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2014-0802014-80 Resolution Accepting Undertaking Secured by Cash Deposit in Connection with Calvary Chapel of the Hudson Valley Site Plan At a regular meeting of the Town Board of the Town of Wappinger, Dutchess County, New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on February 24, 2014. The meeting was called to order by Barbara Gutzler, Supervisor, and upon roll being called, the following were present: PRESENT: Supervisor Councilmembers ABSENT: Barbara Gutzler William H. Beale Vincent F. Bettina Ismay Czarniecki Michael Kuzmicz The following Resolution was introduced by Councilman Bettina and seconded by Councilman Beale. WHEREAS, Calvary Chapel of the Hudson Valley, a Religious Corporation, with an address at 36 Fireman's Way, Poughkeepsie, New York 12603, hereinafter referred to as the "Owner", has made application for to the Town of Wappinger Planning Board for Site Development Plan Approval for the construction of a church on certain lands located on Diddell Road and NYS Route 376 that are designated as Tax Parce16359-03-176082 on the tax map of the Town of Wappinger (the "Property"); and WHEREAS, on September 16, 2013, the Planning Board of the Town of Wappinger adopted a Negative Determination of Significance pursuant to SEQRA indicating that the project would have no adverse environmental impact and authorized the issuance of a Negative Declaration.; and WHEREAS, on January 29, 2014, the Owner of the Property made a request to allow the cutting of trees on the Property prior to the issuance of a Resolution of Site Development Plan Approval since the US Army Corps of Engineers and the NYS DEC regulations require that the cutting of trees may only take place between October 1 and March 31 to minimize the possibility of disturbing the migration of Indiana Bats; and WHEREAS, the Planning Board adopted a Resolution on February 3, 2014 granting the Owner's request to cut the trees in the area of site plan disturbance on the express condition that the Owner agreed to re-plant trees in the event the Site Development Plan Approval was not granted and said agreement was to be secured by a Bond, Letter of Credit or Cash Deposit in an amount to be fixed by the Engineer to the Town, specifically in the sum of $41,600.00; and WHEREAS, the Owner has delivered to the Town an Undertaking secured by a Cashier's Check issued by the Bank of America bearing No. 1369701119 in the amount of $41,600.00 paid to the order of the Town of Wappinger as security for the faithful performance of the obligations set forth in the Undertaking; and WHEREAS, the terms of the Undertaking authorized the Town of Wappinger to draw against the aforementioned cash security posted in the event the Owner does not restore the project site in accordance with the terms and conditions set forth in the Planning Board Resolution of February 3, 2014. NOW, THEREFORE, BE IT RESOLVED, as follows: 1. The recitations above set forth are incorporated in this Resolution as if fully set forth and adopted herein. 2. The Town Board hereby determines that the Undertaking executed by Calvary Chapel of the Hudson Valley and secured by a Cashier's Check in the sum of $41,600.00, is acceptable and sufficient as a guarantee to secure the obligation to restore the project site in the event the Owner does not fulfill the obligations to re- plant trees in the event Site Development Plan Approval is not granted all as set forth in the Planning Board Resolution of February 3, 2014. 3. The Town Board hereby accepts the Undertaking dated February 19, 2014, executed by Calvary Chapel of the Hudson Valley, a Religious Corporation, having an address at 36 Fireman's Way, Poughkeepsie, New York 12602, secured by a Cash Deposit in the total sum of $41,600.00, in the form of a Cashier's Check issued by the Bank of America bearing No. 1369701119 made payable to the the Town of Wappinger as security for the faithful performance for the completion of the obligations set forth in the Undertaking and in accordance with the Planning Board Resolution of February 3, 2014. 4. The Town Supervisor is directed to deposit the aforementioned Cashier's Check in a bank account maintained by the Town, to be held in escrow, pending compliance with the terms of the Undertaking. The foregoing was put to a vote which resulted as follows: BARBARA GUTZLER, SUPERVISOR Voting: AYE WILLIAM H. BEALE, COUNCILMAN Voting: AYE VINCENT F. BETTINA, COUNCILMAN Voting: AYE ISMAY CZARNIECKI, COUNCILWOMAN Voting: AYE MICHAEL KUZMICZ, COUNCILMAN Voting: AYE Dated: Wappingers Falls, New York 2/24/2014 The Re lution is hereby du,J3~leclared adopted. JOSEPH P. PAOLONI, TOWN CLERK TEAHAN & CONSTANTINO LLP VINCENT L. TEAHAN COUNSELLORS AT LAW JAMES P. CONSTANTINO 2780 SOUTH ROAD RICHARD I. CANTOR STEPHEN C.F. DIAMOND P. O. BOX 1969 ANN GIFFORD POUGHKEEPSIE, NEW YORK 12601.0969 ELIOT D. HAWKINS GERALD V. HAYES (845) 452-1834 COUNSEL Fex (845) 452.1421 www.tcnylaw.com via Email to Supervisor and Town Clerk and Overnight Mail February 21, 2014 Town Supervisor Barbara Gutrler and Members of the Town Board of the Town of Wappinger Town Hall 20 Middlebush Road Wappingers Falls, NY 12590 RE: FEBRUARY 24, 2014 TOWN BOARD MEETING CALVARY CHAPEL; UNDERTAKING MILLBROOK OFFICE 41 FRONT STREET, SUITE A P.O. BOX 1181 bIIf1.BROOK, NEW YORK 12545 Tel (845) 677.2101 Fex (845) 677-1054 Dear Supervisor Gutzler and Members of the Town of Wappinger Town Board: I am writing to request an accommodation by the Town Board. I am requesting that the Town Board, at its meeting of February 24, 2014, consider the approval of an undertaking by Calvary Chapel in connection with a pending subdivision application before the Planning Board. I am attaching a copy of the undertaking and a copy of the official check that will be deposited with the Town. The content of the undertaking has been agreed upon between my office and the office of the attorney for the Town. I understand that the submission date has passed. Nonetheless, I am asking for the courtesy of having this matter considered. The Planning Board, subject to the acceptance of the undertaking by the Town Board, has authorized Calvary Chapel to remove trees that are required to be removed as part of the pending site plan. The trees need to be removed prior to March 31, 2014 because of environmental limitations -Indiana Bat Habitat. I am told that the next meeting of the Town Board is March 10. The March 10 meeting will not allow Calvary Chapel enough time to undertake the tree cutting. 'I~~xarr sz CONSTANTIIVO iax Supervisor Barbara Gutzler and Members of the Town Board February 21, 2014 Page Two Please be good enough to let me know whether the Board will consider this matter notwithstanding its ordinary time requirements for submission. Thank you. Respectfully submitted, 1 ~~ l~~ RICHARD I. CANTOR RIC:sc Attachments 5:\FILES\CALVARY CHAPEL\Ltr to GUTZLER & TOWN BOARD re UNDERTAKING 2-21-14.wpd UNDERTAKING SECURED BY RESTORATION BOND This undertaking executed this J~ day of February 2014 by Calvary Chapel of the . Hudson Valley a Religious Co~oradon, having an address of 36 Fireman's Way, Poughkeepsie, Nevv York 12603 (the "Owner', to the TOWN OF WAPPINGER, a municipal corporation with offices located at the Town of Wappinger Town Hall, . 20 Middlebush Road, Wappingers FallB, New York, 12590. :WHEREAS, the Owner has made application for site plan approval for the construction of a Church on certain lands on Diddell Road and NYS Route 376 that are designated as' Tax Parcel 6359-03-176082 on the tax map of the Town of Wappinger (the "Property's; and . ~ ~ ~ ~.'WHEI2.EAS; on September 16, 2013, the Planning Board of the Town•of Wappinger . ~~ (thee"Planning Board'. adopted a Resolution which determined that no significant adverse environmental impact would be caused. by the project and authorized the issuance of a r .. Negative Declaration; and WHEREAS, during the SEQRA review process the Owner provided evidence that there was no habitat on the site for rare, threatened or endangered species; and WI~REAS, on January 29, 2014, the Owner of the property made a request to allow the cutting of trees on the property, prior to the issuance of a resolution of site plan approval since US Army Corps of Engineers and NYS DEC regulations require that the ~~ cutting of trees may only take place between October 1 and March 31 to in;nir,,;ze the . ~ possibility of disturbing the migration of Indiana Bats; and WHEREAS, the Planning Board adopted a resolution on February 3, 2014 grandng the Owner's request to cut the trees in the area of site plan disturbance subject to the condition that the owner agree to replant trees in the event site plan approval was not .~ ~ granted and said agreement was to be secured by a bond, letter of credit or a deposit of cash in an amount fixed by the Engineer to the Town; I'JO~W, THEREFORE, the Owner hereby executes and delivers this undertaking to . ~ guarantee to the Town of Wappinger that if Owner's application for site plan approval is . ~ .. ~ ~ denied or withdrawn, the Owner shall plant replacement trees on the site consisting of 130 ~~ . white pines and 130 deciduous trees (48" tali, and restore the site grades to its undeveloped condition, as near as practicable, to the satisfaction of the Town of Wappinger, within 120 days of the`receipt of demand, weather permitting, and .. ~ If Owner fails to plant the replacement trees and restore the site grades by such date as setforth:~aliove, or such extended date as the Town Board may approve, then the Town .' . '. ~ of Wappinger shall have the right to draw upon the security posted to plant the replacement . ~ . trees and restore the property. The Town shall provide an accounting to the Owner for the . ~ . ' ,expenditure of such sums, and all amounts remaining on deposit with the Town after the work.has been completed, shall be returned to the Surety or the Owner as the case may be. 'T.he~ cutting of the existing trees shall be in accordance with the. terms set forth in a letter from Berger Engineering and Surveying dated February 5, 2014,. which is annexed hereto As security for this obligation, Owner delivers herewith to Town of Wappinger the following security :for faithful performance of this obligation: . -2- . This Agreement shall be secured by a cash deposit in the form of a Bank of America OfE~elal ' . check dated February 18, 2014 payable to the order of Town of Wappinger in the amount of X41,600.00, said among being deten~ined by the Eng~necr to the Town of Wappinger. ~. ~ At such time that the Owner has received a resoludon of site plan approval and has ~~ ~ complied with all of the conditions of said resolution, the security for this undertaking shall be released. IN WITNESS WHEREOF, the undersigned executed this Agreement on this day of February, 2014. CALVARY CHAPEL OFr THE HUDSON VALLEY THOMAS MORRIS, BOARD MEMBER, ~.. , . ~ ~~ ~ BUILDING COMMITEE • ~ STATE OF NEW YORK ) :: ) SS: COUNTY OF DUTCHESS) . ~ . ~ Om the .,~ day of February in the year 2014 before me personally appeared . ~ ~ THOMAS ~MO~RRIS, 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 p n behalf of which the individual acted, executed the instrument ~ . . No ublic _ . ~ ~ NOTE PUB C S~ o~ York N0.01COg274144 . ~ Qualified fn Ducchess Coun(y . Cornmtssfort Expires Dec. 31, 20,,,,E (o . 0 -3-- N~a~-~a~~t~~=i=~~,m~,~aar Cashier's Check -Customer Copy smlea..=waa=ttaact.na so.ey,waitiag paiaa wIU t,e ~yvU.a priormroplaament.'1Li:choit=hou~dbeaegoduedwithia90dgn. VO~dAftOC90Day8 30-1/1t40 WAPPINGERS FALLS ~ • t~CX 0005 0027591 0205 BANK 0~ ~• ~ ~ay• ~~~~iVIENlC . . To 'I7ie Tp~ OF WAPPINGER Order Of • TREE RESTORATION FUND s Iteriiitter (Purchased By): CALVARY CHAPEL OP THE HUDSON VALLEY • ~ .~rn~cr~ ~~ 37G, ~Ua~Jpla~r3 ~•c~cs, ~la590 Bank of America, NA. SAN ANTOMO, TX ~ . .. •. No. 1369701119 Dato 02/18/14 01:48:39 PM ***$41,600.01 Not-Negotiable CtiStoirior Copy Retain for your Rotor 001641004997 ~BankofAmeriCl ~~~ Cashier's Check xo, 13697011 i9