronting on 88th Street. They further stated: The policy implications of this approach for the City are huge. Developers seeking to avoid zoning restrictions that are triggered by street frontage can merely carve off a tiny tax lot, obtain an access easement, and continue to reap all the benefits that the tax lot might offer, other than the tiny amount of floor area these micro-lots produce — a tradeoff many developers will embrace given the premium price for height and high-floor apartments. Id. at Exh, X. 47. The challengers also argued that the Zoning Diagram submitted by Realty showed lot 138 as being 10 feet by 22 feet, whereas the recorded documents all showed that lot as, being 4 feet by 22 feet, and stated that “DOB cannot issue a building permit based upon a zoning lot that does not exist.” Id. at Exh. X. 48. Three and a half months later, on March 22, 2017, the DOB Borough Commissioner denied the substantive portions of CHN’s December 8th Zoning Challenge, but issued a 15-day Notice of Intent to Revoke Realty’s permit based on Realty’s “failure to file the proper Zoning Lot Exhibits to match the zoning lot described in the job application.” Realty had failed to conform the recorded documentation with its prior representation that it had enlarged the micro-lot from a 4-foot depth to a 10-foot depth. DOB gave the developer 15 days to cure this defect. (Exh. Y). 49. On March 29, 2017, the developer responded by terminating the zoning lot development agreement, stating that the DOB determined that it was, “improperly formed.” (Exh. 19Z)" However, it was not until some two months later, on May 26, 2017, that the developer recorded a series of new deeds and declarations of zoning lot subdivision and restriction that, with one important exception, made the recorded record consistent with its permit and with its Zoning Diagram filed the previous fall. (Exhs. AA, BB, CC).”?_ That exception was that the developer did not, and still has not, recorded any instrument extending Realty’s easement over the additional six feet of lot 138. It was not until the end of the first week of June that Realty filed these documents with DOB. 50, Even though the zoning lot on which the development was based had not existed for over six months, the Notice of Intent to Revoke never resulted in a revoked permit. 51, Based on these new documents, on June 15, 2017, DOB accepted the audit of the project and rescinded the Intent to Revoke. (Exh. DD). Almost three months had gone by since DOB denied the substance of CHN’s Zoning Challenge while issuing the Notice of Intent to Revoke. 52. CHN, however had not waited for Realty to satisfy DOB’s objections about the manner in which Realty’s zoning was formed and documented. On April 11,2017, following the Borough Commissioner’s March 22, 2017 denial of the substance of its Challenge, CHN had promptly proceeded to the next step: filing a Community Appeal. (Exh. EE). DOB accepted this filing. Not until three months later, on June 29th, in response to an email inquiry from CHN, did DOB inform CHN that it had deemed the filing premature because the Notice of Intent to Revoke 21 See ACRIS ID 2017040600965002 (Termination of Declaration of Zoning Lot Restrictions between lots 32 and 37). 2 See ACRIS ID 2017052500881001 (transferring 6 additional feet from lot 37, owned by Realty, to lot 138, owned by Carnegie Green); ACRIS ID 2017052500881003 (new Declaration of Zoning Lot Subdivision and Restrictions subdividing lot 138, as 10 by 22 foot lot, from lot 37); ACRIS ID 2017052500881006 (new Declaration of Zoning Lot Restrictions between lot 32 and redefined lot 37). 20was still extant at the time the Appeal was filed, By that same email, DOB informed CHN that it had only two days to renew its Community Appeal. (Exh. FF). 53. The next day, on June 30, 2017, CHN filed a second Community Appeal substantially similar to its April Community Appeal. (Exh. GG). DOB sat on this Appeal for another three months, Not until after CHN raised the issue directly with the Mayor did DOB respond, on September 28, 2017, by denying the Appeal. (Exhs. GG, B, HH). During this entire time, construction work continued. 54, On October 30, 2017, Petitioners CHN and FRIENDS appealed this denial to the BSA, On December 26, 2017, the BSA issued a Notice of Comments on this appeal. (Exh. Il). The BSA appeal has not yet been calendared. D. The Process of Construction 55, With the exception of the period from May 26, 2016 until December 21,2016, when the Stop Work Order was in place, the developer has engaged in construction from the time the permit was first granted, effective July 7, 2015 56. From the beginning, Realty has asked for and received from DOB authorizations, called After Hours Variances, to allow construction work on nights and weekends. Such authorizations are not supposed to be handed out routinely. The N.Y.C. Administrative Code states that they may only be granted for periods of two weeks at a time, and only for one of five reasons: (1) emergency work, (2) public safety, (3) city construction projects, (4) construction activities with minimal noise impact, and (5) undue hardship. ® See also http://a810- bisweb.nyc.gov/bisweb/BScanJobDocumentServlet?requestid=3&passjobnumb passdocnumber=01 &allbin=1048054&scancode-SC111111111 21186518& 2157. In response to complaints from constituents, on April 19, 2017, Petitioner Council Member Kallos wrote to DOB Borough Commissioner Martin Rebholz, to object to the routine issuance of these authorizations to Realty. (Exhs. A & JJ). DOB ignored Council Member Kallos? objection, and has continued to issue new Afier Hours Variances every two weeks. These have allowed Realty to accelerate in its race to complete the building before construction could be enjoined. 58. As of January 19, 2018, Petitioners’ expert consultant, George Janes, estimated that approximately 150 feet of the 523-foot structure had been built. (Exh. E). FIRST CAUSE OF ACTION REALTY’S BUILDING VIOLATES THE SLIVER REGULATIONS OF ZR § 23-692 59, The sliver regulations, ZR § 23-692, titled “Height limitations for narrow buildings or enlargements,” set stringent height limits on “portions of buildings with street walls, less than 45 feet in width.” Those height limits extend back 100 feet from the street line. Id. ZR § 23-692 is made applicable to mixed residential/commercial buildings in a C1-9 district, such as this, by ZR § 35-23 60. The applicable provisions of ZR § 23-692 are as follows:”" In the districts indicated, portions of #buildings# with #/street walls# less than 45 feet in width shall not be permitted above the following heights: tee #comner lots# bounded by at least one #wide street#, a height equal to the width of the #widest street# on which it fronts, or 100 feet, whichever is less. tee © (©) (2) The provisions of this section shall not apply to #street walls# of permitted obstructions or #street wall s# located beyond 100 feet of a #street line#. > Hashtags in the Zoning Resolution indicate defined terms. 22ZR § 23-692. 61. The plain language of the sliver regulations, makes them applicable to the building at issue here. These regulations apply to “portions of buildings with street walls less than 45 feet in width.” ZR § 23-692. 62. The portion of Realty’s proposed building that faces 88th Street is only 22 feet wide. A “street wall” is defined as a “wall or portion of a wall of a building facing a street.” ZR § 12-10 (underlining added). A “street line” is defined as “a lot line separating a street from other land,” A street wall is not necessarily along the street line, but only facing that line. Indeed, as ZR § 23-692(e)(2) states, the street wall can be more than 100 feet from the street line. The Zoning Resolution does not define the term “facing.” However, in plain language, Realty’s building has a wall that “faces” 88th Street and is 22 feet wide, ‘e., “less than 45 feet in width.” 63. The sliver regulations explicitly do not apply to any street wall “located beyond 100 feet of a street line,” ZR. § 23-692(e)(2), which, on most Manhattan blocks, is the midline of the short dimension of the block. ‘They therefore do apply to a street wall that is less than 100 feet away from the street line. ‘This is the case for that portion of Realty’s building that is on former tax lot 140. The building therefore meets all the criteria for application of ZR § 23- 692, the sliver regulations. 64, The zoning lot at issue here is a corner lot, because it includes tax lot 32, the lot on the corner of Third Avenue and 87th Street. For a building on a corer lot, the maximum height of the portion of the building with street walls less than 45 feet wide is “the width of the widest street on which it fronts, or 100 feet, whichever is less.” Jd. The widest street on which Realty’s building fronts is Third Avenue, which is more than 100 feet wide. Therefore, the height 23of the portion of Realty’s building governed by the sliver regulations, i.e., the portion facing, and within 100 feet of, 88th Street cannot exceed 100 feet. 65. As currently designed, that portion of the building, like the rest, rises 32 stories and 523 feet 8 inches, far exceeding the 100-foot limit. 66, Realty’s ruse is not only contrary to the plain language of the Zoning Resolution, but also leads to a result that negates the intent of the legislature, and on that ground 00, it cannot be sanctioned. As their name suggests, the sliver regulations were adopted to prevent the construction of very tall, narrow buildings that are inconsistent with the scale and character of existing neighborhoods, such as this one. The problem was well-described by Halina Rosenthal, who shortly thereafter founded FRIENDS, in a January 1982 letter to then-City Planning Commissioner Herbert Sturz: “The present R8 Zoning allows the proliferation of assorted needles, slivers, splinters and other such skyward oriented structures which — if unchecked ~ will totally destroy New York City’s mid-block residential streetscape, creating sort of a pin-cushion aerial view of the city, and an out of control hodge-podge at eye level.” (Exh, KK). 67. The City Planning Commission’s Report on the sliver regulation explained: Spiraling real estate values, continued demand for luxury housing and lack of opportunity to assemble large construction sites in high density R7-2, R8, R9, and R10 Districts and in Cl and C2 Districts with equivalent residential floor area ratio have led to the construction of high rise residential buildings on small lots. Where linear lot street frontage opportunities are less than 45 feet, the resulting tall and narrow “sliver” buildings are sometimes four to five times the height of their surrounding low-rise brownstone neighbors. Because of their narrowness and exceptional height, these buildings are inconsistent with the scale and character of the existing neighborhoods. The Commission feels it is important to regulate the construction of “Sliver” buildings in the aforementioned districts which are predominantly residential in character in order to ensure a harmonious relationship between these buildings and the existing buildings in the neighborhood. City Planning Commission Report N830112 ZRY (Feb. 2, 1983) (Exh. LL). 24SECOND CAUSE OF ACTION REALTY’S BUILDING VIOLATES THE TOWER-ON-A BASE REGULATIONS OF ZR §§ 23-65 AND 23-651 68. The tower-on-a-base regulations are contained in ZR §§ 23-65 and 23-651 They are made applicable to mixed residential/commercial buildings in a C1-9 district, such as this, by ZR § 35-64. 69. They generally require a building base to be built at or near the street line and to extend upward at least 60 feet and typically no more than 85 feet. Such buildings must have at least 55 percent of their floor area in their lower floors, below 150 feet, presumptively thereby reducing their overall height, ZR § 23-651. The tower is placed on top of the base, set back from. the base by at least ten feet on wide streets and 15 feet on narrow streets. This form creates a building base that, from the pedestrian’s point of view, resembles the scale of traditional New York City row houses and tenements so that the pedestrian’s relationship with both new and existing buildings is consistent. 70. The applicable provisions are as follows. (b) #Building# base regulations (1) #Street wall# location (i) On a #wide street#, and on a #narrow street# within 125 feet of its intersection with a #wide street! the street wall# of the base shall oceupy the entire #street# frontage of a #zoning lot# not occupied by existing #buildings#. At any height, at least 70 percent of the width of such #street wall shall be located within eight feet of the street line#, and the remaining 30 percent of such #street wall# may be recessed beyond eight feet of the #street line# to provide #outer courts? or balconies. However, no such recesses shall be permitted within 20 feet of an adjacent #building# fronting on the same #street line# or within 30 feet of the intersection of two #street lines#. ZR § 23-651(b)(1)(i) (underline added), 2571. These regulations apply to “[alny #development# or #enlargement# that meets the location and #floor areat criteria of paragraph (a) of section 23-65 and includes a tower.” ZR § 23-651. In tum, ZR § 23-65(a) states: “#Buildings developed# or #enlarged# with towers shall comply with either tower-on-a-base regulations or standard tower regulations,” and continues: The tower-on-a-base regulations of section 23-651 shall apply to any such #building# that: (1) contains more than 25 percent of its total #floor areai in #residential use#; and (2) is located on a #zoning loti that fronts upon a #wide street# and is cither within 125 feet from such #wide street# frontage along the short dimension of the #blocki or within 100 feet from such #wide street# frontage along the long dimension of the #block#, ZR § 23-65. 72. Realty’s building meets all of these criteria. The 88th Street street wall of its base is within 125 feet of the intersection of Third Avenue and 88th Street. Yet it is not “located within eight feet of the street line” as the law requires. To the contrary, it is set back 34 feet and 2 inches from the street line. 73. The fact that the zoning lot on which Realty’s building is being built allegedly does not itself abut 88th street is irrelevant. The Zoning Resolution does not define the words “facing the street,” “on a narrow street,” and “street frontage.” ‘Therefore, these words must be read according to their commonly accepted meanings. Realty’s insertion of a micro-lot between its building’s street wall and the street line does not change the fact that the tower-on-a-base rule applies to the building. 74, Realty claims that it can evade these regulations by calling the patch of empty space it created in front of its building — the very space that makes its building illegal ~ a separate 26lot. However, the plain language of the sliver building and tower-on-a-base regulations makes them applicable to Realty’s building regardless of Realty’s creation of the separate micro-lot. 75. Here too, Realty’s ruse leads to a result that negates the intent of the legislature. The tower-on-a-base regulations were enacted in 1994 as a reaction to the “tower-in- the-plaza” buildings that had been encouraged by the 1961 Zoning Resolution. The tower-in-the- plaza buildings, exemplified by the Seagram Building on Park Avenue between 52nd and 53rd Streets, designed by famed architect Ludwig Mies Van der Rohe in 1957, had “a dramatic [negative] effect on the quality of life in the Upper East Side community.” CPC Report N 940013, attached submission of Manhattan Borough President Ruth W. Messinger, Nov. 24, 1993 (Messinger Report”), at 7 (Exh. MM). “Residential buildings towered over the surrounding neighborhood and offered no relationship to the existing urban fabric. Building setbacks and plazas began to erode the unique neighborhood character that had existed on the Upper East Side.” Id. 76. ‘These concerns led to the enactment of a series of regulations intended to limit building height and encourage or mandate contextual buildings, including the sliver regulations?* and the rezoning of Lexington Avenue to decrease the allowable density and mandate that buildings be built to the street line, without plazas. In further response to these concerns, the tower-on-a-base provisions were enacted in 1994. The City Planning Commission Report on these amendments found that “[t]he plaza erodes the streetwall character of the neighborhoods,” and that: 2S See Regulating Residential Towers and Plazas, at 4 (DCP Discussion Document, 1989) (Exh. NN). 6 Messinger Report, at 2. 27many blocks in neighborhoods with an established streetwall character have had this context eroded by towers that are set back from the streetline in plazas and rise without setback. seae Recent high density residential development, particularly on the east side of Manhattan, has all too frequently been out of scale with its context. The streetwall sale and neighborhood context have been eroded as towers have become increasingly taller and thinner. This [tower-on-a-base] text change would create a new building form that would reinforce the established neighborhood character. CPC Report N 940013 ZRM, at 2, 11 & 12. TT, The tower-on-a-base regulations were intended to ameliorate these problems. ‘The CPC Report concluded that “[t]he proposed combination of streetwall controls, floor area distribution, tower coverage and articulation credits work together to ensure a flexible building design which will enhance streetscapes, reinforce neighborhood character, and still allow for reasonable tower development.” CPC Report, at 7. 78. DOB's interpretation of the statute could be used to negate the tower-on-base regulations entirely. It is not correct. THIRD CAUSE OF ACTION REALTY’S ZONING LOT SUBDIVISION IS UNLAWFUL BECAUSE IT RESULTS IN A N COMPLYING BUILDING IN VIOLATION OF ZR § 12-10 79, Realty’s attempt to insulate itself from otherwise applicable zoning provisions additionally fails because it violates both the plain language and the clear and obvious intent of the Zoning Resolution’s prohibition of zoning lot subdivisions that result in noncomplying buildings. The definition of “Zoning Lot” includes the following: A #zoning lot# may be subdivided into two or more #zoning lots#, provided that all resulting #zoning lots# and all #buildings# thereon shall comply with all of the 28applicable provisions of this Resolution. If such #zoning lot#, however, is occupied by a #non-complying building#, such #zoning lot# may be subdivided provided such subdivision does not create a new #non-compliance# or increase the degree of #non-compliance# of such #building#. ZR § 12-10. 80. This provision prohibits a zoning lot subdivision the sole purpose of which is, to enable construction of an otherwise noncompliant building 81. Realty’s building should be enjoined insofar as it allows a noncomplying building or a building that would be noncomplying absent Realty’s zoning lot subdivision. FOURTH CAUSE OF ACTION IN FACT AND IN LAW, PURSUANT TO ZR § 12-10, REALTY’S MICRO-LOT IS PART OF THE SAME ZONING LOT AS REALTY’S BUILDING 82. Both in fact and in law, lot 138 is an integral and inseparable part of Realty’s development. Physically, the empty space in facing 88th Street forms an entryway to the building, Legally, lot 138 could never, so long as this building stands, be used for any other purpose, because it is required by the Building Code as an emergency exit, and must be kept unobstructed. 83. The easement that Realty has over the property, which precludes it being used for any purpose other than as an entranceway to the building, means that all the sticks in the bundle of ownership rights are owned by Realty, and Carnegie Green holds only a bare legal title. It is entirely under the control of Realty, and the notion that it is under separate ownership is a fiction. 84, Moreover, even if lot 138 is a separate tax lot, the definition of “development” in the Zoning Resolution requires that it be considered part of the same zoning lot as lots 32 and 37 because it is an integral part of Realty’s development. “Development” is a defined term in the zoning resolution: 29A ‘development,’ on a #zoning lot# or a portion thereof includes: (a) the construction of a new #building or other structure#; (b) the relocation of an existing #bui lot#; o jing or other structure# to another #zoning (©) the establishment of a new open #use#, other than an Haccessory use#.” ZR § 12-10. The key phrase is that a development is “on a zoning lot or portion thereof.” A development is not on two or more zoning lots. In light of this definition, Realty’s claim that tax lot 138 is not a part of the zoning lot on which it is building is wrong, FIFTH CAUSE OF ACTION BECAUSE REALTY’S ZONING LOT SUBDIVISION HAS NO LAWFUL PURPOSE IT SHOULD BE DEEMED A NULLITY 85, Transactions that have no purpose other than to evade or negate statutory requirements, including zoning requirements such as the one at issue here, are nullities without legal effect. For the People Theatres of N.Y. Inc. v. City of New York, 29 N.Y.3d 340, 361 (2017) (upholding zoning regulations for “adult” bookstores and chiding Appellate Division for “los[ing] sight of the fact that the issue was whether there was sham compliance”); United States v. Tax Comm’n of New York, 22 A.D.2d 290 (Ist Dept. 1964) (lease purporting to assign ownership of improvements to a tax-exempt tenant while in fact retaining all the rights of ownership treated as nullity); 595 Investors Lid. Partnership v. Biderman, 140 Misc. 2d 441 (S. Ct. N.Y. Co. 1988) (shell entity created to avoid tax disregarded, despite general rule that “a statute which levies a tax is to be construed most strongly against the taxing authority and in favor of the taxpayer”); Sherwin-Williams Co. v. Tax Appeals Tribunal, 12 A.D.3d 112 (3d Dept. 2004) (transaction “shaped solely by tax-avoidance features that have meaningless labels attached” disregarded) (quoting Frank Lyon Co. v. United States, 435 U.S. 561, 583-84 (1978); Sorenti v. Bd. Of Appeals, 30345 Mass. 348 (Mass. S. Jud. Ct. 1963) (transfer of zoning lot to straw owner on eve of zoning amendment disregarded as sham); Hansbury v. Hughes, 11 Mass. L. Rep. 329 (Mass. Super. Ct. 2000) (plaintifi’s nonconforming lots were not grandfathered, because transfer of ownership of adjacent lot to straw owner was a sham transaction); Campbell v. Kildew, 141 Idaho 640 (Idaho 8. Ct. 2005) (invalidating sham arbitration to subdivide property in circumvention of zoning law). 86. The creation of the micro-lot by Realty is a nullity, and Realty’s building must comply with the requirements attendant on its fronting on 88th Street. SIXTH CAUSE OF ACTION DOBS’ DENIAL OF CHN’S COMMUNITY APPEAL WAS ARBITRARY AND CAPRICIOUS AND CONTRARY TO LAW 87. On September 28, 2017, DOB denied CHN’s Community Appeal challenging Realty’s permit as unlawful. 88. For all the reasons stated above, this denial was arbitrary, capricious, and contrary to law, and therefore in violation of CPLR Art. 78. WHEREFORE, Petitioners respectfully request that this Court: (1) On Petitioners’ first cause of action, enter a judgment pursuant to CPLR 3001 and/or CPLR Art. 78 declaring that DOB’s issuance of a building permit to Realty and denial of the Community Appeal of CHN was in violation of the sliver regulations, ZR § 23-692, and an order enjoining any further steps in the construction of 180 East 88th Street, New York, New York; (2) On Petitioners’ second cause of action, enter a judgment pursuant to CPLR 3001 and/or CPLR Art. 78 declaring that DOB’s issuance of a building 31permit to Realty and denial of the Community Appeal of CHN was in violation of the tower-on-a-base regulations of ZR §§ 23-65 and 23-651 and an order enjoining any further steps in the construction of 180 East 88th Street, New York, New York; (3) On Petitioners’ third cause of action, enter a judgment pursuant to CPLR 3001 and/or CPLR Art. 78 declaring that DOB’s issuance of a building permit to Realty and denial of the Community Appeal of CHN was in violation of the ZR § 12-10’s prohibition of any zoning lot subdivision that results in a building that is not compliant with zoning, and an order enjoining any further steps in the construction of 180 East 88th Street, New York, New York; (4) On Petitioners’ fourth cause of action, enter a judgment pursuant to CPLR. 3001 and/or CPLR Art. 78 declaring that, pursuant to ZR § 12-10, Realty’s development is on a single lot, that lot 138 is a fiction, and that therefore DOB’s issuance of a building permit to Realty based on that fiction and its denial of CHN’s Community Appeal was contrary to law, and an order enjoining any further steps in the construction of 180 East 88th Street, New York, New York; (5) On Petitioners’ fifth cause of action, enter a judgment pursuant to CPLR 3001 and/or CPLR Art. 78 declaring that Realty’s zoning lot subdivision, done for the sole purpose of evading the law, is a sham and a nullity, and that therefore DOB’s issuance of a bui \g permit to Realty based on that zoning lot subdivision and its denial of CHIN’s Community Appeal was 32contrary to law, and an order enjoining any further steps in the construction of 180 Bast 88th Street, New York, New York; (6) On Petitioners’ sixth cause of action, pursuant to CPLR 7803, enter a judgment annulling DOB’s issuance of a building permit to Realty and its denial of CHN’s Community Challenge on the grounds that those actions were arbitrary, capricious and contrary to law; (7) Award Petitioners their costs, disbursements and expenses, including reasonable attomeys’ fees; and (8) Grant such other and further relief as this Court may deem necessary. Dated: New York, New York January 26, 2018 Respectfully submitted, 415 8th Street Brooklyn, New York 11215 (718) 744-5245 lowbeer’@yahoo.com MICHAEL 8. GRUEN 249 West 34th Street, #402 New York, New York 10001 212-743-7050 ‘mgruen@michaelgruen.net 33VERIFICATION WILLEM L. VAN DER VALK, being duly sworn, deposes and says: Lam President of Camegie Hill Neighbors, a Petitioner in the within proceeding. I have read the foregoing Verified Petition and know the contents thereof. The same is true to my own knowledge except as to matters therein alleged upon information and belief, and as to those matters, I believe them to be true. |! tbwesthe LA, Le Willem L. van der Valk Swom to before me this 24 day of January, 2018 Notary Public posers oe aca estas eeVERIFICATION RACHEL LEVY, being duly swom, deposes and says: 1 am Executive Director of Friends of the Upper East Side Historie Districts, a Petitioner in the within proceeding. I have read the foregoing Verified Petition and know the contents thereof. The same is true to my own knowledge except as to ‘matters therein alleged upon information and belief, and as to those matters, I believe them to be true. Rachel Levy 7s Swom to before me this Wday of January, 2018 Notary Public cy Co rene 1h oe oo eeeEXHIBIT ASUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SEN. LIZ KRUEGER, COUNCIL MEMBER BEN KALLOS, CARNEGIE HILL NEIGHBORS, INC., FRIENDS OF THE UPPER EAST SIDE HISTORIC DISTRICTS, Petitioners, For a Judgment Pursuant to CPLR Art. 78 and a Declaration AFFIDAVIT OF Pursuant to CPLR 3001 COUNCIL MEMBER -against- BEN KALLOS NEW YORK CITY DEPARTMENT OF BUILDINGS, NEW Index No. YORK CITY BOARD OF STANDARDS AND APPEALS, DDG PARTNERS LLC, 180 EAST 88th STREET REALTY LLC, CARNEGIE GREEN LLC, and ALLIED THIRD AVENUE LLC, Respondents x State of New York) ) SS: County of New York ) BEN KALLOS, being duly sworn, deposes and says: 1. Lam a member of the New York City Council, representing the Fifth District in Manhattan. That District covers most of the eastern portion of the Upper East Side, including Yorkville, Carnegie Hill, and Lenox Hill. 2. The Upper East Side is known for its town houses along the side streets, its modestly high apartment buildings along the avenues, and its many relatively small commercial establishments serving its residents. Its zoning is designed to promote and preserve those qualities. In response to prior instances of overdevelopment, zoning regulations have been enacted specifically to limit the size and scale of new buildings.3. Yet in my district, as in much of Manhattan, thete have recently been proposed and built a number of “super-skyscrapers,” extremely tall residential towers that, provide magnificent views for those who can afford high-altitude apartments while blotting out the light and air for those who cannot. These super-skyscrapers are out of scale with the surrounding buildings and with their neighborhoods, and are destroying the streetscape that the Zoning Resolution was intended to protect. They are made possible by questionable interpretations of the Zoning Resolution that all too often cross the line into illegality. 4. My community, along with others, is fighting back. I strongly support the community in this fight, and have spoken out repeatedly against these super-skyscrapers. My objections stem not only from my concern about inappropriate development, but also from the lawlessness of some developers who see the zoning laws as a challenge for imaginative evasion, and from the regrettable fact that the Department of Buildings has not always enforced the Zoning Resolution as intended. 5. Forexample, at 200 Amsterdam Avenue, on the West Side, a developer has proposed a 668-foot high building — the tallest in Manhattan north of 61st Street — that is made possible only by a crazily gerrymandered zoning lot that violates the open space provisions of the Zoning Resolution. On West 97th Street, a developer is trying to build another very tall building only 60 feet from the front windows of existing buildings in Park West Village by counting as open space the rooftop garden of a luxury building that is accessible only to the residents of that building. These proposed buildings are being challenged by community groups and civic organizations with the support of their elected officials. 6. The case of 180 East 88th Street presents another flagrant example of violation of the Zoning Resolution. The zoning applicable to the site at issue limits the height ofbuildings on narrow lots to 100 feet, and requires all towers to honor the predominant relatively low and continuous street walls of the area by building a base no more than eight feet away from the street line and setting the tower back from that line. 7. To evade these regulations, the developer created a tiny sham zoning lot, a four-foot strip running the width of the lot (22 feet) along 88th Street, that purports to insulate the building from 88" Street, and thereby to exempt it from those requirements that would otherwise apply to a building fronting on 88th Street. The Zoning Resolution expressly prohibits the creation of a new zoning lot where the result is a non-complying building. 8. On May 16, 2016, together with Manhattan Borough President Gale Brewer, I challenged the legality of this building by writing to the Department of Buildings. In response to our challenge of this charade, the Department of Buildings issued a Stop Work Order on May 26, 2016, on the absolutely correct ground that “Zoning lot cannot be subdivided into a 4’ lot for sole purpose of avoiding a zoning lot requirement.” That Order remained in effect for some seven months until the Department lifted it on December 21, 2016, with no explanation of its change of position, The only changes that the Department required was that the developer add six feet to the depth of the micro-lot, bringing its size to ten by 22 feet. 9. I subsequently lent my name in support of Carnegie Hill Neighbors’ Zoning Challenge and Community Appeal, which formally challenged the validity of the building permit 10. On April 19, 2017, after receiving complaints from my constituents, I wrote to the Borough Commissioner of the Department of Buildings to express my concern about the Department’s repeated issuance of After Hours Variance permits for construction at 180 East 88th Street. As I said in that letter, Section 24-223(e) of the Building Code allows suchvariances only for one of five specific reasons: (1) emergency work; (2) public safety; (3) city construction projects; (4) construction activities with minimal noise impact; and (5) undue hardship. None of these reasons appears to be applicable here. I received no answer to this letter, and the Department has continued to issue these variances. 11, The Department of Buildings’ rulings upholding the building permit for 180 East 88th Street stretches the Zoning Resolution beyond recognition. In reality, the developer's building still faces 88th Street, and must comply with the zoning requirements that go along with that. In reality, too, the newly created micro-lot is an integral part of the developer's building. Even if its tiny size did not make it unbuildable, it would be unbuildable because it must be kept clear and open to serve as a required emergency egress from the building. Its separate existence should be declared a sham and a nullity. 12. This building is plainly illegal in its present form. Construction should be halted immediately, and the developer should be required to redraw its plans to provide for a building that complies with the Zoning Resolution 13. Tam aware that the building has been under construction for some time now. However, neither the community nor even the Department of Buildings was aware of the sleight of hand that enabled it to violate the Zoning Resolution until this was uncovered by Camegie Hill Neighbors’ consultant, George Janes, in the spring of 2016, and I then, together with Boorough President Brewer, brought it to the attention of the Department of Buildings. 14, Since that time, Carnegie Hill Neighbors and I, along with other elected representatives, have been pressing the Department of Buildings for rulings on the legality of the building permit.15. Despite our best efforts, this process proved to be extremely lengthy. During this time, the developer was well aware of the charges of illegality, and yet chose to proceed with construction. This should not be held against the Petitioners, who have a clear right to relief. Bu Mee BEN KALLOS Sworn to before me this 2 day of January, 2018 ry Pu DEBBIE K, LIGHTR(EXHIBIT BSUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SEN. LIZ KRUEGER, COUNCIL MEMBER BEN KALLOS, CARNEGIE HILL NEIGHBORS, INC., and FRIENDS OF THE UPPER EAST SIDE HISTORIC DISTRICTS, Petitioners, For a Judgment Pursuant to CPLR Art, 78 and a Declaration AibeNe i oF Pursuant to CPLR 3001 4 VAN DER VALK -against- YORK CITY DEPARTMENT OF BUILDINGS, NEW Index No. YORK CITY BOARD OF STANDARDS AND APPEALS, DDG PARTNERS LLC, 180 EAST 88th STREET REALTY LLC, CARNEGIE GREEN LLC, and ALLIED THIRD AVENUE LLC, Respondents x State of New York ) SS: County of New York ) WILLEM L. VAN DER VALK, being duly sworn, deposes and say 1. I am President of Carnegie Hill Neighbors (“CHN"), a not for profit organization formed in 1970 to preserve the historic architectural character of Manhattan's Upper East Side between 86th and 96th Streets and between Fifth and Third Avenues and protect this neighborhood from inappropriate development, including high rise construction, 2. CHN worked for the designation of the first Camegie Hill Historie District in 1974 and the expanded historic district in 1993. The results of CHN’s additional historic preservation efforts include: in 1998, the creation of the Hardenbergh-Rhinelander HistorieDistrict on Lexington Avenue between 89th and 90th Streets; and, in 2014, the creation of the Park Avenue Historic District from 79th to 91st Streets. CHN has also been active in seeking changes in the City’s zoning laws to protect the human scale of the City’s residential areas. In the 1980s it led the effort to prohibit unsightly “sliver buildings.” Also in the 1980s CHN worked with other civie organizations to limit the height of buildings in the mid-blocks of the narrow side streets that connect the avenues; and in the 1990s it finally succeeded in limiting the height of residential buildings on Madison Avenue to that of Park and Fifth Avenues. CHN has testified before the City Planning Commission and at BSA hearings concerning special permit and variance applications, and has submitted amicus briefs in support of litigants in cases concerning zoning and landmarks issues. 3. CHN spearheaded, in 1980, the creation of a planting and garden maintenance program for the Park Avenue Malls from 86th to 96th Street funded by the co-op buildings along the avenue, subsequently emulated by another organization using CHN’s ‘management template for the 35 blocks south of 86th Street. 4. CHIN has members who live immediately adjacent to, or within a few hundred feet of, the new building, who would be directly affected by its violation of the sliver building regulations and its breach of the street wall on 88th Street, and who have expressed their concerns about the building. Among those members are: Sandra Salmans, 170 E. 88th St, Apt. 2G; Walter and Ann Grist, 200 East 89th Street, Apt 42S; Robert Kramer, 170 E. 88th St. PHBA, and Adele Morrisette, 170 East 88th Street, Apt 2E. 5. CHN first became aware that something might be amiss with the plans for the proposed new building in March of 2016, when neighbors contacted CHN to ask how such a tall building could be built. On March 28, 2016, CHN engaged George M. Janes & Associates toanalyze the developer's application. On April 3, 2016, Mr. Janes produced an initial analysis in which he identified the micro-lot as a device to evade the Zoning Resolution. Because of its effect on the midblock streetscape and its flagrant attempt to circumvent the Zoning Resolution, and because of the precedent that its approval would set, CHN has assiduously opposed this building since then. 6. We sought the intervention of our elected representatives, Petitioner Council Member Benjamin Kallos and Borough President Gale Brewer. They wrote a letter to the Department of Buildings (“DOB”) stating that the building was in violation of zoning. Very shortly thereafter, on May 25, 2016, DOB issued a stop-work order. This order was lifted on December 21, 2016. 7. On October 27, 2016, Realty filed an amended Zoning Diagram, and on December 8, 2016, within the 45-day window for zo1 2 challenges, CHIN filed a Zoning Challenge to the plans for the proposed building. 8. DOB’s Borough Commissioner denied the substantive part of this Challenge on March 22, 2017, but issued a 15-day Notice of Intent to revoke the developer's permit based re to file the proper Zoning Lot Exhibits to match the zoning lot described in the job application.” This apparently referred to the fact that in or about the fall of 2016, DOB had required, as a condition of lifting the May 25, 2016 stop-work order, that the micro-lot be enlarged from a four-foot depth to a 10-foot depth. The developer had represented that it had done so, but in fact it had not. 9. On March 29, 2017 the developer responded by terminating the zoning lot development agreement stating that the DOB determined that it was, “improperly formed.” However, it was not until some two months later, on May 26, 2017, that the developer recorded aseries of new deeds and declarations of zoning lot subdivision and restriction that, with one important exception, made the recorded record consistent with its permit. That exception was that the developer did not, and still has not, recorded any instrument extending Realty’s easement over the additional six feet of lot 138. It was not until the end of the first week of June that Realty filed these documents with DOB. Even though the zoning lot on which the development was based had not existed for many months, the Notice of Intent to Revoke never resulted in a revoked permit. 10, Based on these new documents, on June 15, 2017, DOB accepted the audit of the project and rescinded the Intent to Revoke. Almost three months had gone by since DOB denied the substance of CHN’s Zoning Challenge while issuing the Notice of Intent to Revoke. 11. Earlier, on April 11, 2017, i.e., within the 15-day window after DOB's March 22, 2017 denial of the substantive part of its Zoning Challenge, CHN had filed a Community Appeal. DOB had accepted this filing without making any procedural objection. 12. Not until three months later, on June 29, 2017, in response to an inquiry from CHN, did DOB inform CHN that it deemed the filing of the Community Appeal to be premature because DOB had only denied CHN’s Zoning Challenge in part, and the Notice of Intent to Revoke was then still extant. Responding by email to CHIN’s inquiry as to when it could expect an answer to its April 1th filing, DOB told CHN’s consultant George Janes that it had only two days to file a new Community Appeal. 13. The next day, on June 30, 2017, CHN filed a second Community Appeal substantially similar to its April Community Appeal. 14, DOB sat on this Appeal for three more months. During this time, CHN’s consultant George Janes checked DOB’s website regularly for a response. He also had severalexchanges with DOB concerning the status of the Appeal, and was told that it was being considered. During this time Ahmed Tigani, a staffer in the Borough President's office, also asked the DOB about the status of the Community Appeal. 15. On September 26, 2017, I attended a Town Hall Meeting conducted by Mayor Bill de Blasio and hosted by City Council Member Daniel Garodnick. At that meeting I questioned the Mayor about the many lengthy delays in DOB’s response to CHN’s challenges to the permits for the development at 180 East 88th Street, and specifically stated that we had not received an answer to our Community Challenge filed on June 30, 2017. 16. There and then, the Mayor called on the representative from DOB who was present, First Deputy Commissioner Thomas J. Fariello, and asked him to try to resolve the matter. I observed from my discussion with Mr, Fariello that he was fully conversant with the case. Early the next moming I told George Janes, CHN’s zoning consultant, that as far as the DOB was concemed the Appeal had been denied and the case was closed. 17. Thursday morning, September 28, Mr. Janes emailed Deputy Commissioner Fariello saying that we had received no reply to our challenge and that we needed a declaration of the DOB decision in order to proceed with a further appeal to the Board of Standards and Appeals. Later that same day Mr. Janes received from the DOB by email an official notice, signed by Deputy Commissioner Fariello, that our challenge had been turned down,18. On October 30, 2017, CHN, together with Friends of the Upper East Side Historic Districts, filed an appeal to the Board of Standards and Appeals. (Lbeyy, Fan gllle WILLEM L. VAN DER VALK Swom to before me this, 25th day of January, 2018 Notary Public ROBERT. YOUNG Notary) Pubes tat ot New York Roreivosaet a8 co tits Bapmts arch, 3020EXHIBIT CSUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF NEW YORK SEN. LIZ KRUEGER, COUNCIL MEMBER BEN KALLOS, CARNEGIE HILL NEIGHBORS, INC., and FRIENDS OF ‘THE UPPER EAST SIDE HISTORIC DISTRICTS, Petitioners, For a Judgment Pursuant to CPLR Art. 78 and a Declaration Race, DESY Pursuant to CPLR 3001 -against- Index No. NEW YORK CITY DEPARTMENT OF BUILDINGS, NEW YORK CITY BOARD OF STANDARDS AND APPEALS, DDG PARTNERS LLC, 180 EAST 88th STREET REALTY LLC, CARNEGIE GREEN LLC, and ALLIED THIRD AVENUE LLC, Respondents State of New York) ) 8s: County of New York ) RACHEL LEVY, being duly sworn, deposes and says: 1. Lam Executive Director of Friends of the Upper East Side Historic Districts (“FRIENDS”). T make this affidavit in support of the standing of FRIENDS in this case. 2. FRIENDS has been in existence for 35 years. It is an independent, not-for- profit membership organization dedicated to preserving the architectural legacy, livability, and sense of place of the Upper East Side of Manhattan, generally covering the area between East 59th and East 96th Streets, and from the East River to Central Park, FRIENDS regularly monitors conditions in and around its area, and attends meetings and testifies before the Community Board,Landmarks Preservation Commission, City Planning Commission, Public Design Commission, and City Couneil, concerning appropriate and inappropriate development on the Upper East Side 3. FRIENDS has been a leader in successful efforts to improve the zoning laws governing the area’s avenues and its residential side streets. Under the leadership of Halina Rosenthal who founded FRIENDS, the organization was instrumental in achieving contextual zoning for much of the neighborhood in the 1980s. In a letter to Herbert J. Sturz, then Chairman of the City Planning Commission, written shortly before she founded FRIENDS, Rosenthal wrote, “The present R8 Zoning allows the proliferation of assorted needles, slivers, splinters and other such skyward oriented structures which — if unchecked — will totally destroy New York City’s id-block residential streetscape.” (Pet. Exh. _) 4, Following that spirit, the organization has often intervened on issues involving changes in bulk. For example, the organization has appeared as amicus in two briefs involving an effort by the owner of an entire block with similarly designed low-rise tenements, between East 64th and East 65th Streets, and York and First Avenues, built in the early twentieth century, to break up the integrity of the block by building a much larger, and ill-related structure which would have substituted for about 15% of the historical area. See Stahl York Avenue Co. v. City of New York, 50 Mise. 3d 1207(A) (Sup. Ct., N.Y. Co. 2016). now pending in the Appellate Division, First Department. 5. The organization also commissioned a study by BFJ Planning concerning areas, in the Upper East Side that are especially susceptible to further development. The study recommends areas where further development would be desirable, promotes contextual zoning, seeks protection of low-rise mid-block areas, and discusses many other issues. See report at http://www. friends-ues.org/advocacy/planningzoning/.6. The organization also conducts a Young FRIENDS Education Program for teaching first through fifth graders about the history of immigration in the Yorkville neighborhood. ‘The program includes walking tours in the same area as 88th Street and Third Avenue, to illustrate to students how immigrants lived in and helped develop the neighborhood in the late 18th and early 19th centuries. In the 2016-2017 school year alone, the program taught over 2,000 students and nearly 400 of them were taught the Yorkville Immigration curriculum, 7. Several members of the organization, including its President, Franny Eberhart, and members of the Board of Directors including Jeanne Sloane, Erin Gray, and Patricia Sullivan, live in close proximity of the subject building site and are directly affected by the threat of non- contextual development there. Board Members state numerous reasons they will be adversely impacted by this development. Franny Eberhart has lived at East 87th Street and 2nd Avenue for 40 years, and married into a family that has lived there since the early 20th century. She can attest to the invaluable neighborhood character of Third Avenue in the 80s. Its mix of residential and shopping has been reinforced by smart zoning on both the side streets and avenues. This new structure, permitted improperly by the DOB, will violate that delicate mix. Jeanne Sloane, who lives at East 88th Street and Park Avenue, notes that the building rises directly to the east of her apartment, Patricia Sullivan and Erin Gray also live within two blocks of the development, and frequent the immediate area for shopping and in the course of daily life, enjoying the current uniformity of the mid-block human-scale streetscape on East 88th Street. ‘These Board members recognize that those are qualities FRIENDS has fought long and hard to protect. This development,as proposed, would irreparably destroy that aspect of the neighborhood. “RACHEL LEVY ‘Sworn to before me this ZS “ay of January, 2018 L Notary Public ay i oe No cdtiezarace Quatted in Now Yor Commission Expires O@r8 208EXHIBIT Da DEPT OF eLoastztT8 Buildings Nod ‘San Code Location Information Fy House No(s) 1558 Borough Manhattan SueetName 3rd Avenue Block 1516 Lot 37___—_BIN 1048054 CB No, 108 2 [Plot Diagram of Zoning Lot ‘lef Diagram must show the covec seat Ines fom to-be oceuped by the buldng the legal grades are in each drecton the House Numbers and ne Black '¢ Gly Plan, th plot o Be buit upon in ealon fre Seat Ines and te porion of re the existing grades, propery identited, of sieets a neerest pol fram the proposed builngs ‘and Lot Numbers. Indeae dimensions of ttl tax lt, ov-7hae 0-8 yr (60-0 woe) Ras cr-9 28TH STREET (60'-0" woe) THIRD AVENUE (100 * WDE) [Description of Land and Premises The zoning ot on which the premises is loceled s bounded as folous BEGINNING atthe porton the North side of Fast 67th Street stant O feat ‘ofthe comer formed bythe intersection of East 87th Street and Third Avenue running ence W125,00 feet thence N100,71 feet, tence 25.00 feet, thence NOT toot thence N 90.00 feet, thence 22,00 feet, thence 55025 feet, tence £7800 fest ence: ‘5141.17 feet thence tect, thence ‘eet thenee feet thence Tet thence: Test thence ‘eet; thence feat thence ‘eet, thence ‘eet thence feet tothe point of beginning “4 [Applicant's Statement and Signature J aeatn of ry Salret ie a riedereanor under § 28.09. tam 1 and 0111 he NYG Adrivcaive Cas We ponanaDety seo NEWS S bh is wal eget. ely employes, fara cy employees accep ay tenet mene imexotange tor peta consderatin Vlaams punahatle by amprscameeicr Pe or Sh Applicant Name H, Thomas O'Hara Signature ‘oF tere, eer es a aly ta Bape perforin aber __ Pale 40-19-2016 vaneEXHIBIT ESUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SEN. LIZ KRUEGER, COUNCIL MEMBER BEN KALLOS, CARNEGIE HILL NEIGHBORS, INC., and FRIENDS OF ‘THE UPPER EAST SIDE HISTORIC DISTRICTS, Petitioners, For a Judgment Pursuant to CPLR Art. 78 and a Declaration pei GEORGE M. JANES, Pursuant to CPLR 3001 ‘AICP -against- NEW YORK CITY DEPARTMENT OF BUILDINGS, NEW Index No. YORK CITY BOARD OF STANDARDS AND APPEALS, DDG PARTNERS LLC, 180 EAST 88th STREET REALTY LLC, CARNEGIE GREEN LLC, and ALLIED THIRD AVENUE LLC, Respondents. State of New York) ) SS: County of New York ) GEORGE M. JANES, being duly sworn, deposes and says: 1. Lam the principal of George M. Janes & Associates (*GMJA”), which I founded 10 years ago. It is an urban planning and zoning consultancy with public, private and not-for-profit clients in and around New York City. hold a Masters’ Degree in Urban Planning from Wayne State University in Detroit Michigan. I have 25 years of experience in my field, and have been a member of the American Institute of Certified Planners since 1997. Prior to founding GMJA, I spent six years as the Executive Director of the Environmental Simulation Center (“ESC”), a pioneer in the world of visualization and simulation in planning and development. It was at the ESC where I studied the intricacies of New YorkCity’s development regulations, learning the craft from its founder, Michael Kwartler, one of New York City’s most respected zoning experts. 2. first worked with Carnegie Hill Neighbors (*CHN”) in 2013 and have performed analyses on approximately eight other projects with them since then. CHN approached GMJA in March 2016 to examine the zoning drawing for the proposed development at 180 E. 88th Street (a/k/a 1558 Third Avenue). 3. It is my view that the building under construction by 180 East 88th Street Realty LLC (“Realty”) violates several provisions of the Zoning Resolution. In a memo I wrote to Mr. van der Valk on April 3, 2016, shortly after | started my review, I described the “micro-lot” tactic that Realty was using to evade the requirements of the Zoning Resolution. I subsequently worked with the Council Member Ben Kallos and his staff to assist him in the preparation of the May 16, 2016 letter that he and Borough President Gale Brewer sent to DOB Commissioner Rick Chandler. 1 also assisted CHN and its counsel in its initial Zoning Challenge and Community Appeal. I have read Mr. van der Valk’s affidavit. Its description of the delays encountered in those appeals, and my efiorts to prod the Department of Buildings (“DOB”) to respond, are accurate to the best of my knowledge. 5. Tam currently assisting Petitioners in this proceeding. The zoning analysis in the Petition is based on my work. 6. [believe that the Department of Buildings was correct when it wrote, “Zoning lot cannot be subdivided into a 4’ lot for sole purpose of avoiding a zoning lot requirement.” (Pet. Exh, [AII]). Lot 138 is an integral part of the same development, and is the result of a sham transaction the only purpose of which is to subvert the intention of thelaw. Consequently, lot 138’s subdivision must be ignored for the purposes of zoning, and it must be considered to be part of the same zoning lot as lots 32 and 37. 7. The building, therefore, violates the tower-on-base rules, which would not allow the open area proposed in the front of the building entrance on 88th Street. It also violates the so-called “sliver rule,” which limits the height of buildings that are less than 45 feet w' 8. These two rules work together so it is hard to see how this tower can. lawfully be built as-of-right on the zoning lot as it presently is. Tower-on-base rules not only require that the building be built to the street line, but also that the tower cover at least 30% and no more than 45% of a zoning lot of this size. ZR §§ 23-651 (a) (1) (i) & @ii)). As presently configured, the tower portion of the Realty’s building is between 32 and 33% and meets this requirement. If Realty were to remove the portion of the proposed tower that is within 100 fect of 88th Street and over 100 feet in height, as required by the sliver rule, ZR § 23-692, the tower would no longer cover a sufficient portion of the area of the zoning lot. 9. Perhaps because of the seriousness of the consequences if the micro-lot strategy is found illegal or improper, the developer has been building as fast as possible. In New York City, the DOB must grant a permit for work to be performed “after hours,” which is called an After Hours Variance (“AHV”). 10. AHV authorization may only be granted for one of five reasons described under §24-223(e) in the N.Y.C. Administrative Code. ‘Those reasons are: (1) emergency work, (2) public safety, (3) city construction projects, (4) construction activities with minimal noise impact, and (5) undue hardship. These rules are in place to provide developers someflexibility while keeping noise and construction impacts limited during the weekend and evening hours. 11. This developer, however, has been getting AHVs regularly including one Just days ago on January 22, 2018. To my count, I see 98 AHVs appearing on the DOB's website covering what appears to be the entire time since the start of construction, except the period when a Stop Work Order was in effect. The initial AHV filing was on April 22, 2015 and was granted because there was apparently an imminent threat to public safety. Forty AHVs were subsequently granted until work was stopped on May 25, 2016, all because there ‘was an imminent threat to public safety. 12. I ive one block from the building site and see it nearly every day. Except for a fire that occurred in a neighboring building on or about October 19, 2016, there were no obvious or apparent public safety issues, and certainly none so persistent that would require after hours work every Saturday for the first year of construction, 13. On April 19, 2017, Council Member Kallos wrote a letter to Manhattan Borough Commissioner Martin Rebholz complaining that DOB was grant the project AHVs when the developer did not meet any of the requirements for the granting of AHVs. Mr. Kallos’ letter appears to have been ignored, as the AHVs continued unabated, although some now use different reasons. 14, In part because of the actions of the developer to acquire AHVs, construction has progressed. ‘The following is a photograph of the building taken on January 19, 2018 at 11:35am, which shows the current status of the building. 1 estimate that it is about 150 feet tall. The b ing is proposed for $23 feet 8 inches to the top of themechanical penthouse. What is seen is largely just a concrete and steel shell. The finishings that make concrete and steel into apartments have likely not, or only very minimally, started,GEOR JANES, AICP ‘Swom to before me this 2S day of January, 2018 "EMMANUEL OTAGHO Notary Publi» State of New York no, ororsaiases 7 ‘vale n Queens County ly Comission Expes Fo 22019, Notary PabliEXHIBIT F=a x B inip/ 100688 conv = © || courts donot to abe ai + |e ends! ata | © chain chat. [ABO Ea BRAND! oI Beinjen © Urner Esse Fle Edt View Fortes Tols Help iy Rarahoo G eff. e4\Gmat G8 Goog. G Imag. (Wile. Rv GV - ey hoger Satay too Or Ss Sis - |EXHIBIT GNYC DEPARTMENT OF FINANCE OFFICE OF THE CITY REGISTER This page is part of the instrument. The City Register will rely on the information provided by you on this page for purposes of indexing this instrument The information on this page wit control for indexing purposes in the event of any conflict withthe rest of the document. 2017012301681001001E0020 RECORDING AND ENDORSEMENT COVER PAGE, PAGE I OFS [Document 1D: 2017012301681001 }Document Type: DEED }Document Page Count: 4 Document Date: 12-21-2015 Preparation Date: 01-25-2017 PRESENTER: IROYAL ABSTRACT OF NEW YORK LLC(807538)MB_ 125 PARK AVENUE ISurre 1610 INEW YORK, NY 10017 121-376-0900 IMBASALATAN@ROYALABSTRACT.COM JRETURN TO: OYAL ABSTRACT OF NEW YORK LLC(807538)MB 125 PARK AVENUE SUITE 1610 EW YORK, NY 10017 12-376-0900 BASALATAN@ROYALABSTRACT.COM PROPERTY DATA Borough Block Lot Unit Address MANHATTAN 1516 138 Entire Lot N/A3 AVENUE Property Type: NON-RESIDENTIAL VACANT LAND CROSS REFERENCE DATA REN or DocumentiD. o Year___ Recl__Page or File Number. PARTIES |GRANTORSELLER: GRANTEE/BUYI 180 EAST 88TH STREET REALTY LLC CARNEGIE GREEN LLC Icio DDG PARTNERS LLC, 60 HUDSON STREET, 18TH_ [C/O DDG PARTNERS LLC, 60 HUDSON STREET, 18TH FLOOR FLOOR INEW YORK, NY 10013, NEW YORK, NY 10013 FEES AND TAXES Mortgage : Filing Fee: jortgage Amount: s 0.00) s 250.00 [Taxable Mortzaze Amounts _[$ 0.00 [NYC Real Property Transfer Tex: [Exemption: s 0.00 S:_County (Basie): 0.00 [NYS Real Estate Transfer Tax: City (Additional): 0.00 3 0.00 Spec (Additional):| $ 0.00 RECORDED OR FILED IN THE OFFICE TASF: s 0.00) wm, OF THE CITY REGISTER OF THE MTA: 4 8.00 CITY OF NEW YORK ByCT AY $ on Recorded Filed 01-25-2017 16:12 Additional MRT: _[$ 9.00 City Register File No(CRFN) TOTAL: L$ 0.00, 2017000034604 Recording Fee s 37.00) “Affidavit Fee: $ 0.007 City Register Official SignatureDEED ‘THIS INDENTURE, made as of the aay of December, 2015, between 180 EAST 88™ STREET REALTY LLC (“Grantor”), « Delaware limited liability company, having ‘an address at c/o DDG Partners LLC, 60 Hudson Street, 18" Floor, New York, New York 10013, and CARNEGIE GREEN LLC (“Grantee”), a Delaware limited liability company, having an address at clo DDG Partners LLC, 60 Hudson Street, 18 Floor, New York, New York 10013. WIT ‘That Grantor, in consideration of Ten Dollars ($10.00) and other valuable consideration paid by Grantec, does hereby grant and release unto Grantee, the heirs or successors and assigns of Grantee forever, all of Grantor’s right, ttle and interest in that certain plot, piece or parcel of land, situate, lying and being in the City, County and State of New York, and designated as Block 1516, Lot 138 (the “Premises”), as depicted on the tax map attached hereto as Schedule A. ‘Together with all right, title and interes, if any, of Grantor in and to any streets and roads abutting the Premises tothe center lines thereof; ‘Together with the appurtenances and all the estate and rights of Grantor in and to the Premises; and ‘Subject to such liens, agreements, covenants, easements, restrictions, consents and other matters of record as pertain to the Premises. ‘TO HAVE AND TO HOLD the Premises herein granted unto Grantee, the heirs or successors and assigns of Grantee, forever. [SIGNATURE AND ACKNOWLEDGEMENT ON THE FOLLOWING PAGE.] 4075.28 Beatie Naw YO NEY 10017 (212) $76-0000" HP 994954501IN WITNESS WHEREOF, Grantor has duly executed this deed the day and year first above written. GRANTOR: 180 EAST 84" STREET REALTY LLC STATE OF NEWYORK) ss county or MP.) ° On the OX” day of January in the year 2017, before me, the undersigned, personally appeared Jo, Maid ‘personally known to me or proved to me ‘on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument, and acknowledged to me that he (she) executed the same in his (her) capacity, and that by his (her) signature on the instrument, the individual, or the person ypon behalf of which the individual acted, executed the instrument. ~ ‘Notary Public - Marre maavar ‘NOTARY PUBLIC, STATE OF NEW YORK No, d14arasee QUALIPEED IN QUEZHS couNTY GOW EKPIRES NOVEAEBER 9, mH HP 994954561Schedule A ‘The Premises See attached. HP 9D8345..AS TO PARCEL B (LOT 138): ALL THA CERTAIN plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the Borough of Manhattan, County of New York, City and State of New York, bounded and described as follows: BEGINNING ata point on the southerly side of East 88th Stree, distant 78 feet 0 inches ‘westerly ofthe interseotion of Bast 88th Street and 31d Avenue; ‘THENCE southerly along a line parallel with 3rd Avenue, 4 feet 0 inches; “THENCE westerly along a line parallel with East 88th Street, 22 feet 0 inches; ‘THENCE northerly along a line parallel with 3rd Avenue, 4 feet 0 inches; ‘THENCE easterly along the southerly line of Bast 88th Street, 22 feet 0 inches to the point or place of BEGINNING.EL PRE RL UNAS | | | | | | | | Mi | | | 2017012301681001001SCEA1L SUPPORTING DOCUMENT COVER PAGE PAGE1 OFT Document ID: 2017012301681001 Document Date: 12-21-2015 Preparation Date: 01-25-2017 Document Type: DEED [ASSOCIATED TAX FORM ID: 2017012300226 ‘SUPPORTING DOCUMENTS SUBMITTED: Page Count DEP CUSTOMER REGISTRATION FORM FOR WATER AND SEWER BILLING 1 RP - $217 REAL PROPERTY TRANSFER REPORT 2REAL PROPERTY TRANSFER REPORT STATECr NeWyoR STATEBOARDOFREAL PROPERTY SERVICES| RP -5217NYC | 3 AVENUE | MANHATTAN jos [CARNEGIE GREEN LLC l 1 1 seen women Le <—$ 1 gel pase! 4 teeth mbar ot Aaveanrat {A Pen Bar Apt atpacesGaneredonteome L—_1__J potracas on [_] purctoposn {@ Rurafowe Amon nr Soma ‘heck te oes alow a they ap: et Omi Tipe enenrn A salar 80 BAST 88TH STREET REALTY LLC L ' L = 1 _ 1 che box alow which meet ecuataly desert he us fh propia te tne of le Af Jor Faniy estnts: —C[] rosie vaciitond [7] Comma’ G[]enirinnart/Amvsanet 1 [7] wave BIL]2esFaniyRnenst pL ]ernancansavecentans —F [7] Aoetnens HET] Communty sevice TED] atte Seco =k) ——— TERS a or ate ose CONTTION ATTA PONTE ‘Seb Conrat Oe 12_y 21) 2015 ee Steen Rates or Forme Raines [BIZ [sae cowoer Rates Conpaie or Paxber in Suns Cl om atti tat Sac 1.0m of Steamer 12 f 21 f 2015 J | fauyerar Slee Goemren Agony ot Landrg atta al = | Joasorie nt enor o Boneh a Su (Spt tw) F [ _JesioceFactzont ores an oo ae! Seay Cow) te rata Poon S 2} Gl Jaiotean cisnasin Popery Sateen Texte and Sa Dts (Fuse ice te alata rm propery wats pean pore. | slo Buse Inne Se Pe ‘hn samara be nema cbr ropa goede arte weurtsnot | | —]omerUnomat aco ofactny Sle ea (Spec Bbw) moran orrdignrs) esrond ee cone wh ecar oman | ff woman [ASSESSMENT NFORMATION - Data shoul tate ilesifina) Asgosanont Roh www 93 TSOy "7. Borough, Block and Lot/ Rol denne {Itmor than thas, stchehet whedon! Ment) ) L___MANHATTAN 1516 138 “1 16 ousng cise LV, 10. ott Assoted Velun (oF pti in 201701230022620108ee Go BRSTAING hs eB wusSon sre SOR raw vom [we | sos by. Souegh Vive thi Maa. Cucthesied Soran CERTEATION a ee nha wie can a heel See ps pote BUYER'S ATTORNEY | | Joseph oat Scanetiy 2017012300226201EXHIBIT HNYC DEPARTMENT OF FINANCE OFFICE OF THE CITY REGISTER This page is part ofthe instrument. The City Register wil rely on the information provided hy you on this page for purposes of indexing his instrument. The information on this page wll control for indexing purposes inthe event of any conflict with the ret of the document KM } | WW 2016010401058003001E3078 ROYAL ABSTRACT OF NEW YORK LLC(907537)BL 125 PARK AVENUE RECORDING AND ENDORSEMENT COVER PAGE, PAGE 1 OF 0) [Document 1D: 2076010401058003, Document Date: 12-21-2015 Preparation Date: 02-08-2016| Document Type: AGREEMENT Document Page Count: 38 PRESENTER: RETURN TO: ROYAL ABSTRACT OF NEW YORK LLC(907537)BL 125 PARK. AVENUE Additional Propertios on Continuation Page Jsurre 1610 Isurre 1610 INEW YORK, NY 10017 NEW YORK, NY 10017 [212-376-0900 [212-376-0900 IMBASALATAN@ROYALABSTRACT.COM MBASALATAN@ROYALABSTRACT.COM PROPERTY DAT Borough Block Lot Unit Address IMANHATTAN 1516. 37. Entire Lot 19583 AVENUE Property Type: NON-RESIDENTIAL VACANT LAND orough Black Let Unit Address hiaNHATTAN 1816138 Ene Lot N/A 3 AVENUE Property Type: NON-RESIDENTIAL VACANT LAND. ‘CROSS REFERENCE DATA 180 EAST 88TH STREET REALTY LLC C/O DDG PARTNERS LLC, 60 HUDSON STREET, 18TH FLOOR INEW YORK, NY 10013 [_Additional Parties Listed on Continuation Page CREN or DocumentID _ or Year___ Recl__Page___ or File Number PARTIES PARTY 1 PARTY 2: |MANUFACTURERS AND TRADERS TRUST COMPANY [350 PARK AVENUE INEW YORK, NY 10022 FEES AND TAXES Mortgage: Filing Fee: [Mortgage Amount: Is 47,500,000.00 $ 0.00. Tunable Mortgage Amount |S 0,00 | NYC Real Property Transfer Taxz [Exemption 255 s 0.00 S:_Comty (Basie); | 0.00] NYS Real Ewate Transfer Tox: Gity (Additional: Ts 0.00 $ 0.00 poo (Additional § 0.00 RECORDED OR FILED IN THE OFFICE TASF: $ 9.00. OF THE CITY REGISTER OF THE MIA = oa CITY OF NEW YORK 7 = Recorded Filed 02-10-2016 10:32 ‘Additions MRT_[ 0.00 City Regstor File No (CRENY TOTAL: 1S 0.00, 2016000045368 Recording Few Ta00 ‘Alfidavit Fe: s $.00 City Register Official SignatureI | I | | I Il | | I ! | 2016010401058003001C32F8 RECORDING AND ENDORSEMENT COVER PAGE (CONTINUATION) PAGE 2 OF 40 [Document ID: 2016010401058003 Document Date: 12-21-2015 Preparation Date: 02-08-2016 Document Type: AGREEMENT PROPERTY DATA lBorough Block Lot Unit Address (ANHATTAN 1516 32. Entire Lot 15503 AVENUE Property Type: APARTMENT BUILDING Air Rights PARTIES PARTY 1: CARNEGIE GREEN LLC C/O DDG PARTNERS LLC, 60 HUDSON STREET, 18TH FLOOR NEW YORK, NY 10013,AMENDED AND RESTATED ACQUISITION LOAN MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT made by 180 Easr 88TH STREET REALTY LLC AND CARNEGIE GREEN LLC (Mortgagor) in favor of MANUFACTURERS AND TRADERS TRUST COMPANY, AS ADMINISTRATIVE AGENT. (Morteagee) Dated: As of December 21, 2015 Block: 1516 i ‘Lots: 37, 138 and 32 (air Fights onty) (City, COUNTY AND STATE OF NEW YORK Mortgage Amount: $47,500,000 RECORD AND RETURN TO: MORRISON & FOERSTER LLP 250 West SSth Street ‘New York, New York 10019-9601 ATTENTION: KEITIUM. PRINT, EQ, ‘THIS MORTGAGE DOES NOT COVER REAL PROPERTY PRINCIPALLY IMPROVED OR TO BE IMPROVED BY ONE OR MORE STRUCTURES CONTAINING IN THE AGGREGATE NOT MORE THAN SIX RESIDENTIAL DWELLING UNITS, EACH DWELLING UNIT HAVING ITS OWN SEPARATE COOKING FACILITIES. {053 Rip bec of New Yo, Luc 25 Pak Avena Cute 110, New Yer NY. 0017 (212) 376-0900 any-1214785ARTICLEI OBLIGATIONS. Section 1.01 Obligations.... Section 1.02 Maximum Secured Indebtedness. ARTICLE2 PARTICULAR COVENANTS AND AGREEMENTS OF MORTGAGOR., Section 2.01 Payment of Secured Obligations, Section 2.02 Title, et. Section 2.03 Further Assurances; Filing; Rein et. Section 2.04 Liens; Transfers Section 2.05 Insurance. Section 2.06 Impositions. . Section 2.07 Maintenance of the Improvements and ‘Equipment Section 2.08 Compliance With Laws. - Section 2.09 Limitations of Ust.ruounn Section 2.10 Actions to Protect Mortgaged Property . Section 2.11 Insurance and Condemnation Proceeds Section 2.12 Inspections ARTICLE3 ASSIGNMENT OF LEASES AND RENTS. Section 3.01 Assignment of Rents, Issues and Profits... Section 3.02 Grant of License; Revocation Section 3.03 Direction to Tenants. Section 3.04 Section 291-f Agreement ARTICLE4 SECURITY AGREEMENT Section 4.01 Creation of Security Interest... Section 4.02 Continuation Statements; Amendments... ARTICLES DEFAULTS; REMEDIES. ion 5.01 Events of Default... Section 5.05 Powers of Mortgagee Section 5.06 Remedies Cumulative. Section 5.07 General Provisions.. Section 5.08 No Mortgagee-in-Possession.. ARTICLE 6 = MISCELLANEOUS... Section 6.01 Release by Mortgagee. Section 6.02 Notices Section 6.03 No Waiver. Section 6.04 Amendments; ete Section 6.05 Successors and Assigns. Section 6.06 Captions : ay-1214755Section 6.07 Section 6.08 Section 6.09 Section 6.10 Section 6.11 Section 6.12 Section 6.13 Section 6.14 Section 6.15 Section 6.16 Section 6.17 Severability 2 Usury Savings Clause a CERTAIN WAIVERS..... . vw 2, GOVERNING LAW, 22 SUBMISSION TO JURISDICTION. WAIVER OF JURY TRIAL, Attomey-In-Fact. New York Lien Law ... Joint and Several Liability... ‘Amendment and Restatement. Exculpation.. Exhibit A ~ Legal Description of Land Exhibit B - Personal Property Collateral Schedule 1 ~ Original Notes and Mortgages ny-1214755AMENDED AND RESTATED ACQUISITION LOAN MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT THIS AMENDED AND RESTATED ACQUISITION LOAN MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT (his “Mortgage”) is made as of the 21st day of December, 2015 by 180 EAST 88TH STREET REALTY LLC, a limited liability company duly organized and validly existing under the laws of he State of Delaware and having an office at c/o DDG Partners LLC, 60 Hudson Strect, 18th Floor, New York, New York 10013 (“180 East 88th”), CARNEGIE. GREEN LLC, a limited liability company duly organized and validly existing under the laws of the State of Delaware and having an office at c/o DDG Partners LC, 60 Hudson Street, 18th Floor, New York, New York 10013 (“Camegie” and, together with 180 East 88th, individually and collectively as the context may require, the “Mortgagor”), in favor of MANUFACTURERS AND TRADERS TRUST COMPANY, having an office at c/o 350 Park Avenue, New York, New York 10022, as Administrative Agent for the lenders referred to below (in such capacity, together with its successors in such capacity, “Mortgages"). WITNESSETH: WHEREAS, Mort gagor is the fee owner of that certain tact of land and air rights located in the County of New York, State of New York and being more fully described in Exhibit A attached hereto (the “Land”); WHEREAS, Mortgagor, as borrower, certain lenders (collectively, the “Lenders”) and Mortgagee are partes to that eertain (i) Building Loan Agreement dated as of the date hereof (said Building Loan Agreement, as modified and supplemenied and in effect fom time to time, being herein called the “Building Loan Agreement”) and (ii) Project and Acquisition Loan and Security Agreement, dated as of the date hereof, between Mortgagor and Mortgagee (said Project and Acquisition Loan and Security Agreement, as amended, modified and supplemented and in effect from time to time, being herein called the “Project Loan Agreement”; and except as otherwise herein expressly provided, all terms defined in the Project Loan Agreement are being used herein as defined therein). ‘The Project Loan Agreement provides, among other things, for Acquisition Loans to be made by the Lenders to Mortgagor in an aggregate principal amount equal to $47,500,000, such Acquisition Loans to be evidenced by, and repayable with interest thereon in accordance with, the various Acquisition Loan Notes to be executed and delivered to the respective order of the Lenders (collectively, as such notes may be consolidated, severed, modified, amended, restated or extended, the “Acquisition Loan Notes"); WHEREAS, Mortgage is the holder of the note in the original principal amount of $47,500,000 (the “Original Note”) as described on Schedule 1 attached hereto, which is secured by the mortgage (the “Original Mortgage”) held by Mortgagee and described on Schedule 1; ay-I2U47S5Q WHEREAS, the Original Note has been split into the Acquisition Loan Notes, ‘which Acquisition Loan Notes, collectively, amount to the aggregate indebtedness evidenced by the Original Note; WHEREAS, Mortgagor and Mortgagee (on behalf of the Lenders) desire to amend and restate the Original Mortgage as set forth below; and WHEREAS, it is a condition to the obligation of the Lenders to extend credit to Mortgagor pursuant to the Loan Agreements that Mortgagor execute and deliver this Mortgage as the Acquisition Loan Mortgage under the Project Loan Agreement. NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated into the operative provisions of this Mortgage by this reference, and for olher good and valuable consideration, the receipt and adequacy of which are hereby conclusively acknowledged, this Mortgage amends and restates in its entirety the Original Mortgage as follows: ‘This Mortgage is given to secure the payment of an indebtedness in the principal sum of FORTY SEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS ($47,500,000), lawful money of the United States of America fo be paid with interest including, without limitation, any Additional Interest to the extent provided in the Project Loan Agreement) according to the Acquisition Loan Notes, and the payment and performance of all other Obligations (defined below) ‘of Mortgagor hercunder, Mortgagor has mortgaged, given, granted, bargained, alienated, conveyed, confirmed, pledged, assigned and hypothecated and by these presents do mortgage, give, grant, bargain, alicnate, convey, confim, pledge, assign and hypothecate unto Mortgagee all right, title, interest and estate of Mortgagor, now owned, or hereafter acquired, in and to the following property, rights and interests (such property, rights and interests being collectively referred to hercin as the ““Mortgaged Property”), subject only to the Permitted Encumbrances (as defined below): (@ the Land; (b) any and all buildings, constructions and improvements now or hereafter erected of located in or on the Land or any portion thereof, including all Equipment (defined below) and other articles now or hereafter attached or aflixed thereto or located thereon and owned or ‘ground leased by Mortgagor, together with all appurtenances and additions thereto and betterments, renewals, substitutions and replacements thereof (collectively, the “Improvements”, all of which shall be deemed and construed to be part ofthe realty; (©) all of the estate, rights, title, interest, claims or demands of any nature ‘whatsoever of Mortgagor, whether in law or in equity, in possession or expectancy, in and to the ‘Mortgaged Property or any part thereof; @ all easements, streets, rights-of-way, strips and gores of land, ways, alleys, passages, sewer rights, waters, water courses, water rights and powers, and all estate, rights tiles, interests, privileges, liberties, tenements, hereditaments, and appurtenances of any nafure ‘whatsoever, in any way belonging, relating or pertaining to the Mortgaged Property (including any and all development rights, air rights, signage rights, rights under trackage agreements, mineral, ining, oil and gas rights and rights to produce or share in the production of anything related thereto and similar or comparable rights of any nature whatsoever now or hereafter appurtenant to the ay 121478523) delivery of a deed in liew of foreclosure, to execute all instruments of assignment, conveyance or further assurance with respect 10 the Leases, Rents, Personal Property Collateral and fixtures in favor of the grantee of any such deed and as may be necessary or desirable for such purpose, (c) to prepare, execute and file or record financing statements, continuation statements, applications for registration and like papers necessary to create, perfect or preserve Mortgagec’s security interests and rights (for the benefit of itself and the Lenders) in or to any of the collateral, and (@ subject to the terms of this Mortgage, while any Default exists, to perform any obligation of ‘Mortgagor hereunder; however: (i) Mortgagee shall not under any circumstances be obligated to perform any obligation of Mortgagor; (ii) any sums advanced by Mortgage in such performance shall be added to and included in the Obligations and shall bear interest at the default rate set forth in Section 3.08(c) of the Project Loan Agreement; (ili) Mortgagce as such attorne shall only be accountable for such funds as are actually received by Mortgagee; and (iv) neither Mortgage nor any Lender shall be liable to Mortgagor or any other Person for any failure to take any action which it is empowered to take under this Section. Scetion 6.14 New York Lien Law. Pursuant to Section 13 of the Lien Law of the State ‘of New York, Mortgagor shall receive the advances secured by this Mortgage and shall hold the right to receive such advances as a trust fund to be applied first for the purpose of paying the cost of any improvement and shall apply such advances first to the payment of the cost of any such improvement on the Premises before using any part of the total of the same for any other purpose. Section 6.15 Joint and Several Liability. ‘The Obligations constitute the joint and several obligation of the Persons making up the Mortgagor and the Mortgagee and the Lenders ‘may at their option enforce the entire amount of the Obligations against any one or more of such Persons. Section 6.16 Amendment and Restatement, It is expressly understood and agreed that this Mortgage is given for the purpose of amending and restating the tems, provisions covenants and conditions of the Original Mortgage. The terms, provisions, covenants and conditions of the Original Mortgage are hereby amended and restated in their entirety by the terms, provisions, covenants and conditions of this Mortgage. The execution and delivery of this, Mortgage shall secure no new or further principal indebtedness other than the principal indebtedness evidenced by the Original Note and secured by the Original Mortgage. Section 6.17 Exculpation The provisions of Section 11,22 of the Project Loan Agreement ate hereby incorporated by reference into this Morigage to the same extent and with the same force as if fully set forth herein, [Signature page follows.] anys 1214755IN WITNESS WHEREOF, this Mortgage has been duly executed by Mortgagor and ‘Mortgagee as of the day and year first above written. 180 EAST 88TH STREET REALTY LLC, a Delaware limited liabifigy company By: es Name’ Peter Allen Title: Authorized Signatory CARNEGIE GREEN LLC, a Delaware limited liability company By; Name: Petr len Title; Authorized Signatory (Giana pag to Amended and Restated Acquistion Loan Mortgage)STATE OF NEWYORK) ) sa COUNTY OF NEWYORK) On the A) day of _November__, 2015, before me, the undersigned, personally appeared __ Peter Allen personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his capacity and that by his signature on the instrument the individual or the person upon behalf of which the individual acted executed the instrument. Signature and Office of individual taking acknowledgement (Notary page to Amended and Restated Acquistion Loan Mortgage)EXHIBIT A |AL DESCRIPTION OF LAND. AS TO PARCEL A (LOT 37): ALL THAT CERTAIN plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the Borough of Manhattan, County of New York, City and State of New York, bounded and described as follows: BEGINNING at a point on the westerly side of 3rd Avenue, distant 60 feet 3 inches southerly of the intersection of East 88th Street and 3rd Avenue; RUNNING THENCE southerly along the westerly line of 3rd Avenue, 39 feet 9 inches; THENCE westerly parallel with Fast 88th Street, 100 feet 0 inches; THENCE northerly parallel with 3rd Avenue, 96 feet 0 inches; t 88th Street, 22 feet 0 inches; ‘THENCE easterly parallel with ‘THENCE southerly parallel with 3rd Avenue, 56 feet 3 inches; THENCE easterly parallel with East 88th Street, 78 feet 0 inches to the point or place of | BEGINNING. AS'TO PARCEL B (LOT 138): ALL THAT CERTAIN plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the Borough of Mankattan, County of New York, City and State of New York, bounded and described as follows: BEGINNING ata point on the southerly side of East 88th Street, distant 78 feet 0 inches westerly of the intersection of East 88th Street and 3rd Avenue; THENCE southerly along a line parallel with 3rd Avenue, 4 feet 0 inches; THENCE westerly along a line parallel with East 88th Street, 22 feet 0 inches; ‘THENCE northerly along a line parallel with 3rd Avenue, 4 feet 0 inches; ‘THENCE easterly along the southerly line of Fast 88th Street, 22 feet 0 inches to the ‘point or place of BEGINNING. ay- 1214755BLANKET DESCRIPTION OF PARCELS A AND B (LOTS 37 AND 138): ALL THAT CERTAIN plot, piece or parcel of land, with the buildings and improvements thercon erected, situate, lying and being in the Borough of Manhattan, County of New York, City and State of New York, bounded and described as follows: BEGINNING at a point on the westerly side of Third Avenue, opposite the center of a party wall, distant 60 feet 3 inches southerly from the comer formed by the intersection of the southerly side of East 88" Street and the westerly side of Third Avenue; RUNNING THENCE westerly, parallel with the southerly side of East 88" Street, and part of the way through the center of a party wall, 78 feet; RUNNING THENCE in a northerly direction and parallel with the westerly side of Third Avenue, a distance of 60 feet 3 inches to a point on the southerly side of East 88" Street being distant 78 feet westerly from the comer formed by the intersection of the southerly side of East 88° Street with the westerly side of Third Avenue; RUNNING THENCE along the southerly side of East 88° Strect, a distance of 21 feet 6 inches (Deed) 22 feet (Survey); RUNNING THENCE southerly and parallel with the westerly side of Third Avenue, a distance of 100 feet; RUNNING THENCE easterly a distance of 100 fect to a point on the westerly side of, ‘Third Avenue, which is 100 feet southerly from the comer formed by the intersection of the westerly side of Third Avenue and the southerly side of East 88 Street; RUNNING THENCE along the said westerly side of Third Avenue, a distance of 39 feet 9 inches to the point or place of BEGINNING. For Information Only: Said premises are known as 180 East 88th Street a/b/a 1558-1560 Third Avenue, New York, NY and designated as Block 1516 Lots 37 and 138 as shown on the Tax Map of the City of New York, County of New York. ny 1214755AS TO PARCEL C (AIR RIGHTS): ‘TOGETHER WITH THE BENEFITS OF a covenant not to build upon and an ‘easement of light and air over the premises herein described below and as described in a Zoning Lot Development and Easement Agreement made by and between Allied Third ‘Avenue, LLC and 180 East 88th Street Realty LLC dated as of 12/11/2013 and recorded 12/26/2013 as CREN 2013000528013. ALL THAT CERTAIN plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the Borough of Manhattan, County of New York, City and State of New York, bounded and described as follows: BEGINNING at the comer formed by the intersection of the northerly side of Fast 87" Street with the westerly side of Third Avenue; RUNNING THENCE westerly along the northerly side of East 87% Street a distance of 125 feet to a point; THENCE northerly and parallel with the westerly side of Third Avenue a distance of 100 feet 8 % inches to a point on the center line of the block between East 87" Street and East 88" Street; ‘THENCE easterly along the center line of the block between East 87" Street and East 88" Street a distance of 25 feet to a point; ‘THENCE northerly and parallel with the westerly side of Third Avenue a distance of 8/4 inches to a point; ‘THENCE easterly and parallel with the northerly side of East 87 Street a distance of 100 feet to a point on the westerly side of Third Avenue; ‘THENCE southerly along the westerly side of Third Avenue a distance of 101 feet 5 iches to the cosner formed by the intersection of the northerly side of East 87" Street, with the westerly side of Third Avenue, the point or place of BEGINNING. For Information Only: Said premises are known as 1550-1556 Third Avenue, New York, NY and designated as Block 1516 Lot 32 as shown on the Tax Map of the City of New York, County of New York ay-1214755@ SCHEDULE 1 ORIGINAL NOTES AND MORTGAGES 1. Consolidation of Notes, dated as of December 11, 2013, executed by 180 East 88th Street Realty LLC in favor of Manufacturers and Tradets Trust Company in the principal amount of | $47,500,000. 2. Mortgage, dated as of December 11, 2013, executed by 180 East 88th Strect Realty LLC in favor of Manufacturers and Traders Trust Company. ny 1214755MAE Draft 10/15/15 iS IN 25: (Amended and Restated Acquisition Loan Mortgage) STATE OF NEWYORK) bss. COUNTY OF NEW YORK ) Peter L. Allen, being duly sworn, deposes and states, solely in his capacity ‘as Authorized Signatory of 180 Bast 88th Street Realty LLC, a Delaware limited liability company (“Mortgagor’), and notin his individual espacity, that: 1. Heis an Authorized Signatory of Mortgagor, the owner of the fee interest in certain properties encumbered by the hereinafter described Existing Mortgage, fand that acting in such capacity he is familiar withthe facts set forth herein, 2, Manufacturers and Traders Trust Company, as administrative agent for certain lenders (in such capacity, “Morigagee”) is the owner and holder of those certain mortgages more particularly described on Exhibit A attached hereto and made a part hereof (collectively, the “Existing Mortgage”) upon which mortgage recording tax \was paid upon recording as recited on Exhibit A. 3, The outstanding balance on the Existing Mortgage is '$47,500,000.00 and the maximum aggregate principal amount which is or under any contingency may be secured by the Existing Mortyage is $47,500, 000.00. 4, ‘There have been no reloans ot readvances under the Existing Mortgage. 5, The Existing Mortgage has been amended and restated pursuant to that certain Amended and Restated Acquisition Loan Mortgage, Assignment of Leases mad Rents and Security Agreement (the “Modified Mortgage") of even date herewith ‘The Modified Mortgage has been executed anil is delivered herewith for recording. 6. The maxinmm aggregate principal amount which is or under any contingency may be secured by the Modified Mortgage is $47,500,000.00. The principal Sum of the Modified Mortgage was fully advanced and secured thereby and the ‘outstanding principal balance owing on the Modified Mortgage is $47,500,000.00. 7. ‘There have been no seloans or readvances under the Existing ‘Mortgage or the Modified Mortgage. 8. The Modified Mortgage is given solely for the purpose of modifying the lien, terms and conditions of the Existing Mortgege and secures the same principal indebtedness which is or under any contingency may be secured by the Existing Mortgage, and does not create or secure any new or further indebtedness or obligationMortgage, and does not ereate or secure any new or further indebtedness or obligation ‘ther than the principal indebtedness or obligations secured by or which under any contingency may be secured by the Existing Mortgage. [No further text on this page.) sny-1206577WHEREFORE, deponent respectfully requests that said Modified Mortgage be declared exempt from taxation pursuant to the provisions of Section 255 of Article I of ‘the Tax Law, Solely in his capacity as Authorized Signatory of Mortgagor, and not individually Swom to before me this ‘ZObeday of November, 2015 Anna Maia Nie ‘Notary Public ibn sare! ua ne Co tht ie aoe sparen, (Signature page to 255 Affidavit)EXEIBIT A ‘Mortgage Schedule Mortgage, Assignment of Rents and Security Agreement in the original principal amount of $5,000,000.00 made by 180 E. 88th St. Associates, LLC to Wachovia Bank, National Association dated as of 7/30/2007 and recorded 8/10/2007 as REN 2007000415122. [Originally affected 180 Kast 88th Street, New York, NY — Block 1516 Lot 140) “Mortgage Tax Paid: $140,000.00 Mortgage, Assignment of Rents and Security Agreement in the original principal amount of $600,000.00 made by 180 E. 88th St. Associates, LLC dated as of 7/30/2007 and recorded 8/10/2007 as CREN 2007000415123. [Originally affected 180 East 88th Street, New York, NY ~Block 1516 Lot 140] Mortgage Tax Paid: $16,800.00 Mortgage, Assignment of Rents and Security Agreement in the original principal amount of $3,500,000.00 made by 180 Hast 88th Street Realty LLC and Camegie Green LLC to Wachovia Bank, National Association dated as of 12/4/2007 and recorded 12/13/2007 as CREN 200700061 1250. [Originally affected 1560 3rd Avenue, New York, NY ~ Block 1516 Lot 38] Mortgage ‘Tax Paid: $98,000.00 ‘Mortgage in the original principal amount of $2,900,000.00 made by 180 B. 88th St. Associates, LLC to Wachovia Bank, National Association dated as of 10/26/2009 and recorded 11/2/2009 as CRFN 2009000357838. [Originally affected 180 Kast 88th Street, New York, NY - Block 1516 Lot 140) Mortgage Tax Paid: $81,200.00 1. Said mortgages A, B, Cand D were spread to eover 180 East 88th Street — Block 1516 Lot 140_and 1560 3rd Avenue — Block 1516 Lot 38, and consolidated to form a single lien of $12,000,000.00 by @ Consolidation, Modification Extension and Spreader Agreement made by and between 180 East 88th Street Realty LLC and Camegie Green LLC and 180 E. 88th St. Associates, LLC and Wachovia Bank, National Association dated as of 10/26/2009 and recorded 11/2/2009 as CREN 2009000357839. ny: 12085862 2. Said mortgages A, B, C and D, as spread and consolidated, were assigned by Wells Fargo Bank, National Association (successor by merger to Wachovia Bank, National Association) to Manufacturers and Traders Trust Company, as Administrative Agent, by Assignment of Mortgage dated as of 12/9/2013 and recorded 12/26/2013 as CRFN 2013000528014. ‘Mortgage in the original principal amount of $499,000.00 made by KLH Realty Associates to The Dime Savings Bank of Williamsburgh dated 6/22/1990 and recorded 7/11/1990 in Reel 1709 page 948, [Originally affected 1558 3rd Avenue, New York, NY — Block 1516 Lot 37] Mortgage Tax Paid: $7,485.00 1. Said mortgage E wes modified by Modification and Extension Agreement ‘made between KLH Realty Associates, LLC, (f/a KLH Realty Associates) and The Dime Savings Bank of Williamsburgh dated 7/1/1995 and recorded 1/22/1996 in Reel 2285 page 152. Mortgage in the original principal amount of $346,334.36 made by KILH Realty Associates, LLC fik/a KLH Realty Associates to The Dime Savings Bank of Williamsburgh, dated 12/22/1999 and recorded 1/18/2000 in Reel 3033 page 434. [Originally affected 1558 3rd Avenue, New York, NY ~ Block 1516 Lot 37] Mortgage Tax Paid: $6,926.00 lL Said mortgages E and F were consolidated to form a single lien of $800,000.00 by Consolidation, Modification and Extension Agreement made between KLH Realty Associates LLC f/k/a KLH Realty Associates and The Dime Savings Bank of Williamsburgh dated 12/22/1999 and recorded 1/18/2000 in Reel 3033 page 444. 2. Said mortgages E and F, as consolidated, were assigned by The Dime Savings Bank of Williamsburgh to North Fork Bank by Assignment of Mortgage dated 4/2/2003 and recorded 5/7/2003 as CREN 3203000120336. Mortgage in the original principal amount of $725,424.95 made by KLH Realty Associates, LLC to North Fork Bank dated 4/2/2003 and recorded 5/7/2003 as ‘CRFN 2003000120337. [Originally affected 1558 3rd Avenue, New York, NY ~ Block 1516 Lot 37] Mortgage Tax Paid: $19,948.50 1, Said mortgages E, F and G were consolidated to form a single lien of $1,425,000.00 by Consolidation, Extension and Modification Agreement wy suisi29m ny-1204586made between KLH Realty Associates, LLC and North Fork Bank dated as of 4/2/2003 and recorded 5/7/2003 as CRFN 2003000120338. H. Mortgage in the original principal amount of $88,485.61 made by KLH Realty Associates, LLC to Capital One, N.A. dated 3/26/2010 and recorded 4/23/2010 as REN 2010000136104. [Originally affected 1558 3rd Avenue, New York, NY — Block 1516 Lot 37] Mortgage Tax Paid: $1,814.25 1, Said mortgages E, F, G and H were consolidated to form a single lien of $1,425,000.00 by Mortgage Consolidation, Modification and Extension Agreement made between KLH Realty Associates, LLC and Capital One, N.A. dated 3/26/2010 and recorded 4/23/2010 as CREN 2010000136105. NOTE: Capital One, N.A. is the successor by merger to North Fork Bank, 2. Said mortgages E, F, G and H, as consolidated, were assigned by Capital One National Association (f/k/a Capital One, N.A.) to Manufacturers and ‘Traders Trust Company, as Administrative Agent, by Assignment of Mortgage dated 12/5/2013 and recorded 12/26/2013 as CREN 2013000528015. 1 Mortgage in the original principal amount of $37,526,845.61 made by 180 Bast 88th Street Realty LLC to Manufacturers and Traders Trust Company, as Administrative Agent, dated as of 12/11/2013 and recorded 12/26/2013 as CREN 2013000528016. [Affects 180 East 88th Street — Block 1516 Lot 140, 158 3rd Avenue~ Block 1516 Lot 37 and 1560 3rd Avenue — Block 1516 Lot 38] Mortgage Tax Paid: $ 1,050,750.40 Said mortgages A, B, C, D, E, F, G, H and I were consolidated to form a single lien of $47,500,000.00 and spread to cover 180 East 88th Street — Block 1516 Lot 140, 1558 3rd_Avenue — Block 1516 Lot 37 and 1560 3rd ‘Avenue = Block 1516 Lot 38 by Mortgage Consolidation, Modific Extension and Spreader Agreement made between 180 East 88th Street Realty LLC and Manufacturers and Traders Trust Company, as Administrative Agent, dated as of 12/11/2013 and recorded 12/26/2013 as REN 2013000528017. 2, Said mortgages A, B, C, D, E, F, G, Hand I, as consolidated, in the reduced principal amount of $_/J,50%, were modified and spread by that certain Dyendel 6Qes\uid Agreement made by and among 180 East 88th Street Realty LLC, Camegie Green LLC and Manufacturers Ny sustasri ny-1204586Traders Trust. Company, 2s Administrative Agent, dated Dyas andtohe daly reorded. Din wsuiterens heros Ny stig y-1204586EXHIBIT |Original configuration of the tax lots prior to assemblage and subdivision. Lots involved in the zoning lot outlined with heavy black line (from ‘The Manhattan Land Book of the City of New ‘York (First Am. Real Estate Solutions & Sanborn 1999 ed.)).EXHIBIT JNYC DEPARTMENT OF FINANCE OFFICE OF THE CITY REGISTER This page is part of the instrument, The City Register will rly on the information provided by you on tis page for purposes of indexing this instrument The information on this page will control for indexing purposes in the event of any conflict withthe rest of the document. | 2013122200045008002E308E RECORDING AND ENDORSEMENT COVER PAGE, PAGE 1 OF [Document 1D: 2013122200045008 Document Type: AGREEMENT [Document Page Count: 41 Document Date: 12-11-2013 Preparation Date: 12-23-2013} JPRESENTER: ROYAL ABSTRACT OF NEW YORK LLC (904258)MB 500 STH AVENUE surre 1540 NEW YORK, NY 10110 ly042s9 IMBASALATAN@ROVALABSTRACT.COM JRETURN TO: JROYAL ABSTRACT OF NEW YORK LLC (904258)MB [500 STH AVENUE JsurTe 1540 INEW YORK, NY 10110 lo04259 IMBASALATAN@ROYALABSTRACT.COM PROPERTY DATA ALLIED THIRD AVENUE, LLC I/O MUSS DEVELOPMENT, LLC, 118-35 QUEENS. BLVD. FOREST HILLS , NY 11375 Borough Block Lot Unit Address |MANHATTAN 1516 32 Eintire Lot 15803 AVENUE, Property Type: COMMERCIAL REAL ESTATE [Borough Bock Lot Unit Address MANHATTAN 1si6 37 Ealire Lot 15583 AVENUE Property Type: COMMERCIAL REAL ESTATE ‘GROSS REFERENCE DATA CREN or DocumentlD. o Year___ Reel__Page, or File Number. PARTIES PARTY IPARTY 2: 180 EAST 88TH STREET REALTY LLC I/O DDG PARTNERS LLC , 60 HUDSON STREET, 18TH. IFLOOR INEW YORK , NY 10013 TEES AND TAXES Mortgage : Filing Fee IMorigage Amount: Is 0.00 s 100.00 [Taxabie Mortgage Amount[$ 0.00 | NYC Real Property Transfer Tax ‘xemption 5 355,871.28 [rAXES: Comy Bai [5 O00 NYS Real Estate Transfer Tax Gity (Additional Ts 3.00 s 54,228.00 ‘Spee (Additional $ 0.00 RECORDED OR FILED IN THE OFFICE TASE: $ 0.00 OF THE CITY REGISTER OF THE wrx Ts ou CrTV OF NEWYORK ae 4 206. Recorded/Filed 12-26.2013 15:02 tional City Retr File No(CRFN}: TOTAL: 0.00 ums ‘Sor3000s28013 ee ‘Allidavit 5 0.00 City Register Official SignatureZONING LOT DEVELOPMENT AND EASEMENT AGREEMENT BY AND BETWEEN ALLIED THIRD AVENUE, LLC AND 180 EAST 88th STREET REALTY LLC Dated: as of December |, 2013 COUNTY: New York BLOCK: 1516 LOTS: 32 and 37 RECORD AND RETURN TO: KRAMER LEVIN NAFTALIS AND FRANKEL LLP 1177 AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10036 ATTENTION: VALERIE G. CAMPBELL, ESQ. ROYAL ABSTRACT 500 FIFTH AVENUE SUITE 1540 NEW YORK, N.Y. 10110 {2%2)376-000 | | |ZONING LOT DEVELOPMENT AND EASEMENT AGREEMENT THIS ZONING LOT DEVELOPMENT AND EASEMENT AGREEMENT (this “Agreement”), made as of December jf , 2013, by and between ALLIED THIRD AVENUE, LLC, having an address c/o Muss Development LLC, 118-35 Queens Boulevard, Forest Hills, New York 11375 (heveinafter referred to as "Owner") and 180 EAST 88th STREET REALTY LLC, having an address at c/o DDG Partnets LLC, 60 Hudson Street, 18" Floor, New York, New York 10013 (hereinafter referred to as "Developer"). WITNESSETH: WHEREAS, Owner is the owner in fee title of # certain parcel of land, with the buildings and improvements thereoa, in the City, County and State of New York, known as and by the street address 1550-1556 Third Avenue, New York, New York and more particularly described in Exhibit A-1 annexed hereto and made # part of hereof and shown on the Tax Map of the City of New York as Block 1516, Lot 32 (said land and tax lot being referred to herein as "Owner's Land"; said buildings and improvements, together with any future additions, alterations and replacements thereof being hereinafter referred to as "Owner's Building", and said land and buildings and improvements being referred to herein as "Owner's Property"); WHEREAS, Developer is the owner in fee title of certain parcels of land, with the buildings end improvements thercon, in the City, County and State of New York, known as and by the street address as 1558 Third Avenue, New York, New York and more particularly described in Exhibit A-2 annexed hereto and made a part hereof and shown on the Tax Map of the City of New York as Block 1516, Lot 37 (said land and tax lot being referred to herein as "Developer's Land"; and said fand and buildings and improvements, together with any future replacements thereof being hereinafter referred to as "Developer's Building" and said land and buildings and improvements being referred to herein as “Developer's Property”); WHEREAS, Developer intends to construct a new building upon all ot a portion of Developer's Land (said new building, including the Cantilevered Portion as defined below, with ‘any further additions, alterations and replacements thereof, being herein called the "New Building"; Owner's Land and Developer's Land are herein sometimes jointly referred 0 as the "Parcels" and each individually as a "Parcel”); WHEREAS, it is contemplated that the New Building will contain more floor area as that term is defined in the Zoning Resolution of the City of New York effective December 15, 1961, ‘as amended ("Floor Area") than is now available for use pursuant to the Zoning Resolution as applied to Developer's Land as an independént "zoning lot", with the result that Developer desires to utilize the procedure available under the Zoning Resolution of the City of New York effective December 15, 1961, as amended (the “Zoning Resolution") for combining Developer's Land and Owner's Land into a single "zoning lot" for the purpose of increasing the Floor Area available to incorporate in the New Building;WHEREAS, the Owner's Land, the Developer's Land are contiguous for a minimum distance of ten (10) feet; WHEREAS, pursuant to that certain Declaration of Zoning Lot Restrictions dated of even date herewith between Owner and Developer (the "Declaration", a copy of which Declaration is annexed hereto as Exhibit B and made a part hereof), Owner’s Land and the Developer's Land ‘comprise a single “zoning lot” within the meaning of Section 12-10 of the Zoning Resolution of the City of New York; WHEREAS, there exist Floor Area Development Rights (hereinafter defined) appurtenant to Owner's Land which are in excess of the Floor Area Development Rights utilized by Owner's Building and the same are available for transfer pursuant to the Zoning Resolution. ‘As used in this Agreement, the term "Floor Area Development Rights" shall mean the rights, os determined in accordance with the Zoning Resolution, appurtenant to a zoning lot, to develop such zoning lot by etecting thereon a structure oF structures with a total zoning floor area determined by (i) multiplying the area of such zoning lot by the basic maximum allowable floor farea ratio for structures in the zoning district in which such zoning lot is located, ({i) the inclusion of any Bonus Floor Area Development Rights (hereinafter defined) available to the zoning lot pursuant to the Zoning Resolution, and ({ii) the further inclusion of any use, bulk, density and other development rights permitted under the Zoning Resolution, including without limitation, to the extent applicable, the permitted numbcr of dwelling units, the maximum lot coverage, and the minimum amount of open space (cach as defined in the Zoning Resolution), Which may be authorized to be developed by the appropriate agency of the City of New York (the "City"). As used in this Agreement, the term "Bonus Floor Area Development Rights" shall mean any bonus floor area and other development rights attributed (o the zoning lot which may bbe available for inclusion in a building constructed thereon (i) through the provision of an anienity or public benefit, either on or off the zoning lot, (including, but not limited to, through compliance with the Inclusionary Housing provisions of the Zoning Resolution, which are set forth at §23-90 et sea.) and (i) by way of transfer from a zoning lot that js not included in the Zoning lot, including bonus floor area generated as-of-right or by special permit, authorization or certification, in accordance with the applicable provisions of the Zoning Resolution; WHEREAS, in order to construct the New Building with Floor Area in excess of that permitted on Developer's Land as an independent zoning lot, Developer acquired the Excess Development Rights from Owner's Land pursuant to that certain Agreement of Purchase and Sale between Developer and Owner dated as of September 10, 2013. As used in this Agreement, "Excess Development Rights" shall mean (j) the Floor Area Development Rights appurtenant to Owner's Land as of the date hereof (including all of the Bonus Floor Area Development Rights attributable to the Owner's Property, including without limitation the right to utilize the lot area of the Owner's Land in calculating Bonus Floor Area Development Rights available to be incorporated into the New Building or any replacement thereof) less ({i) the amount of Floor ‘Area Development Rights utilized by Owner's Building, as same exists as of the date hereof. ‘Owner has agreed to permit Developer to utilize the Excess Development Rights, on the terms and conditions hereinafter set forth, it being understood and agreed, however, that Owner is retaining for its own benefit any and all Floor Area Development Rights (other than Bonus Floor‘Area Development Rights) and all other rights utilized by Owner's Building on Owner's Property as same exists as of the date hereof (the "Retained Development Rights"); WHEREAS, all parties in interest (@s defined in the Zoning Resolution) to the Developer's Land and the Ovmer’s Land as showm on the Zoning Lot Cetifiction of Royal Abstract of New York LLC (“Certification”), annexed hereto as Exhibit & and made @ pelt Pete ave joined in the Declaration or have waived or have previously waives their right todo co and have cither executed this Agreement, or subordinated or previously subordinated thereto; NOW THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE 1 DECLARATION OF RESTRICTIONS Section LL. The patties hereto are, simultaneously herewith, executing and delivering the Declaration, which Declaration secks to effectuate the intentions ofthe parties set forth in the preamble to this Agreement by creating a single zoning lot, as such zoning lot may be enlarged Premrbdivided in accordance with the terms of this Agreement (herein called the "Single Zoning Lot") comprising both Owner's Land and Developer's Land, ARTICLE IL DEVI INT RIGHTS: ADDITIONAL RESTRICTIONS. Section 2.1. Owner hereby transfs and conveys to Developer the Excess Development Rights and consents to Developer's incorporation of the Excess Development Rights in the New Building and Developers utilization of the Excess Development Rights to develop Developer's Land. Developer hereby acknowledges and agrees thet Owner shall etn a pared fo the Retained Development Rights and all other rights pertaining to Owner's Building it Owner's Property as the same exits on the date hereof, and Developer shall have no rights with respect to any ofthe Retained Development Rights, except as specifically herein provided. Seetion 2.2. [INTENTIONALLY OMITTED] Section 2.3, Owner acknowledges that it has been advised by Developer that Developer may seek to acquire additional Floor Area Development Rights from other sources (hereinafter Additional Floor Area Development Rights”) so as to further increase the potential Floor Area Development Rights available to Developer's Land and consents to Developer's acquisition of such Additional Floor Area Development Rights and agrees that Developer may use any ‘Additional Floor Area Development Rights which Developer may hereinafter acquire for the development of Developer’s Lane. ‘All present and future “parties in interest” to the Single Zoning Lot, including Owner, are hereby deemed to have () consented to, and waived objection to Developer's enlarging the Single Zoning Lot covered by the Declaration to include one or more additional xsssuaparcels (each an “Additional Parcel”, and collectively, “Additional Parcels”) to be brought into the Single Zoning Lot, (ii) consented to or waived their respective right to deolare that the Single Zoning Lot and any Additional Parcels are to be (reated as one zoning lot for the purpose and in ‘accordance with the provisions of the Zoning Resolution, (ii) consented to or waived their right to execute, now or in the future, and subordinated their right to, the Declaration and any and all declarations of zoning lot restrictions and any and all modifications, amendments, additions, replacements, restatements or consolidations (each individually, an “Amendment”, and collectively, “Amendments”) thereof that relate to the Single Zoning Lot and any Additional Parcels, (iv) consented to and subordinated their rights to this Agreement, any other zoning lot development agreement or similar agreement and any and ali Amendments thereof thet relate to the Single Zoning Lot and any Additional Parcels provided that, such instrument or agreement does not create a non-compliance by the Owner with any requirement of the Zoning Resolution, does not diminish Owner's rights to utilize the Retained Floor Area Development Rights, and does not adversely affect Owner's use of the Owner's Property, as permitted under this ‘Agreement or by law, (¥) consented to and waived objection to the transfer of any Additional Floor Area. Development Rights to the Developer's Lund or Developer's Property and/or the Single Zoning Lot, and (vi) consented to and waived objection to any applications, agreements, Geclarations or documents ot such other actions as may be required to effectuate the transfer and/or utilization of any Floor Area Development Rights or any Additional Floor Area Development Rights to the Developer’s Land or Developer’s Property; such consent, subordination and waiver shall be effective whether or not such parties sign such consent, subordination and waiver or the documents to which such consent, subordination and waiver apply. ‘The foregoing is intended to be self-operative. Nevertheless, if requested by either party, the other party shall, within thirty (30) days after such request, execute, acknowledge and deliver ‘one of more Amendments to the Declaration and/or this Agreement, or exeeute a waiver of Declaration and subordination to this Agreement or similar document, in form reasonably acceptable to the responding party, and shall execute, acknowledge and deliver, or cause the execution, acknowledgement and delivery of, such other instruments as may reasonably be required, for the purposes of such enlargement of the Single Zoning Lot or the transfer and/or utilization of any Additional Floor Area Development Rights. Developer shall furnish Owner ‘with such documents as Owner may reasonably require in order to be assured that the enlarging of the Single Zoning Lot or the transfer and/or utilization of any Additional Floor Area Development Rights is consistent with the terms of this Agreement, Developer shall pay any reasonable out-of:pocket fees and expenses incurred by Owner (including, but not limited to, ‘attomeys? and other professionals’ fecs and expenses) in conncetion with the review, execution, ackriowledgement and delivery of the documents pertaining to enlarging the Single Zoning Lot or the transfer an#/or utilization of any Additional Floor Area Development Rights pursuant to this Section 2.3 Section 2.4 Owner covenants and agrees not to enter into any agreement effecting, ot purporting to effect, any further merger of the zoning lot in which the Owner's Land is situated With any parcel of lend not, as of the date of this Agreement, contained in the Single Zoning Lot, ‘without the prior written consent of Developer. Section 2.5, Developer may subdivide the Single Zoning Lot to the extent permitted by the Zoning Resolution and other applicable law, subject to all the other terms of this Agreement,without any additional compensation or consideration to Owner, provided that such subdivision (1) does not create a non-compliance by the Owner with any requirement of the Zoning Resolution, (2) does not diminish Owmer’s rights to utilize the Retained Floor Aren Development Rights, and (3) does not adversely affect Owner's use of the Owner's Property, as permitted tunder this Agreement or by law, Owner shall cooperate with Developer in connection with any such subdivision, and, if requested, shall execute such documents, consents or appliéations es may be reasonably requested by Developer in connection therewith, provided Developer shall pay any reasonable out-of-pocket fees and expenses incurred by Owner (including, but not limited to, attorneys" and other professionals’ fees and expenses) in connection therewith. In the event that Owner shall not bave executed and delivered within ten (10) business days after demand therefor, any of the documents, consents or applications herein referred to, then Developer shall have the right to execute any such documents, consent or applications for, on behalf of, and as attorney-in-fact for Owner. In furtherance of the foregoing, Owner hereby irrevocably appoints Developer as its true and lawful attorney-in-fact, coupled. with an interest, ‘to execute on its behalf any and all such documents, consents or applications, ‘All present and future “parties in interest” to the Single Zoning Lot, including Owner, provided ‘that any subdivision (1) does not create a non-compliance by the Owner with any requirement of the Zoning Resolution, (2) does not diminish Owner's tights to utilize the Retained Floor Area Development Rights, and (3) does not adversely affect Owner’s use of the Owner’s Property, as permitted under this Agreement or by law, are hereby deemed to have @) consented to, and waived objection to subdividing the Single Zoning Lot into two or more separate zoning lots, (i) consented to or waived their respective right to declare that the Single Zoning Lot isto be treated fas two or more separate zoning lots for the purpose and in accordance with the provisions of the Zoning Resolittion, (ii) consented to or waived their right to execute, now or in the future, and subordinated their right to, any Declaration of Zoning Lot Subdivision or any other form or instrument effectuating such subdivision. ARTICLE Ill EASEMENTS Section 3.1. (2) Owner hereby grants to Developer a permanent and perpetual easement for light and air and unobstructed view (the “L&A Easement”), over the entire Owner's Property, except for the air space occupied by the Owner's Building, including all existing rooftop Structures and obstructions (other than antennas and satellite dishes) as it exists on the date hereof (the “Owner Building Envelope”), as further described on the as-built survey of the Owner's Building annexed hereto as Exhibit C, including easements for (i) light and air for the ‘New Building's -windows (ji) the maintenance of the New Building's windows, (iii) the construction, location, use, maintenance, repair and replacement of a waterproofing and/or water retaining system, including but not limited to waterproofing details between the New Building and Owner's Building, and gutter systems to be attached to the New Building (collectively, the “Waterproofing Systems”), such Waterproofing Systems to project over a portion of the Owner's Property and, to the extent reasonably necessary, be attached to or otherwise touch the Owner's Building, for the protection of the Owner's Building, such Waterproofing System to be reasonably approved by Owner within ten (10) business days of submission of detailconstruction plans by Developer (such approval not to be unreasonably withheld, delayed or conditioned), and (iv) ongoing temporary easements for: (x) the ordinary and necessary cleaning, maintenance and repait of the fagade of the New Building, including the use and/or installation ‘of window washing equipment, scaffolding, and rigging (and related operations) required for such ordinary and necessary cleaning, maintenance and repair, and (y) access ¢o the Owner's Property to construct, maintain, repair and/or replace the Waterproofing Systems. | Owner covenants and agrees that no building or other improvements shall be constructed or allowed to exist on the Owner's Land and/or on the Owner’s Building, including skylights, elevator housing, water towers or other equipment required for the operation of the Owner's Building 90 as to encroach beyond the Owner Building Envelope into the area of the easement granted herein {but nothing contained in this Section 3.1(a) shall be deemed to prohibit or restrict the placement or replacement, or continued maintenance, on or above the roof of the Owner's Building of any parapet, bulkhead, fence, elevator shaft, chimney, pipe ladder, fire escape, or other mechanical br telecommunications equipment excluding antennas and satellite dishes (each a “Structure”), provided however that i) no Structure, other than the existing water tower and any replacement thereof, shall extend above the Lower Limiting Plane (defined below), (fi) no Structure shall utilize any Floor Area Development Rights or decrease the Excess Development Rights or any ‘Additional Floor Arca Development Rights, (lii) all Structures are permitted by the Building Department as permitted obstructions under the New York City Multiple Dwelling Law, (iv) all Structures shall comply with all applicable laws, (v) no existing Structure shall be increased in height or size without Developer's prior written consent, and (vi) no mew Structure shall be constructed ot located on the roof of the Owner's Building in the area below the Cantilevered Portion without Developer's prior written consent. Owner hereby agrees that Owner shall, if required by the Building Department for purposes of Tocating windows providing legal light and tir under Section 30 of the New York State Multiple Dwelling Law or Section 23-86 of the Zoning Resolution (ot any other section(s) governing the provision of legal ight end ait) on the Southern fagade of the New Building, within ten (10) business days of a request therefor execute, ‘acknowledge and deliver a supplementary easement agreement with Developer respecting same in such form as may be required by the Building Department providing for such light and air easement over the Owner's Property. Developer shall pay any reasonable out-of-pocket fees and expenses incurred by Owner (including, but not limited to, attorneys” and other professionals! fees and expenses), not to exceed five thousand dollars ($5,000) in connection with the review, execution, acknowledgement and delivery of the documents pertaining to the supplemental ‘easement agreement. (b) Ovmer hereby grants, conveys and releases to Developer a permanent and perpetual and exclusive easement (the “Cantilever Easement”) in and to portions of the Owner's Property (the “Cantilever Easement Area”) for the construction (*Cantilever Construction’), wse ‘and occupancy, maintenance, repair, replacement and reconstruction (all of the foregoing collectively, the “Cantilever Maintenance and Repair”) of portions of the New Building (the “Cantilevered Portion”) to be located over and above Owmer’s Property, beginning at & horizontal plane drawn at an clevation of 166 feet above the datum level used by the Topographical Bureau; Borough of Manhattan, which is 2.75 feet above the United States Coast and Geodetic Survey Datum, mean sea level, Sandy Hook, New Jersey (the “Lower Limiting Plane”), and extending over Owner’s Property by no more than a maximum of ten and one-half feet (10°6"), (the “Maximum Overhang”), a3 shown on the diagram annexed as Exhibit D hereto rosma:and made a part hereof, “The Cantilever Easement Area shall be subject to adjustment based on normal construction procedures and the normal seltlement and shifting of the Cantilevered Portion after construction thereof has been completed, provided that in no event shall the Cantilevered Portion be located below the Lower Limiting Plane or extend over Owner's Property beyond the Maximum Overhang. If certified by Developer's architect that a Screenwall (defined below) is required by the Building Department in order to preclude the application of Section 23-692 of the Zoning Resolution to the New Building and in furtherance of the Cantilever Easement, Owner hereby grants, conveys and releases to Developer a permanent and perpetual exclusive easement (the “Screenwall Easement”) to the postion of the Owner's Property located in the area between the Lower Limiting Plane and the roof of the Owner Building but not beyond the Maximum Overhang (as shown on Exhibit D, the “Screenwall Easement Area”), for the construction, location, maintenance, repair, replacement and reconstruction of & screenwall or similar architectural treatment (a “‘Screenwall”) to suggest @ continuous eastern fagade between the Cantilevered Portion and the Owner's Building, such Screenwall to be designed to provide access to and egress from the Screenwall Easement Area to the areas of the roof of Owner's Building located outside of the Screenwall Basement Area. The construction of such Sereenwall to be reasonably approved by Owner with respect to constuction methods only and not to materials or design within ten (10) business days of submission of detail construction plans by Developer to Owner. (©) Owner hereby grants to Developer an easement on and over the Owner's Property for the purpose of facilitating the safe and timely construction of snd necessary support for the New Building (the-“Support Easement”) for, to the extent required by law or good constniction practice, the attachment of foundation and buildings supports and shoring, and tracing and underpinning of the Owner's Building. Tn the event that the construction of the New Building requires attachment of foundation and buildings supports and shoring and bracing and underpinning of the Owner's Building (the “Atachments”), Developer shall furnish plans and specifications of such Attachments to Owner in sdvance of undertaking such work, Ovmer shall feasonably approve such work within fifteen (15) business days of receipt of the plans and specifications. (@ Notwithstanding the provisions of subparagraphs (a), (b) and (6) of this Section 3.2 (i all improvements existing on Owner’s Land as of the date hereof may remain, and replacements thereof may be installed, for so long as Ovmmer’s Building shall stand, and (i) to the extent that any improvement on the Developer’s Land shall (a) cause any portion of the Owner's Building to no longer comply with then applicable laws, codes or regulations, or (b) render any portion of the Owner's Building unsafe in Ovmer’s reasonable judgement, or (¢) adversely fffect, in a material way, the operation or performance of any portion of the Owner's Building other than as contemplated by this Agreement, then in any of such events, the Owner shall be tenttled to make such improvements and alterations to the Ownex’s Building as the Owner shall easonably deem appropriate in order to climinate or mitigate the. impact on the Owner's Building and the use and enjoyment thereof, oaused by any such improvement on the Developer’s Land, Upon presentment of invoiees, the reasonable costs and expense actually incurred by the Owner, in connection with such work, shall be immediately paid by the Developer.Section 3.3. Owner hereby agrees with Developer that Developer may incorporate into the New Building all of the Excess Development Rights, provided, however that the Floor Area of all improvements on. the Developer's Land shall not, at auy time, exceed the maximum permissible amount of Floor Area permitted on the Single Zoning Lot. Developer covenants that the Floor Area of the New Building will not, upon completion, exceed such limit, as certified by the architectural firm retained by Developer. Section 3.4. Owner shall cooperate with Developer in alll reasonable respects in executing and delivering documents necessary to the prosecution by Developer of all as of right zoning applications relating to the New Building, the incorporation therein of the Excess Development Rights and the execution of all documents pertaining thereto and reasonably required therefor. Owner shall not voluntarily appear in opposition to Developer in any action ‘brought, sought or defended by Developer before the Planning Commission of the City of New ‘York, the New York City Board of Standards and Appeals, the New York City Department of Buildings, or any other city, state or federal agency, (each of the foregoing, an “Agency") or before any community bourd, arising out of or in connection with any zoning applications relating to the New Building and the incorporation of the Excess Development Rights therein. If requested by Developer, Over shall execute and deliver any application or applications which may be reasonably necessary (including, but not limited to, an application to the Building Department, if required by applicable law, rule, regulations or Building Department protocol as a coadition to any permit or certificate of occupancy for the New Building, to cause the certificate of occupancy for the Owner's Building to be amended so as to indicate the existence of the Single Zoning Lot), to any of the governmental agencies set forth herein in order to effect the use by the Developer of the Excess Development Rights and their availability for the incorporation in the New Building, provided that same shall not adversely affect or impair Owner's use of the Retained Development Rights. If requested by Developer, Owner shall provide affirmative written support for any discretionary land use or zoning applications relating to the New Building, ot otherwise with respect to the Developer's Land, provided that the same shall not adversely affect or impair Owner's use of the Retained Development Rights, Developer shall pay any reasonable out-of-pocket fees and expenses incurred by Owner (including, but not limited to, attorneys’ and other professionals’ fees and expenses), not to exceed five thousand dollars ($5,000) per oceasion, in connection with the review, execution, acknowledgement and delivery of the documents pertaining to applications. Nothing herein shall be deemed to prevent of limit Owner, and in no event shall Owner be limited in or prevented from, taking any action which Owner reasonably believes is necessary or prudent in order to preserve and protect the Retained Development Rights. ‘The parties acknowledge that such cooperation and document execution by Owner shall not include any action which would affect the current or future use of the Owner's Building nor create any rights of access thereon or therein nor increase the responsibilities or liabilities or reduce the rights of Owner under this Agreement and/or Declaration, except as otherwise provided herein, ARTICLE IV CONSTRUCTION ON THE SINGLE ZONING LOT‘Section 4.1. Construction plans and specifications and any applications to the New York City Department of Buildings (the “Building Department”) for any building on either Parcel shall be separate and independent from those for any building on the other Parcel, and shall be s0 filed with the Building Department as to oblain separate “new building” and "alteration" ‘treatment and numbers. Neither Developer nor Owner shall make any application to the Building Department or any other government authority for any construction, alteration, reconstruction or other similar work in ny building or other structure on its Pareel which could in any way restrict the rights of the Owner or Developer (as applicable) to maintain the improvements on the Owner's Land or the Developer's Land (as applicable) or impair, prevent or preclude Owner from utilizing all the Retained Development Rights or Developer for utilizing all the Excess Development Rights and any Additional Floor Area Development Rights acquired by Developer. Section 4.2. Developer and Owner, in connection with any Work (as hereinafter defined) performed with respect to its Parcel, hereby covenants to the other party, as follows: 4.2.1 Such party shall use, and cause all pessons and entities and their respective employees ot contractors performing such Work (or supplying materials in connection therewith) to use, all commercially reasonable efforts to prevent (including, without limitation, utilizing construction methods and procedures designed to prevent) any (i) damage to the other Parcel (inclusive of all interior and exterior components of the improvements for the other Parcel), any personal property located upon the other Parcel, and/or any sidewalks or vaults adjacent to the other Parcel, and/or (ji) other unreasonable interference with the use and operation of the other Parcel. 422. If any such Work shall cause any damage to the other Parcel (inclusive of all interior and exterior components of the Improvements for the other Parcel), any ‘personal property located upon the other Parcel, and/or any sidewalks or vaults adjacent to the other Parcel, then such party shall, at the option of other party, cither () promptly repair such damage, in a good and workmanlike manner, consistent with all applicable laws and otherwise to the reasonable satisfaction of other party, or (ji) reimburse the other party, on demand, for all the reasonable out-of-pocket costs incurred by the other party in repairing such damage. 4.2.3. Such party shall indemnify and hold harmless the other party from and against any and all claims, liabilities, damages, losses and reasonable costs and expenses (including, without limitation, reasonable attorneys’ fees) which may be asserted against, imposed upon or incurred by the other party by reason of such Work (including, without limitation, any act or omission in the design or performance of such Work), 424 As used herein, “Work", with respect to either Parcel, shall mean any alterations, rebuilding or other work performed by the owner of such Parcel (or any party claiming by, through or under it) upon or about such ParcelARTICLE V EVENT OF DESTRUCTION ON THE SINGLE ZONING LOT Section 5.1. The following provisions shall be applicable in the event of destruction (or substantial damage tantamount to destruction) of any building on the Single Zoning Lot: Sal JE the Owner's Building shall be damaged or demolished, then the Floor Area ‘Which may exist on the Owner's Land after the reconstruction may equal, but may not exceed the Retained Development Rights, and such reconstruction shall not diminish the Excess Development Rights transferred hereunder. If the New Building or any other improvement oa the Developer's Lund shall be damaged or demolished, then the Floor Area which may exist on Developer's Land after reconstruction may equal, but not exceed, the present permissible Floor ‘Area allowable for the New Building, except that there may be added thereto such bonus Floor Area computed with respect to the Developer's Land as may be available because of design or location on the Developer's Lend, plus the Excess Development Rights transferred hereunder, plus any Additional Floor Arca Development Rights acquired by Developer. Ifa validly enacted amendment of the Zoning Resolution reduces the Floor Area Development Rights ascribable to the Single Zoning Lot (a “Downzoning”), allocation of Floor Area Development Rights shall be as follows: (0) If following a Downzoning, the Owner's Building and the Developer's Building simultaneously suffer a casualty, then any rebuilding, reconstruction or alteration of the Developer's Building undertaken by the Developer and any rebuilding, reconstruction or alteration of the Owner's Building undertaken by the Owner shall be limited by such Downzoning to such amounts which would allow the Developer's Land the benefit of the percentage ratio which percentage is equivalent to the ratio of the Excess Development Rights to the total Floor Area Development Rights otherwise available with respect to the Owner's Land as of the date of such casualty. (b) If, following a Downzoning, the Developer's Building (but not the Owner's Building) suffers a casualty, then the total amount of rebuilding on the Developer's Property shall be limited by such Downzoning to an amount which allows the Owner's Property the full benefit, and no reduction, of the Retained Development Rights, © If, following a Downzoning, the Owner's Building (but not the Developer's “Building) suffers a casualty, then, imespective of whether construction of the New Building has commenced or the New Building has been fully constructed, the amount of rebuilding on the Owner's Property shall be limited by such Downzoning to an amount which allows the Developer's Property 0the full benefit, and no reduction, of the Excess Development Rights plus all of the Additional Floor Area Development Rights owned by Developer and then appurtenant to all portions of the Single Zoning Lot other than the Owner's Property (considered as if the Owner’s Property was a separate zoning lot). 5.1.4 Following a validly enacted amendment of the Zoning Resolution increasing the Floor Area Development Rights ascribable to the Single Zoning Lot, Developer's Property shall be entitled to the full benefit of any such increase. 3.1.5 Bach party shall upon request of the other party, furnish to such other party any and all further consents and other instruments which may be required to ‘accomplish the allocations of Floor Azea above provided, ARTICLE VI CONSTRUCTION EASEMEN! Section 6.1. (a) Devetoper covenants and agrees that it will take all actions and steps as are required by law and good construction practices to protect Owner's Building and to ensure the safety of the occupants of Owner's Building and the protection of property of all parties as are required for the demolition of the existing Developer's Building and the construction or reconstruction of the New Building (collectively, “Construction”), In furtherance thereof, Owner hereby grants to Developer certain easements for access upon Owner's Property (the "Access Easements"; all work performed to effectuate the Access Easements pursuant to this Article VI is hereinafter referred to as the “Construction Easements Work”) for (i) the construction and maintenance of a construction fence and the monitoring thereof; (li) the attachment of foundation and building supports and shoring to and brncing and underpinning of Owner's Building; (ii) the installation of protective covering over the roof, facade and other portions of Owner's Building from debris during the construction of the New Building; (iv) the maintenance, monitoring, repair and replacement of such attachments and installations; and (v) the right to construct, monitor and maintain temporary scaffolding on the Owner's Building during Construction, provided that such scaffolding shall be constructed and maintained in compliance with good construction practice, shall provide for adequate security with respect to the Owner's Property, and shall not unreasonably interfere with ingress and egress to the Owner's Building. Developer shall give (x) Owner at least ten (10) days’ written notice prior to the commencement of each clement of the Construction Easement Work and Owner shall have the right to review and approve such Construction Easements Work solely to determine if such comply with applicable law and good construction practices (such approval not to be unreasonably withheld, delayed or conditioned) and (y) such advance notice for the construction of the Waterproofing System, Screenwall, the Cantilever Construction and the Cantilever Maintenance and Repair as provided in Artiole TI, herein. (b) In addition to the easements set forth in Section 6.1(a) hereof, Owner consents to, and grants to Developer an easement for, temporary projections and/or intrusions extending from the Developer's Property or from other adjoining property, including sidewalks, into the aiz space over the improved or unimproved portions of the Owner's Property which are reasonably n xamme2required in connection with the construction or rebuilding of the New Building (‘Temporary Projections Easement”), provided that such projections and/or intrusions (i) are not in violation of applicable Inw, (ii) do not unreasonably interfere with Owner's use and occupancy of the Owner’s Building, (iii) are removed within thirly (30) days after the issuance of the first temporary certificate of occupancy allowing for the occupancy of the entire New Building, and Gv) are made in accordance with the terms and requirements of this Agreement (including the requirements of this Article VI). Such projections may include cranes or similar equipment. Developer shall give Owner at least ten (10) days" notice of the commencement of any work to be undertaken pursuant to this Section 6.1(b). Developer shall include Owner and the lender holding a mortgage on Owner's Property (“Owner's Lendes”) as an additional insured on Developer's Commercial Liability and Excess Liability insurance policies for demolition/construction of the New Building, such insurance poliey coverage amount with a limit of not less than the greater of Ten Million Dollars ($10,000,000) or the minimum amount required by the Building Code of the City of New York. Developer hereby agrees to indemnify and hold Owner harmless from and against any claims, Joss, cast or expense, including reasonable attorneys’ fees and disbursements, which Owner may suffer by reason of Developer's performance of the Construction Easements Work or the ‘construction of the New Buildings, unless caused by the gross negligence or willful acts of Owner. Prior to commencing any Construction Easements Work, Developer shall name Owner and Owner’s Lender as an additional insured under an insurance policy covering the foregoing contractual indemnity, with a limit of not less than the greater of Ten Million Dollars ($10,000,000) or the minimum amount required by the Building Code of the City of New York, and shall deliver to Owner end Owner's Lender (provided Owner notifies Developer of Owner's Lender's address) a certificate evidencing such insurance. Any damage to Owner's Property arising out or with respect to work performed by or on behalf of Developer (“Developer Damage”) shall be repaired within ten (10) business days or if not capable of completion within {en (10) business days commenced within such ten (10) business days and diligently pursued to completion at Developer at its sole cost and expense, and restored to its former condition (insofar as possible). Notwithstanding any provision of this Agreement to the contrary, Owner shall atall times be entitled to repair any Developer Damage 0 Owner's Property without regard to the immediately preceding sentence and all reasonable costs and expenses ineurred by Owner in furtherance thereof which shall be paid to Owner by Developer within (en (10) business days of demand therefor accompanied by invoices relating thereto. With respect to the New Building or the Construction Easements Work, in no event shall Owner or any principal, employee or agent of Owner be liable for any delay suffered by Developer, or for any work performed by or for the account of Developer. (©) Im furtherance of the easements granted in Sections 6.1(a) and 6.1(b) above, Owner hereby grants to Developer and the agents and/or contractors hired or retained by Developer to conduct a “preconstruction survey”, at Developer's election and at Developer's sole cost and expense, that will document the then-existing condition of the Owner's Property the right, upon ten (10) business days written notice, a license to enter onto the Owner's Land and to enter the Owner's Building to the extent reasonably required to conduct such survey. Developer agrees that the “preconstruction survey” shall be scheduled in consultation with the Owner or its designated representative during normal business hours and that the agent and/or contractor hired Ror retained to perform the “preconstruction survey” shall heve in full force and effect insurance coverage on commercially reasonable terms and in commercially reasonable amounts. Owner shall eooperate with the Developer in the conduct of the “preconstruction survey” Section 6.2. The Access Easements granted hercin shall be exercised ({) in accordance with all applicable laws and in a prompt, safe and efficient manner, (i) in @ manner so a5 not to TInteasonsbly interfere with the use occupancy or enjoyment of Owner's Building: (if) in « manner so as not to interfere with the structural integrity of Owmer's Building; (iv) taking such precautions as may be necessary or appropriate to prevent unnecessary damage to adjacent or adjoining property; (¥) in accordance with good construction practices and in a manner customary for improvements or work necessary (o effectuate the Easements. All work performed to effectuate the Access Easements is hereinafter referred to a8 the "Basement Work’. Developer shall not permit and shall prevent, trades snd other workers from using the roof of Owner's Building as a “staging area,” for material storage, as a work platform, for recreational purposes, ot for any other purposes. ‘Section 6.3, In the event that any action by Developer, including, without limitation, any ‘action in furtherance of the Access Easements or the Easement Work, shall result in the placing ‘ofa violation upon Owner's Land, Developer shall, at Developer's cost and expense, be solely responsible for curing the sume and shall take all steps to cure such violetions of record within ten (10) business days or if not eapable of curing within ten (10) business days fo commenced to cure within such ten business (10) days and diligently pursued the curing of such violations of record. Section 64, The grant of the Access Easements hereunder is temporary only and shall remain in effect for only so long as is reasonably necessary to substantially complete the onstruction of the New Building or the reconstruction thereof and in no event shall the Access Easements extend beyond the issuance of a certificate of oceupancy (temporary or permanent) covering the entire New Building, a copy of which certificate of occupancy, once obtained by Developer, shall be provided to Owner. No further instrument of termination shall be necessary to terminate the temporary Access Easements, provided, however, that after the issuance of @ certificate of occupancy (temporary or permanent) for the New Building, upon request of Owner, Developer shall promptly execute end deliver to Owner a written instrument of termination in form and content reasonably satisfactory to Owner. ARTICLE VIL ESTOPPEL CERTIFICATES Section 7.1, Developer shall, upon at least twenty (20) days’ prior written notice from ‘Owner, at any fime or times, furnish to Owner or Owner's designee a written statement, seting forth G) whether this Agreement is in full force and effect; (i) the extent to which this “Agreement las been modified (irrespective of whether such modifications are of record); (i) the ‘extent to which Developer has served any written notice of default under this Agreement, which Gefnult remains uncured; and (iv) that the statement may be relied upon by said designee. BSection 7.2. Owner shall, upon at least twenty (20) days! prior written notice from Developer, at any time or times, furnish to Developer or Developer's designee a written statement, setting forth (i) whether this Agreement is in full force and effect; (Ji) the extent to which this Agreement has been modified (irrespective of whether such modifications are of record); (iii) the extent to which Developer has served any written notice of default under this Agreement, which default remains uncured; and (iv) that the statement may be relied upon by said designee. ARTICLE VIL REAL ESTATE TAXES Section 8.1, Owner and Developer agree that, for all purposes, including, without limitation, for real property tax purposes (but other than for the purpose of causing the Single Zoning Lot and the transfer and allocation of the Excess Development Rights), Owner's Land and Developer's Land shall be, and shall continue to be treated as, separate and independent lots, plots and parcels. Ovnier and Developer each expect that the assessed valuation of, and the taxes imposed against, Owner's Property and Developer's Property shall be determined on a basis which treats Owner's Property and Developer's Property as separate and independent tax lots and which incorporates within Developer's Property the Excess Development Rights to which Developer is entitled under this Agreement. Accordingly, Owner and Developer each agree to cooperate with the other and to take such action as shall be necessary to insure that the ‘appropriate taxing authority (i) continues to treat each Parcel as a separate and independent tax lot, and (ii) calculates the taxes due with respect to cach Parcel in a manner which (A) incorporates the development and zoning rights to which Developer is entitled under this ‘Agreement, as well as all of the buildings and other improvements from time to time constituting fa part of Developer's Property, in the calculation of taxes due with respect to Developer's Property, and (B) excludes the same from the calculation of taxes due with respect to Owner's Property. In the event that Owner's Property and Developer's Property are not classified as separate tax lots, each party agrees to execute such documents as may be required in support of the apportionment of such taxes in a manner which is consistent with the respective interests of the parties. Developer agrees to pay to Owner such portion of the real property tax charged to Owner's Property as results from an inerease in assessment of the Owner's Property which shall ‘be due to the reallocation of Floor Area Development Rights hereunder. ARTICLE IX REPRESENTATIONS AND COVENANTS ‘Section 9.1. Ovmer covenants that the transfer pursuant to this Agreement is subject to the trust fund provisions of Section 13 of the New York State Lien Law. Section 9.2. Owner represents and covenants that (a) Owner holds title to and has the legal right to enter into the Declaration and this Agreement and convey the Excess Development Rights and perform all of its obligations under this Agreement; (b) except for those parties who have executed the Declaration or waived their respective rights to do so, it has not previously 4sold, leased, tansferred, conveyed, assigned nor encumbered the Excess Development Rights or the easements granted under this Agreement in any manner whatsoever; (c) Owner has obtained all consents, if any, required in connection with its execution of this Agreement and the performance of its obligations hereunder, and (d) the execution and delivery of this Agreement and the performance by Owner of its obligations under this Agreement have been duly authorized by all necessary corporate and fiduciary action. Section 9.3. Developer represents and covenants that (a) Developer has the legal right to enter into the Declaration and this Agreement and to perform all of its obligations under this ‘Agreement; (b) Developer has obtained all covenants, if any, required in conneetion with its ‘execution of this Agreement and the performance of its obligation hereunder; and (¢) the execution and delivery of this Agreement and the performance by Developer of its obligations under this Agreement have been duly authorized by all necessary corporate and fiduciary action Section 9.4. vm, If all or any part of the Owner's Property (other than the Cantilevered Portion) shall be taken under power of eminent domain, or otherwise transferred in lieu thereof, itis acknowledged and agreed by Owner and Developer that: (i) any and all awards and proceeds payable in connection with any such (otal ot partial taking shall belong exclusively to, and be paid to, Owner; (ji) provided that the Cantilevered Portion is not the subject of any such taking or condemnation, no award for any total or partial taking shall be apportioned; and Gi) in the event that the Cantilevered Postion is not the subject of such taking or condemnation, Developer hereby unconditionally assigns to Owner any award which may be made in ‘connection with such taking or condemnation. In the event that the Cantilevered Portion is included in’ any such taking or condemnation, any award for such taking or condemnation shall ‘be apportioned based on a percentage ratio which percentage is equivalent to the ratio of the area of the Cantilevered Portion subject to such taking or condemnation to the total area of the Owner's Property subject to such taking or condemnation, ARTICLE X RETAINED OWNERSHIP; FLOOR AREA NOTICE Scetion 10.1, The parties hereto acknowledge and agree that this Agreement and the Declaration are intended solely to ereate the Single Zoning Lot, to regulate the rights and obligations of the parties hereto and to impose the easements and restrictions upon Owner's Land ‘and Developer's Land specifically sot forth herein, and except as set forth herein, each party hereto retains full ownership and control over its Parcel. Developer and Owner further acknowledge and agree, that, except as otherwise expressly provided in this Agreement, nothing contained herein grants to the other party the right or easement of physical access upon or over its premises; including, without limitation, its respective Parcel, except as specifically provided herein. Developer and Owner further covenant that, except as otherwise expressly provided in this Agreement, no portion of any building or other structure hereafter erected on their respective premises shall encroach upon the premises of the other party in any way at any time. If any feneroachment shall occut, it shall be removed by the party who erected it at such party's sole cost and expense upon written request of the other party, and if party fails to commence such removal within a reasonable period of time after receipt of such request, the other party shall 1shave all legal and equitable remedies available with respect to such failure as described in Article XI hereof, Section 10.2. Notwithstanding anything to the contrary set forth in this Agreement and except as specifically provided in Articles IIL and VI herein, the Excess Development Rights shall not include (i) any right to ezect any structure on, under, across or over Owner's Land ot any portion thereof or the improvements thereon or any portion thereof, (ii) any right to erect any structure on Developer's Land which encroaches upon Owner's Land or any portion thereof or the improvements thereon or any portion thereof, (ii) any right to alter or enlarge any structure on Developer's Land in a manner which encroaches upon Owner's Land or any portion thereof or the improvements thereon or any portion thereof, (iv) any right to use any portion of the improvements on Owner's Land for "party wall" purposes; and (v) any right of ingress and egress through, under, across or over Owner's Land or any portion thereof. Section 10.3. Floor Area Notice. Notice is hereby given that this Agreement restricts the Owner's Property; and benefits the Developer’s Property, by (i) limiting (subject to the terms of this Agreement) the Floor Area Development Rights which are appurtenant to the Owner's Property to the Retained Development Rights utilizable by Owner pursuant to this Agreement, and (ji): allowing the Developer's Property the exclusive right to and benefit of the Excess Development Rights, the Bonus Development Rights and any Additional Floor Area Development Rights available to the Single Zoning Lot. ARTICLE XI NATURE OF AGREEMENT. Seotion LLL. The parties hereto acknowledge and agree that in the event of any breach or threatened breach of this Agreement by any party, the nondefaulting party shall only have the right to injunctive relief and specific performance (including, without limitation, any reimbursement of costs pursuant to this Agreement) and under no circumstances shall the defaulting party be liable for damages, whether consequential, direct, foreseen or unforeseen, Notwithstanding the foregoing, the limitations on damages set forth in this Section 11.1 shall not apply to any liability of Owner or Developer for damage to property or injury to persons resulting from or arising in connection with any demolition or construction activities on the Owner's Property or the Developer's Property. If any party incurs aay legal fees or expenses arising from any other party's default in the performance of that party's obligations under ‘Agreement, such fees and expenses shall be payable to the nondefaulting party upon rendition of a bill or statement to the other party therefor. Section 11.2. Notwithstanding anything to the contrary contained herein, the parties hereto shall look only to the other party's then estate in Owmer's Property (or the proceeds thereof) or Developer's Property (or the proceeds thereof), as the case may be, for the satisfaction of their respective remedies for the collection of a judgment (or other judicial process) requiring the payment of money by the other party in the event of any default by the other party hereunder, ‘and no other property or assets of the other party ot its principals, disclosed or undisclosed, shall be subject to levy, execution or other enforcement procedure for the satisfaction of the first 16party's remedies hereunder. Notwithstanding anything to the contrary contained herein, ‘Developer and Owner acknowledge and agrees that it now and forever waives its tight to file any lien, judgment, ot lis pendens against the other party’s Property. No liability under this ‘Agreement shall be enforced by any action or proceeding wherein damages or any money judgment or any deficiency judgment establishing any personal obligation or liability shall be sought, collected or otherwise obtained against any party to this Agreement, or any past, present or future partner, officer, director or shareholder of such party but shall cather be limited to and enforceable solely against, and each party agrees to look solely to such other party's interest in the Single Zoning Lot (including rental insurance, condemnation and sales proceeds attributable to such party’s Premises) and no other assets of such party. Section 11.3 Developer and Owner each individually covenants and agrees to develop, use, maintain, and occupy such parties Premises in accordance with all applicable laws, rules, and regulations s0 as to prevent any Material Violation (as hereinafter defined) from occurring or having the potential to occur on the Single Zoning Lot or any portion thereof or improvement located thereon, 1f(A) either Party creates a new, or increases any existing, non-conforming use or non-compliance under the Zoning Resolution that would delay, hinder or prevent issuance of @ building o any other permit or approval required by law to alter, repair, maintain, build or rebuild any building or a certificate of occupancy for any building on the Single Zoning Lot, and/or (B) any Agency of governmental authority shall issue any violation or notice of violation, as the case may be, to either Party (or agent thereof) that would (i) prevent the issuance of building permit or any other permit or approval required by law to construct or maintain a building or other improvement on the Single Zoning Lot, (ji) would adversely affect the issuance or validity of any certificate of occupancy for all or say portion of such a building or other improvement on the Single Zoning Lot or the use, occupancy and/or development thereof, (ii) ‘would impose a lien or have the potential to impose a lien or other encumbrance on any portion of the Single Zoning Lot or any building or other improvement located thereon, or (iv) would Otherwise cause or have the potential to cause any fine, penalty, assessment, claim or other damage to be imposed against the other Party or the other Party's Premises, as the case may be (each of (A) and (B) preceding, a “Material Violation”): (w) Developer, if a Matetial Violation relates to the Developer Premises hereby covenants and agrees to promptly cure said Material Violation at Developer’s sole cost and expense and pay any fines, claims, assessments or other charge ot penalty actually inewred by Owner; and (x) Owner, if « Material Violation relates to the Owner Premises, hereby covenants and agrees to promptly cure said Material Violation at ‘Owmer's sole cost and expense and pay any fines, claims, assessments or other charge or penalty actually incurred by Developer. (@) Each Party covenants and agrees to promptly, upon becoming aware of or receiving notice of any Material Violation, give written notice to the other Parly of any such Material Violation. (b) Without limiting any Party’s obligations under this Section 11.3, the other Party may (but shall not be obligated to) proceed to cure any Material Violation (the “Curing arty”) caused by the Party (the “Violating Party”) affecting the Curing Party's Premises or in any manner impairing or restricting the Curing Party’s ability to develop, use, enjoy, or ovcupy w "the Curing Party's Premises in the manner contemplated by this Agreement if the Violating Party shall not have commenced and. diligently continued to cure such Material Violation within. twenty (20) days after the Curing Party shall have given the Violating Party written notice of such Material Violation, which notice shall contain a cover sheet with the legend boldly marked NOTICE OF VIOLATION-IF NO ACTION TO COMMENCE TO CURE IS UNDERTAKEN WITHIN TWENTY (20) DAYS [THE CURING PARTY] MAY PROCEED TO CURE THE SAME.” Developer and Owner each individually grant to the other and their authorized agents, employees and contractors such access in and to the Party's Premises as may be reasonably necessary to permit the cure of such Material Violations. Any Violating Party shall reimburse any Curing Party for all actual, reasonable costs, ineurred by the Curing Party in connection with the Curing Party's (and the Curing Party’s agents, employees, and contractors) attempts to cure such Material Violations within twenty (20) days after written demand therefor, which demand shall describe such costs in reasonable detail and include evidence of the payment thereof by or on behalf of the Curing Party and the removal or other cure of such Material Violation, Section 11.4, Owner agrees that any owner of any Additional Parcel which is included in the Single Zoning Lot by Developer pursuant to the terms of this Agreement shall be deemed to be a third party beneficiary of the development limitations set forth in Section 11.3 above with respect to the Owner’s Property and shall be entitled to enforce such limitations against Owner, provided that the zoning lot development agreement executed with respect to such Additional Parcel contains a provision granting such rights to Owner. Notwithstanding the foregoing, the owner of such Additional Parcel shall not have any license to enter onto the Owner's Property to effectuate a cure of any Material Violation or otherwise enforce such owner's rights pursuant to this Section 11.4. ARTICLE XII MISCELLANEOUS: Seotion 12.1, This Agreement sets forth the entire agreement between the parties hereto relating (0 the subject matter hereof, and, accordingly, ll other prior agreements or understandings relating to the subject matter hereof (whether oral or written) are hereby superseded. This Agreement cannot be changed or terminated by oral agreement, but only by written agreement signed by Owner and Developer, except that any party in interest to any other premises joined to the Single Zoning Lot in accordance with Section 2.3 above shall be deemed to be bound by the provisions of this Agreement upon the execution of a document to that effect between Developer and such party only, Section 12.2. All of the grants, interests, covenants, agreements and conditions contained in this Agreement shall (a) run with the lands, buildings and improvements affected thereby; (b) subject (o the provisions of this Agreement, inure to the benefit of and be binding upon each. party to this Agreement and such party's successors and assigns (but said grants, interests, covenants, agreements and conditions are not intended to benefit any third party); and (c) to the extent Owner or Developer shall assign its respective rights to the holder of any present or future ‘morigages encumbering any of the properties affected by this Agreement or any interest therein, bbe enforceable by any such assignee after default under any such mortgage. 8Section 12.3. The Article headings herein are inserted for convenience only and shall not affect the construction of this Agreement. Section 12.4. Any notice, demand, consent, approval, direction, agreement or other communication (any "Notice") required or permitted hereunder shall be in writing and shall be directed as follows If to Owner: ALLIED THIRD AVENUE LLC clo Muss Development LLC 118-35 Queens Boulevard Forest Hills, New York 11375 Attention: General Counsel with a copy to: Slater & Beckerman, PC 61 Broadway, Suite 1801 New York, New York 10006 Attention: Raymond H. Levin, Bsq If to Develo, 180 EAST 88th STREET REALTY LLC clo DDG Pariners LLC 60 Hudson Street, 18th Floor ‘New York, New York 10013 Attention: Joseph A. McMillan, Jr with copies to Eastgate Realty 410 Perk Avenue New York, New York, 10022 Attention: Peter Allen, Esq. and to: Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas ‘New York, New York 10036 Attention: Valerie G. Campbell, Esq. »or to such changed address ot facsimile number as a party hereto shall designate to the other parties hereto from time to time in writing, Notices shall be () personally delivered (including Eetivery by Federal Express or other comparable nation-wide ovemight courier service) to the Offices set forth above, in which case they shall be deemed delivered on the date of delivery or fast business day thereafter if delivered other than on @ business day or after 5:00 pan. New York City time) to said offices; or (ji) sent by certified mail, return receipt requested, in which case they shall be deemed delivered on the date shown on the receipt untess delivery is refused tr delayed by the addressee in which event they shall be deemed delivered on the date of deposit nthe U.S. Mail. An attorney for a party may give a Notice on behalf of such party, Section 12.5. Owner, by executing this Agreement, shall not be deemed to have waived any of its rights, and Developer shall not be relieved of any of its obligations, under Section 27-860 of the Administrative Code of the City of New York or any other Governmental Requirement which shall impose any duty ot obligation on Developer with respect (o Owners Land as a result of Developer's construction of a building upon Developer's Land, Section 12.6 ‘his Agreement shall be governed by and construed in accordance with ‘the laws of the State of New York. Section 12.7. This Agreement is intended to be reorded in the Office of the Register of the City of New York, New York County (and indexed against both Pareels). Section 12.8, Except as may be expressly provided herein to the contrary, () no delay oF omission by either party.in exercising a right of remedy shall exhaust or impair such right or remedy of eonstituls a waiver of, or acquiescence in, any default by the ether party (i) « single Or partial exercise of a right or remedy by either party shell not preclude a further exersise thereof, or the exercise of another right or remedy, by such party, and (ji) no waiver by either party of default by the other party shall be deemed a waiver of any other defeult by suc other party (whether of the same or other obligations hereunder) Section 12.9. If any provisions of this Agreement or the application thereof fo any person or eicumsiance shall, or any reason and to any extent, be invalid or unenforceable, the remainder of this Agreement and the application of that provision to other persons oF circumstances shall not be affected but rather ‘shall be enforced to the extent permitted by law: Seotion 12.10. This Agreement may be executed in one or more counterparts, each of which when so executed and delivered shall be deemed an original, but alll of which taken together shall be construed as and shall constitute but one and the same instrument Section 12.11, No breach by any party to this Agreement of this Agreement or any agreement aneillry hereto shall have any effect on the treatment ofthe Single Zoning Lot as one oning lot for purposes of the Zoning Resolution, and the Single Zoning Lot shall be treated as ne zoning lot unless and until such zoning lot is hereafter subdivided in accordance with the provisions of the Zoning Resolution and this Agreement. 20tion 12.12. Condominium. if a condominium declaration (“Condominium Declaration”) for the Developer's Property or the Owner's Property under Article 9-B of the Real Property Law of the’State of New York, is filed with the Office of the City Register in and for New Yotk County, the Developer's Property or the Owner's Property (as applicable) shall hereinafter be deemed to have “become a Condominium” and from and after said date of filing, (@) the Condominium Declaration (as same may be amended, modified, or restated) shall be subject to the provisions of this Agreement (as same may be amended, modified, or restated), and (b) any reference to the Developer or the owner of the Developer's Property or the Owner (as applicable), shall be deemed to be the condominium board of managers (the “Condominium Board”) of the condominium association created in connection with the filing of the Condominium Declaration (the “Condominium”) and any provision herein then applicable to the Developer or the Owner (as applicable) may only be enforced by the Condominium Board and not any owner of any condominium unit described in the Condominium Declaration (as same may be amended, modified, or restated). [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] [SIGNATURE PAGE IMMEDIATELY FOLLOWS] 2IN WITNESS WHEREOF, the parties hereto have executed and delivered this ‘Agreement as ofthe date first above written, Owner: LIED THIRD AVENUE, LLC Developer: 180 EAST 88th STREET REALTY LLC By: ‘Name: Joseph A. McMillan, Jr. Title: Authorized SignatoryIN WITNESS WIHEREOF, the parties hereto have executed and delivered this, Agrocment as of the date first above written, Owner: ALLIED THIRD AVENUE, LLCSTATE OF ‘COUNTY OF Onthe ___ day of. in the year 2013, 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 whose ‘name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon. behalf of which the individual acted, executed the instrument. Notary Pul STATE OF NEW YORK, ) dss: ‘COUNTY OF NEW YORK ) feo On thé day of December inthe year 2013, before me, the undersigned a Notary Public in and for said state, personally appeared Joseph A. MeMillan, Jr., personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, Wd person upon bebalf of which the individual acted, executed the instrument. . Opti Joelle M. Capozzi ‘Notary Public, State of New York ‘Qualified in Kings County ‘Comission Expires June 4, 2016 ‘Commission NO. 01CA6262940Exhibit E Exhibit SCHEDULE OF EXHIBITS ‘10 ZONING LOT DEVELOPMENT AGREEMENT Metes and Bounds Description of the Owner's Land ‘Metes and Bounds Description of the Developer's Land Declaration Survey of Owner's Building Diagram of Cantilever Easement Area and Screenwall Easement Area Certification Waiver and SubordinationExhibit D \ Diagram of Cantilever Easement Area and Screenwall Easement Area‘THIRD AVENUE (WIDE STREET) yr 32. ISTING 5 STORY BUILDING —+ —! 87TH STREET (NARROW STREET) SZ ZZ] CANTILEVER BASEMENT AREA SCREENWALL EASEMENT AREA (AREA BELOW THE CANTILEVER EASEMENT ARBA AND BETWEEN THE LOWER LIMITING PLANE AND THE ROOF OF THE OWNER BUILDING) NOTE: BLBVATIONS REFER TO MANHATTAN DATUM, 1550 - 1554 SRD AVE (BLOCK 1516, LOT 32) gio" EL +1656" (roe oF ELEVATOR BULKHEAD) BL, $161.9" (ror oF + PARAPET) BL. +1548" (rop oF ROOF) ELEVATION ~A- torn rea iExhibit CertificationNB. # of ALTE BEB ‘CERTIFICATION PURSUANT TO ZONING LOT ‘SUBDIVISION D OF SECTION 12-10 (OF THB 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 ts prineipal office at 500 Fifth Avenus, New York, New York, hereby certifies that as to the land hereafter described being a tract of land, either unsubdivided or consisting of tv or more lots of record, contiguous fora minimum of ten linear feet, located within «single ek, and that the patties of interest constituting & “party of interest” as defined in Section 12-10, subdivision (D) of the Zoning Resolution of the City of New York, effective December 15, 1961, as amended, are the following: ‘NAME AND ADDRESS. 1. Allied Third Aventve, LLC 118-35 Queens Boulevard Forest Hills, New York 11375 2, Nationwide Life Insurance Company ‘One Nation Wide Placa Columbus, Ohio 43215-2220 3. 180 Bast 88th Stroet Realty LLC clo DDG Partners LLC 60 Hudson Steet, 18° Floor ‘New York, New York 10013 4, Manufacturers and Traders Trust Company ‘As adaainistrative agent clo M&ET Bank 350 Park Averue ‘Now York, New York 10022 ‘NATURE OF INTEREST Fee Tile Owner of Block 1516 Lot 32 Holder of Mortgage on Block 1516 Lot 32, Fee Title Owner of Blook 1516 Lot 37 older of Mortgage on Block 1516 Lot 37gna2se age two ‘The subject tract of land with respect to which the foregoing partes are the parties in intrest ab aforesaid i known es Block 1516 Lot 32 and Block 1516 Lot 37 00 the ‘Tax Map of the City of New York, New York County, end mare particularly described as follows: . Aste Block 1516 Lot 32: ALL that exrtan plot piece or parcel of land, situate, lying and being in the Borough of the New York, County of New “York, City and State of Now York, bounded and described as follows: [BEGINNING at the comer formed by the intersection of the northerly side of East 87° Street with the westerly side of Third Avenue; RUNNING THENCE westerly along the northerly side of Eat 874 Strect a distance of 125 feet 1 a points “THENCE northerly and parallel with the westerly side of Third Aveaue distance of 100 feet 8 M4 inches toa point on the conter line of tho block betsvoen East 87° Street and Bast 89" Stree; ‘THENCE easterly along the conter line ofthe block between East 87 Sweet and East 88" Strost «distance of 25 fet to « pela ‘THENCE northerly and parallel with the westerly side of Third Avenue e distance of 8/4 inches to a point; THENCE easterly and parallel with the northerly sido of Bat 87 Steet distance of 100 feet to a point on he Westerly ‘THENCE southerly along the westerly side of Third Avenue a dstence of 101 feet S inches to the corner formed by the {ntergection of the northerly ede of Bast 87 Stroet with te westerly side of Third Avenue, the point or place of BEGINNING. Asta Block 1S16}0037: ALL that certain plot ploce or parol of land, situate, lying and being in the Borough of the New York, Cousty of New ‘York, City and Slate of New York, bounded and described as follows: BEGINNING at «point onthe westely side of3" Avenue, distat 80 feat southerly from the comer Formed by the ‘nteroeetion of the westerly side of 3" Avenue wih the southerly side of East 88" Sree, RUNNING THENCE westerly pale! with the southerly side of Bast 88" Stret and part ofthe way through the center of ‘party wal, 78 fect, . THENCE eoutheriy and parallel with the westerly sideof 3 Avenno, 20 fees THENCE easterly and parle) withthe southerly side of East 88" Stive, 78 feotto te westerly sido of Avene, ‘THENCE northerly along said westerly side of 3% Avenue, 20 feet tothe point or place of BEGINNING.ZONING LOT EXHIBIT. File No, 904258 page three ‘That the said premises are known as and by the street address 1550-1556 Third Avenue alkle 177-181 East 87° Street (Lot 32) and 1558 Third Avenue (Lot 37), Now York, NY as shown by the following: DIAGRAM NOTE: A Zoning Lot may or may not coincide with alot shown of the Official Tex Map of the City of New York, or on any recorded subdivision plot ar deed. A Zoning Lot may be subdivided into two or more zoning lots, provided all he resulting Zoning Lots end all the buildings thereon shall comply with the applicable provisions of the Zoning Lot Resolution. THIS CERTIFICATE IS MADE FOR AND ACCEPTED BY THE APPLICANT UPON THE EXPRESS ‘UNDERSTANDING THAT LIABILITY HEREUNDER IS LIMITED TO ONE THOUSAND ($1,000.90) DOLLARS. Centitied_LAf to 13 Royal Abstract of New York LLC . “ts Harry lrreich, Viee Presidenta eiphiessaatontl test FP sr, oun podZONING LOT EXEBIT File No. 904258 nage four, STATE OF NEW YORK, ) COUNTY OF NEW YORK » athe 10 day of 6264-4641 2013, before me, personally sppeared Hany Erreich, personally ‘known to me of proved to me on the basis of sefisfactory evidence to the individual(s) whose name(s) is (are) subscribed ‘to the within instrument and acknowledged to me thet he/she/they executed the same in hia/her/their capacity(ies), and that by hishecteir signatures) on the instruwent, the individual(s) or the person upon behalf of whic the individual.) toted,exoonted the fstrumeat. Rotary ‘Statel New York 4 enon snc eSB A Ee ce exe oeEXHIBIT KNYC DEPARTMENT OF FINANCE OFFICE OF THE CITY REGISTER This page is pat of the instrument. The City Register will rly on the information provided by you on tis page for purposes of indexing, this instrument The information on this page vill contol for indexing purposes in the event of any conflict withthe rest of the document I 2015022700681007001E1940 RECORDING AND ENDORSEMENT COVER PAGE PAGE 1 OF 7| Document ID: 2015022700681007 Document Da Document Type: SUNDRY MISCELLANEOUS [Document Page Count: 5 ate: 02-25-2015 Preparation Date: 02-27-2015) PRESENTER: ROYAL REGISTERED PROPERTY REPORTS (180355) 500 STH AVENUE ISurTE 1540 INEW YORK, NY 10110 1212-376-0900 IMBASALATAN@ROY ALABSTRACT.COM [RETURN TO: ROYAL REGISTERED PROPERTY REPORTS (180355) 1500 STH AVENUE lsurre 1540 INEW YORK, NY 10110 j212-376-0900 IMBASALATAN@ROY ALABSTRACT.COM 180 EAST 88TH STREET REALTY LLC IC/O DDG PARTNERS LLC,, 60 HUDSON STREET, 18TH FLOOR INEW YORK, NY 10013 PROPERTY DATA Borough Block Lot Unit “Address IMANHATTAN 1516 32 Entire Lot 15503 AVENUE, Property Type: COMMERCIAL REAL ESTATE Borough Black Lot Unit Address MANHATTAN 151637 Fate Lot 1558 3 AVENUE Property Type: COMMERCIAL REAL ESTATE, Additional Properties on Continuation Page ‘CROSS REFERENCE DATA REN or DocumentiD, or Year____ Reel___ Page, or File Number, PARTI PARTY 1: FEES AND TAXES IMortgage + Filing Fee: IMorgage Amount: s 0.00 s 0.00 Taxable Mortgage Amount! | § 1.00 [NYC Real Proporiy Transfer Tax: |Exempti $ 0.00 TAXES: Comiy Basic; | 5 O00 NYS Real Estate Transfer Tax: Gity (Additional | § 0,00 3 0.00 _| Spec (Additional):| $ 0.00 RECORDED OR FILED IN THE OFFICE, TA s 0.00 eee, OF THE CITY REGISTER OF THE | “AS = ae CITY OF NEW YORK - Recorded Filed 02-27.2015 1648 “Additional MRT: |S 0.00. KA ity Register File No(CREN) TOTAL 1.00 : ‘Sat s000069082 Tevording Fes 75.00 Aina Fe ou Grate tsllu City Register Official SignatureNYC DEPARTMENT OF FINANCE i | HAN l | | (EAI RECORDING AND ENDORSEMENT COVER PAGE Ae PAGE2OF7 [Document 1D: 2015022700681007 ‘Document Date: 02-25-2015 Preparation Date: 02-27-2015 [Document Type: SUNDRY MISCELLANEOUS PROPERTY DATA [Borough Block Lot Unit Address 15603 AVENUE |MANHATTAN 1516 38. Entire Lot Property Type: COMMERCIAL REAL ESTATEDECLARATION OF ZONING LOT RESTRICTIONS MADE BY 180 EAST 88th STREET REALTY LLC Dated: a of Tebruny, BS 2015 COUNTY: New York BLOCK: 1516 LOTS: 32, 37, and 38 RECORD AND RETURN TO: ‘KRAMER LEVIN NAFTALIS AND FRANKEL LLP 1177 AVENUE OF THE AMERICAS: NEW YORK, NEW YORK 10036 j ATTENTION: VALERIE G. CAMPBELL, ESQ.RESTRICT 180 EAST 88th STREET REALTY LLC, having an address at c/o DDG Partners LLC, 60 Hudson Street, 18" Floor, New York, New York 10013 (“Declarant”) constituting the “partes in interest” (excepting those parties waiving their rights to join therein) as defined in Section 12-10(4) of the Zoning Resolution of the City of New York effective December 15, 1961, as amended, with respect to land known as Tax Lots 32, 37 and 38 in Block 1516 on the ‘Tax Map of New York County, City and State of New York, does hereby declare that the tracts of land known as and by the street addresses 1550-1556, 1558 and 1560 Third Avenue, New York, NY, are to be treated as one zoning lot for the purpose of and in accordance with the provisions of the aforementioned Zoning Resolution effective December 15, 1961, as amended. ‘The said parcels of land are respectively described on Exhibit A annexed hereto, and comprise tax lots which are contiguous for more than ten (10) linear feet. The said tax lots are located within a single block. No breach by any party to this Declaration or any agreement ancillary hereto shall have any effect on the treatment of said parcels as one combined zoning lot, and such parcels shall be treated as one combined zoning lot unless and until such zoning lot is hereafter subdivided in accordance with the provisions of the aforementioned Zoning Resolution. ‘This Declaration shall be recorded in the aforementioned office of the City Register in ‘accordance with Section 12-10 of the aforementioned Zoning Resolution, constitutes a covenant running with the Iand and inuring to the benefit of and binding on the heirs, successors, and assigns of the Declarant herein, and may be executed in counterparts, each of which shall be aa. ‘original and all of which shall constitute one and the same instrument. [SIGNATURE PAGE FOLLOWS]State of New York) ) ss: County of New York ) On the SS day of Fans in the year, 20'Shefore,me, the undersigned, a Notary Public in and for saidState, persondlly appet é i personally known to me or proved to me on the basis of satisidctory tvidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his capacity, and that by his/her signature on the instrument, the individual, or the person or entity upon behalf of which the individual acted, executed the instrument. Notary Public DENISE L CRAWFORT NOTARY PUBLIC-STATE OF NEW YORK No. O1CR6252618 ‘Quoliied in New York County tay Comission fps December 12,2018Exhibit ‘Lot 32 ALL that certain plot, piece or parcel of land, situate, lying and being in the Borough of, ‘Manhattan, City, County and State of New York, bounded and described as follows: BEGINNING at the comer formed by the intersection of the northerly side of 87th Street with the westerly side of Third Avenue; RUNNING THENCE westerly along the northerly side of 87th Street, 125 feet; THENCE northerly parallel with the westerly side of Third Avenue, 100 feet 8 1/2 inches to the center line of the block; ‘THENCE easterly along the center line of the block, 25 feet; ‘THENCE northerly and parallel with the westerly side of Third Avenue, 8 1/2 inches; ‘THENCE easterly and parallel with the northerly side of 87th Street, 100 feet to the westerly side of Third Avenue; and ‘THENCE southerly along the westerly side of Third Avenue, 101 feet 5 inches to the point or place of BEGINNING. Lot 37 ALL that certain plot, piece or parcel of land, situate, lying and being in the Borough of Manhattan, City, County and State of New York, bounded and described as follows: BEGINNING at a point on the westerly side of Third Avenue, distant 80 feet southerly from the comer formed by the intersection of the westerly side of Third Avenue with the southerly side of 88th Street ‘THENCE westerly parallel with the southerly side of 88th Street and part of the way through center of a party wall, 78 feet; ‘THENCE southerly and parallel with the westerly side of Third Avenue, 20 feet; THENCE easterly and parallel with the southerly side of southerly side of 88th Street, 78 fect to the westerly side of Third Avenue; ‘THENCE northerly along said westerly side of Third Avenue, 20 feet to the point or place of BEGINNING.Lot 38 ‘ALL that ectain plot piece or parcel of lan, stot, lying and being in the Borough of Manhattan, County of New York, City and Sate of New York, bounded and deseited 2 follows: [BEGINNING at a point on the westely side of Thitd Avenue, opposite the center of a party wall distant 60 feet 3 inches southerly from tbe comer former by te intersection of the southerly side of East 884 Street andthe westerly side of Third Avenoe; [RUNNING THENCE westely parallel wth the souberly side of Bast 8 Sweet und part of the way through the centr of party val, 78 fet, {HENCE in a northerly dieston aud parallel with the westerly side of Third Avenue, a distance of $6.25 feet to a point being distant 78 fet westerly ftom the westerly side of Thicd Avenue; ‘THENCE wostely and paral! with the soutbery side of East 884 Stree, distance of 22 feet; ‘THENCE southerly and parallel wit the westerly side of Third Avvo, a distance of 96 feet; “THENCE easterly end peralle wit the southerly sido of Bast 88 Steet 22 feet to poins which 76 fet westerly from the westerly side of Third Aven, “THENCE northerly and parallel with the westerly side of Third Avenue, 20 feet; ‘THENCE easterly end parallel withthe southerly side of East 85° Street, 78 feet co the westerly side of Third Aven "THENCE nother along the westerly side of Third Avenue distance of 19.75 fet to the pont or place of BEGINNING.EXHIBIT L“This page is part ofthe instrument, The City Register will rely on the information provided by you on this page for purposes of indexing. this instrument.The information on this page nckanscrncc | III | of any conflict with the rest ofthe document, 2015022700681003001ED9B1 RECORDING AND ENDORSEMENT COVER PAGE PAGEL OFG [Document 1D: 2015022700681003 ‘Document Date: 02-25-2015 Preparation Date: 02-27-2015 [Document Type: CERTIFICATE Document Page Count: § PRESENTER: [RETURN TO: ROYAL REGISTERED PROPERTY REPORTS (180355) JROYAL REGISTERED PROPERTY REPORTS (180355) 500 STH AVENUE Js00 STH AVENUE SUITE 1540 JSurTE 1540 INEW YORK, NY 10110 INEW YORK, NY 10110 212-376-0900 [212-376-0900 MBASALATAN@ROYALABSTRACT.COM IMBASALATAN@ROYALABSTRACT.COM PROPERTY DATA Borough Block Lot Unit Address IMANHATTAN 1516138 Entire Lot N/A3 AVENUE Property Type: COMMERCIAL REAL ESTATE, ‘CROSS REFERENCE DATA CREN_ or DocumentlD, or __Year___ Reel___Page__ File Number. PARTIES ROYAL ABSTRACT OF NEW YORK LLC 500 FIFTH AVENUE NEW YORK, NY 10110 FEES AND TAXES IMortgage : Filing Fee: [Mortgage Amount: s 0.00. $ 0.00 Taxable Mortgage Amount_| $ 0.00, INYC Real Property Transfer Tax [Exempt s 0.00 [TAXES: County (Basie): |S 0.00 [NYS Real Estate Transfer Tax: Gity (Additional): | $ 0.00, s 0.00 Spec (Additional): | $ 0.001 RECORDED OR FILED IN THE OFFICE = $ 0.00. _OF THE CITY REGISTER OF THE wa + 2.00 TY OF NEW YORK Reconded/Filed 02-27-2015 16:48 ‘Additional MRT:_| § 0,001 City Re : ity Register File No,(CREN}: “TOTAL: 0.00, 2015000069028 Recording Fee: $ 62.00 9 1 ‘Aifidavit Fee: S 0.00. City Register Official SignatureZONING LOT EXHIBIT File No. 180356 page one. NB. # or ALT. # EXHIBIT CERTIFICATION PURSUANT TO ZONING LOT SUBDIVISION C OF SECTION 12-10 (OF THE ZONING RESOLUTION OF DECEMBER 15, 1961 ‘OF THE CITY OF NEW YORK AS AMENDED. EFFECTIVE AUGUST 18, 197 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 $00 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 in the single ownership of 180 East 88th Street Realty LLC, end 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 ‘NATURE OF INTEREST 1) 180 East 88th Strect Realty LLC Fee Owner clo DDG Partnrs LLC 60 Hudson Street, 18° Floor New York, NY 10013 2) Manufacturers and Traders Trust Company Mortgagee cloM & TBank 350 Park Avenue ‘New York, NY 10022 ‘The subject tract of land with respect to which the foregoing parties are the partes in interest as aforesaid, is known as Block 1516 Lot 138 on the Tax Map of the City of New York, New York County, and more particularly described as follows:ZONING LOT EXHIBIT File No, 180356 page two ALL that certain plot piece or parcel of land, situate, lying and being in the Borough of Manhattan, County of New York, City und State of New York, bounded and described as follows: BEGINNING at e point on the southerly side of East 8" Street, distant 78 feet westerly from the point of interseetion of the westerly side of Third Avenue with the southerly side of East 88" Street; RUNNING THENCE southerly and parallel with Third Avenue, 4 feet; ‘THENCE westerly and parallel with East 88" Street, 22 feet; ‘THENCE northerly again parallel with Third Avenue, 4 feet to the southerly side of East 88° Street; ‘THENCE easterly along the southerly side of East 88" Street, 22 feet to the point or place of BEGINNING.us 0. 180356, ‘That the said premises are known as and by the street address 180 East 88th Street, New York, NY as shown by the following DIAGRAM 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 Lets and all the buildings thereon shall comply with the applicable provi Zoning Lot Resolution, ‘THIS CERTIFICATE IS MADE FOR AND ACCEPTED BY THE APPLICANT UPON THE EXPRESS UNDERSTANDING THAT LIABILITY HEREUNDER IS LIMITED TO ONE THOUSAND (S1,000,00) DOLLARS. Contes 2a ROYAL ABSTRACT OF NEW YORK LLC , Vice PresidentEact &° seer 7 ae GD s| 77 at Tuna BereSTATE OF NEW YORK COUNTY OF NEW YORK On the Au day of. 2014, before me, personally appeared Harry Ent {known to me of 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/shelthey executed the same in his/hertheir capacty(ies) and that by hisher/thei signature(s) on the instrument, the individual(s) othe person upon bebalf of which the individual(s) acted, executed the instrument, Notary Put é ‘of New York 28 pie ite hear tone County NES STathueEXHIBIT MEXHIBIT NNYC DEPARTMENT OF FINANCE. OFFICE OF THE CITY REGISTER This page is part of the instrument. The City Register will rly on the information provided by you on this page for purposes of indexing tis instrument The information on this page wll control for indexing purposes in the event of any conflict with the rest ofthe document, IY 2015052200499001001EE22E [Document ID: 2015052200499001 [Document Type: SUNDRY AGREEMENT [Document Page Count: 5 RECORDING AND ENDORSEMENT COVER PAGE ‘Document Date: 05-08-2015 PAGE OF 6 Preparation Date: 05-22-2015} PRESENTER: VALERIE CAMPBELL 1177 AVENUE OF THE AMERICAS. INEW YORK, NY 10036 1212-715-9183, IVCAMPBELL@KRAMERLEVIN.COM [RETURN TO: VALERIE CAMPBELL 1177 AVENUE OF THE AMERICAS NEW YORK, NY 10036 J212-715-9183 VCAMPBELL@KRAMERLEVIN.COM PROPER OATR orn Bock tot Tao RL MANHATTAN ste, {38 EneLot = WASAVENUE Property Type: NON-RESIDENTIAL VACANT LAND Easement Rrra es SF tata ‘so avoue Property Type: NON'RESIDENTIAL VACANT LAND CROSS HEFERENCEDATA CRIN DewumentID_ a Your——Resl__Page__ olen FARTS 180 EAST 88TH STREET REALTY LLC po oson STREER ISTH SLOOK Sew voRS NY on FEES INDTARES Morsase: iting ee Ni now: | oo : 00 [sabe Noruage Rms nt VC Ra Pope TT TT Ennion : 000 Bae Comp Das aa RT aa Cada s oan : os Seutaadiionit oi RECORDED OR FILED IN TH OFFICE TASE $ 9.09. OF THE CITY REGISTER OF THE wrx 18 oo CITY OF NEW YORK XG S$ 0.00. Recorded/Filed 06-04-2015 10:34 Adiitional MRT:_[$ 0.00. City Register File No.(CREN): ToL te a Sram Pome Ath : om City Register Official SignatureEGRESS RESTRICTIVE DECLARATION RESTRICTIVE DECLARATION made this &Mday of May, 2015, by 180 cast 88 Street Realty LLC, hereinafter referred to as the “Declarant,” having an office at 60 Hudson Street, 18” Floor, New York NY 10013 WHEREAS, the Declarant is the fee owner of certain land located in the City and State of New York, Borough of Manhattan, designated as Block 1516 Lot 138 on the Tax Map of the City of New York, hereinafter referred to as Parcel A and more particularly described by a metes and bounds description set forth in Schedule A annexed hereto and by this reference made a part hereof; WHEREAS, the Declarant is the fee owner of certain land located in the City and State of New York, Borough of Manhattan, designated as Block 1516 Lot 37 on the Tax Map of the City of New York, hereinafter referred to as Parcel B and more particularly described by a metes and bounds description set forth in Schedule B annexed hereto and by this reference made a part hereof; WHEREAS, Parcel Bis situated to the South of Parcel A, and said parcels are contiguous to one another; WHEREAS, the Declarant has requested the New York City Department of Buildings (the “Department of Buildings”) to act upon Application No. 121186518 to construct a new building located on Parcel 8; WHEREAS, a second means of egress from Parcel B is required pursuant to Chapter 10 of the 2008 Building Code, as applicable; and WHEREAS, the Declarant is willing to provide a means of egress, in the event of fie or other emergency, from the front/North of Parcel B over the entirety of Parcel A to afford access to the public street (the “Easement Area"), more particularly described by a metes and bounds description and a diagrammatic sketch with a cross-hatched portion indicating the Easement Area on Schedule C annexed hereto and by this reference made a part hereof. NOW, THEREFORE, good and valuable consideration having been paid, Declarant for her/himself, her/his heirs, legal representatives, successors and assigns hereby makes the following grant: 1. Declarant hereby grants and conveys to Declarant, her/his heirs, legal representatives, successors and assigns and to any future owner of Parcel B, an easement over the Easement Area located on Parcel A, ‘as may be necessary for the purpose of egress in the event of a fire or other emergency occurring on the property of Parcel B; 2. The Easement Area shall at all times be maintained and kept clear and unobstructed; 3, This easement agreement may not be modified, amended or terminated without the prior written consent ofthe Department of Buildings; 4, The covenants set forth herein shall run with the land and be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns; 5, Failure to comply with the terms of this easement agreement may result in the revocation of a building permit or certificate of occupancy; and6. This restrictive declaration shall be recorded at the city register’s (county clerk's) office against all affected parcels of land and the cross-reference number and title of the restrictive declaration shall be recorded on each temporary and permanent certificate of occupancy hereafter issued to buildings located on the affected parcels and in any deed for the conveyance thereof. IN WITNESS WHEREOF, Declarant has made and executed the foregoing easement agreement as of the date hereinabove written. Declarant By: SOSePH A. MeMIWAN, Ja. STATE OF NEWYORK =) Queens ) 5s COUNTY OF HEWYORK) ‘on the _&* day of Mat, ao1S in the year 2015, before me, the undersigned, personaliy appeared Teseeu__McMLLan personally known to me oF proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her capacity, and that by his/her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. Notary Public ~ etary Poe = Bate of New Yor wa. 01848296879 (uated in Queens Couny cammiation Exes Fe 10,2018SCHEDULE A Legal Description of Parcel A All that certain lot, piece or parcel of land, situate, lying and being in the Borough of Manhattan, in the county of New York and State of New York, bounded and described as follows: BEGINNING at a point on the southerly side of East 88" Street, distant 78 feet 0 inches westerly of the intersection of East 88” Street and 3 Avenue; RUNNING THENCE southerly along a line parallel with 3" Avenue 4 feet 0 inches; ‘THENCE westerly along a line parallel with East 88" Street, 22 feet 0 inches; ‘THENCE northerly along a line parallel with 3 Avenue, 4 feet 0 inches; ‘THENCE easterly along the southerly line of East 88 Street, 22 feet 0 inches to the point or place of BEGINNING.