1999-11-23
WAIVER AND HOLD HARMLESS AGREEMENT
WHEREAS, Dutchess Airport Realty LLC, 1 Main Street, Highland, New York,
(hereinafter referred to as "Dutchess") is the owner of certain Property, located on
Route 376 in the Town of Wappinger, more particularly described on a certain Deed,
filed in the Dutchess County Clerk's Office in Liber 2005, Page 75 ; and
WHEREAS, the Planning Board of the Town of Wappinger has granted
conditional Site Plan Approval by Resolution dated the 8th day of July, 1 999, to the
applicant of PAZ HealthCare Management ("PAZ") to operate an Assisted Living
Facility.
WHEREAS, Dutchess and PAZ have not been able to comply with several of the
conditions of the Resolution of Conditional Site Plan Approval, including but not limited
to approval by Dutchess County for use of airport lands as septic disposal areas; and
WHEREAS, not withstanding that several conditions have not been complied
with, the Planning Board, at the specific request of the applicant, at its November 15,
1999 Planning Board Meeting, authorized the Building Inspector to issue a limited
Building Permit for the construction and erection of a foundation and related concrete
work only, upon the express condition that Dutchess and PAZ undertake such work at
their own risk, and on the further condition that Dutchess and PAZ will indemnify,
save and hold harmless the Town of Wappinger from any and all claims resulting from
the issuance of the limited Building Permit, and with the understanding that such work
authorized by the Permit will be undertaken at their own risk, cost and expense; and
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WHEREAS, Azzy Reckess and Paula Reckess have agreed to personally execute
this agreement to guarantee performance of the obligations herein;
NOW I THEREFORE, in consideration of the authorization and the issuance of the
limited Building Permit for construction of a foundation and related concrete work is
hereby agreed as follows:
1. Indemnification and Hold Harmless. As condition to the issuance of the
limited Building Permit to construct a foundation and related concrete work, Dutchess
and PAZ expressly agree to indemnify, save and hold harmless the Town of Wappinger
from any and all claims or causes of action of any kind made by any person or party
for any reason whatsoever, and for any costs, damages or expenses, direct or indirect,
incurred by the Town, including all professional and attorney's fees, expenses and
disbursements resulting or accruing from any claim made against the Town, the
Town's employees and/or the Town's professionals resulting from the issuance of the
limited Building Permit for construction and erection of a foundation and related
concrete work only.
2. Assumption of Risk. Dutchess and PAZ hereby bind themselves, their
successors and assigns, as a condition of the issuance of said limited Building Permit
for the construction and erection of a foundation and related concrete work only, that
all contemplated construction work and activity at the Site shall be conducted at
Dutchess' and PAZ's sole risk and expense, and Dutchess and PAZ do hereby for
themselves, their successors, assigns, agents, contractors, sub-contractors and
employees waive any right they or any of them may, now or in the future, have
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against the Town of Wappinger, the Town of Wappinger Planning Board, the Town of
Wappinger Building Inspector, the Town of Wappinger Zoning Administrator, and any
other Town officers, employees or agents, including professionals employed by the
Town for any claim or cause of action relating to this project, the limited Building
Permit issued pursuant to this Agreement or to the work performed pursuant to the
limited Building Permit or for any other claim or cause of action of any kind or
description resulting from the issuance of the limited Building Permit or the work
authorized thereunder.
3. Limitation of Work. It is understood that the permit to be issued
authorizes only the erection of a foundation and related concrete work, together with
the associated site improvements prerequisite to said foundation construction,
including drainage, grading and erosion control work, which is necessary to obtain site
access, and control drainage and erosion at the site prior to the commencement of
construction. As a condition for the issuance of the limited Building Permit for the
construction and erection of a foundation and related concrete work only, Dutchess
and PAZ further understand, acknowledge and agree that no other building or
construction work will be done or undertaken at the Site and no Certificate of
Occupancy can or will be issued for this Site until Dutchess and PAZ have otherwise
complied with all of the conditions and obtained all permits and approvals required to
satisfy the terms of the Resolution of Conditional Site Plan Approval granted by the
Town of Wappinger Planning Board on the 8th day of July, 1999, and in accordance
with the approval given by any other municipal or governmental agency having
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jurisdiction of the premises.
4. Security. As security for the obligations undertaken by Dutchess and PAZ
pursuant to this Waiver and Hold Harmless Agreement, Dutchess agrees to submit a
performance bond secured by a letter of credit to be deposited with the comptroller
of the Town of Wappinger in an amount equivalent to twice the construction cost to
restore the site, as determined by the Engineer to the Town upon submission of
construction details by the Engineer for the corporation. As additional security, Azzy
Reckess and Paula Reckess, as the sole members of the limited liability company, do
hereby personally guarantee that, if all approvals are not issued by July 30, 1999,
then, upon failure of Dutchess or PAZ to promptly remove all improvements and
restore the property to its condition prior to such work, and upon further failure of the
Town to recover upon the above letter of credit, then Azzy Reckess and Paula Reckess
personally will cause such work to be performed and the site restored.
The undersigned also consent to the recording of this document.
IN WITNESS WHEREOF, Dutchess and PAZ have executed this Waiver and Hold
Harmless Agreement this '1..:3 day of November, 1999.
DUTCHESS AIRPORT REALTY LLC
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PAl HEAL THCARE MANAGEME~T INC
a~ I
., 4
BY: /. /t2 / L_7-
<---
Az Reckess
GUARANTORS:
r;) h (2
U.AAA'. Q C K1L-''2--r_
Paula Reckess
STATE OF NEW YORK )
)ss.:
COUNTY OF DUTCHESS)
On th~ day of November in the year 1999, before me, the undersigned,
a Notary Public in and for said State, personally appeared AllY RECKESS, 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(s}, or the person upon behalf of which the individual acted, executed the
instrument.
~
NOTARY PUBLIC
SANDRA L. SIMMONDS
Notary Public. State of New Vortt
Quellfled in DutChess COU~ 1'<.:<"1
Commission FXlJ;res March 9. ~
5
STATE OF NEW YORK )
)ss. :
COUNTY OF DUTCHESS)
On the ~ day of November in the year 1999, before me, the undersigned,
a Notary Public In and for said State, personally appeared AZZY RECKESS, 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{s}, or the person upon behalf of which the individual acted, executed the
instrument.
SANDRA L SIMMONDS
Notary Public. State of New Yorit
Quatifted in Dutchess ~
c.r'J tIll....... MIrctt 8. V (
STATE OF NEW YORK )
)ss. :
COUNTY OF DUTCHESS)
,) '1 rd
On the ~ day of November in the year 1999, before me, the undersigned,
a Notary Public in and for said State, personally appeared PAULA RECKESS, 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 she
executed the same in her capacity, and that by her signature on the instrument, the
individual{s}, or the person upon behalf of which the individual acted, executed the
instrument.
J.CI-~n
Beth t. Zaccheo
Notary Public, St_ of.......
No. 03-4812289
==u=-~..._
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UNITED STATES TRUST COMPA."Y OF NEW YORK
114 WEST 4'7TIi STREET, NEW YORK.!\'Y 10036-1532
LETTER OF CREDIT
Date of Issuance:
November 24, ] 999
Number7643
BENEFICIARY: Town of Wappinger. Town of Wappinger Town Hall, Wappingers Falls, NY 12690
TOTAL AMOUNT: The total amount available under this letter of
Credit is: Seventy Six Thousand, Two Hundred Twenty Five Dollars and 00/1 00
($76,225.00)
Gentlemen:
We hereby establish our Irrevocab]e Letter of Credit in your favor for the account of
Azzy & Paula Reckess, Paz Health Care Management, Inc. ] Main Street. Highland, NY 12528
The amount set forth above will be available to you by your drafts. at sight, accompanied by this origin a] Letter of Credit and a
'written statement bearing the apparent signature of Beneficiary's putative agent as follows:
"Beneficiary hereby certifies that: (a) Beneficiary is entitled to draw on this Letter of Credit for the amount of the sight
draft now presented pursuant to that certain Perfonnance Bond Secured by Letter of Credit and Waiver and Hold
Hannless Agreement (the "Agreements") both dated November 23. ] 999 between Beneficiary and Dutchess Airport
Realty. LLC and Azzy & Paula Reckess (the "Agreements") upon the occurrence of one or more of the events described
therein: (b) such an event has occurred: and (c) the amount of the draft now presented does not, when aggregated with all
other drafts previously presented under this Letter of Credit. exceed the total amount available under this Letter of
Credit,"
You agree that we have no duty or right to inquire into the basis for any draw under this instrument.
Each draft must state on its face "Drawn under Letter of Credit No. 7646. dated November 24, 1999 of United States Trust
Company of New York."
Drafts may not be presented prior to July 30, 2000 nor after the expiration of this Letter of Credit. This Letter of Credit will
expire on our close of business on November 30, 2000. In no event, however, shall this Letter of Credit be extended beyond
November 30,2000.
This Letter of Credit is transferable subject to our approval and upon payment of our transfer fee.
We hereby agree to honor drafts properly drawn and negotiated in compliance with the tenns of this Letter of Credit upon
presentation during nonnal banking hours at our office at]]4 West 47th Street. New York, NY ]0036, Attention: Diane S. Katz.
Except as otherwise expressly provided herein. this Letter of Credit is subject to the laws of the state of New York (other than its
choice oflaw principles), including its Unifonn Commercial Code.
This Letter of Credit shall be null and void unless signed below by two of our officers.
By:
By: ~../l:,l ~ &d~ (Vice President)
The original of this document is printed on patterned green safety paper, with a red number
CST 2265 (12/98)