2014-1182014-118
Resolution Accepting Drainage Easement And Covenant To Maintain Stormwater
Management Facilities In Connection With Prestige Mini 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 April 14,
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
Councilwoman Czarniecki.
WHEREAS, Pepper White Partners, LLC, a Limited Liability Corporation, with an
address at c/o Prestige BMW, 985 Route 17 South, Ramsey, NJ 07446, is the owner of certain
real property located at 1162 Route 9 in the Town of Wappinger and is further identified in the
Tax Maps of the Town of Wappinger as Tax Grid Identification Number 135689-6157-04-
674155, hereinafter referred to as the "Property; and
WHEREAS, the Property was the subject of Site Plan, Special Permit and Wetlands
Permit Approval granted by the Town of Wappinger Planning Board pursuant to Resolution
dated November 18, 2013; and
WHEREAS, pursuant to both Federal and New York State statutes and regulations, as
well as Town of Wappinger Code, Chapter 213, a property owner is required to construct a
Stormwater management facility is also required to an execute an easement and covenant to
maintain the stormwater systems, binding on the present owner and all subsequent land owners,
to insure that the Stormwater facilities are maintained in proper working condition and to meet
design standards required by Federal, State statutes and regulations and the Town of Wappinger
Code; and
WHEREAS, Pepper White Partners, LLC has submitted a duly signed Declaration
Establishing Drainage Easement and Covenant to Maintain Stormwater Management Systems
Pursuant to § 213-8 of the Town of Wappinger Code, which Declaration has been approved by
the Attorney to the Town, a copy of which is affixed hereto, marked and designated as Schedule
«1„
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 accepts the Declaration as set forth in Schedule "1" and
in accordance with the provisions of Chapter 213 of the Town of Wappinger Code
and hereby authorizes the Town Supervisor to execute same evidencing the
Town's acceptance of said Declaration.
3. The Chairman of the Planning Board of the Town of Wappinger also has executed
the Declaration indicating that the Declaration has been made in accordance with
the plans approved by the Planning Board.
4. Upon execution of the Declaration, the Town Clerk is directed to forward same to
the Zoning Administrator who will coordinate with the property owner to have
same recorded in the Dutchess County Clerk's Office.
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
4/14/2014
The Resolution is hereby d~l3j declared adopted.
P. PAOLONI, TOWN CLERK
3/13/14
DECLARATION ESTABLISHING DRAINAGE EASEMENT AND
COVENANT TO MAINTAIN STORMWATER MANAGEMENT
SYSTEMS PURSUANT TO § 213-8 OF TOWN OF WAPPINGER CODE
THIS DECLARATION ESTABLISHING COVENANTS AND RESTRICTIONS
FOR MAINTENANCE OF STORMWATER MANAGEMENT FACILITIES (hereinafter
the "DECLARATION") made this _ day of , 20_, made by PEPPER WHITE
PARTNERS LLC, whose address for the purposes of this instrument shall be 985 Route 17,
Ramsey, NJ 07446 (hereinafter called the "DECLARANT").
WITNES SETH
WHEREAS, § 213-8 of the Town of Wappinger Code requires the developer of a
property containing a stormwater management facility to execute an easement, binding upon
subsequent landowners, that provides for access to the facility at reasonable times for periodic
inspection by the Town, or its designee, and that ensures the facility is maintained in proper
working condition to meet design standards and any other provisions of Chapter 213 of the Town
of Wappinger Code; and
WHEREAS, the DECLARANT is the owner of certain real property located on 1162
Route 9 in the Town of Wappinger, Dutchess County, New York, described in a certain deed
dated January 8, 2014 and recorded in the Dutchess County Clerk's Office on January 16, 2014
as document number 02-2014-419, is identified as Tax Grid Identification Number 135689-
6157-04-674155, hereinafter referred to as the "Property" and said property is more particularly
described in Schedule "1" attached hereto; and
WHEREAS, the Property was the subject of Site Plan Special Permit and Wetlands
Permit Approval granted by the Town of Wappinger Planning Board, pursuant to Resolution
dated November 18, 2013 (hereinafter the "Project"); and
C&F: 2268096.1
WHEREAS, the Project proposed to be undertaken on the Property includes the
construction of a storm water management facility that is required by the Federal Clean Water
Act, the New York Environmental Control Law, and the regulations of New York State
Department of Environmental Conservation pertaining to the State Pollutant Discharge
Elimination System ("SPDES"); .and
WHEREAS, SPDES requires the DECLARANT to prepare and submit a Stormwater
Pollution Prevention Plan (SWPPP) for the Project in accordance with SPDES regulations and
Chapter 213 of the Town of Wappinger Code; and
WHEREAS, the DECLARANT prepared a SWPPP dated September 2013, prepared by
Lawrence J. Paggi, P.E. that was reviewed and approved by the Planning Board of the Town of
Wappinger, as approving authority pursuant to § 213-3(C) of the Town Code and a copy thereof
was placed on file in the Office of the Town Clerk of the Town of Wappingers and
WHEREAS, the Town of Wappinger and the New York State Department of
Environmental Conservation require that the stormwater management measures approved in
connection with the Project be built in accordance with the approved Project plans and thereafter
be maintained, cleaned, repaired, replaced and continued in perpetuity to insure optimum
performance of the stormwater management components.
NOW, THEREFORE, in consideration of the approval granting (Special Permit, Site
Plan and Wetlands Permit) Approval by the Town of Wappinger Planning Board, and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the
DECLARANT, the DECLARANT hereby declares that the Property herein identified shall be
held, sold, conveyed, transferred, used and occupied in accordance with the following Covenants
and Restrictions:
2 cB:F: 2268096.1
1. Recitations Incorporated. The recitations above set forth are incorporated in
this Declaration as if fully set forth and adopted herein.
2. Property. The Property which is subject to this DECLARATION is located on
1162 Route 9 in the Town of Wappinger, Dutchess County, New York, and is identified as Tax
Grid Identification Number 135689-6157-04-674155, and is more particularly described in
Schedule "1" attached hereto.
- 3. Construction of Stormwater Management Facilities. DECLARANT declares,
establishes, imposes, obligates and binds, for himself, his heirs, successors and assigns, that
Stormwater management facilities shall be constructed and installed on the Property in
accordance with the Site Plan prepared by Lawrence J. Paggi, P.E. dated August 19, 2013, last
revised November 4, 2013 (hereinafter "the Site Plan") and the Stormwater Pollution Prevention
Plan (hereinafter "SWPPP"), prepared by Lawrence J. Paggi, P.E., by document originally dated
August 2013, last revised September 2013, entitled "Stormwater Pollution Prevention Plan for
prestige MINI, a copy of which is on file in the Office of the Town Clerk of the Town of
Wappinger. Said Stormwater management facilities may include, without limitation, drainage
pipes, swales, headwalls, plantings, associated vegetative plantings, stormwater management
structures and facilities, including maintenance thereof.
4. Maintenance of Stormwater Management Facilities. DECLARANT shall
maintain, clean, repair, replace and operate the Stormwater management facilities shown on the
Subdivision Map/Site Plan and described in the SWPPP as necessary to ensure that performance
of the facilities will operate in accordance with the design specifications and in accordance with
the terms of the SWPPP.
3 C&F: 2268096.1
5. Costs of Construction and Maintenance. DECLARANT shall be responsible
for all expenses related to construction, installation, inspection and maintenance of the
Stormwater management facilities shown on the Subdivision Map/Site Plan and described in the
SWPPP.
6. Periodic Inspection. DECLARANT shall provide for the periodic inspection of
the Stormwater management facilities to determine the condition and integrity of the Stormwater
management facilities in accordance with the provisions of the SWPPP. Such inspection shall
take place not less than once in every one yeaz period or at such intervals as set forth in the
SWPPP. A Professional Engineer licensed by the State of New York shall perform such
inspection. The inspecting engineer shall prepaze and submit to the Town of Wappinger
Stormwater Management Officer within 30 days of the inspection, a written report of the
findings including recommendations for those actions necessary for the continuation of the
Stormwater management facilities and its proper operation.
7. Repair & Replacement. DECLARANT shall undertake necessary repairs and
replacement of the stormwater control facilities at the direction of the Town of Wappinger or in
accordance with the recommendations of the inspecting engineer.
8. Changes to Stormwater Management Facilities. DECLARANT shall not
authorize, undertake or permit alteration, abandonment, modification or discontinuation of the
Stormwater management facilities except in accordance with the written approval of the
Stormwater Management Officer, upon the advice and consent of the Engineer to the Town of
Wappinger. In the case of a material alteration, abandonment, modification or discontinuance of
the Stormwater management facilities, an amendment to the Site Plan, approved by the Town of
4 C&F: 2268096.1
Wappinger Planning Board, shall be required. Such written approval(s) shall be filed with the
SWPPP in the Office of the Town Clerk.
9. Building Permits/Certificates of Occupancy. The DECLARANT expressly
acknowledges for himself, his heirs, successor and assigns, and subsequent owners of the
Property that he will be able to obtain Building Permits only for the construction authorized by
the above referenced Site Plan Approval, except, however, no Certificates of Occupancy will be
issued for any building construction until such time as the stormwater management. facilities are
constructed and accepted by the Town of Wappinger as described in the SWPPP.
10. Access to Properly. In the event that the DECLARANT fails to maintain the
stormwater management facilities in accordance with the Site Plan or the SWPPP and the
DECLARANT fails to undertake corrective action reasonably required by the Town of
Wappinger or any agency having jurisdiction over the stormwater management facility
("Stormwater Agency"), the Town or the Stormwater Agency have the right, but not the
obligation, .to enter upon the Property and undertake such steps as reasonably necessary for the
preservation, continuation or maintenance of the stormwater control measures and to affix the
expenses thereof as a lien against the property. The Town or Stormwater Agency may utilize the
license granted herein on 30 days written notice to the owner, except in the case of emergency
for which no notice shall be required. In a case where the stormwater management facility
creates an emergency that threatens life or property, the Town or Stormwater Agency shall have
the right to enter upon the properly and undertake such remedies as reasonably necessary to
alleviate such emergency.
11. Enforcement.
A. DECLARANT further declares that the owner of the Property, the Town
of Wappinger, or any municipality succeeding to the rights of the Town (hereinafter
"Enforcement Entity"), shall have the right to enforce the rights, duties and obligations imposed
5 C&F: 2266096.1
by this DECLARATION by any proceeding at law or in equity, against any person or persons
violating, or attempting to violate any covenant, restriction, obligation or easement, to restrain a
violation thereof, or to require specific performance for the construction and maintenance of the
stormwater management facilities and the duties and obligations herein imposed pursuant to the
S WPPP above referenced, to recover damages for any violations thereof, and, to enforce or
foreclose any lien created by these covenants.
B. In any action to enforce the terms, covenants, or restrictions of .this
DECLARATION, the prevailing pazry shall be entitled to an awazd of reasonable attorney's fees,
expert fees, and other costs and disbursements incurred in such proceeding, which shall be in
addition to such other relief as may be awarded in law or equity.
C. Failure by the Town of Wappinger or any Enforcement Entity to enforce
any of the provisions of this DECLARATION shall in no event be deemed a waiver of any
subsequent right to enforce any such violations at a future time. The expense of such
enforcement is hereby deemed to be a charge on such Property.
12. Modification. This DECLARATION may not be modified or terminated (e.g. in
the event use of the facility is no longer necessary as determined by the Town) except in writing,
executed and acknowledged by the DECLARANT and only upon consent of the Town Board of
the Town of Wappinger, pursuant to Resolution duly adopted by the Town Board upon
recommendation of the Planning Board of the Town of Wappinger, and recorded in the Office of
the Dutchess County Clerk.
13. Duration. The Covenants and Restrictions set forth herein shall be binding on
the Property above described, and, except as otherwise provided herein, these COVENANTS
AND RESTRICTIONS SHALL RUN WITH THE LAND AFFECTED THEREBY,
6 c&F: 2268096.1
SHALL BE PERPETUAL IN DURATION AND SHALL INURE TO THE BENEFIT OF
THE TOWN OF WAPPINGER, THE DECLARANT, AND ANY SUBSEQUENT
OWNER OF THE PROPERTY, AND SHALL BE BINDING ON ALL PARTIES
HAVING OR ACQUIRING ANY RIGHT, TITLE OR INTEREST IN AND TO THE
ABOVE PROPERTY OR PART THEREOF, THEIR HEIRS, SUCCESSORS OR
ASSIGNS FOREVER
14. Binding effect. DECLARANT hereby binds himself and his heirs, successors,
and assigns, and any subsequent owner(s) of the Property identified on the above referenced
Subdivision Map/Site Plan to construct and maintain all stormwater management facilities and
improvements required by the above referenced SWPPP and as set forth herein.
15. Partial Invalidity; Separability. The provisions of this DECLARATION are
sepazable and if any provision, clause, sentence, sub-section, word or part thereof is held illegal,
invalid or unconstitutional, or inapplicable to any person or circumstance, such illegality,
invalidity or unconstitutionality, or inapplicability shall not affect or impair any of the other
remaining provisions, clauses, sentences, sub-sections, words or parts of this DECLARATION
or their application to the Lot or other persons or circumstances. It is hereby stated to be the
intention of the DECLARANT that this DECLARATION would have been adopted if such
illegal, invalid or unconstitutional provision, clause, sentence, sub-section, word or part had not
been included therein, and if such person or circumstance to which the DECLARATION or part
thereof is held in applicable, had been specifically exempted therefrom.
16. Approval by Municipality. The Town of Wappinger is executing this
DECLA.R.ATION as its acknowledgment and acceptance of its terms and as an
7 C&F: 2268096.1
acknowledgement that the Subdivision Map/Site Plan and SWPPP have been approved and
accepted by the Town.
IN WITNESS WHEREOF, the DECLARANT and the TOWN OF WAPPINGER have
executed this DECLARATION on the day and date first above
PARTNERS LLC
By:
Declarant
BARBARA GUTZLER, Supervisor
Town of Wappinger
Approved:
TOWN OF WAPPINGER
BY:
Robert L. Valdati, Chairman of the Planning Board
STATE OF NEW JERSEY )
ss:
COUNTY OF
On the ~ day of ~~_, 2 ~ before me, the undersigned, personally
appeared Chris Turner, 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 upon behalf of which the individual
acted, executed the instrument, and that such w e such appearance before the
undersigned in the (insert city or other yolifical subdivision) ~ ~~nl~~ ~ w New Jersey.
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Notary Public ~~~ C, DONOVAN
N~f1tRY PUBLIC OF NEVI JERSEY
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STATE OF NEW YORK
ss:
COUNTY OF DUTCHESS )
On the 'day of 20_, before me, the undersigned, 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/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
STATE OF NEW YORK )
ss:
COUNTY OF DUTCHESS )
On the day of , 20_, before me, the undersigned, 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/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
9 GkF: 2268W6.1